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Not Colorblind
Full text linkThis Essay criticizes the use of the term “colorblind” in reference to attacks on racial diversity, equity, and inclusion (DEI) policies. It argues it is inapt and unconscionably obtuse to use colorblindness terminology to selectively target inclusion-motivated race consciousness for automatic illegality. The Essay’s central project is to examine claims underlying attacks on racial inclusion policies such as the Students for Fair Admissions, Inc. v. President and Fellows of Harvard College lawsuit to expose the legal endgame that anti-DEI forces seek to make a centerpiece of America’s future. In so doing, it surfaces the differential scrutiny of race consciousness that the not-colorblind attacks on DEI seek to install
Against Monetary Primacy
Full text linkTo reduce inflation, the Federal Reserve (Fed) raises interest rates. But every month with high interest rates increases the risk of a devastating recession. Recessions impose not only short-term pain in the form of widespread unemployment but also lifelong harm for many, as vulnerable workers and those who start their careers during a downturn never fully recover. Yet hiking interest rates is the centerpiece of U.S. inflation-fighting policy. When inflation is high, the Fed raises interest rates until inflation is tamed, regardless of the consequent sacrifices. We call this inflation-fighting paradigm “monetary primacy.” Despite its great risks, monetary primacy has remained unchallenged by either political party and largely ignored by legal scholars.
This Article exposes monetary primacy’s incoherence and proposes an alternative framework that relegates interest rate hikes to a supporting role in the fight against inflation. Governments possess other policy tools for controlling inflation that are better situated to lead. Examples include supply-side reforms to sectors facing bottlenecks, tighter fiscal policy, and more vigilant antitrust and consumer law enforcement. Between 2021 and 2023, the United States deployed many of these tools, albeit not necessarily motivated by inflation concerns. And while the Fed has received much attention for lowering inflation during this period, it likely had limited impact. Thus, our framework has descriptive power for the astonishing recent success in moderating excess inflation without causing a recession. That reality has, however, been missed—increasing the chances that the Fed keeps rates too high as the economy slows.
Instead of monetary primacy, the Fed should set interest rates at a level that is best for long-term employment and price stability, known as the “natural” rate of interest. If inflation remains too high when interest rates equal the natural rate, then the Fed, the Executive Branch, and Congress should compare the sacrifice associated with raising interest rates above their natural rate to the alternative policy tools and choose the least costly option. We assert that, in many but not all cases, the preferred option will not be elevated interest rates, and we propose reforms to enable other institutions to respond effectively to inflation alongside the Fed. This proposal would shift U.S. policy from monetary primacy to macroeconomic pluralism, which means leveraging an array of economically beneficial (or at least less harmful) tools. In both the short term and the long term, moving away from monetary primacy will help increase the chances of conquering inflation, avoiding a recession, and expanding economic opportunity
A History of Post-Roe America and Canada: From Intertwined Abortion Battles to Dobbs
Full text linkThe changing landscape on abortion following Dobbs has not only sparked a vigorous debate in the United States, but also abroad. Its recriminalization in America led to an outcry in peer Western democracies, whose leaders widely condemned the U.S. Supreme Court’s decision. Yet the social and historical reasons for this international divide are poorly understood.
This Article sheds light on the question through an in-depth comparison of America and Canada from Roe to Dobbs, as the neighboring nations’ abortion histories have been intertwined in intriguing and overlooked ways. When the U.S. Supreme Court decided Roe v. Wade in 1973, it heartened Canadian reformers who repeatedly cited Roe as a model to follow. The Supreme Court of Canada would not decriminalize abortion until 1988 in its landmark Morgentaler decision—fifteen years after Roe. This history, documented with original English- and French-language sources, reveals as much about America as about Canada.
If both countries had seemingly converged in liberalizing abortion once their high courts reached these seminal decisions, their paths would markedly diverge in subsequent decades. In America, the pro-choice movement increasingly was on the retreat after Roe as anti-abortion forces gained ground. In Canada, by contrast, the anti-abortion movement gradually collapsed following Morgentaler, as in much of the modern Western world. Still, in each country jurisdictions opposed to abortion tried to regulate it out of existence. It was not before 2016 that Prince Edward Island—the last Canadian province to hold out—joined the rest of the country in allowing abortion. Only a few years later, the U.S. anti-abortion movement succeeded in overturning Roe, leading to the recriminalization of abortion in over a dozen American states in stark contrast to the historical evolution of reproductive rights.
