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The Ghost of John Hart Ely
No full textThe ghost of John Hart Ely haunts the American liberal constitutional imagination. Despite the failure long ago of any progressive constitutional vision in an increasingly conservative Supreme Court, Ely's conjectures about the superiority of judges relative to legislatures in the protection of minorities and the policing of the democratic process remain second nature. Indeed, they have been credible enough among liberals to underwrite an anxious or even hostile attitude toward judicial reform. In order to exorcise Ely's ghost and lay it to rest, this Article challenges his twin conjectures. First, the Article argues that there is little historical and no theoretical basis for the belief that courts will outperform legislatures in overcoming deeply entrenched historic discrimination against deserving minorities--even as courts act to entrench the power of undeserving ones, like the powerful and wealthy, today. Second, the Article contends that Ely's almost complete failure to anticipate the inaction of the judiciary in policing the democratic process--except when judges assist their own ideological allies--is devastating for his theory, which depended precisely upon an empirical prediction. Ely's conjecture about the comparative superiority of judges in policing the democratic process has proved untrue because he ignored ideological affiliation (focusing exclusively on personal self-interest) in supposing that, with their independence and life tenure, judges are less likely to act in self-dealing fashion than politicians. And the deepest reason for the ideological affiliation of judges, who often exacerbate what many take to be the worst pathologies of democratic exclusion, is that identifying what arrangements count as more rather than less democratic is itself a matter of intense ideological division. If Ely's two conjectures fail, nothing remains to support the conclusion that judges deserve excess countermajoritarian power, leaving democracy's shortcomings to be remedied within democratic politics--which is, in turn, the most desirable future of liberal constitutionalism
Regulatory Oscillation
No full textVol. 39 Issue 2In the wake of the Reagan deregulation, America experienced twenty-eight years of regulatory progression, with precious little retrogression. That trend came to a crashing halt during the four years of Donald Trump’s presidency. As a candidate, Trump campaigned on a series of pledges to reverse and undo as much of the work done by Barack Obama as possible. The Trump
EPA was particularly active in this effort. In addition to reversing the Clean Power Plan, under Trump the EPA repealed or substantially weakened a number of other important Obama-era regulations, including a substantial increase in fuel economy standards and strict curbs on mercury and other emissions from coal-fired power plants. These regulations would have affected air quality and pollution more generally, but they also would have had a substantial effect on greenhouse gas emissions and thus on climate change.
President Biden has promised to reinstate or even strengthen most if not all of the Obama-era regulatory initiatives that Trump eliminated. The EPA and other agencies are already at work on these new regulations. But Biden does not represent the end of history. Barring some seismic shift in political tectonics, some day in the future a Republican will again be elected president on a platform of ignoring climate change, protecting the fossil fuel industries, and reversing the regulatory progress of his or her Democratic predecessors. That president will likely undertake a program of deregulation, much as Trump did. Subsequently, a Democrat will again someday be elected president. That president will likely undertake a program of re-regulation, much has Biden has promised to do. From administration to administration, across terms, regulations will blink into and out of existence. They will become more and less stringent on four, eight, or twelve-year cycles. We are now living in an era of regulatory oscillation
“The Grass is Not Always Greener” Revisited: Climate Change Regulation Amid Political Polarization
No full textVol. 39 Issue 2In 2016, we co-authored a symposium article, The Grass is Not Always Greener: Congressional Dysfunction, Executive Action, and Climate Change in Comparative Perspective, 91 CHI.-KENT L. REV. 139 (2016), that compared the impact of polarization on the process of creating climate change law and policy in the United States and Australia. We found that while the United States relied heavily on administrative regulation because comprehensive climate change legislation could not pass Congress, Australia’s flip-flopping legislation did not offer a demonstrably superior solution. We did not at the time foresee the political changes that would take place in both countries over the five years that followed. The transitions from President Obama to President Trump to President Biden have involved dramatic shifts in regulatory policy at the same time as the same conservative Coalition government has until recently continued to hold power in Australia. This Article revisits our thesis, given these changes, that both forms of government face barriers to effective lawmaking when deep partisan divisions exist. We find that although the politics of particular periods may make one political system more stable in approach than the other, neither country has made consistent progress in addressing the problem of climate change. In addition, subnational governments and other key stakeholders have taken action in both countries when confronted with partisan barriers at the federal level. We
conclude that the dramatic regulatory shifts in the United States and the limited regulatory action in Australia over the past five years only bolster the importance of advancing substantive and structural strategies that foster greater cooperation
Judicial Solidarity?
