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State Sovereign Immunity and the New Purposivism
No full textSince the Constitution was first proposed, courts and commentators have debated the extent to which it alienated the States’ preexisting sovereign immunity from suit by individuals. During the ratification period, these debates focused on the language of the citizen-state diversity provisions of Article III. After the Supreme Court read these provisions to abrogate state sovereign immunity in Chisholm v. Georgia, Congress and the States adopted the Eleventh Amendment to prohibit this construction. The Court subsequently ruled that States enjoy sovereign immunity independent of the Eleventh Amendment, which neither conferred nor diminished it. In the late twentieth-century, Congress began enacting statutes seeking to override state sovereign immunity. In reviewing these acts, the Court established that Congress may abrogate immunity when exercising its powers to enforce the Fourteenth Amendment, but not when exercising its Article I powers. This distinction is consistent with the original public meaning of the constitutional text understood in historical context. Recently, in a surprising turnabout, the Court abandoned this established paradigm by finding that the States agreed to an implied “structural waiver” of their sovereign immunity in the “plan of the Convention” whenever such immunity would “thwart” or “frustrate” the purpose underlying a congressional power that is “complete in itself.” The Court’s new purposive approach to state sovereign immunity is incompatible with the Constitution because it gives courts open-ended discretion to alter the federal-state balance established by the instrument. As Alexander Hamilton explained, because the Constitution “aims only at a partial union or consolidation,” “the whole tenor of the instrument” requires adherence to “the rule that all authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigor.” Under this rule, the “plan of the Convention”—properly understood—divested the States of their sovereign rights only when it did so clearly and expressly or by unavoidable implication. By relying on a strongly purposive methodology to find implied structural waivers of state sovereign immunity, the Court’s new approach disregards this fundamental rule and thus the Constitution itself
Keep Charitable Oversight in the IRS
No full textCritics are increasingly calling for Congress to remove charity regulation from the IRS. The critics are wrong. Congress should maintain charity regulation in the IRS. What is at stake is balancing power between the state, charity as civil society, and the economic order. In a well-balanced democracy, civil society maintains its independence from the state and the economic order. Removing charitable jurisdiction from the IRS would blind the IRS to dollars placed in the charitable sector increasing tax and political shelters and wealthy dominance of charities as civil society. A new agency without understanding of, or jurisdiction over, tax cannot act as the bulwark as can the IRS. The critics are right that both the states and the IRS are failing at charitable regulation. Ideally, Congress would allocate sufficient resources to the IRS. However, the long history of charity regulation shows that we are unwilling to allocate the resources to this endeavor. This in fact is a flaw of the proposals for a quasi-federal charitable regulatory agency. These proposals will not generate new funds but will instead spread scarce resources even thinner. Instead, Congress should acknowledge its unwillingness to adequately fund charity regulation and shrink the tax-exempt sector by removing the parts that have limited justification to charitable benefits such as hospitals and private foundations
The Call for FAA Regulation Change: Why Individuals with ADHD and ADHD Medication Prescriptions Should Be Permitted to Become Pilots
No full textThis paper delves into the pressing need for the Federal Aviation Administration (FAA) to reconsider its regulations concerning individuals with Attention-Deficit/Hyperactivity Disorder (ADHD) and those prescribed ADHD medications who aspire to become pilots. The current FAA regulations exhibit a rigid and outdated understanding of ADHD and its treatment, leading to the exclusion of a growing number of individuals from the aviation industry. Through an analysis of studies demonstrating the safety and efficacy of ADHD medications in improving driving performance and reducing accident risks, this paper advocates for a shift in the FAA\u27s stance. Societal factors, such as the increasing prevalence of ADHD diagnoses and the need for inclusivity in aviation, further underscore the necessity for regulatory change. By reevaluating its policies and aligning them with current scientific evidence and societal needs, the FAA can promote diversity and enhance safety within the pilot community. [Abstract generated by AI
The Legal Metaverse and Comparative Taxonomy: A Reappraisal
