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Get PDFThe author cannot say that she disagrees with any of the analytical observations made by her co-contributors to this roundtable discussion of Fisher v. University of Texas at Austin. They all agree that the Supreme Court plans to use the case as an occasion to do something noteworthy to the constitutionality of affirmative action. And they all agree that the Court’s actions are likely to provide more comfort to opponents than to proponents of racial diversity. Their views diverge only with respect to doctrinal details about what the Court could or should do. But in translating the racial tensions that smolder beneath the concept of affirmative action into the more sanitized doctrinal issues that the Court has made relevant to its discussion of constitutionality, the author fears that we may have lost sight of what is really at stake. At bottom, the affirmative action debate is about our continuing cultural commitment to a long tradition of racial oppression. But by acquiescing in the Court’s effort to obscure that oppression with the patina of doctrine, we run the risk of offering analytical insights that may simply be beside the point
A Natural Experiment: Asset Manager Liability
Get PDFIt is a natural experiment: two highly integrated national economies, sharing a vast continent, a common language and hundreds of years of common experience. They are bound by a free trade agreement which has fostered strong trade flows in goods, services and capital. Yet, in important respects, the structural characteristics of their financial institutions, and the regulatory framework in which they operate, are different, so different in fact, that one country has been crippled for several years now by the global financial crisis and the other has emerged virtually unscathed. The countries, of course, are Canada and the United States. The financial sector in the United States, and its regulation, has been exhaustively documented. Much less consideration has been given to the Canadian side of finance. But in light of the performance of each country in response to the global financial crisis, perhaps it is time to take a closer look. The discussion which follows focuses on one particular corner of the financial sector, asset managers and is based on a study undertaken for a collaborative work on asset manager liability published by Oxford University Press in 2012
Can Vermont Put the Nuclear Genie Back in the Bottle: A Test of Congressional Preemptive Power?
Get PDFEven before the nuclear core meltdowns at the Fukushima Daiichi nuclear reactors in Japan re-stoked public anxiety about nuclear energy, Vermont’s Senate, under the auspices of Vermont Act No. 160, voted to block continued operation of Vermont Yankee Nuclear Power Plant after the expiration of its forty-year operating license. This article examines whether a state can legislatively override a permit issued by the Nuclear Regulatory Commission extending the license of a power plant. The author places this question within a broader federalism context, in which states assert their sovereign rights to regulate the environment in the shadow of federal mandates. She finds persuasive the absence of an express preemption provision in the Atomic Energy Act (AEA) or language mandating the use of nuclear power, the AEA’s reservation of state authority over the generation, sale, and transmission of energy produced by nuclear power plants, and the passage of environmental laws giving states regulatory authority over some aspects of nuclear power plant operation. Additionally, the author argues that policy arguments favoring preemption, such as the need for uniformity and coordination of shared resources, superior federal resources and technical knowledge, and prevention of spillover effects do not apply in this situation; while arguments against preemption, such as preserving states as robust centers of governance and regulatory experimentation and as checks on federal government excesses and errors, and avoidance of regulatory gaps and regulatory capture, do. Even collective action problems, which arise when a state thinks solely of its own interests to the detriment of other states or the nation as a whole and often favor preemption, are weak. An argument that Vermont’s initiative may derail recent national efforts to “restart” the nuclear power industry as a way to reduce the nation’s dependence on foreign oil and its global carbon footprint also gains little traction. For these and other reasons, the author concludes that Vermont Act. No. 160 should withstand a preemption challenge
The Structural Role of Private Enforcement Mechanisms in Public Law
Get PDFThe American regulatory system is unique in that it expressly relies upon a diffuse set of regulators, including private parties, rather than upon a centralized bureaucracy, for the effectuation of its substantive aims. In contrast with more traditional conceptions of private enforcement as an ad hoc supplement to public law, this Article argues that private regulation through litigation is an integral part of the structure of the modern regulatory state. Private litigation and the mechanisms that enable it are not merely add-ons to our regulatory regime, much less are they fundamentally at odds with it.
Yet mechanisms of enforcement attendant to private suits are being restricted in numerous ways, and on numerous fronts, in the form of prohibitions on the use of the class action device, the recalibration of procedural mechanisms through private contract to discourage suit, the heightening of pleading standards, and the pre-emption of state law causes of action, just to name a few. Although these restrictions in some instances may provide necessary correctives to the system of private litigation in particular and the functioning of overall regulatory schemes more generally, in their broad-sweeping forms, they threaten to undermine systematically substantive regulatory law. Yet the larger regulatory consequences of these efforts receive inadequate attention.
