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The United States Supreme Court and Lower Court Compliance
No full textVol. 36:2How can courts achieve higher compliance from lower courts? I identify and examine 2,771 lower court treatments of a random sample of 110 Supreme Court cases, and find that lower courts are more likely to positively treat and less likely to negatively treat Supreme Court majority opinions that more thoroughly discuss cited legal authorities. These findings suggest that Supreme Court justices, when crafting opinions, have the ability to influence the degree of compliance by lower courts by dedicating more attention to discussing precedents cited in the majority opinions
Hiding in Plain Sight: ERISA’s Cure for the $1.4 Trillion Health Benefits Market
No full textVol. 42:234Since 1974, the Employee Retirement Income Security Act (ERISA) has
imposed fiduciary duties on those who manage and administer employee benefit
plans. But for the largest employee benefits—retirement benefits and health
plans, which together constitute 13% of total national compensation—ERISA’s
fiduciary duties have played very different roles. For retirement benefits, ERISA
scrutinizes plan managers and requires employers to select plan investments
with care. For health plans, there is a regulatory vacuum, as ERISA imposes few
federal requirements yet preempts state efforts to ensure quality plan offerings.
In short, ERISA has advanced protections for retirement plans but mostly
curtailed protections for the nearly 165 million Americans who receive health
insurance from employers.
The tragedy is that health benefit plans are in dire need of regulatory
scrutiny. The costs of health insurance have risen dramatically faster than
inflation, cutting into worker take-home pay and inflicting disproportionate
harm on middle- and lower-income workers, while the generosity of employer-provided
plans has thinned. The sorry state of employer-sponsored health
insurance is due, in part, to inattention and inadequate probity from the parties
subject to ERISA’s fiduciary obligations. In sharp contrast, the efficiency and
value of retirement benefits have improved over that same period.
Because of what ERISA requires, and because of what managers of
employee health benefits have failed to do, there is enormous opportunity to
employ ERISA to enhance the value of health benefits for employees, which also
means enhancing the value of the nation’s entire health sector. A handful of
pioneering lawsuits have just started invoking ERISA to subject health benefits
managers to fiduciary obligations, and more are certain to come. Now is the time
for ERISA jurisprudence to confront the consequences of neglecting health
insurance, for courts to consider what demands ERISA imposes on health benefits managers, and critically, for the Department of Labor to exercise its
regulatory authority under ERISA and enforce fiduciary obligations that the
statute imposes and the market sorely needs. This Article documents ERISA’s
authority over health benefits managers, explains why ERISA litigation is on the
upswing, and offers guidance on how the Department of Labor could establish
regulatory safe harbors to bring accountability and predictability to the
enormous health benefits marketplace
The Capital of and the Investments in Courts, State and Federal
No full textLongstanding constitutional commitments appear to ensure rights to remedies for "every person." Nonetheless, courts were once exclusionary institutions contributing to the maintenance of racialized status hierarchies. Twentieth-century civil rights movements pushed courts into recognizing the authority of diverse claimants to pursue their claims. These movements also succeeded in legislatures, which invested in making constitutional obligations real through statutory entitlements, jurisdictional grants, and funding for tens of hundreds of courthouses, judgeships, and staff. Courts thus became icons of government commitments to legal remedies, as well as battlegrounds about the authority of government to regulate power, both public and private. In this essay, I explore how the federal courts became the source of "our common intellectual heritage," why it is difficult to bring sustained attention to state courts, and why doing so has become pressing as economic inequalities in state and federal courts undermine adjudication's legitimacy. Many of the new rights-holders had limited resources. Asymmetries in dispute resolution make aspirations to provide fair and equal treatment difficult. Because courts are public sites, the disparities are patent—bringing to the fore the problems facing litigants and courts. For some, responses lie in augmenting the capacity of courts to make good on their promises as information-forcing, conflict-exposing, and information-disseminating institutions. For others, the goal is to limit access to courts and undercut the legitimacy of their processes and outcomes. Illustrative is "Judicial Hellholes," which is the name of a yearly publication attacking jurisdictions in which plaintiffs succeed in obtaining remedies. To clarify the normative stakes of conflicts over "rights to remedies" in "open" courts, I focus here on the infrastructure of state and of federal courts and data on users and needs. Filings in both federal and state courts have, in recent years, declined, while concerns about self-represented litigants and the inaccessibility of courts have risen. I argue that the legal academy needs to take on "class" (as in economic wherewithal) in courts and that Congress needs to provide fiscal support for both federal and state courts, on which enforcement of law depends, and I address the challenges of doing so
Indigenizing Legal Republicanism
No full textVol. 36:1This Article proposes and evaluates a synthesis of neorepublican legal theory and Indigenous peoples law and philosophy. Neorepublican legal theory, a critical reappraisal of legal republicanism, is a philosophy of law as a means to eliminate (or to minimize) domination and thus to secure for all of us a rich, deeply felt freedom. Domination is not simply overwhelming force or power; it is subjection to another’s will, the potential for public or private interference when that potential is not democratically constrained. Shaped substantially by antislavery constitutionalism, neorepublican legal theory affords powerful critiques of oligarchy and empire. Yet there has been little neorepublican engagement with Indigenous justice and little Indigenous engagement with neorepublicanism. The dearth is understandable but warrants revisiting. In theorizing at the convergence, the Article addresses preliminary questions: If neorepublican legal theory demands each person’s liberation and active government to achieve it, then what does that mean for Indigenous peoples and for Indian country? Should we use the republican idiom to achieve Indigenous justice nevertheless?
