Black Metropolis Research Consortium
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Rights, Remedies, and Texas’s S.B. 8
No full textIt is not every day that a state enacts a law that is designed to prevent people from exercising a constitutional right. The Texas statute known as S.B. 8 is such a law. It prohibited pre-viability abortions at a time when that prohibition was unquestionably inconsistent with the Supreme Court’s decisions. S.B. 8 then accompanied the prohibition with procedural rules that served no discernible purpose except to make it very difficult for anyone to challenge the law. The question that a law like that raises—or ought to raise—is whether our system of constitutional remedies has the resources to prevent a state from doing what Texas did.
In Whole Woman’s Health v. Jackson,1 the case in which the Supreme Court upheld S.B. 8, the Court did not ask that question. As a result,the Court gave the wrong answers to the questions it did ask. The answers it gave may also suggest that the Court is prepared to limit federal courts’ power to enforce the Constitution in ways that go beyond the specific circumstances of S.B. 8. Those limits, if the Court were to follow through on the suggestions in Whole Woman’s Health, would be inconsistent with established principles that are central both to enforcing constitutional rights and to the supremacy of federal law.
The law governing federal remedies for constitutional violations is an amalgam of doctrines that are drawn from various sources and that developed at different times in history. Some of these doctrines have plausible policy justifications. Others, such as sovereign immunity,are with us today primarily because of their historical pedigree. Some combine those features, as principles like sovereign immunity have adjusted, but often only partially, to allow remedies for constitutional violations. In addition, these doctrines have developed through evolving lines of precedent, with the uncertainties that often accompany such development. As a result,“it is hard to provide a coherent account of the seemingly disparate parts of this aspect of our constitutional tradition. 2
One appealing candidate for a unifying principle—stated by Black-stone and quoted in Marbury v. Madison—is that there must be a remedy for every legal wrong.3 That is too unequivocal, as Marbury itself recognized; sovereign and official immunities, the lack of a cause of action,limitations on the form of relief, as well as familiar features of the law like statutes of limitations and preclusion rules, can cause violations to go unremedied. To put the point more generally, the government, to further its legitimate interests, may limit or shape the remedies that are available for alleged violations, with the result that there may be no remedy in some categories of cases.4 But Blackstone’s maxim does at least state an other-things-equal aspiration that, in turn, suggests away to approach questions about constitutional remedies.5 If a violation of a constitutional right is to go without a remedy, there should be a reason for allowing that to happen. That approach is reflected in a long tradition of courts designing remedies to provide for the more effective protection of individuals’ rights when there is no good reason to deny protection. When a state enacts a law, like S.B.8, that has “the clear purpose and actual effect” of preventing people from exercising a federal constitutional right,6 courts should, at least, resolve the inevitable uncertainties in our system of constitutional remedies in favor of allowing a remedy.
As it happens, identifying a remedy in Whole Woman’s Health was,in the end, not that difficult, and the Court’s holding to the contrary was mistaken. It is unclear how significant the specific holding of Whole Woman’s Health will be: the strategy that Texas used will not always be effective, and states may not want to use it even when it is. Among other things, states may not want to prevent individuals from exercising their constitutional rights. But beyond the specific holding,aspects of the Court’s opinion suggest an approach to constitutional remedies that threatens the supremacy of the Constitution and the principle reflected in Blackstone’s maxim—that courts should, to the extent that other values permit, shape constitutional remedies to protect constitutional rights.
Grid Reliability Through Clean Energy
Get PDFIn the wake of recent high-profile power failures, policymakers and politicians have asserted that there is an inherent tension between the aims of clean energy and grid reliability. But continuing to rely on fossil fuels to avoid system outages will only exacerbate reliability challenges by contributing to increasingly extreme climate-related weather events. These extremes will disrupt the power supply, with impacts rippling far beyond the electricity sector.
This Article shows that much of the perceived tension between clean energy and reliability is a failure of law and governance resulting from the United States’ siloed approach to regulating the electric grid. Energy regulation is, we argue, siloed across three dimensions: (1) across substantive responsibilities (clean energy versus reliability); (2) across jurisdictions (federal, regional, state, and sometimes local); and (3) across a public–private continuum of actors. This segmentation renders the full convergence of clean-energy and reliability goals extremely difficult. Reliability-focused organizations operating within their silos routinely counteract climate policies when making decisions about how to keep the lights on. Similarly, legal silos often cause states and regional organizations to neglect valuable opportunities for collaboration.
Despite the challenges posed by this disaggregated system, conceptualizing the sphere of energy reliability as siloed across these dimensions unlocks new possibilities for reform. We do not propose upending energy law silos or making energy institutions wholly public. Rather, we argue for calibrated reforms to U.S. energy law and governance that shift authority within and among the silos to integrate the twin aims of reliability and low-carbon energy. Across the key policy areas of electricity markets, transmission planning and siting, reliability regulation, and regional grid governance, we assess changes that would integrate climate and reliability imperatives; balance state, regional, and federal jurisdiction; and reconcile public and private values. We believe this approach to energy law reform offers a holistic and realistic formula for a cleaner, more reliable grid
Regulatory Diffusion
Get PDFRegulatory diffusion occurs when an agency adopts a substantially similar rule to that of another agency. Indeed, regulatory texts proliferate just like other forms of law do. While this insight has been explored across countries, this dynamic also occurs closer to home: American administrative agencies regularly borrow language from one another. Our research shows that, in recent years, agencies reused one out of every ten paragraphs of the Code of Federal Regulations. These findings are timely given the Supreme Court’s call for judges to be less deferential to agency regulatory interpretation. There is thus newfound significance to understanding how legislative rules are written and why.