Americans seeking to reinvigorate reproductive rights point to Canada as a model to follow in the post-Dobbs era. Canada now protects abortion far better than the neighbor from which it once sought inspiration. This extraordinary historical reversal and role reversal deserves closer attention, as it offers insight into numerous dimensions of the abortion debate
Co-optive Constitutionalism
Full text linkIn this Article, we introduce the concept of co-optive constitutionalism, a rhetorical mechanism through which the U.S. Supreme Court dismantles civil rights protections while paradoxically employing civil rights language to legitimize these regressive outcomes. Through a detailed analysis of the majority, concurrences, and dissents in Students for Fair Admissions v. Harvard, we demonstrate how the Court\u27s conservative majority strategically appropriates progressive ideals, selectively quotes precedent, and redefines equality to justify overturning decades-long precedent permitting race-conscious admissions. We situate co-optive constitutionalism within the broader conservative legal political movement spearheaded by the Federalist Society, revealing how judicial rhetoric aligns with conservative political tactics to reshape American law. This analysis illuminates how the Court’s rhetorical strategies have already triggered a cascade of consequences beyond higher education, including challenges to DEI initiatives, military academy admissions, and corporate diversity programs. By identifying and naming this mechanism, we contribute to scholarly efforts to document and resist the Court\u27s erosion of civil rights protections
Louboutin Lawfare: Exploring Conceptions of Sanctions\u27 Utility Through Export Controls on Luxury Goods
Full text linkThere is widespread consensus amongst scholars that sanctions—the deliberate withdrawal of customary trade and financial relations—do not work. Despite this perception, states are deploying sanctions at an increasing rate. This Article explains this paradox by arguing the predominant notion of sanctions’ utility employed by scholars is unduly constrained, narrowly focusing on the ability of such measures to modify the behavior of sanctioned parties while disregarding the alternative benefits this instrument can deliver. To support this argument, this Article uses export controls on luxury goods deployed in connection with the Russo–Ukraine War as a case study. Under prevailing perceptions of sanctions’ utility, these measures would be considered unsuccessful on their face—it is unlikely constraining access to luxury goods would end the war. Yet the export controls were levied nonetheless. To explain the deployment of these and other sanctions, this Article asserts sanctions offer a wide range of benefits beyond behavioral modification. Drawing on international relations theory, it examines how such measures can be used to shape international law, send important messages to domestic and foreign audiences, internalize international norms amongst domestic constituencies, and impact the relative balance of power between sanctioned and sanctioner. In doing so, this Article offers a descriptive account that not only explains the contradiction at the heart of sanctions usage—a contradiction prevailing discourse has not meaningfully addressed—but presents a starting point for a paradigm shift in conceptions of sanctions’ utility that will enable a more pragmatic understanding, evaluation, and usage of sanctions
Constraining the Executive Branch: Delegation, Agency Independence, and Congressional Design of Judicial Review
Full text linkWhile scholarship examining the relationship between Congress, federal agencies, and the judiciary reveals variation in the statutory details that affects administrative and judicial decision-making, few studies explore the extent to which congressional delegation decisions balance both the substantive and procedural independence of agencies against the possibility of the federal judiciary’s review of administrative action.
This Article enhances scholarly understanding of delegation by providing a qualitative, theoretical, and empirical account of the circumstances under which Congress manipulates federal agency exposure to the federal judiciary. Ironically, combined with statutory provisions dictating agency independence, increasing an agency’s exposure to unelected federal judges can increase administrative responsiveness to elected legislators.
Using a motivational case study of federal energy policy from the 93rd to 110th Congresses, this Article highlights how, during the legislative process, Congress’s members’ delegation decisions account for agency independence and administrative exposure to the courts. Based on the findings of this case study, the Article develops a new theoretical account of legislative choices over Executive Branch exposure to the federal judiciary. This Article then presents an empirical examination of significant legislation from the passage of the Administrative Procedure Act through 2016 to assess the factors influencing legislative choices regarding delegation, agency independence, and Executive Branch exposure to the judiciary.
