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Mr. Try-It Goes to Washington: Law and Policy at the Agricultural Adjustment Administration
Get PDFIn December 1933, Jerome Frank, the general counsel of the Agricultural Adjustment Administration but better for writing Law and the Modern Mind (1930), a sensational attack on legal formalism, told an audience at the Association of American Law Schools a parable about two lawyers in the New Deal, each forced to interpret same, ambiguous statutory language. The first lawyer, “Mr. Absolute,” reasoned from the text and canons of statutory interpretation without regard for the desirability of the outcome. “Mr. Try-It,” in contrast, began with the outcome he thought desirable. He then said to himself, “The administration is for it, and justifiably so. It is obviously in line with the general intention of Congress as shown by legislative history. The statute is ambiguous. Let us work out an argument, if possible, so to construe the statute as to validate this important program.” Although the memoranda the two produced were interchangeable, Mr. Try-It wrote his in a fifth the time.
Although the professors in attendance might have nodded approvingly, Frank’s speech, later printed in the Congressional Record, was startlingly impolitic in its muddying of a distinction between law and policy that he insisted upon when battling administrators over the terms of marketing agreements for agricultural commodities. How Frank actually drew the line owed less to his legal realist jurisprudence that the persuasiveness of his two associate general counsels, the radicals Lee Pressman and Alger Hiss
The Corporate Purpose of Social License
Get PDFThis Article deploys the sociological theory of social license, or the acceptance of a business or organization by the relevant communities and stakeholders, in the context of the board of directors and corporate governance. Corporations are generally treated as “private” actors and thus are regulated by “private” corporate law. This construct allows for considerable latitude. Corporate actors are not, however, solely “private.” They are the beneficiaries of economic and political power, and the decisions they make have impacts that extend well beyond the boundaries of the entities they represent.
Using Wells Fargo and Uber as case studies, this Article explores how the failure to account for the public nature of corporate actions, regardless of whether a “legal” license exists, can result in the loss of “social” license. This loss occurs through publicness, which is the interplay between inside corporate governance players and outside actors who report on, recapitulate, reframe and, in some cases, control the company’s information and public perception. The theory of social license is that businesses and other entities exist with permission from the communities in which they are located, as well as permission from the greater community and outside stakeholders. In this sense, businesses are social, not just economic, institutions and, thus, they are subject to public accountability and, at times, public control. Social license derives not from legally granted permission, but instead from the development of legitimacy, credibility, and trust within the relevant communities and stakeholders. It can prevent demonstrations, boycotts, shutdowns, negative publicity, and the increases in regulation that are a hallmark of publicness — but social license must be earned with consistent trustworthy behavior. Thus, social license is bilateral, not unilateral, and should be part of corporate strategy and a tool for risk management and managing publicness more generally.
By focusing on and deploying social license and publicness in the context of board decision-making, this Article adds to the discussions in the literature from other disciplines, such as the economic theory on reputational capital, and provides boards with a set of standards with which to engage and address the publicness of the companies they represent. Discussing, weighing, and developing social license is not just in the zone of what boards can do, but is something they should do, making it a part of strategic, proactive cost-benefit decision-making. Indeed, the failure to do so can have dramatic business consequences
Progressive and Populist Strands in American Constitutionalism
Get PDFMany modern liberals believe that the federal government is captured by a “billionaire party” determined to wield public power for private gain. But many of them also believe in giving the federal government greatly enhanced powers, like administering “Medicare for all.”
There is a history to this contradiction. Modern liberalism is an amalgam of older populist and progressive impulses with deep roots in the country’s past. The populist impulse locates the source of economic oppression in government corruption. The solution to this problem is direct, popular democracy. Progressives tend to locate the source of economic oppression in the malfunction of private markets. The solution to this problem is government regulation by elite experts shielded from popular control.
Bernie Sanders speaks as a populist when he complains about the billionaire party; he speaks as a progressive when he advocates Medicare for all; and he speaks as a liberal when he fails to notice the tension between these two views.
This article’s primary focus is on how this contradiction plays out in the context of constitutional law. Populists and progressives had different conceptions of the corruption that constitutional law should address. For progressives, corruption consisted of contamination of government expertise by ignorant and prejudiced mass opinion. In contrast, populists distrusted rationalistic, elite opinion. The corruption they feared was elite government control that led to the oppression of ordinary people by “their betters.”