This Article explores the descriptive and normative implications of regulatory diffusion. The empirical analysis reveals a fairly steady rate of text reuse, with a notable increase during the Trump Administration—perhaps the result of well-documented staffing problems and vacancies. More generally, the number of both borrowing and lending agencies has increased, with a relatively small number of agencies borrowing text from an increasingly larger group. In other words, regulatory text has diffused from more agencies. This behavior appears to vary by whether the agency is executive or independent in nature.
These findings raise important questions about whether such diffusion is desirable, as well as how to interpret the regulations that result. To assess the relevant tradeoffs, we propose that agencies should be required to explain why they are emulating other regulatory texts to allow executive-branch oversight over the practice. We also argue in favor of the in pari materia canon—the idea that similar regulations should be interpreted similarly by judges—and propose ways for judges to determine when and how to apply it
Sovereign Debt and Moral Hazard: The Role of Collective Action and Contractual Uncertainty
No full textThe ambiguous phrasing of pari passu (equal treatment) clauses in sovereign debt contracts has long baffled commentators. We show that in the presence of asymmetric information about a sovereign borrower’s ability to pay, an uncertain clause gives rise to a collective-action problem among creditors that can reduce the sovereign’s moral hazard. By varying the clause, parties can calibrate a sovereign’s expected default costs and payments to creditors and thereby optimally trade off the sovereign’s moral hazard and (deadweight) default costs. As information asymmetry decreases, a pari passu clause becomes a coarser instrument for configuring creditors’ incentives and mitigating moral hazard.
So that the door might not be shut in the face of borrowers. (Babylonian Talmud
Unconstitutional States of Emergency
No full textNine of 10 modern constitutions contain explicit emergency provisions describing who can declare a state of emergency (and under what conditions) and the additional powers the government enjoys under a state of emergency. As states of emergency typically allocate additional powers to the executive, they lend themselves easily to abuse and provide political incentives to declare emergencies. In this paper, we analyze the conditions under which government behavior under a state of emergency deviates from constitutional provisions and a gap between de jure provisions and de facto behavior thus results. In a novel data set comprising 853 emergency declarations, 115 are identified as unlawful. We find that autocratic governments are more likely than democratic governments to violate the constitution. The requirement that a second chamber approve the emergency declaration is associated with a higher likelihood of its being unconstitutional
The Role of Transnational Civil Society in Shaping International Values, Policies, and Law
Get PDFThis Essay suggests that predictions about the character of international law in the context of rising authoritarianism may be nuanced by paying closer attention to the influence of transnational civil society (TCS) on global affairs and normative development. While acknowledging that pro-liberal civil society has faced escalating threats from authoritarian governments in recent years, the Essay highlights the resilience, adaptability, and creativity of TCS, which finds ways to remain active and harness sources of strength despite those threats. However, TCS is not always pro-liberal, and there is evidence of strong anti-liberal civil society influence as well. Whether or not authoritarian international law takes hold therefore depends not only on the will of authoritarian heads of state to survive in power, but also on the ability of pro-liberal TCS to campaign fiercely and proactively for the defense of democracy and human rights
Regulatory Diffusion
Get PDFRegulatory diffusion occurs when an agency adopts a substantially similar rule to that of another agency. Indeed, regulatory texts proliferate just like other forms of law like constitutions, statutes, and contracts do. While this insight has been explored across countries, this dynamic also occurs closer to home: American administrative agencies regularly borrow language from one another. By our measure, in recent years, agencies reused one out of every ten paragraphs of the Code of Federal Regulations from another rulemaking. These insights are timely given a recent Supreme Court decision calling for judges to engage in less deferential regulatory interpretation. As a result, there is newfound significance as to questions of how legislative rules are written and why.
This Article explores the descriptive and normative implications of regulatory diffusion. The empirical analysis reveals a fairly steady rate of text reuse, with a notable increase during the Trump Administration – perhaps the result of well-documented staffing problems and vacancies. More generally, both the number of borrowing and lending agencies has increased, with a relatively small number of agencies borrowing text from an increasingly larger group. In other words, regulatory text has diffused from more agencies. This behavior appears to vary by whether the agency is executive or independent in nature.
These findings raise important questions about whether such diffusion is desirable, as well as how to interpret the regulations that result. To assess the tradeoffs, we propose that rulewriters should be required to explain why they are emulating other regulatory texts to allow executive branch oversight over the practice. We also argue in favor of the in pari materia canon—the idea that similar regulations should be interpreted similarly by judges—and propose ways for judges to decide when and how to apply it
Vertical Disintegration: The Effect of Refiners’ Exit from Gasoline Retailing on Retail Gasoline Pricing
No full textThe net effect of vertical integration on consumer welfare depends on the magnitude of the price reductions resulting from the elimination of double marginalization at the integrated firm and the price increases resulting from higher input prices charged to unintegrated competitors. In this paper, we estimate both of these effects in the US gasoline industry by examining the change in relative retail gasoline prices following the vertical separation caused by refiners’ decision to exit gasoline retailing beginning in the mid-2000s. Using station-level price data from Florida and New Jersey, we find that double marginalization caused retail prices to increase by about 1.2 cents per gallon. Estimates of the effect of raising rivals’ costs, while sensitive to the choice of control group, are of a similar magnitude. On net, we find that the average retail price of gasoline was effectively unchanged as the result of vertical separation