In doing so, this Article makes several important contributions. First, by broadening scholarly discussions of agency design, delegation, and administrative responsiveness to elected officials, the Article illustrates how underappreciated factors—including political volatility, technical uncertainty, and administrative structure—influence the parameters under which Congress delegates. Along with agency independence, political coalitions strategically adjust the availability of judicial review to account for the practical realities of governance. Specifically, political coalitions increase administrative exposure to the courts as political volatility and the autonomy of agency leadership increase. Political coalitions decrease agency exposure to the courts as the complexity of the administrative policy arena increases and the availability of political review decreases.
Considered in its entirety, this Article suggests that legislative decisions regarding judicial exposure can enhance or diminish the effectiveness of other statutory and constitutional tools of democratic accountability, such as administrative procedures or oversight. Simply put, the level of administrative exposure to the judiciary has profound implications for the American separation of powers system of governance
A Practitioner\u27s Response to Excessive Force in Prison : The Real-World Implications of Professor Dolovich\u27s Proposed 8th Amendment Standard
No full textIn Excessive Force in Prison, Professor Sharon Dolovich has proposed a new standard for liability in excessive force cases brought by prisoners against prison officials, shifting the Eighth Amendment analysis from its current deference to correctional officers’ judgment to a “morally robust reasonableness standard.”
While Professor Dolovich’s argument is righteous and compelling, its potential to practically impact prison litigation is lacking. This Article responds to Professor Dolovich’s recent piece from the perspective of a practitioner with decades of experience litigating prisoners’ rights cases in state and federal court. Based on this experience, this Article suggests that Professor Dolovich’s new excessive force standard is both too broad and too narrow, and it proposes an alternative approach that might better address the practical issues that have hindered litigators’ ability to try excessive force cases on behalf of prisoners
The Unknowns of the Knowledge Requirement: Revisiting the Deliberate Indifference Standard in Prisoner Healthcare
No full textIn the 1976 decision Estelle v. Gamble, the Supreme Court held that “deliberate indifference” to significant health needs of prisoners violated the Eighth Amendment. The standard’s knowledge requirement, however, ensured that prisoners were not guaranteed healthcare under the constitutional standard; rather, the constitutionality of healthcare in prisons would be tethered to the mental state of prison officials. This Article seeks to demonstrate that correctional standards of healthcare occupy an incoherent space in constitutional law. By analyzing the legal standard and the application of the knowledge requirement, this Article exposes the theoretical inconsistency and inadequacy of the deliberate indifference standard—and offers avenues for reform
Do AIs Dream of Electric Boards?
Full text linkWhen artificial intelligence (AI) acquires self-awareness, agency, and unique intelligence, it will attain ontological personhood. Management of firms by AI would be technologically and economically feasible. The law could confer upon AI the status of legal personhood, as it did upon traditional business firms in the past, thus dispensing with the need for inserting AI as property within the legal boundary of a firm. As a separate and distinct entity, AI could function independently as a manager in the way that legal or natural persons do today: i.e., AI as director, officer, partner, member, or manager. Such a future is desirable only if AI as manager creates more value than AI as tool or android serf. The principle of legal personhood is not intrinsically incompatible with the idea of machine person. This Article explores the legal, policy, and economic questions: Could we confer legal personhood on AI? Should we?
This Article answers that the idea of AI as manager, qua legal person, is compelling. Economic and legal theories suggest that the conferral of AI personhood, permitting AI as manager, would create more value. With respect to law and policy, current laws of business firms suffice to provide the essential framework for the future. They mandate that corporate managers must be natural persons, but permit managers of noncorporate firms to be legal persons. This dichotomy provides the appropriate conceptual compromise. The use of AI as manager should be limited to private and noncorporate firms. This compromise, coupled with the limiting conditions identified in this Article, reflects the balances of cost and benefit as well as risk and value. Corporations have always been more consequential enterprises, and permitting AI to serve as corporate officers or directors could impose greater social and economic externalities. Legal personhood of AI would usher in a brave new world, which should be welcomed in the spirit of innovation—but the law should ensure a stable old world