This Article thus offers a more systemic view of these mechanisms of private enforcement by providing elements of a conceptual framework for tailoring mechanisms of private litigation to the contours of particular regulatory regimes. This framework seeks to effectuate and extend the systemic interests in aligning private mechanisms with the regulatory goals of particular areas of substantive law, and at the same time seeks to balance the value of such mechanisms with concerns that they will, in some substantive regimes, generate undesired regulatory consequences. Indeed, this framework highlights the need, in some instances, for limitations on the use of private enforcement mechanisms, as well as the need, in other circumstances, for the creation of new mechanisms that are more carefully calibrated to address potential pathologies. This framework is therefore preferable to one-size-fits-all, abstract approaches to a number of seemingly disparate debates regarding restrictions on private enforcement mechanisms across our legal landscape. By offering a systemic view of various debates about these mechanisms, this framework offers the hope of eventual resolution of these seemingly intractable disputes. This framework also seeks to provide guidance to judges, agencies, and legislatures in the task of tailoring mechanisms of private enforcement to the achievement of public regulatory objectives
Bankruptcy, Backwards: The Problem of Quasi-Sovereign Debt
Get PDFThis Feature considers the debts of quasi-sovereign states in light of proposals to let them file for bankruptcy protection. States that have ceded some but not all sovereign prerogatives to a central government face distinct challenges as debtors. It is unhelpful to analyze these challenges mainly through the bankruptcy lens. State bankruptcy posits an institutional fix for a problem that remains theoretically undefined and empirically contested. I suggest a way of mapping the problem that does not work back from a solution. I highlight the implications of sovereign immunity, immortality, concurrent authority, macroeconomic policy, and democratic accountability for quasi-sovereign debt management. Bankruptcy centers on coordination failures and contractual liabilities. Neither is especially salient in quasi-sovereign debt. Along with default, fiscal transfers, and ad-hoc renegotiation, bankruptcy is one of several paths to reduce public debt overhang, but not necessarily the best path to state rehabilitation. It holds no special advantage against moral hazard from fiscal federalism and sovereign immunity. Even so, recent bankruptcy proposals have started a useful conversation joining previously disparate scholarship about credit market institutions, sovereign debt, fiscal federalism, and local government. The conversation should refocus on the problem of quasi-sovereign debt
Marketing Pharmaceuticals: A Constitutional Right to Sell Prescriber-Identified Data?
Get PDFPharmaceutical companies have strong economic interests in influencing physician-prescribing behaviors. They advertise direct-to-the-consumer and to the physician. Beyond general marketing, manufacturers promote their drugs to physicians through “detailing”—sales representatives (“detailers”) visiting medical offices to persuade physicians to prescribe their products.
By law, pharmacies receive specific information with every prescription, including the physician’s name, the drug, and the dose. Pharmacies sell these records to Prescription Drug Intermediaries (data miners), who use advanced computing to analyze prescriber-identified information (which physicians prescribe what drugs, in what dose, and with what prescribing patterns). Data miners, in turn, lease sophisticated reports to pharmaceutical companies to refine detailers’ marketing tactics, armed with knowledge about physician prescribing practices—for example, who are high-or-low prescribers, and early-or-late adopters of new drugs.
Detailing raises vital health policy questions, including its effects on clinical decision-making (safety, quality, and cost) and the physician/patient relationship (privacy and professionalism). Yet, private companies claim a First Amendment right to buy and use prescribing data for product marketing. The tensions between privacy and commercial speech have deep implications for public health regulation
The First Amendment’s Borders: The Place of \u3ci\u3eHolder v. Humanitarian Law Project\u3c/i\u3e in First Amendment Doctrine
Get PDFIn Holder v. Humanitarian Law Project, the Supreme Court’s first decision pitting First Amendment rights against national security interests since the terrorist attacks of September 11, 2001, the Court appears to have radically departed from some of the First Amendment’s most basic principles, including the maxims that speech may not be penalized because of its viewpoint, that even speech advocating crime deserves protection until it constitutes incitement, and that political association is constitutionally protected absent specific intent to further a group’s illegal ends. These principles lie at the core of our political and democratic freedoms, yet Humanitarian Law Project seems to contravene all three. This article assesses the place of Humanitarian Law Project in First Amendment jurisprudence. It argues that the decision departs so dramatically from precedent that it was wrongly decided. But it also maintains that if the decision is to do least damage to First Amendment freedoms going forward, and if it is to be construed as far as possible in harmony with its precedents, three limiting features of the decision are essential to understanding its rationale.