This article examines the dispute between populists and progressives in the context of the Scopes Monkey Trial, Buck v. Bell, Skinner v. Oklahoma, West Virginia State Board of Education v. Barnette, the Warren Court era, and our present period. A conclusion explores ways in which the conflict between populists and progressives might be resolved
#MeToo as Catalyst: A Glimpse into 21st Century Activism
Get PDFThe Twitter hashtag #MeToo has provided an accessible medium for users to share their personal experiences and make public the prevalence of sexual harassment, assault, and violence against women. This online phenomenon, which has largely involved posting on Twitter and “retweeting” to share other’s posts has revealed crucial information about the scope and nature of sexual harassment and misconduct. More specifically, social media has served as a central forum for this unprecedented global conversation, where previously silenced voices have been amplified, supporters around the world have been united, and resistance has gained steam.
This Essay discusses the #MeToo movement within the broader context of social media activism, explaining how this unique form of collective action is rapidly evolving. We offer empirical insights into the types of conversations taking place under the hashtag and the extent to which the movement is leading to broader social change. While it is unclear which changes are sustainable over time, it is clear that the hashtag #MeToo has converted an online phenomenon into tangible change, sparking legal, political, and social changes in the short run. This Essay provides data to illustrate some of these changes, which demonstrate how posting online can serve as an impetus, momentum, and legitimacy for broader movement activity and changes offline more characteristic of traditional movement strategies
Anti-Competition Regulation
Get PDFLooking across the long twentieth century, this article tracks the rise and fall of one form of anti-competition regulation: the certificate of public convenience. Designed to curb “destructive competition” in certain industries, such as transportation and banking, certificate laws prevented firms from entering those industries unless they could convince regulators that they would satisfy an unmet public demand for goods or services. This history highlights how lawmakers used similar techniques in governing infrastructure and finance—two fields that are not often studied together. It also shows that state regulation both prefigured legal change at the federal level and then lagged behind it, suggesting that different dynamics have been in play at each level of governance in devising competition policy over the last century
Exoatmospheric Plowshares: Using a Nuclear Explosive Device for Planetary Defense Against an Incoming Asteroid
Get PDFWhat should be done if we suddenly discover a large asteroid on a collision course with Earth? The consequences of an impact could be enormous—scientists believe that such a strike 60 million years ago led to the extinction of the dinosaurs, and something of similar magnitude could happen again. Although no such extraterrestrial threat now looms on the horizon, astronomers concede that they cannot detect all the potentially hazardous “near-Earth objects,” and even more striking, they acknowledge that if such a danger were discerned, there is currently no proven capability for diverting or destroying it.
One possible response to this type of incipient catastrophe could be to send into space a nuclear explosive device, hoping the massive blast could alter the asteroid\u27s trajectory. Indeed, if time were short, that might be the only effective remedy. But two major nuclear arms control treaties-which have been joined by most of the leading countries and are widely appreciated as fundamental to global security-specifically forbid that approach.