Indigenizing legal republicanism offers promise but also peril. On one hand, neorepublicanism can be useful in reframing Indigenous peoples law to uncover widespread domination, often judicially sanctioned. In addition, reinterpreting the United States’ constitutional commitment to republican government could transform the federal government’s relationships with Indigenous peoples. Indigenous peoples law and philosophy in turn has much to offer neorepublican theory writ large; Indigenous understandings of dependence and interdependence challenge widespread assumptions that dependence of any kind amounts to domination. On the other hand, neorepublicanism is a universalist philosophy and thus risks sustaining aspects of colonialism, despite being premised on consent and contestation. Reengaging Indigenous intellectual traditions, the Article proposes,
could enable valuable collaboration in refining the neorepublican idiom consistent with Indigenous justice
Democratizing Constitutional Memory
No full textThe article focuses on the concept of "constitutional memory" and its implications for judicial interpretation, particularly in the context of recent Supreme Court decisions that have invoked historical claims to justify changes in constitutional law. It critiques the Roberts Court's reliance on "history and tradition" to overturn established rights, such as abortion, arguing that these historical appeals often mask underlying judicial values and biases. The author emphasizes the need to democratize constitutional memory by including diverse perspectives and experiences that have historically been marginalized, thereby enriching the understanding of liberty and equality in American law. The article advocates for a more inclusive approach to constitutional interpretation that recognizes the contributions of those who have fought for rights and freedoms throughout history
Recognition Rules: The Case for a New International Law of Government Recognition
No full textThe last several years have been marked by contentious disputes about which governments represent the states of Venezuela, Libya, Yemen, Myanmar, Afghanistan, and Niger. Such disputes are far from idle curiosities--rather, they go to the core of the modern international legal order. States are the building blocks of the international legal system, but it is the consent of their governments that forms the cornerstone of international law and diplomacy. When the rightful government is contested, numerous questions emerge with enormous implications for both the states involved and the international community as a whole. Most critically, who is permitted to consent on behalf of the state--to military intervention, to treaties, to the use of state assets--or receive immunities? Who represents the state in international fora? Who is responsible for ensuring the state complies with human rights law and international humanitarian law? And what happens if different governments are recognized by different states and international organizations, as is not only possible, but common? This Article aims to bring clarity to this debate. It begins by explaining the difference between state and government recognition. It then identifies seven important rights and responsibilities that accompany government recognition, ranging from the right to consent to military intervention to the obligation to uphold international human rights and international humanitarian law. It shows that individual states, and to a lesser extent, international organizations, are currently the primary actors in government recognition decisions. Their varying approaches to government recognition have resulted in incoherence and inconsistency that threaten to undermine international law. This Article makes the case for a new approach: granting the United Nations Credentials Committee, through the United Nations General Assembly, the power to determine the recognized government of a given state for all matters directly implicating international law. This approach would bring greater coherence to government recognition and would thereby strengthen the international legal order as a whole
Drug Dealing: Making Public Pharma Work
No full textThe U.S. market for prescription drugs is failing many Americans. Drug prices in the United States are nearly three times higher than in comparable countries, and evidence shows that patients regularly forego essential medicines because they cannot afford them. Additionally, shortages of important medicines are common. In partial response, California recently passed a law to enable public manufacture and distribution of medicines, starting with insulin, a drug needed by many diabetics in the state. Several other states, as well as the federal government, are considering similar action to drive down prices of older drugs and to help resolve shortages. Public production could yield important benefits, but there are legal obstacles to overcome at every step, from developing the product at the bench to getting it to the patient. This Article maps the primary legal and logistical issues facing public