No full textWinter 2022 | Volume 33, Issue 1We are living in a moment where open and principled resistance to law and legal order are a part of our daily lives. Whether in support of Black Lives Matter or in opposition to mask mandates, people are in the streets resisting. Over the last decade, the perception of the fixity of our legal order has eroded and so, too, has the stability of our consensus that legality and morality are aligned. In this moment, the visibility and viability of resistance to law and civil government through social movements have surged. With the increasing salience of civil resistance resurfaces an old question: can (and should) judges seek to stand in solidarity with movements engaging in civil resistance? The classic answers to this
question take two forms. Judges should either enforce the law and punish the civil resister, or, if they cannot do so in good conscience, they should resign. These answers position the judge outside of and aloof from the political and social struggles that the resisters represent. It follows from this aloof position that judges cannot be in solidarity with civil resistance aimed at legal change in their official capacity. This Article questions the stability of the mainstream conclusion. By focusing my attention on judicial responses to civil resistance against the Fugitive Slave Law of 1850, I return to one of the most influential sources of our collective sense of judicial capacity for political resistance. Through my own original archival
research, I revisit Robert Cover’s conclusions about judicial timidity in Justice Accused. Against extensive evidence confirming Cover’s bleak view, I expose and examine one judge’s contrary argument. That judge, Ebenezer Rockwood Hoar, was a neighbor and friend of Henry David Thoreau, and he wrote in conversation with, not against, the strident views of the famous advocate of civil disobedience. Hoar proposed that a judge in sympathy with civil resistance should enforce the law
in order to effectuate the power of the resistance. He argued that making Thoreau’s theory of change work required sympathetic judges to enforce the law to expose its injustice. From this colloquy between judge and activist, I draw the beginnings of a counter- narrative of how judges may strive towards (if not achieve) solidarity with resistance movements. Judges, like any other institutional actor, have the capacity and perhaps the obligation to be strategic about how they act within and against the social movements that find their ways into their courtrooms
The Social Cost of Greenhouse Gases: Legal, Economic, and Institutional Perspective
No full textVol. 39 Issue 2The social cost of greenhouse gases provides the best available method to quantify and monetize the climate damages attributable to the emission of an incremental unit of heat-trapping pollution. Accordingly, the metric can be highly useful for crafting policies that will reduce the nation’s greenhouse gas footprint, with potential usages including weighing the impacts of proposed fossil-fuel projects, assessing grant applications and procurement decisions that have climate impacts, and crafting fee schedules for monetary rates that will internalize the cost of climate damages onto polluters. To date, however, the use
of the social cost of greenhouse gases for such determinations and processes has been sporadic and fairly limited. It is time for this practice to change, as broad application of the social cost of greenhouse gases will enable agencies and departments to identify programs or policies that cost-effectively reduce greenhouse gas emissions and thus enable a speedy and efficient transition to a greener economy.
Because widespread use of the social cost of greenhouse gases would lend support to many decisions to transition away from fossil fuels, the methodology has become subject to criticism from opponents of climate reforms. While critics attempt to discredit the federal government’s social cost of greenhouse gases valuations—arguing that these values overestimate climate costs, disregard best practices, and even usurp the legislative function from Congress—such criticisms lack merit and should not deter agencies from broadly applying the social cost of greenhouse gases. This Article evaluates the various legal, economic, and institutional controversies surrounding the social cost of greenhouse gases and explains why this metric should play a critical role in guiding agency policymaking and decision-making related to climate change
Disclosure’s Limits
No full textVol. 40:37 2022The U.S. Securities and Exchange Committee’s (SEC) proposed reforms of how it regulates special purpose acquisition companies (SPACs) lean heavily on the most familiar tool in its arsenal: disclosure. The proposed rules ask for more disclosure, and more standardized disclosure, on a variety of fronts. While as researchers we generally support more disclosure, unfortunately, we are deeply skeptical of the benefits disclosure alone can provide in this particular case to retail investors—the audience to which these reforms are directed. SPACs as currently structured feature a species of empty voting, where a shareholder’s voting interest is decoupled from her economic interest. Because of this fundamental disconnect, which is anathema to corporate law, our research indicates that disclosure-based reforms will be of limited utility in protecting investors
The U.N. Convention on the Rights of Persons with Disabilities and the Global South
No full textVolume 47, Number 1, Winter 2022Despite the many successes of the U.N. Convention on the Rights of People with Disabilities, the treaty has yet to be as influential as it ought to be for eighty percent of the world’s more than one billion disabled people living in the Global South (or, developing world) relative to those living in the Global North (or, developed world). This Article critiques the manner in which the trajectory of the drafting process tilted from Global South priorities and perspectives toward those of Global North States and Disabled Peoples’ Organizations (DPOs). This is illustrated by the pervasively developed world view that prioritized the role of deinstitutionalization over family support when construing the right to independent living in the community, while also evincing an almost total disdain for many developing world considerations, including the rights to clean water, sanitation, and hygiene and the removal of landmines.
