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Crimes Without Law: Administrative Crimes and the Nondelegation Doctrine
Full text linkThe future of the nondelegation doctrine is clouded with uncertainty. Despite the Supreme Court’s insistence that the nondelegation doctrine is an axiom of constitutional law, the doctrine remains an illusory constraint on Congress. Indeed, almost a century has passed since the Court invalidated a congressional delegation under the nondelegation doctrine. But several Justices appear eager—or at least willing—to revive the nondelegation doctrine.
This Comment charts an originalist path forward. It primarily argues that the original meaning of legislative power restrains Congress from delegating legislative authority to write criminal law. The constitutional enactors believed that core private rights—to life, liberty, and property— required greater statutory specificity to regulate than public rights. Private rights thus restrain Congress from delegating carte blanche authority to agencies to criminalize conduct because the statute authorizing such a delegation will necessarily lack specificity. A criminal statute cannot concomitantly entail statutory specificity and delegate necessary details— such as the actus reus—to the Executive Branch.
Unsurprisingly, the Founding Era historical record reflects a dearth of legislative delegations to write criminal law. This lack of evidence is expected. Administrative crimes would have enabled the Executive Branch to unilaterally regulate the core private right to liberty, and often the private right to life, given the proportion of federal offenses that were capital offenses. Nevertheless, the absence of criminal law delegations need not present dispositive evidence that a categorical prohibition on such delegations existed. However, if a compelling originalist argument exists for the nondelegation doctrine, it must account for the private/public rights distinction that permeated Founding Era legal practices.
The contemporary practice of administrative crimes departs from the original meaning of legislative power. Congress increasingly delegates legislative authority to administrative agencies to determine whether and how particular statutes will create federal offenses. Most—if not all— delegations that enable administrative agencies to unilaterally create administrative crimes will lack statutory specificity. This practice conflicts with the originalist private/public rights taxonomy. But it also remains in tension with fundamental principles of Anglo-American criminal jurisprudence—including nullum crimen sine lege, the rule of lenity, the void-for-vagueness doctrine, and the prohibition on federal criminal common law
The Meaning of Life, in Michigan: Mercy from Life Sentences Under the State Constitution
No full textProperly understood, the “cruel or unusual” punishment clause of the Michigan Constitution grants every person sentenced to life in prison a meaningful right to obtain release through rehabilitation. Today, however, Michigan has among the nation’s largest populations of people serving both formal and de facto life sentences without any meaningful possibility of release.
In 1850, Michigan revised its state constitution to prohibit “cruel or unusual punishment,” creating a contrast with the conjunctive “cruel and unusual punishments” clause of the federal Eighth Amendment. This disjunctive prohibition, which subsequent Michigan constitutional conventions retained, prohibits both “cruel” sentences and “unusual” sentences. We argue that under the original meaning of Michigan’s “cruel or unusual punishment” clause, life without parole sentences violate the state constitution.
Admittedly, there is no direct evidence of what would have made a sentence “cruel” for the drafters of the 1850 constitution. We therefore turn to two other sources for clues—debates surrounding a different provision of the 1850 constitution and evidence of parole and commutation practices at that time. Both sources point to the same conclusion: “cruel” punishments foreclose a meaningful opportunity for future release based on rehabilitation.
Consistent with this original understanding, Michigan rejected permanent punishments for well over 100 years after the 1850 convention. Michigan did not send people to prison without a chance of release. Instead, even people technically serving “life without parole” were routinely considered for and awarded release based on rehabilitation, making permanent incarceration “unusual” to the point of nonexistent.
