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The Myth of Eternal Return and the Politics of Judicial Review
No full text"Some people see in all earthly things only a dreary cyclical movement," Heinrich Heine wrote around 1833.1 "In contrast to the fatal and indeed fatalistic view," he added, "there is a brighter view, more closely related to the idea of providence." As Heine described it, from this alternative perspective "all earthly things are maturing towards a beautiful state of perfection ... a higher, godlike condition of the human race, whose moral and political struggles will at last lead to the holiest peace, the purest brotherhood, and the most everlasting happiness."
Constitutionalism is an ancient idea, albeit one long associated with the form of regimes in general rather than self-governance under written charters that lay down fundamental law.4 As such, constitutionalism began its life linked to "dreary cyclical" stories of rise and decline, improvement and decadence, splendor and ruin. In doing so, it repurposed archaic thinking from even earlier to descry the direction of constitutional politics. But modern constitutionalism, especially the neo-providentialist form that many
Americans have learned to associate with self-governance under a written document, is not the same as the archaic or the ancient. It works with a dualism of fundamental and ordinary law that owes its sources to Christian theology, making it difficult for any Americans to embrace fully the stories of proud ascendancy and inevitable fall in which the archaic imagination and then ancient Greeks and Romans trafficked so long
Disability Admin: The Invisible Costs of Being Disabled
No full textConsider these two scenarios: 1. Imagine you or someone you love begins to have an inexplicable array of symptoms. The symptoms might include feeling dizzy, forgetting common words, or sleeping twice as much as normal but never feeling fully alert Imagine the steps you would take in response. These might include making a doctor's appointment and, when that doctor has no explanation, researching the symptoms online (if you have not already), then searching for other doctors, trying to find experts,
looking for treatments to try, and hunting for people with similar symptoms who have learned anything about this constellation of
symptoms. Imagine also that you do not have much money, and you either have to go into debt to pay for medical specialists or you have to struggle with an insurer that refuses to pay for all these doctor visits because there is no diagnosis. Try to picture how much time and mental energy you or your loved ones would spend in response to this mysterious condition.
2. Imagine you live in a city where your local subway system has no stairs or escalators. The exits are all via elevator.' And imagine that the elevators break down regularly, so particular stations sometimes lack an exit route for hours or days. This means that, whenever you take the subway from station A to station B, you risk getting stuck at B unless you check an "elevator status" app online to make sure the elevators at B are in service. And even then, elevators at B may break down while you are en route. On such trips, you must research alternate routes on the spot-if you even have cell reception underground at B-and then get back on the train to travel more stops to find a serviceable exit (C). Once you are above ground at C, you must find your way to alternative
transport back to where you were going, near B. Imagine you work far from home, and the subway is the only way to get to work in less than an hour. Picture the time and mental energy that navigating transportation would require.
Scenario 1 is familiar to anyone who has had an ailment that is unusual or difficult to diagnose-or whose loved one has had such an ailment. Scenario 2 builds on the reality of one subway station in a U.S. city that can be accessed only by elevators to conceptualize a subway system that would invite all readers to imagine the experience that wheelchair users face in unreliable subway systems. Multiple lawsuits catalogue the challenges faced by wheelchair users in cities where subway elevators are scarce and function poorly
DYNAMIC REGULATION
No full textThere is widespread consensus that the Great Recession did not have to be as "Great" as it was; had regulators acted earlier, its consequences would have been less severe. Two explanations are typically offered for early inaction. The first is that crises occur unexpectedly, so there is little time to respond aggressively. The second is that even regulators who suspected a downturn was imminent lacked the legal authority to intervene. This Article disputes these myths. First, empirical evidence demonstrates that more than a year elapsed between the first tremors in financial markets and the crash. Second, legal analysis illustrates that regulators had at their disposal significant authority to bolster banks. In fact, they used this authority with respect to small banks but not with large, systemically important firms. There is an alternative explanation for the tepid initial response to the crisis. Regulators' default rule is inaction until regulatory measures of bank health signal distress. These measures are slow to update--in many cases, the day before banks failed, their regulatory capital measures suggested no cause for concern. In the absence of significant change, regulators will inevitably be firefighting future financial crises ex post rather than successfully policing financial markets ex ante. The reticence to forestall capital disbursements as the COVID-19 crisis has raged is a testament to difficulties faced by regulators today, in which the default rule as a crisis begins is inaction rather than action. The next crisis can be prevented, but to do so will require changing the default rule. This Article proposes a way forward, advocating for automating aggressive action when financial markets indicate distress is likely. Such reform will finally make costly bank failures a relic of the past
Congressional Oversight of Modern Warfare: History, Pathologies, and Proposals for Reform
No full textDespite significant developments in the nature of twenty-first century warfare, Congress continues to employ a twentieth century
oversight structure. Modern warfare tactics, including cyber operations, drone strikes, and special operations, do not neatly fall into
congressional committee jurisdictions. Counterterrorism and cyber operations, which are inherently multi-jurisdictional and highly
classified, illustrate the problem. In both contexts, over the past several years Congress has addressed oversight shortcomings by
strengthening its reporting requirements, developing relatively robust oversight regimes. But in solving one problem, Congress has created another: deeply entrenched information silos that inhibit the sharing of information about modern warfare across committees. This has real consequences. The Senate Foreign Relations Committee and House Foreign Affairs Committee may have to vote on an authorization for the use of military force against a country without a full understanding of options for covert operations that might achieve the same purpose with less risk. The House and Senate Armed Services Committees may be asked to approve a train-and-equip program for a partner force in a nation without knowing that the CIA is already operating essentially the same program. And the House and Senate Intelligence Committees may support a proposed covert operation without understanding the broader foreign policy context, and therefore, the reaction that it might provoke if it were discovered.