At issue in Humanitarian Law Project was whether the government could make it a crime to engage in speech advocating only lawful, peaceful activity, when done in coordination with or for a foreign organization labeled “terrorist.” In Humanitarian Law Project, the Court properly ruled that the government may prohibit speech advocating lawful, peaceful activity based on its content only where it can satisfy the demanding standard that governs when laws prohibit speech on the basis of its content. But the Court’s application of that scrutiny bore no resemblance to any other speech case in the modern era and employed reasoning and reached results that are sharply inconsistent with substantial precedent. Where it had previously protected even direct advocacy of crime, it now denied protection to advocacy of peace and human rights. Where it had previously held that strict scrutiny placed a heavy burden on the government to demonstrate with concrete evidence that its specific speech prohibitions were necessary to further a compelling end, here it sua sponte advanced arguments that the government never made; said no evidence was necessary to support its speculations; and deferred to a legislative finding and an executive affidavit that did not even address the necessity of prohibiting speech, and were not based on any actual evidence. Where it had previously ruled that a desire to suppress particular viewpoints was enough to render a law presumptively invalid, here it took the government’s viewpoint-based motive in suppressing messages of legitimacy as a reason to uphold, not to strike down, the law. And where it had previously protected the right to associate with groups having both lawful and unlawful ends, and recognized that the right included the freedom to act in concert with one’s associates, in Humanitarian Law Project it reduced the right to an empty formalism.
Such dramatic departures from precedent suggest that the decision was wrongly decided. But until it is overturned, we must live with it. And that puts a premium on considering whether its rationale can be limited. The Court itself offered three possible avenues of limitation, but offered no explanation for why those avenues were doctrinally significant. None of the three distinguishing features the Court identified is sufficient to reconcile the result with First Amendment precedent. But if the case is to be harmonized as much as possible with precedent, its application should be limited to situations in which all three of the factors identified by the Court are present—namely, when the government is prohibiting only speech coordinated with or directed to foreign organizations that have been subjected to diplomatic sanctions for compelling national security reasons. Short of outright reversal, such a reading provides the most persuasive ground for restricting the damage Humanitarian Law Project does to First Amendment doctrine
Depoliticizing Federalism
Get PDFIn his great biography of President Andrew Jackson, Arthur Schlesinger, Jr. celebrated Jackson’s defense of the rights of states and opposition to federal power. Yet as a mid-twentieth century liberal, Schlesinger was a strong supporter of the federal government and an opponent of states’ rights. Was Schlesinger’s position inconsistent? He did not think so, and neither does the author. In Jackson’s time, an entrenched economic elite controlled the federal government and used federal power to dominate the lower classes. State governments served as a focal point for opposition to this domination. By mid-twentieth century, the federal government was an engine for redistribution and racial justice. States’ rights rhetoric served the interests of segregationists and reactionaries.
Schlesinger’s example poses an important challenge for those who want to generalize and depoliticize the argument about federal versus state power. The argument about federalism is, or at least should be, deeply contextual, and it is political to the core. In different times and places, federalism has differing relationships with substantive justice and, in all times and all places, people disagree about what counts as substantive justice. What we should be doing, therefore, is talking about our disagreements about substantive justice—about the appropriate role of markets and government, about redistribution and property rights, and about our obligations to the poor and individual freedom—instead of changing the subject to talk about federalism
Law Review Scholarship in the Eyes of the Twenty-First Century Supreme Court Justices: An Empirical Analysis
Get PDFAn analysis of the twenty-first century Justices’ citations of law review scholarship—how often they cite articles, the professional identities of authors of the cited articles, and the rankings of the law reviews in which the cited articles appear—provides an excellent prism through which to assess today’s law reviews. In addition to having had varied and rich legal careers as practitioners, policy-makers, and lower court judges, the majority of the current Justices were, at earlier points in their careers, full-time law professors. Presumably, the Justices are able to separate the wheat from the chaff in the law reviews. The present study examined whether something meaningful can be gleaned from an analysis of the modern Justices’ practice of citing law review articles.