Michigan today has one of the nation’s largest populations of people serving both formal and de facto life sentences without any meaningful possibility of release. Thus, as practiced in Michigan today, life sentencing is “cruel” and “unusual”—and thus doubly unlawful under the original meaning of the “cruel or unusual punishment” clause
Control as a Constitutional Threshold: Moody v. Netchoice and the Case for Human Authorship
No full textThe Supreme Court’s 2024 decision in Moody v. NetChoice, LLC left a critical question unanswered: when do algorithmic outputs on social media platforms, such as recommended posts and videos, constitute the platform’s protected speech under the First Amendment? This Note contends that courts and litigants should borrow from the First Amendment’s speech-promoting partner, copyright law, and its authorship framework when answering that question. Copyright doctrine has already begun to grapple with how much human control is required over expressive outputs generated with the aid of technology, including AI, in order for an author to receive copyright protection over those outputs. Applying copyright law’s approach in the First Amendment context can help courts distinguish between algorithmic uses that reflect genuine human authorship—and thus merit protection—and those that do not. Importantly, following copyright’s legal framework could prevent courts from accidentally granting protection to harmful algorithmic uses and shielding such uses from necessary government regulation
“Sport-Extortion:” Causes, Consequences, and Solutions
No full textThe modern U.S. stadium-development model enables “sport-extortion,” a phenomenon in which franchise owners leverage artificial scarcity, antitrust carve-outs, and credible relocation threats to extract public subsidies that deliver negligible public benefits. Owners use the league’s monopoly power and superior negotiating leverage to pit cities against one another and extract public money for new stadiums or upgrades to their existing stadiums. The owners and community leaders who support using public money to finance these projects promise huge economic returns and development for their communities. However, a survey of the empirical literature and examination of recently approved stadium projects reveal that these projects often lead to minimal gains in income or employment from new venues; real-estate effects are localized to the areas immediately surrounding the stadium, and the effects are mixed; and intangible “civic pride” benefits are overvalued due to public-choice problems that favor a vocal minority. If these projects were privately financed, there would be little concern with the minimal return on investment to the community. However, the recent trend of cities providing substantial public funding means that taxpayers are bearing the cost of projects that primarily benefit private interests. This Note evaluates potential policies that could realign the private incentives of the leagues and teams with the public welfare of the communities that the franchises call home. The policies considered in this Note are tightening restrictions on federal tax-exemption for stadium-related municipal bonds and more cautious use of Tax Increment Financing by including robust “but-for” tests and private risk-bearing; restricting the use of eminent domain in stadium projects; and clarifying or expanding league-specific antitrust immunity to impose federally guided relocation criteria. This Note concludes that an approach combining tax reform, disciplined public-finance tools, and calibrated antitrust adjustments offers the most likely path to protect taxpayers while preserving the legitimate community benefits of professional sports
The Renaissance of Private Law
Full text linkCrisis is the new normal. Between global warming, the opioid pandemic, bursts of gun violence, and political instability fueled by fake news, it is hard to remember a time when we were not facing a major catastrophe. Still more troubling, there is a growing sense that our political and regulatory institutions are faltering in their ability to offer effective responses to the incoming crises. The rapid pace at which new problems emerge—together with growing political polarization—stymies regulatory and legislative action, resulting in an inability to address contemporary challenges.
Against this gloomy background, we posit an unlikely hero: private law. Recent bursts of social activism in private litigation have led to impressive legal victories and multibillion-dollar awards in areas ranging from gun control to climate change. These achievements go a long way towards fashioning better legal responses to contemporary crises where governmental regulation has failed to do so. These victories are doubly surprising considering the supposed dominance of public law and regulation over private law as the primary legal framework for promoting broad policy goals. Thus, in the age of regulation we now inhabit, one would expect private law to take a back seat as the regulatory machinery—now more elaborate, capacious, and fine-grained than ever—takes charge. In this Article, we show that the exact opposite has happened. Contrary to expectations, private law not only remains relevant but often emerges as the most effective response to deep contemporary problems.
To explain this seeming puzzle, we offer a comparative institutional analysis that highlights the multiple advantages of private law relative to regulation. The unique structural features of private law make it more flexible, adaptable, and responsive to rapid changes. Private law institutions, for various reasons, are also less susceptible to capture and can resist the effects of political polarization. Indeed, the rise in the importance of private law is due primarily to the decline of our political institutions. Not only does private law have various structural advantages over regulation, but it is also more democratic in that it provides a platform for a wealth of diverse preferences.
Drawing on these insights, we move to our normative mission. We propose a series of procedural and substantive reforms that would facilitate and enhance the use of private law doctrines as legal responses to contemporary crises. Specifically, we explain how improving class actions, qui tam suits, and the cy pres doctrine could empower individual agents of change. We also call for the relaxation and modification of doctrinal elements of causation and harm. Finally, we come full circle by advancing a comprehensive account of the interaction, synergies, and complementary effects between regulation and private law
Dick Fallon: A Northwestern Tribute
No full textLike so many others—friends, family, former students, colleagues, and practically everyone who knew him well—I was shattered by the news of Dick Fallon’s death. Dick and I had grown close over the years in a friendship that developed slowly and evolved into one we came to treasure. He had a Midwestern sensibility: soft-spoken, humble to a fault, kind-hearted, far-sighted, reflective, family-oriented, keen to put folks at ease and to downplay his own accomplishments. (His example forces me to admit that perhaps New Englanders share these virtues with Midwesterners.) But alongside his native humility, he also had a fierce commitment to ideas, to getting the law right—especially the constitutionally-inflected law of federal jurisdiction. One can see both sides of Dick, the gentle humility and argumentative tenacity, in his appearance at Northwestern Law School in March 2012 as part of a festschrift honoring the scholarship of Northwestern’s own Marty Redish
Malapportionment: A Murder Mystery
No full textMalapportionment—electoral districts with divergent ratios of people to representation—was ruled to be unconstitutional in a widely venerated series of cases before the Warren Court. Those cases held that a principle of political equality, one person, one vote, is required by the Constitution. But what is the content of that principle? Many Justices and commentators declare that it is vague, empty, circular, or meaningless. This creates a murder mystery. Malapportionment was killed, but by what exactly? This Article seeks an answer by focusing on the Supreme Court’s commitments about the scope and strictness of one person, one vote: it is a broad (rather than narrow) principle of rough (rather than exact) equality. As such, one person, one vote requires an equal number of people per district and an equal number of votes per voter; and it requires only a roughly equal number of people per district. These commitments are attractive in isolation. But, this Article shows that they are objectionable in conjunction: they entail that one person, one vote is too permissive, as it only requires a roughly equal number of votes per voter. If your vote is roughly equal to mine when your district is fractionally more populous than mine, your vote is also roughly equal to mine when I can cast fractionally more votes than you.
