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Remapping Constitutional Theory
Get PDFThe time has come for constitutional theory to move beyond the stale argument between originalists and living constitutionalists. The declining significance of that debate provides a motivating backdrop for this Article, but it is not the main point of the discussion. Instead, this Article focuses on the possibility of remapping constitutional disagreement in a fresher, more generative, and more descriptively accurate fashion.
The discussion begins with another familiar dichotomy – the distinction between “judicial activism” and “judicial restraint.” Unfortunately, as employed in popular discussion and in some academic literature, this distinction is also confused and unhelpful. However, we can begin to make progress if we recognize that there are subdivisions on both the activism and restraint side of the ledger.
Judicial activists are divided between libertarians and interventionists. Libertarian activists want judges to be active to force or encourage the political branches to be more passive. In contrast, interventionist activists want judges to be active to force or encourage the political branches to be more active.
There is a parallel divide on the judicial restraint side of the line. Some believers in judicial restraint are deferentialists. They want to restrain judges by requiring them to defer to decisions made by other actors.
In contrast, other believers in judicial restraint are anti-discretionists. They too believe in limiting the power of judges, but for them, the worry takes the form of insisting on rules that limit judicial discretion.
This new map focuses our attention on questions that should matter even if they don’t or don’t always. The future of the republic does not turn on issues about linguistics and interpretive theory, especially when it is unclear whether resolution of these issues affects the results in real cases. The future of the republic might well turn on issues relating to the nature of liberty, the appropriate role for courts when reasonable people disagree about constitutional meaning, and the boundary between a public and private sphere
What Nations Owe Each Other Before the Next Pandemic
Get PDFOn December 1, 2021, the World Health Assembly adopted a resolution establishing an Intergovernmental Negotiating Body (INB) to determine the content and form of a new pandemic agreement. A portion of the public has advocated for a non-binding agreement while others stress that nationalism should be prevented, with steps taken to monitor and enforce national compliance. The INB has needed to grapple with how the principle of national sovereignty, and the accompanying principle of non-interference, will be addressed with respect to the agreement’s content and form, including obligations to share data, resources, and personnel, and to relinquish control over certain aspects of national coordination and response. To provide technical assistance to the World Health Organization (WHO), INB, and the public concerning this challenge, the O’Neill Institute for National and Global Health Law, a WHO Collaborating Center, and the Foundation for the National Institutes of Health (FNIH) convened leading authorities from every WHO region on international agreements in trade, regional integration, public health emergency preparedness, finance, biomedical science, climate change, maritime affairs, tobacco control, and human rights. Through a series of written, bilateral, and group discussions, we sought to provide the INB with a learned analysis of the stringency and stickiness of international commitments and the often nonobvious relationship between norm-setting and regime compliance to inform its dialogue. This paper is a condensed version of the outcomes of those discussions, which have utility for contemplating any new agreement under international law. The full report, National Sovereignty Implications of a Pandemic Instrument can be found at: https://oneill.law.georgetown.edu/wp-content/uploads/2022/07/ONeill-FNIH-Sovereignty-Implications-of-a-Pandemic-Instrument.pdf
Fixing Litigating the Fix
Get PDFMerging firms have increasingly been asking trial courts to adjudicate their merger “as remedied” by a voluntary “fix.” These are remedies that have been rejected by (or never proposed to) the agency. This procedure is known as Litigating-the-Fix” (“LTF”). This article proposes a judicial procedure for managing cases in which the merging parties attempt to LTF. Our recommendations flow from a decision theory approach informed by the relevant LTF case law, the merger enforcement record, the language and goals of Section 7, and an economic analysis of the incentives of the parties and agencies created by LTF. Our recommendation addresses four features of the procedure that we believe are most important to insure against consumer harm: (i) timing and notice of the parties’ remedy proposal, (ii) definitiveness of the proposal, (iii) evidentiary burdens placed on the parties, and (iv) certainty of execution and enforcement of the remedy. Our recommended procedure focuses on the effect of the merger as modified by the merging parties’ proposed remedy. But we recommend that the government be able to satisfy its prima facie evidentiary burden by showing that the transaction would satisfy the structural presumption if the buyer obtained all the assets of the seller. The defendant then can rebut this presumption, either by showing that concentration is improperly measured or with other evidence that competitive harm is unlikely. We also suggest several possible refinements to the procedure related to specific remedy proposals. We recommend that courts treat with a higher degree of skepticism proposed divestiture of only select assets and behavioral remedies. Promises to operate divisions within a vertically integrated firm as though the businesses are separate entities should only be accepted if they involve legal commitments and the firm’s compliance can be verified with confidence. Furthermore, we recommend that commitments regarding competition among divisions be excluded from consideration altogether because they are unenforceable, limitless and inconsistent with Copperweld, Trenton Potteries, and National Society of Professional Engineers
Monitoring Facebook
Get PDFFew companies still in business have a track record as negative as Facebook. Facebook has paid billions of dollars in government fines and paid hundreds of millions in private settlements. Yet, the financial penalties are actually minimal relative to the harm done. Facebook seems to have been involved one way or another in privacy breaches, organized crime, election manipulation, suicide, and even genocide. Mark Zuckerberg, who still controls Facebook, appears to ignore the consequences of his choices, seemingly prioritizing profits over people. He appears to disregard the law and operate without integrity or honesty, excommunicating insiders who speak out or challenge him. The evidence is powerful; the damage is arguably incalculable.