No full textThe present Article revisits my “Three Patterns of Law: Taxonomy and Change in the World’s Legal Systems”—published in this very Journal a quarter century ago—which acknowledged the ideological nature of the law versus politics distinction and posited taxonomy as a means for understanding law. The original article classified law into professional law, political law, and traditional law, and heralded the tentative and dynamic natures of such classification. The two purposes of the present Article are to (i) reflect on legal transformations that have since occurred as reactions to global geopolitical, technological, and economic changes, and (ii) interrogate whether epistemological assumptions that produced the Three Patterns of Law hypothesis still hold. The question the present Article poses is whether a fourth pattern of law is now necessary to capture the new technological state of affairs and the new geopolitical balances of power: in particular, should a rule of smart law be introduced? This Article surveys some of the relevant legal transformations capable of impacting the mapping of each legal pattern to a given geography. Because the Internet (like law, religion, tradition, or language) is an informative-normative system that has produced a new frontier of development, and because of its ubiquity, I have used it as a test for the current viability of the hypothesis. I conclude that it is too early to add a fourth pattern of law; but it is, perhaps, too late to avoid a pattern of no law taking over global hegemony by substituting algorithms for lawyers
Secrecy on Steroids: How Overzealous State Confidentiality Laws Expose Leakers and Whistleblowers to Retaliatory Prosecution
No full textIt is well-documented that the federal government has a secrecy problem. Thousands of times a year, inconsequential documents are needlessly stamped “classified,” which can mean prison for anyone who leaks them. But the addiction to secrecy doesn’t stop with the Pentagon. State public-records statutes are riddled with their own local version of “classified information” that puts people at risk of prosecution even for well-intentioned whistleblowing.
The problem is particularly acute in Florida, where one of the state’s highest-ranking elected officials spent almost two years as the target of a criminal investigation for releasing records about an unresolved sexual harassment complaint against a state regulator. While the case was ultimately closed without charges, merely being the target of a prolonged criminal investigation can itself be profoundly intimidating—particularly for low-level public employees who lack the resources to defend themselves.
This Article describes the results of a research project by the Brechner Center for Freedom of Information at the University of Florida, which found more than 400 categories of records that state law treats as “confidential,” meaning that a person who releases the record is potentially committing a crime. These categories go well beyond the narrow handful of sensitive documents that everyone agrees cannot safely be publicly disseminated, such as medical records, and encompass entirely mundane information, including the identities of donors to performing-arts venues, or the names of horses that are banned from racing.
The needless proliferation of confidentiality laws creates an intimidating climate for whistleblowers. The fear of a retaliatory prosecution is no illusion: The authors examine a recent Texas case, Villarreal v. City of Laredo, in which a journalistic blogger was arrested and charged with violating a state confidentiality law analogous to Florida’s, demonstrating that overzealous use of “state classification” can empower government officials to make selective, viewpoint-based enforcement decisions. The authors conclude that confidential designation should be applied advisedly to only the narrowest subset of information that would genuinely cause harm if disclosed—and even then, only after the public\u27s countervailing interest in transparency is considered
Vertical Integration and Market Foreclosure in Media Markets: Evidence from the Chinese Motion Picture Industry
No full textThis paper investigates the impact of vertical integration and market foreclosure in media markets. Using theater-movie-day-level data from China, we show that integrated theaters charge lower prices, enjoy higher attendance, allocate more screenings, and run their own movies longer than movies of other distributors. Despite these differences, there is no evidence consistent with anticompetitive input and customer foreclosure in integrated theaters. On the one hand, integrated and independent theaters screen the same share of integrated and independent movies. On the other hand, revenue differences between continued theater-owned movies and discontinued independent movies are inconsistent with customer-market-foreclosure motives given existing differences in distribution incentives between integrated and nonintegrated structures. Finally, we estimate a random-coefficient discrete-choice model of movie demand and show that integrated theaters deliver a higher level of utility with integrated movies than with independent movies through the direct effects of lower prices and more screenings
The Leader We Wish We All Had Is YOU: Insights from the COVID-19 Pandemic
No full textThis is an essay based on Dr. Amy Acton\u27s Schroeder Lecture at Case Western Reserve University School of Law in October 2023. Dr. Acton was the Director of the Ohio Department of Health during the early months of the COVID-19 pandemic. She discusses lessons learned from serving in this capacity and leading Ohio’s pandemic response