This article describes the results of an empirical study of the nearly two thousand “signed” opinions authored by the Justices—majority opinions, plurality opinions, concurring opinions, and dissenting opinions issued after oral arguments—dated between January 1, 2001, and December 31, 2011, which cited at least one American law review article. Opinions were coded to determine the following: (1) whether one or more law review articles (including law student “notes” or “comments”) were cited in the opinions; (2) which Justices wrote the opinions citing law review articles; (3) the professional status of the articles’ authors at the time that the cited articles were published (as a full-time law professor, legal practitioner, judge, law student, or “other”); and (4) the ranking of the law reviews that published the cited articles according to Washington and Lee University School of Law’s “combined score” ranking system (the “W&L” system). The results of this coding project are contained in a lengthy appendix to this article, which lists all 1,023 cited articles in the 1,961 opinions issued in 792 cases.
The present study demonstrates that the Justices in the twenty-first century have cited law review articles less frequently than their predecessors did in the 1970s and 1980s, when at least one Justice’s opinion in approximately half of the Court’s cases cited one or more law review articles (with an average of 0.87 articles cited per opinion). During the first decade of the twenty-first century, one or more Justices cited at least one article in 37.1% of the Court’s cases (with an average of 0.52 articles cited per opinion). In 21.3% of the Court’s cases, one or more law review articles were cited in the majority opinion. Justices considered “liberal” in their judicial philosophies cited law review articles in their opinions much more frequently than did Justices considered judicial “conservatives.”
Of the cited articles in opinions issued between 2001 and 2011, 61.62% of authors were full-time law professors, while 38.38% were law students, legal practitioners, judges, or persons who were not primarily associated with the bench, bar, or legal academy (including researchers with think-tanks and full-time professors from departments in a university other than a law school, such as economists, historians, and political scientists). An examination of the authors who were not full-time law professors revealed that the four sub-groups each constituted roughly one quarter of the total.
With respect to ranking of the law reviews in which the cited articles were published, the mean W&L ranking of the cited articles is 91; the median is 21; and the mode is 1. The mode ranking means that the top-ranked law review, Harvard Law Review, was cited the most times (102 times, or 10.1%) among the 1,023 total citations. Although “elite” law reviews were cited in disproportionate numbers—articles in the top-ten law reviews were cited 384 times (or 37.5% of the 1,023 citations)—the Justices cited over 100 articles appearing in law reviews ranked at 300 or below. Data from an earlier study of cited law review articles in the 1970s through 1990s, when compared with data from the present study, show that the Justices have cited articles published in “elite” law reviews at a steadily declining rate since 1970 and have cited articles in lower-rank reviews at a much greater rate, particularly in the last decade.
In sum, the current Justices have cited law review articles with less frequency than their predecessors did in the three decades before, which suggests that the current Justices may view current law review scholarship as generally less useful than the members of the Court did a generation ago. Nearly four out of ten of the authors of the cited articles were not full-time members of the legal academy. Considering that writing law review articles is the primary activity of America’s ten thousand-plus full time law professors, the fact that the Justices cite so many articles written by other authors permits the inference that much of the professiorate’s scholarship does not have value or relevance to the Justices (or to the bench and bar generally). The Justices also have cited articles from the full gamut of law reviews in the rankings, including many law reviews that are not deemed “tenure-worthy,” at least from the perspective of the hiring and promotion committees at many “elite” law schools
Child Abuse Reporting: Rethinking Child Protection
Get PDFThe general public has been bewildered by the magnitude of sex abuse cases and the widespread failure by pillars of the community to notify appropriate authorities. The crime of sexually abusing children is punishable in all jurisdictions and this article examines the duty to report suspected cases by individuals in positions of trust over young people, such as in the church or university sports. The Federal Child Abuse Prevention and Treatment Act (CAPTA) defines child maltreatment as an act or failure to act on the part of a parent or caregiver that results in death, serious physical or emotional harm, sexual abuse, or exploitation, and establishes minimum federal standards. Each state has its own definitions of maltreatment and every state identifies persons who are required to report child abuse. As such, state law is highly variable in defining who has a mandatory duty to report, and clergy and other individuals in close supervision of children (e.g., athletic coaches, scout leaders, volunteers in religious programs, and university officials) may necessarily hold such duty.
The article outlines why there are strong moral reasons the law should require all adults in close supervision of children to report any individual who they have good reason to believe has abused a child and moreover outlines how to ensure prompt reporting of abuse, while still ensuring that respected individuals are not falsely accused