pharmaceutical programs-from intellectual property barriers and PBM-driven market manipulation to regulatory hurdles like FDA registration, ERISA preemption, and product liability. We also propose ways to overcome these obstacles. We focus especially on a troubling reality: even if states succeed in producing affordable, highquality public medicines, they may still struggle to get them to the millions of patients who need them. After all, private generic manufacturers already face major obstacles in breaking through distribution bottlenecks to deliver lower-cost options. But states have tools that private firms lack. Armed with legislative, regulatory, and contractual authority, states can encourage-or require-market intermediaries to carry public products, expanding access at scale. In doing so, they may also help dismantle the bottlenecks that constrain private generic competition more broadly
Self-Determination Beyond the Nation-State
No full textThe article examines the challenges faced by stateless national communities, specifically Palestinians and Kurds, in the context of the nation-state system and explores alternative frameworks for self-determination. It highlights the historical context of nationalism in the Middle East, detailing how the establishment of nation-states has marginalized these groups, leading to ongoing struggles for autonomy and recognition. The authors discuss emerging ideas such as a two-state confederation in Israel-Palestine and the concept of "democratic confederalism" advocated by Kurdish communities, which prioritize local governance and inclusivity over traditional state structures. These alternative models suggest potential pathways for addressing long-standing conflicts and reimagining political organization in a rapidly changing world
The Theocratic Agency of the Iranian Legal System at the Legislative and Judicial Levels
No full textVol. 36:2The Iranian theocracy is an exceptional form of Islamic polity in terms of the special role that sharīʿa plays within the theocratic legal system. The project of sharīʿatization triggered in the aftermath of the Islamic Revolution of 1979 has shaped the Iranian legal system into the world’s most prominent theocracy, where revolutionary norms are married with Shiite jurisprudence. The legal analysis of the uneasy intersection between sharīʿaand the legal system, as entrenched within the Iranian constitutional framework, indicates that not only has the Islamicity of all laws firmly been guaranteed, any revision of theocratic elements of the Constitution has also been obstructed. The result is the formation of a theocratically frozen constitution. In addition to securing Islamicity at the legislative level, the Constitution safeguards the Islamicity of the legal system at the judicial level. In empowering judges to deliver sentences based on unwritten law (authoritative Islamic sources and authentic fatwa), even in criminal cases, the Constitution preserves the traditional role of Muslim judges and therefore deactivates the mechanism of codification, codification being considered a hallmark of modern Western legal codes. This has given rise to a systematic overlap between the scope of sin and crime and made the application of the last resort principle (ultima ratio) particularly complicated, if not impossible
Crisis and Change at the United Nations: Non-Amendment Reform and Institutional Evolution
No full textThe Security Council’s inaction in response to the wars in Gaza and Ukraine has once again put a spotlight on structural problems at the United Nations (“U.N.”). Security Council paralysis—particularly the (mis)use of the veto power afforded to the permanent five (“P5”) members of the Council—has long prompted calls for reform. Yet the same veto power prevents nearly all efforts to reform the organization through the formal amendment process provided in the U.N. Charter. This article argues that there is an alternative way forward: what we call “non-amendment reform.” Rather than seek formal amendments that are unlikely to survive the veto of the P5 members, advocates of change should support change through evolving interpretations of the Charter. Non-amendment reform can provide a way for the United Nations to act in the face of a veto threat. Indeed, thanks to an earlier non-amendment reform, the Uniting for Peace Resolution, paralysis of the Security Council during the wars in Gaza and Ukraine has not prevented the United Nations from acting. Although non-amendment reform has been overlooked by scholars, it has long been critical to the capacity of the United Nations to respond to crises. This article demonstrates that a four-stage process—trigger, proposal, contestation leading to a new interpretation, and consolidation—has led to non-amendment reform at key moments throughout the United Nations’ history. Learning a lesson from the past, today’s advocates of change should channel their efforts towards non-amendment reform to enable the United Nations to meet the challenges of the moment. This article outlines four current opportunities to do just that