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Secret Law
Get PDFThe law cannot be a secret hidden from the public. This proposition strikes most of us as uncontroversial—a basic premise of any legal order committed to democratic accountability and the rule of law. Yet in this country secret law not only exists, but has become an entrenched feature of contemporary national security governance. From NSA surveillance to terrorist watch lists to targeted killings, the most controversial national security programs of our time have all been governed by secret rules, secret directives, and secret legal interpretations.
This Article sheds new light on this deeply unsettling state of affairs. It pushes beyond a reflexive aversion to secret law to unpack the underlying normative principles that both militate against secret law and motivate its widespread use. Secret law poses grave threats to basic values of democratic accountability, individual liberty, and separation of powers, but it also serves pragmatic national security purposes. By clarifying these competing values, it is possible to identify a number of distinct characteristics that make a given example of secret law especially odious—or essentially benign. This Article thus offers a systematic rubric for evaluating particular instances of secret law.
This Article also provides the first systematic review of the legal ecosystem that governs secret law in the Executive Branch—what I call the “law of secret law.” The picture that emerges is startling: existing law gives the Executive Branch enormous discretion to keep law secret. Indeed, the courts have effectively endorsed the practice of secret law, and Congress has been almost entirely quiescent in its face.
This Article proposes a novel reform agenda to transform this permissive legal ecosystem into one that more adequately protects transparency values. It offers core principles for a new framework statute limiting the practice of secret law. In addition, it argues that courts can and should prompt democratic deliberation over secret law (and legislative reconsideration of the status quo) by adopting a constitutional clear statement rule against secret law that is grounded in the text and structure of the Constitution
Democratizing Interpretation
Get PDFJudges interpreting statutes sometimes seem eager to outsource the work. They quote ordinary speakers to define a statutory term, point to how an audience understands it, or pin it down with interpretive canons. But sometimes conduct that appears to diminish someone’s power instead sneakily enhances it. So it is, I argue, with these forms of interpretive outsourcing. Each seems to constrain judges’ authority by handing the reins to someone else, giving interpretation a democratized veneer. But in fact each funnels power right back to the judge.
The outsourcing approaches I describe show a disconnect between the questions judges pose and the methods by which they seek answers. That disconnect allows judges to avoid normative and empirical decisions central to interpretation. Rather than taking a stand on which community’s speech matters in a democracy, judges pick quotations they like, or turn to empirical techniques like corpus linguistics without acknowledging the underlying decisions they require. Rather than identifying whom statutes address and considering their attitudes, judges speak for an audience they do not listen to. Rather than articulating what purposes canons serve, judges choose a rule that appeals.
Outsourcing seems to alleviate countermajoritarian difficulties by democratizing interpretation and yielding some interpretive certainty. But our common-law adjudication system empowers judges to maintain indeterminacy, creating moments of provisional closure always subject to reinterpretation. Rather than evaluating how well judges resist the authority our system gives them, we should ask how well they justify the way they wield it. Really democratizing interpretation, I argue, involves both considering what methods can yield answers to judges’ questions, and recognizing the limitations of any method. It also means acknolwedging that interpretation remains presumptively open to contestation. Such openness and humility is implicit in the requirement of judicial reason-giving. And it democratizes interpretation more than outsourcing can
The Law of Advertising Outrage
Get PDFThis article examines the stimulation of audience outrage, both as a marketing strategy and as a subject of legal regulation. A brief history of advertising in the United States reveals repeated yet relatively infrequent attempts to attract consumer attention through overt transgressions of social norms relating to sex, violence, race, and religion. Natural concerns over audience reaction limited use of this particular advertising tactic as businesses needed to be careful not to alienate prospective purchasers. But now companies can engage in “algorithmic outrage”—social media advertising meant to stimulate individual feelings of anger and upset—with less concern for a consumer backlash. The ability to segregate audiences based on psychological profiles enhances the effectiveness and reduces the risk of shocking advertising. Should anything be done about outrageous advertising? Different government regulators have long sought to protect public sensibilities from shocking commercial appeals. Recently, however, the legal doctrine undergirding advertising regulation has changed. The courts have become skeptical of efforts to police advertising outrage, recognizing First Amendment arguments on behalf of commercial speakers that once would have been given no legal credit. The article closely examines the 2017 US Supreme Court decision Matal v. Tam, which prompted the end of a nearly century-old prohibition on the registration of “scandalous” trademarks, to illustrate this trend
The Security Court
Get PDFThe Supreme Court is concerned not only with the limits of our government’s power to protect us, but also with how it protects us. Government can protect us by passing laws that grant powers to its agencies or by conferring discretion on the officers in those agencies. Security by law is preferable to the extent that it promotes rule of law values—certainty, predictability, uniformity, and so on—but, security by discretion is preferable to the extent that it gives government the room it needs to meet threats in whatever form they present themselves. Drawing a line between security by law and security by discretion is an important and long-standing jurisprudence of the United States Supreme Court, although it is rarely acknowledged as such and entangled with the more general law of separation of powers. In some separation of powers cases, however, where both political branches have a colorable textual and historical claim to exercise authority, it is the Court’s concern with preserving the rule of law or making room for necessary discretion that tilts the balance in favor of one branch or another. This Essay begins by examining an important nineteenth-century case, In re Neagle, and shows how Justices cleaved around the distinction between security by law and security by discretion. This Essay then describes a line of cases, beginning in the early republic, in which the Court was concerned with how government secures us. Finally, this Essay identifies cases when the Court shrunk from this role and explains why
Defining the Economic Pie, Not Dividing or Maximizing It
Get PDFThis essay challenges the question that drives much of legal analysis: whether to maximize or divide the “economic pie.” Regardless of the answer, this question skews legal analysis and rests on dubious economics. This framing binary inherently presents economic maximizing as the presumptive norm, represented as superior to socioeconomic distribution in both spatial and temporal dimensions. By definition, economic “maximizing” stands larger in scope and first in order. The essay first critiques the idea that legal analysis can aim to make the economy bigger without engaging contested questions of value and politics, showing how this misleading separation of quantity from quality closes off rigorous thinking about legal institutions and processes vital to meaningful economic prosperity. Second, the essay challenges the binary’s sequential presentation of social justice as “redistribution” occurring after an imagined step of economic maximizing. That sequence sets up a narrative that distorts and narrows our vision of both the causes and solutions to problems of inequality and other social and environmental qualities. Instead, law and economic analysis should focus on how law should define the “economic pie,” recognizing that moral and political questions of justice are fundamentally inseparable from questions of economic gain
