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NIFLA and the Construction of Compelled Speech Doctrine
No full textFirst Amendment doctrine disfavoring compelled speech originated in 1943 in West Virginia State Board of Education v. Barnette. There are good and convincing explanations for the Court's decision in Barnette, but the Court's recent expansion of the doctrine, culminating in National Institute of Family & Life Advocates (NIFLA) v. Becerra, holds that compelled speech is in most instances "contentbased" regulation requiring heightened judicial scrutiny. Using examples ranging from professional malpractice to compulsory tax returns, this Article argues that the doctrinal rule of NIFLA is demonstrably incorrect. It suggests that the doctrinal category of "compelled speech" may itself be confused insofar as it imagines that all legal obligations to communicate are equally disfavored under the Constitution. Courts should scrutinize instances of compelled speech as necessary to protect threatened constitutional values, but the presence of these values will vary depending upon social context. Courts must learn to read the constitutional geography implicit in distinct social landscapes. This Article offers some hints for how this might be done. Applying these insights to NIFLA, the Article argues that the outcome of the case actually depended upon preconscious and undefended suppositions about social context. Constitutional decisions like NIFLA can be made persuasive only if such suppositions are made explicit and justified
PROPERTY LAW AND INEQUALITY: LESSONS FROM RACIALLY RESTRICTIVE COVENANTS
No full textA long-standing justification for the institution of property is that it encourages effort and planning, enabling not only individual wealth creation but, indirectly, wealth creation for an entire society. Equal opportunity is a precondition for this happy outcome, but some have argued that past inequalities of opportunity have distorted wealth distribution in contemporary America. This article explores the possible role of property law in such a distortion, using the historical example of racially restrictive covenants in the first half of the twentieth century. I will argue that the increasing professionalization and standardization of real estate practices in that era included racial covenants to appeal to a predominately white market clientele, resulting in a curtailment of opportunities for African Americans to acquire wealth in real estate. Racial covenants have been unenforceable under constitutional law since 1948, but I will argue that they were also a distortion of standard property law and that they undermined the principles on which property law rests. Courts could have recognized this at the outset and later, but for some reasons that this article suggests, they did not, with long-lasting repercussions for racial wealth inequalities
TRANSNATIONAL BUSINESS DEALS AND THE PROFESSIONAL OBLIGATIONS OF LAWYERS
No full textProfessional codes of ethics regulate lawyers' conduct and prioritize loyalty to their clients' legitimate interests. Clearly, effective legal representation is an essential aspect of every attorney's responsibility. However, this essay goes further and asks if it is sufficient in one important class of cases-legal assistance in the negotiation and implementation of transnational business deals. This essay argues that, at least for such transactions, legal professionals have ethical obligations that extend beyond the interests of their principals and should include recognition of broader social, environmental, and human rights concerns. But if legal professionals accept that claim, how can such obligations be articulated and enforced without undermining attorneys' primary obligations to their clients? This essay makes a preliminary attempt to frame an answer
Felon Re-Enfranchisement and the Problem of “Lost” Rights
No full textBy conditioning the restoration of political rights on financial repayment, states have prevented hundreds of thousands of citizens with felony convictions from participating politically—profoundly altering the shape of the American electorate. Courts have upheld the practice by treating restoration as an exercise of legislative grace to nonmembers of the political community. Critics argue that the practice conditions political participation on wealth status and is therefore subject to heightened review.
This Essay traces the disagreement back to an overlooked first-order question: how should the juridical status of a disenfranchised citizen’s “lost” rights be understood? The conventional position assumes that disenfranchisement casts a citizen outside the democratic community, thereby voiding all constitutional claims to political participation. But for doctrinal
and democratic-theoretical reasons, disenfranchisement is better understood as the subordination—not the revocation—of political rights and interests, just as punishment suppresses but does not eliminate an individual’s constitutional interests in physical liberty or other civil liberties. From this it follows that disenfranchised citizens retain a stake in political inclusion
that cannot be conditioned on wealth status.
Redescribing the disenfranchisement-to-restoration process in this way aligns with the Supreme Court’s reading of Section 2 of the Fourteenth Amendment in Richardson v. Ramirez and sharpens the constitutional symmetry between financially conditioned restoration and the paradigmatic poll tax. By framing re-enfranchisement as a constitutional default and drawing attention to disenfranchised citizens’ enduring claim to political presence, this account may also be of use in popular restoration efforts outside the courts
Achieving Justice for Disabled Parents and Their Children: An Abolitionist Approach
No full textVol. 33.2:35The social uprisings following the police killings of Breonna Taylor, George Floyd, and many other people of color elevated the concept of abolition to the forefront of people’s consciousness. Concurrently, there is a burgeoning body of legal scholarship calling for the abolition of the carceral regime. Some scholars also recognize that abolition efforts must include the child
welfare system, more accurately termed the family policing system, noting the interdependent relationship between the family policing system and other parts of the carceral regime. Yet, despite the nascent legal scholarship calling for family policing system abolition, parents with disabilities and their children have been mostly disregarded. This Article responds to that scholarly void.