This article presents a case study of Facebook’s corporate governance and public scandals, concluding that the company’s governance is irreparably flawed. As the article documents, despite repeated scandals, apologies, and fines, Facebook’s board appears to have been unable or unwilling to break the cycle of bad decisions. The role of board members is to provide the candor and creative friction necessary to ensure legal compliance and self-regulation; yet, Facebook’s board seemingly does not. Accordingly, this article engages in a thought experiment, using Facebook as an example, about whether an outside-monitoring model might provide appropriate friction and counterbalance the otherwise apparently weak governance at the company. Using other monitoring programs as templates, the article explores the mechanisms key to effective monitoring. As the article reveals, corporate monitors have the capacity to reduce recidivism and improve corporate culture over the long term. They do this through independence, oversight, disclosure and transparency, engaging with the public and contributing to the development of a company’s social license. Of course, monitors are not a solution for every company, but when the governance flaws appear to be as sustained and systemic as those at Facebook, additional outside governance may be appropriate and, arguably, even necessary
The Antiregulatory Arsenal, Antidemocratic Can(n)ons, and the Waters Wars
Get PDFThe Clean Water Act has become a centerpiece in an enduring multifront battle against both environmental regulation and federal regulatory power in all of its settings. This Article focuses on the emergence, elements, and linked uses of an antiregulatory arsenal now central to battles over what are federally protected “waters of the United States.” This is the key jurisdictional hook for CWA jurisdiction, and hence, logically, has become the heart of CWA contestation. The multi-decade battle over Waters protections has both drawn on emergent antiregulatory moves and generated new weapons in this increasingly prevalent and powerful antiregulatory arsenal. This array of antiregulatory skews and frames can be decisive, especially when wielded before sympathetic judges skeptical about the administrative state or environmental protection. The Article questions the legitimacy of this antiregulatory arsenal, highlights how these antiregulatory moves in the Waters setting often dodge actual statutory choices, and identifies countervailing strategies that are more respectful of democratic choices. The new antiregulatory canons are akin to weaponized cannons empowering judges. The Article calls for judges to apply more legislatively respectful frames in exploring questions of regulatory power, with greater attention to statutes’ policy priorities and obligations assigned by Congress and wielded by agencies based on scientific or factual criteria prioritized in governing statutes
China’s Entry into the WTO—A Mistake by the United States?