Since this problem follows inexorably from the Court’s commitments about the scope and strictness of one person, one vote, there are two possible solutions. First, one person, one vote could be a broad principle of exact equality; administrability may then justify underenforcing the principle in distributing voters to districts, but not in distributing votes to voters. Second, one person, one vote could include a narrow principle requiring rough equality in apportionment, as well as a distinct principle requiring exactly equal votes per voter. These solutions have important constitutional implications—including for resolving the population baseline at issue in malapportionment, which remains uncertain after the Supreme Court’s decision in Evenwel v. Abbott. But neither provides an easy way out. Each makes one person, one vote either too restrictive or too permissive.
This puzzle brings to light why the operative principle in a venerated series of cases is deeply unclear and unsettled. But it has a special significance beyond that. One person, one vote lies at the heart of America’s constitutional democracy, which is already under considerable threat. On the one hand, if the content of the principle is too restrictive (or too uncertain), then objections to its constitutionality are considerably strengthened. On the other hand, if it is too permissive, then one person, one vote provides little constraint on Vice President J.D. Vance’s recent proposal to give extra votes to parents, as well as myriad similar policies and procedures that would erode voters’ equality at the ballot box
Regulating Cryptocurrency Airdrops
No full textA significant number of blockchain users is U.S.-based. However, regulatory ambiguity imposes barriers for U.S. users to fully and legally embrace blockchain technology, especially when it comes to cryptocurrencies. The industry remains rife with bad actors and inadequate regulation that consequently harm investors. Recently, a phenomenon known as cryptocurrency airdrops—widely viewed as “free” token distributions to incentivize blockchain adoption and promote decentralization—has drawn significant attention. But is this just another sham under the guise of the commonly touted “decentralization” ethos of blockchain technology?
The Securities and Exchange Commission (SEC) has maintained that most cryptocurrencies are securities subject to regulation. However, it has not clarified whether airdrops are securities, including the manner in which they are issued. In response, members of Congress have urged the SEC to provide clarity by emphasizing concerns about stifled innovation, missed financial opportunities, and the potential offshoring of blockchain advancements. Similarly, blockchain attorneys contend that because airdrops are freely distributed, they are not securities and are therefore exempt from SEC regulation.
This Article reveals, first and foremost, that, contrary to popular belief, airdrops are not free despite their misleading label. Airdrops have evolved from mere giveaways toward a model of financial reciprocity, where projects capitalize on cryptocurrency distributions to incentivize user adoption and investment. This finding reflects an increasing number of startup projects vying for limited user engagement, the process of which creates mutual financial interdependence between projects and their users. This Article argues that as long as airdrops involve such reciprocity, they constitute securities that fall squarely within the purview of SEC regulation.
Furthermore, this Article contends that while the public, members of Congress, and blockchain attorneys’ concerns regarding airdrops are valid, they overlook several critical issues. From a systemic perspective, airdrops fail to advance decentralization as the core ethos of blockchain technology. From a legal standpoint, airdrops create three alarming problems. First, project-user interactions often create express or implied-in-fact contracts, which may expose blockchain projects to civil liabilities over disputes about “fair” airdrop allocations. Second, these contractual relationships, while not necessary, evidence a quid pro quo financial arrangement that supports the economic reality analysis in the Howey test. This renders the issuance of airdrops investment contracts and, therefore, securities. Third, airdrops encourage unethical and manipulative practices, such as deceptive marketing, wash sales, and insider trading, that ultimately harm genuine users and investors. The totality of these problems necessitates regulatory oversight for adequate user protection