These power imbalances could have been mitigated, if not rectified, by the Committee on the Rights of Persons with Disabilities (CRPD Committee), the body tasked with monitoring the treaty. The CRPD Committee is required to be geographically representative and inclusive, and is elected and guided by the Conference of States Parties to the CRPD, which itself is comprised by a majority of developing states; consequently, the Committee’s members have been chosen predominately from the Global South. Despite opportunities for responding to concerns relevant to the developing world through Concluding Observations (COs), the CRPD Committee has made only tentative and uneven efforts to advance the rights of persons with disabilities living in the Global South. We therefore propose constructive avenues through which, in fulfilment of its institutional duty, the Committee can and should make the CRPD increasingly responsive to the Global South and thus more truly representative of the vast majority of persons with disabilities worldwide. In addition to honoring its governance mandate, doing so would help mitigate the prevailing bias in human rights discourse and practice favoring the Global North
Economic Substance in SPAC Regulation
No full textVol. 40:44 2022This Essay lays out an economic substance approach to regulating special purpose acquisition companies (SPACs) as sales of stock for cash. The approach presented here charts an alternative to the SEC’s recent rule proposal that better reflects the economic reality of SPAC transactions and is more firmly grounded in the structure of our existing securities laws. While the SEC’s approach does address certain gaps in the current rules, its primary drawback is that it still treats SPAC mergers as a special type of business combination that requires its own regulatory regime. We already have a regime for sales of stock to the public for cash. The SEC should adopt rules that simply apply this regime to the stock sale for cash that, in economic substance, occurs in SPAC mergers.
Merging with a SPAC has become a popular alternative to an initial public offering (IPO) as a path for going public. Data has consistently shown that public investors often fare poorly in SPAC mergers, compared to the “sponsors” controlling SPACs, who frequently realize outsized gains. One recent study found that SPAC merger investments made by the public underperformed the
market by close to 60% at the median after twelve months while SPAC sponsors earned median market-adjusted returns of almost 200% over the same period
Redistribution For Realists
No full textInequality is a defining issue of our time. Yet the longstanding orthodoxy for addressing inequality—so prevalent it’s been dubbed “the Brookings religion”—is that we should redistribute solely through tax and transfer policies because those are the most efficient means for doing so.
While the orthodoxy holds in theory, it fails in practice. Individuals compartmentalize their policy views: many are reluctant to redistribute through taxes and transfers but are willing to do so in other policy domains, like provision of necessities such as transportation, food, and housing. We’ve thus restricted our redistribution efforts to a policy domain where redistribution is unpopular while neglecting the many policy domains where redistributive policies are popular. The current orthodoxy may be more efficient, but it is also a prescription for widespread inequality.
We need to flip the old economic orthodoxy on its head by spreading our redistribution efforts across many policy domains, but doing so modestly in each domain. This “thousand points of equity” approach has the virtue of redistributing where it can be achieved, by allowing policymakers to seek modest and attainable redistribution in many domains rather than pushing for massive redistribution in a single domain where it is difficult to attain. This approach would allow us to make substantial inroads on inequality while doing the most good at the least cost. The approach does so by retaining the traditional economic goal of efficiency, but combining it with data-driven behavioral insights about what redistribution is politically realistic. The Article illustrates how the approach would apply to areas across the law, including regulatory cost-benefit analysis, labor law, tax law, social insurance, tort law, and housing law
Countering Complexity's Corporate Bias: Tax Simplification as a Strategy to Reduce Profit Shifting in the African Extractive Sector
No full textVolume 47, Number 1, Winter 2022Despite their immense natural resource wealth and their intense need for revenue, African governments collect little revenue from the extractive sector. One significant reason for this revenue shortfall is that multinational corporations operating in the extractive sector use profit shifting strategies to artificially reduce their tax bills. These companies can typically afford large numbers of highly skilled lawyers and accountants. In contrast, African tax authorities are often highly under-resourced and undertrained. This Note argues that legal reforms that simplify tax administration would put African tax authorities and multinational corporations on a more level playing field. Simpler tax rules that rely on easily verifiable standards and reduce administrative burdens would reduce multinational corporations’ ability to exploit complexity to shift profits, in turn providing much-needed tax revenue that could be used for poverty alleviation and economic development