Get PDFThe conclusion that China\u27s accession to the WTO was a failure from a U.S. perspective stems from: 1) loading too many issues and expectations—including an entire panoply of national security and geostrategic concerns -- on to the WTO and its rules-based, binding dispute settlement system to address; 2) failure by the United States and the rest of the world to use the tools available as a result of China’s accession to the WTO to both protect their domestic markets and hold China to account for its WTO commitments; and 3) China’s U-turn away from market-economy reforms to a much more state-centric, Chinese Communist Party (CCP)-run economy. Addressing the United States’ concerns with China will require working to strengthen the WTO and then using it to take on a more limited set of trade concerns while using other tools to address broader concerns both bilaterally and in conjunction with allies and partners
The History Wars and Property Law: Conquest and Slavery as Foundational to the Field
Get PDFThis Article addresses the stakes of the ongoing fight over competing versions of U.S. history for our understanding of law, with a special focus on property law. Insofar as legal scholarship has examined U.S. law within the historical context in which it arose, it has largely overlooked the role that laws and legal institutions played in facilitating the production of the two preeminent market commodities in the colonial and early Republic periods: expropriated lands and enslaved people. Though conquest and enslavement were key to producing property for centuries, property-law scholars have constructed the field of property law to be largely devoid of these histories and without a strong conception of the formative role of race. As a result, recent movements to reintegrate these topics into the field generally reflect a broader trend in the legal academy of treating race as an elective rather than fundamental topic. This Article shows that these histories contain insights that are crucial for understanding their legacies in our present legal system. It offers an account of how current conceptions of the field of property law evolved and what we learn from suppressed histories. It shows that the histories of conquest and slavery explain aspects of the system—its construction of jurisdictions, property value, ground-level institutions, and organization of force, for example—that belong at the core of the curriculum and the field.
First, this Article examines patterns of erasure in the property-law canon to explore how we came to understand property law as primarily a collection of doctrines derived from English law regulating relations between neighbors. It uses property-law casebooks as an index and offers the first comprehensive study of the tradition. This analysis shows that many of the norms of erasure and validations of racial hierarchy that casebooks exhibit were set during the period of their emergence—the time of the formal close of the frontier and the Jim Crow Era. It was not until the 1970s that casebooks began to critically examine the histories of conquest and slavery for the first time, but the query into their consequences for the property system has remained partial and inconsistent.
I then examine three ubiquitously taught topics in property law—discovery, labor, and possession— in light of the contexts in which they arose, to highlight their role in the creation of new markets for land and people in early America. I show that Chief Justice Marshall’s iteration of the Discovery Doctrine drew from an international legal tradition that authorized European conquests and the transatlantic slave trade to establish racial hierarchy as the basis of U.S. jurisdiction and trade in lands. In addition to affirming that hierarchy, as scholars have shown, the labor theory also captured the ways that colonists attributed property values to land and people only when they came into white possession. I further argue that the labor of property creation in the colonies in significant part comprised legal work, beyond agriculture labor, including the passage of laws creating homesteading incentives, making enslavement racial, permanent, and hereditary, and establishing systems such as the rectangular survey, comprehensive title registry, and easy mortgage foreclosure. Finally, taking possession of property in this context entailed a process of dispossession turning the principle of honoring possession on its head. Looking at possession as part of the Discovery Rule and fugitive-slave laws reveals that the state largely delegated enforcement of possession—and the concomitant racial violence of dispossession—to private actors in ways that simultaneously invested them in property interests and racial hierarchy.
This Article opens a new inquiry into what these long-buried histories teach us about property law. It argues that they are indispensable for understanding the unique fruits of the colonial experiment that define American property law today—the singular land system that underpins its real estate market and its structural reliance on racial violence to produce value
The Constitutional (and Political) Safeguards Against Impeachment
Get PDFWill the Trump impeachments inspire a flurry of future presidential impeachments? Will the second Trump impeachment, which occurred after the President left office, spur impeachments of lesser, former government officials? These and other questions emerged during the 2022 Missouri Law Review Symposium and on the Senate floor during the Trump impeachment trials. I have argued that we can make an educated prognosis about these possibilities based on constitutional structure. I called this argument the “political safeguards” of impeachment in my recent book, The Impeachments of Donald Trump: An Introduction to Constitutional Argument. What I called political safeguards, invoking the great legal scholar Professor Herbert Wechsler, are easily described as constitutional safeguards. They are political in the sense that they are part of our democracy, and not political in the sense that they are lawless or partisan. In this short Article, I expand on this claim, arguing that these “political” safeguards emerge from what Professor Charles Black called basic constitutional structures and relationships.
