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Textual Gerrymandering: The Eclipse of Republican Government in an Era of Statutory Populism
Get PDFWe have entered the era dominated by a dogmatic textualism—albeit one that is fracturing, as illustrated by the three warring original public meaning opinions in the blockbuster sexual orientation case, Bostock v. Clayton County. This Article provides conceptual tools that allow lawyers and students to understand the deep analytical problems faced and created by the new textualism advanced by Justice Scalia and his heirs. The key is to think about choice of text—why one piece of text rather than another—and choice of context—what materials are relevant to confirm or clarify textual meaning. Professors Eskridge and Nourse apply these concepts to evaluate the new textualism’s asserted neutrality, predictability, and objectivity in its canonical cases, as well as in Bostock and other recent textual debates.
The authors find that textual gerrymandering—suppressing some relevant texts while picking apart others, as well as cherry-picking context—has been pervasive. Texts and contexts are chosen to achieve particular results—without any law-based justification. Further, this Article shows that, by adopting the seemingly benign “we are all textualists now” position, liberals as well as conservatives have avoided the key analytic questions and have contributed to the marginalization of the nation’s premier representative body, namely, Congress. Today, the Supreme Court asks how “ordinary” populist readers interpret language (the consumer economy of statutory interpretation) even as the Court rejects the production economy (the legislative authors’ meaning).
Without returning to discredited searches for ephemeral “legislative intent,” we propose a new focus on legislative evidence of meaning. In the spirit of Dean John F. Manning’s suggestion that purposivists have improved their approach by imposing text-based discipline, textualists can improve their approach to choice of text and choice of context by imposing the discipline of what we call “republican evidence”—evidence of how the legislative authors explained the statute to ordinary readers. A republic is defined by law based upon the people’s representatives; hence the name for our theory: “republican evidence.” This Article concludes by affirming the republican nature of Madisonian constitutional design and situating the Court’s assault on republican evidence as part of a larger crisis posed by populist movements to republican democracies today
\u3cem\u3eDepartment of Homeland Security v. Regents of the University of California\u3c/em\u3e and its Implications
Get PDFThe Trump Administration\u27s effort to get rid of Deferred Action for Childhood Arrivals, or DACA, failed before the Supreme Court in Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891, 1896 (2020). In this essay -- based on a presentation given to an American Bar Association section in September 2020 -- I review DACA, the Supreme Court\u27s decision, and its potential legal implications.
The failure of the Trump Administration to eliminate DACA may have had significant political consequences, and it surely had immediate and momentous consequences for many of DACA’s hundreds of thousands of beneficiaries. Some commentators noted, however, that the Supreme Court’s ruling it is not a major legal landmark—that it involves only the application of settled administrative-law principles. I largely agree with that view. Nonetheless, the decision’s administrative-law holdings are interesting, and the Court’s ruling contains several of what I view as “extras”—little nuances that may impact the law over time and that should interest administrative-law nerds
Setting the Health Justice Agenda: Addressing Health Inequity & Injustice in the Post-pandemic Clinic
Get PDFThe COVID-19 pandemic surfaced and deepened entrenched preexisting health injustice in the United States. Racialized, marginalized, poor, and hyper-exploited populations suffered disproportionately negative outcomes due to the pandemic. The structures that generate and sustain health inequity in the United States—including in access to justice, housing, health care, employment, and education—have produced predictably disparate results. The authors, law school clinicians and professors involved with medical-legal partnerships, discuss the lessons learned by employing a health justice framework in teaching students to address issues of health inequity during the pandemic. The goal of health justice is to eliminate health disparities that are linked to structural causes like subordination, discrimination, and poverty. This Article suggests six maxims for law school clinics to advance health justice, centering on themes of transdisciplinary collaboration, upstream interventions, adaptability, racial justice, systemic advocacy, and community-based strategies. The discussion draws on analyses of the scholarly literature on medical-legal partnerships and examples from the authors’ clinics. These maxims for health justice are particularly relevant during a global public health emergency, but they also transcend the current moment by contributing to the long-running cross-clinic dialogue about teaching and designing clinics for social justice
Storming Zuckerberg’s Castle
Get PDFA company’s server is its castle, Richard Epstein once declared. Because of this, anyone sending an email to that server needs permission to enter. Within its own logic, this seems incontrovertible, but it depends on a few logical steps worth unpacking. It begins with the premise that a man’s home is his castle. (The masculine pronoun in the early formulation seems relevant.) Let us accept that premise for the purpose of argument. Combining this premise with the investiture of legal personhood on a corporation, we might then deduce that a company’s home must be its castle. Finally, combining that claim with the assertion that a server is like one’s home, we might conclude that a company’s server is like its castle. Each of the moves above is subject to dispute, as is the premise itself. But the end goal is clear: sole and despotic dominion, now over the metaverse.
Thomas Kadri begins his excellent Texas Law Review article, Digital Gatekeepers, with the evocative image of Facebook as Mark Zuckerberg’s castle. But rather than imagining lords watching over their rightful domains like Epstein, Kadri sees digital enterprises as trolls guarding a bridge. Yet, these digital trolls are not exacting fees from those who hope to cross, but rather are seeking to prevent anyone else from benefiting from the lands that lie across the bridge. Kadri hopes to build ladders to scale the ramparts or battering rams to break down the gates.