In this Article, I situate the family policing system within the contemporary struggle for the abolition of the carceral regime. My overarching argument is that the family policing system is an unjust social institution for disabled parents and their children. As such, we must work towards abolishing it and replacing it with non-punitive supports and resources for families. First, the Article describes the family policing system and its legal obligations to disabled parents and their children. Drawing on legal scholarship and social science research, it then elucidates the scope of the problem, detailing the injustices and harms that
disabled parents and their children experience because of the family policing system. Next, the Article argues that reforms are not sufficient because the family policing system inflicts injustices and harms on disabled parents and their
children by design. Thereafter, it limns the tenets of both abolition and disability justice and the ways in which these interconnecting movements, theories, and praxes could advance justice for parents with disabilities through the abolition
of the family policing system. Finally, it proposes a novel anti-ableist legal and policy agenda for abolishing the family policing system that is responsive to disabled parents and their children
A Sober Look at SPACs
No full textVol. 39:228 2022Special Purpose Acquisition Companies (SPACs)—touted as a better alternative to an IPO for taking a company public—have become the next big thing in the securities markets. This Article analyzes the structure of SPACs and the costs embedded in that structure. We find that costs embedded in the SPAC structure are subtle, opaque, higher than has been previously recognized, and higher than the cost of an IPO. Although SPACs raise 4.10 and 10. We find that SPAC costs are not borne by the companies they take public, but instead by the SPAC
shareholders who hold shares at the time SPACs merge. These investors experience steep post-merger losses, while SPAC sponsors profit handsomely.
This Article concludes by suggesting that the SEC promulgate disclosure requirements specific to SPAC mergers that make clear SPACs’ costs and sponsors’ incentives, and that equalize regulatory preferences that SPACs enjoy compared to IPOs
Naïve Administrative Law: Complexity, Delegation and Climate Policy
No full textVol. 39 Issue 2The Supreme Court’s ongoing efforts to narrow the contours of administrative agencies’ policymaking discretion comes at a particularly inopportune time. The nation faces a set of increasingly complex and pressing national problems, including climate change, that require the simultaneous application of careful deliberation and expertise, something Congress is ill-suited
to do in the best of times—but particularly so in this hyper-polarized era. Were the Court to fully embrace the Major Questions Doctrine, it would likely render environmental and energy regulators powerless to reduce greenhouse gas (GHG) emissions from the energy sector under their enabling statutes, despite the centrality of that task to their missions and plausible arguments that Congress has already delegated them that power. It would also call into question the legitimacy of many other existing regulatory regimes, throwing regulatory policy into chaos. The Doctrine draws a flawed distinction between policymaking and policy implementation based upon the economic and political significance of the decisions involved; if there is a useful distinction to be made between those two activities, it rests on the distinction between ends and means, the what questions and the how questions. The Framers’ design requires that Congress be able to delegate these difficult, complex, contentious “how” questions to the executive branch. Now more than ever, regulatory agencies—not Congress—can best produce decisions that reflect the “permanent and aggregate interests of the community.
The Cliodynamics of Mass Incaceration, Climate Change, and "Chains on Our Feet"
No full text"What's the urgency?" - U.S. Senator Joe Manchin
"When they talk about the USA, they say it is a country with justice. That's a lie."
President Joe Biden stood at the podium during his address to the United Nations General Assembly (UNGA) in New York on September 21, 2021. He raised his hands in a classic power pose and said: Instead of continuing to fight the wars of the past ... we are fixing our eyes on devoting our resources to the challenges that hold the keys to our collective future: Ending this pandemic, addressing the climate crisis, managing the shifts in global power dynamics, shaping the rules of the world on vital issues like trade, cyber and emerging technologies, and facing the threat of terrorism as it stands today.
In this sweeping statement, the President gave a nod to the "global power dynamics" shaping broader geosociopolitical changes in the world. He acknowledged the scope of the world's problems and argued for the prioritization of "rebuilding our alliances, revitalizing our partnerships and recognizing they're essential and central to America's enduring security and prosperity." President Biden's UNGA speech revealed a clear understanding of what is known in strategic management and business organization studies as the idea of complexity through mentioning global power dynamics in relation to changes in trade, technology, climate change, the pandemic, and terrorism. He added: "Our security, our prosperity and our very freedoms are interconnected, in my view, as never before. And so, I believe we must work together as never before." His speech was a welcome reprieve from four years of the anti-globalist fatalism of President Donald Trump's America First jingoism
Brief for Respondents, Tyler v. Hennepin County, Minnesota
No full textThe Joseph A. Chubb Competition Prize
D. Kysar, R. Harrison, N. Messing, C. Silver
For excellence in legal draftsmanship and not legal
scholarship. Two prizes to be awarded: First and SecondQUESTIONS PRESENTED
1. Whether selling a tax-forfeited property to satisfy a tax debt and keeping the surplus value violates the Fifth Amendment’s Takings Clause in the absence of any state-created property right to that surplus value.
2. Whether a tax forfeiture of a property worth more than needed to satisfy its tax debt, plus interest, penalties, and costs, is a “fine” within the meaning of the Eighth Amendment