This Article examines that critical clash of legal, political, and technical values, and concludes that the best response would be for the UN Security Council to adopt a binding resolution pursuant to its powers under Chapter VII of the UN Charter, to deal with the emergency on an expeditious, global basis. A proposed draft of such a resolution is presented, along with explanatory annotations
Analyzing Vertical Mergers to Avoid False Negatives: Three Recent Case Studies
Get PDFThis article analyzes three recent vertical mergers: a private antitrust case attacking the consummated merger of Jeld-Wen and Craftmaster Manufacturing Inc. (“CMI”) that was cleared by the DOJ in 2012 but subsequently litigated and won by the plaintiff, Steves & Sons in 2018; and two recent vertical merger matters investigated and cleared (with limited remedies) by 3-2 votes by the Federal Trade Commission in early 2019 -- Staples/Essendant and Fresenius/NxStage. There are some factual parallels among these three matters that make it interesting to analyze them together. First, the DOJ’s decision to clear Jeld-Wen/CMI merger appears to be a clear false negative, and the two dissenting Commissioner suggest that the recent FTC decisions similarly are false negatives. Second, the DOJ and possibly the FTC in Staples/Essendant may have overlooked the “Frankenstein Monster” scenario of input foreclosure. Third, both the DOJ and the FTC in Fresenius/NxStage also apparently relied on the absence of complaints in making their clearance decisions. The analysis of these mergers also suggests several policy implications involving the need to analyze the full range of anticompetitive concerns, the potential for merger retrospectives by independent (as opposed to staff) researchers, the height of the evidentiary burden on the agencies to show competitive harm in light of their limited budgets, and the need for greater transparency in Commission statements, as well as the potential errors in relying on a lack of complaints
Customs, Immigration, and Rights: Constitutional Limits on Electronic Border Searches
Get PDFThe warrantless search of travelers’ electronic devices as they enter and exit the United States is rapidly increasing. While the Supreme Court has long recognized a border-search exception to the Fourth Amendment’s warrant requirement, it applies to only two interests: promoting the duty regime and preventing contraband from entering the country; and ensuring that individuals are legally admitted. The government’s recent use of the exception goes substantially beyond these matters. U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) are using it to search electronic devices, and at times the cloud, for evidence of any criminal activity, bypassing the warrant requirement altogether. Searches of these devices implicate privacy concerns well beyond those of the home, which has long been protected even for customs and immigration purposes. This Essay traces the evolution of the border exception, noting the effect of recent Supreme Court decisions, to argue that CBP and ICE are operating outside constitutional constraints. The Essay considers two objections grounded in the legitimate interests of CBP and ICE. It responds, first, that inspection of digital devices differs from the examination of a traveler’s purse or luggage: the level of intrusion and the amount of information obtained changes the quality of the search, triggering Fourth Amendment protections. Second, as an immigration matter, as soon as citizens are identified, absent probable cause, the government does not have the constitutional authority to search their devices at all. Foreigners lacking a substantial connection to the country, however, do not enjoy the same Fourth Amendment protections. It concludes by observing that because of the substance and complexity of the issue, Congress has an important role to play in determining what types of searches are justified
Brief of Brian Wolfman, Aderson B. Francois, and Eric Schnapper as Amici Curiae in Support of Petitioner in Peterson v. Linear Controls Incorporated, No. 18-1401 (U.S. Supreme Court June 6, 2019)
Get PDFIn Title VII disparate-treatment, employment-discrimination cases, the term “adverse employment action” originally developed as judicial shorthand for the statute’s text, which broadly prohibits any discriminatory conduct by an employer against an employee based on the employee\u27s race, color, religion, sex, or national origin. See 42 U.S.C. 2000e-2(a)(1). But what started simply as shorthand has taken on a life of its own and now improperly limits the statute’s reach. The Fifth Circuit’s version of the adverse-employment-action rule stands out as especially improper: Only an “ultimate employment decision”—a refusal to hire, a firing, a demotion, or the like—constitutes impermissible discrimination.In this amicus brief, we urge the Supreme Court to grant review and overturn the Fifth Circuit\u27s standard. We argue, first, that the Fifth Circuit\u27s ultimate-employment-decision standard is inconsistent with Title VII’s text and the Supreme Court’s Title VII decisions. Next, we show that the Fifth Circuit’s rule excludes many discriminatory employment practices that are unlawful in its sister circuits. The stories of discrimination victims from these other jurisdictions demonstrate that the Fifth Circuit’s approach is wrong. These individuals suffered discrimination that Title VII prohibits, but the Fifth Circuit’s standard would enable their employers to discriminate without consequence. Finally, we propose a standard consistent with Title VII’s text and Supreme Court precedent: As long as the employer’s intentional, discriminatory conduct imposes meaningful harm on the employee, it is prohibited by, and may be remedied under, Title VII
The Two Most Important Questions for Ethical Public Health
Get PDFPublic health ethics is a distinct and established field, and it is important that its approaches and rationales are understood widely in the public health community. Such understanding includes the capacity to identify and combine principled and practical concerns in public health. In this paper, we present a background to the ideas that motivate public health ethics as a field of research and practice, and rationalize these through a critical ethico-legal approach to analysis. Two essential points of inquiry are identified and formulated to allow philosophical and practical agendas regarding public health to be combined. These come through asking the theoretical question ‘what makes health public?’; and the practical question ‘how do we make health public?’. We argue that these two questions require to be addressed if we are to achieve a robust and rigorous, ethical public health