Permitting third-party access to enormous datasets, such as the ones held by Facebook, raises concerns about privacy, as Kadri recognizes. In this essay, I suggest that this concern about user privacy finds a real-life example in the case of Cambridge Analytica, which exploited user data gleaned via a Facebook app. I review various legislative solutions to this problem of data-sharing across private parties. Further complicating this problem is the fact that, especially because of the internet, datasets held by today’s companies often include information on individuals from multiple countries. This brings to bear multiple data privacy laws to the question of information sharing. Even if granting access is permitted (or required) under one law, granting such access may still violate another law if that second country’s users are in the database. Companies that have not collected information about a user’s country may now need to do so to ensure that the right set of laws are applied to that data.
This essay proceeds as follows. Part I sets out the digital gatekeeping function of the common law doctrine of trespass to chattels and the federal Computer Fraud and Abuse Act. It observes that defining the extent of gatekeeping power—the precise line-drawing between permissible and impermissible breaches—remains a complicated task. Part II focuses on Facebook’s Cambridge Analytica scandal, which lives on as a warning about giving third parties access to personal data. Parts III then reviews proposals for changes to digital gatekeeping laws in the United States, the EU, and India, respectively
Arthur Linton Corbin
Get PDFThis chapter on Arthur Linton Corbin will appear in the forthcoming collection, Scholars of Contract Law. The chapter provides a brief summary of Corbin’s life, then discusses five topics: Corbin’s Socratic approach to the classroom and his introduction of the caselaw method at Yale; Corbin’s analytic approach, which was inspired by Hohfeld and is illustrated by Corbin’s definitions of “contract” and “consideration”; Corbin’s evolutionary theory of the common law, his understanding of the relationship between law and social mores, and his insistence that legal rules always be treated as mere “working rules”; Corbin’s occasional appeal, despite his general aversion to high theory, to the reliance theory of contract; and Corbin’s account of contract interpretation, where one sees the reliance theory at work, together with an uncharacteristically narrow conception of meaning
COVID-19 Vaccine Mandates—A Wider Freedom
Get PDFPresident Biden has required COVID-19 vaccinations across much of the US workforce, reaching nearly 100 million workers. Opponents call it unconstitutional, a violation of personal freedom, and even “un-American.” The truth is that vaccine mandates are lawful and deeply entrenched in US history and values. They constitute a “wider freedom” so that everyone in society can feel safer where they work, learn, worship, and live
Pediatric COVID-19 Vaccines: What Parents, Practitioners, and Policy Makers Need to Know
Get PDFThe US Food and Drug Administration (FDA) granted Emergency Use Authorization for Pfizer-BioNTech’s mRNA COVID-19 vaccine (BNT162b2) for children 5 to 11 years of age on October 29, 2021. The Centers for Disease Control and Prevention recommended use of the vaccine among children in this age group on November 2, 2021. Approximately 28 million children are now eligible for vaccination, with only those younger than 5 years remaining excluded from vaccine eligibility. The benefits of pediatric COVID-19 vaccines are clear. Vaccinations protect children, decrease spread to families and communities, and ensure educational continuity. What do parents, practitioners, and policy makers need to know about pediatric COVID-19 vaccines
Achieving Privacy: Costs of Compliance and Enforcement of Data Protection Regulation
Get PDFIs privacy a luxury for the rich world? Remarkably, there is a dearth of literature evaluating whether data privacy is too costly for companies to implement, or too expensive for governments to enforce. This paper is the first to offer a review of surveys of costs of compliance, and to summarize national budgets for enforcement. The study shows that while privacy may indeed prove costly for companies to implement, it is not too costly for governments to enforce. This study will help inform governments as they fashion and implement privacy laws to address the “privacy enforcement gap”—the disparity between the privacy on the books, and the privacy on the ground
A Suggested Revision of the 2020 Vertical Merger Guidelines (July 2021)
Get PDFThe DOJ/ FTC Vertical Merger Guidelines (VMGs) were adopted by the FTC in June 2020 by a party-line 3-2 party line over the dissent of the Acting Chair. One might expect that the VMGs will be withdrawn and/or revised, now that there is a Democratic majority. Revision is appropriate because the VMGs are both incomplete and overly permissible. This Suggested Revision can aid that process
Drivers of Health Policy Adoption: A political economy of HIV treatment policy
Get PDFWhy do some countries rapidly adopt policies suggested by scientific consensus while others are slow to do so? Through a mixed methods study, we show that the institutional political economy of countries is a stronger and more robust predictor of health policy adoption than either disease burden or national wealth. Our findings challenge expectations in scholarship and among many international actors that policy divergence is best addressed through greater evidence and dissemination channels. Our study of HIV treatment policies shows that factors such as the formal structures of government and the degree of racial and ethnic stratification in society predict the speed with which new medical science is translated into policy, while level of democracy does not. This provides important new insights about the drivers of policy transfer and diffusion and suggests new paths for practical efforts to secure adoption of “evidence-based” policies