This claim may sound oxymoronic for many readers. How can politics be a safeguard? Politics is the problem, not the solution. Won’t the President’s political opponents have an incentive to impeach, particularly in a highly polarized age? Won’t all those chants of “lock her up” lead to impeachments of unpopular political figures like former Secretary of State Hillary Clinton, long after she has left office? These claims assume a much too simple model of American politics, and an incomplete view of our Constitution. Congress’s constitutional structure operates as a disincentive to party unity. Absent egregious enough action to unite a disunited country, I do not believe we will see a spiral of impeachments. Why? The costs of impeachment for Congress, both as an institution and for individual members, are high. To be sure, in a deeply divided nation, worries abound. Unforeseen cataclysms may defeat the most solid of predictions. But there are reasons that, in a post-pandemic era, impeachment fury may wither, even if politics at large remains viciously partisan. My point: those reasons lie in the Constitution’s structure.
In Part II, I explain the “constitutive Constitution.” Lawyers tend not to understand the Constitution as creating a government as opposed to limiting it. Focused firmly on courts, they mistake a part of the Constitution for its whole: most of the Constitution is political in the sense that it creates representative institutions. The prime reason for the 1787 Convention was not the creation of courts (otherwise the country would have perished long ago). It was the creation of a popularly-elected government, divided principally in two departments6: the legislature and the executive. In Part III, I explain why the constitutive Constitution makes it difficult to impeach. I focus on institutional reasons that make impeachment costly. These reasons can all be traced to the constitutional text, just not the text that most consider constitutional “law.” In Part IV, I apply these lessons to argue that the second Trump impeachment trial (which occurred after the President left office) will not lead to the impeachment of former officials such as former Secretary of State Hillary Clinton or former Attorney General William Barr. I conclude that this is unlikely to happen because of Congress’s more pressing electoral incentives, which are built into the Constitution’s structural preference for local geography
Infrastructure Sharing in Cities
Get PDFIn this Essay, I reflect on the different ways in which cities engaged in what I call “infrastructure sharing” during the COVID-19 pandemic. Cities around the world responded to the pandemic by repurposing their streets and sidewalks into outdoor seating, dining spaces, and car-free pedestrian corridors. At the same time, many cities and states also faced calls to “reclaim” underutilized public and private structures like empty houses and hotels and put them to a use responsive to the crisis. The Essay will highlight the difference between sharing property and assets that are part of the “public estate” and dedicated exclusively to public purposes, and sharing property and assets that cities hold in a more proprietary manner. The difference between these two kinds of public property carries implications for what kind of sharing of their infrastructure cities can do and the kinds of regulatory and policy mechanisms they might use to accomplish that sharing.
While cities found creative ways to repurpose the public estate during the pandemic that may prove lasting, they have had a harder time reimagining the productive use of their more proprietary assets. That lack of imagination is problematic not just for creating more healthy and sustainable cities, but more particularly for addressing unequal access to infrastructure. Whether expanding or repurposing the public estate or acquiring and transferring underutilized land and structures, I argue that cities can provide new public goods and services to meet the different needs and exigencies of diverse communities through infrastructure sharing. However, sharing assets held or obtained in a city’s proprietary capacity with specific marginalized groups has more potential to facilitate the creation, or cocreation, of goods and services that directly address urban infrastructure inequity
“If Rules They Can Be Called”
Get PDFWho gets to decide what counts as law? The weight of authority in the U.S. legal system is governed almost entirely by unwritten rules—social norms that establish which sources have weight (and how much weight they have). In 2016, Bryan A. Garner and twelve judges published a treatise essentially codifying unwritten rules related to the operation of precedent. That book, The Law of Judicial Precedent, has itself become a source of authority (on legal authority), cited by judges across jurisdictions. In this essay, I question whether the judicial norms governing the operation of precedent are appropriately presented as definitive blackletter law.
Textualization has power. While such a treatise might bring some transparency to the judicial decisionmaking process—making judicial norms easier to identify—it might also cement such norms prematurely, inhibiting their evolution. Many of the most frequently cited blackletter principles in the treatise represent complex tools of judicial reasoning, not well-suited to a rule format. Judicial citation to these precepts may reflect a kind of performative formalism, in which judges exhibit deference to “law” made up of tools of reasoning and social norms they themselves are responsible for creating. The treatise’s pseudo-codification of judicial norms (and subsequent citation by judges) is at the very least, worthy of discussion