But there is good news with the bad. If Congress is to blame for this information siloing, Congress is also able to fix it. This Article's
discussion of solutions begins with a proposal made by the 9/11 Commission to address information sharing failures-the formation
of a super committee to address national security matters. After explaining why this is not the right answer, this Article offers four
concrete proposals to remedy the problem. First, Congress should promote inter-committee information sharing by expanding cross committee membership. Second, Congress should require joint briefings to committees when matters cut across jurisdictional
boundaries. Third, Congress should permit members to share classified information with other members under limited, clearly
defined circumstances. And fourth, Congress should create a Congressional National Security Council to coordinate cross-cutting
national security matters and share mutually relevant information
Contracts on the Seabed
No full textThe ocean is, by all accounts, largely unexplored and very poorly understood. The only way to change that, according to the experts devoted to the pursuit of oceanic knowledge, is to “get down there and do it” by exploring, charting and cataloguing the earth’s last frontier. To this end, the United States Oceanic and Atmospheric Administration is conducting research on as much of the ocean’s floor as it can—an area about the size of West Virginia each year— as quickly as it is able. West Virginia, though, is small compared with the ocean. Expeditions to explore and map the ocean floor share one feature: the novelty of what scientists are finding. A few examples of these unexpected finds include a “tar lily” found in the Gulf of Mexico in April 2014, creatures that make their home exclusively at the 438°F mouth of hydrothermal vents, the “Pogo squid” that uses a narwhal-like horn to hop along the ocean floor, a forty foot- long bioluminescent pyrosome that looks like a giant aquatic tube, and a wide variety of other previously unseen creatures
The Essential Role of Empirical Analysis in Developing Law and Economics Theory
No full textThroughout its history, the development of theoretical law and economics has depended on, and been shaped by, empirical analyses of law. Theoretical law and economics scholars cannot draw persuasive positive or normative conclusions about legal rules unless the models employed accurately capture the factors affecting people’s responses to legal rules. Models thus must accurately describe decision-makers’ decision-making environment, available choices, and decision-making processes. Empirical analysis plays a vital role in theoretical scholars’ ability to develop such models. Empirical analyses can improve theoretical models by testing the predictions of models; refuted theoretical predictions regularly spur lead theoreticians to revise and improve their models. Empirical analyses also contribute by providing direct evidence on the decision-making environment, available choice sets, or decision-makers’ mental processes. This interaction of empirical analysis and theory has led theoretical law and economics to rely increasingly on models predicated on incomplete information, incomplete contracting, and decision-making that deviates from rational choice theory
The Architecture of Critique
No full textIrony, contradiction, discontinuity, antagonism, ambiguity, paradox, antinomy, aporia, contingency, indeterminacy, ambivalence—in a list that continues. For decades, these have been the bywords of critical thought, whether within legal studies, left historiography, or humanistic inquiry at large. A constellation of such terms has defined what it means to do “theory,” for that philosophical tradition’s structuralist-Marxist, poststructuralist-deconstructive, and other contemporary proponents. On the one hand, those grammars capture the broad intellectual ethos or spirit that has animated critical and revisionist scholarship since theory’s heyday and institutionalization beginning in the 1970s. But on the other, they have also acted as the central apparatus of critique: it has been doctrinal that unmasking properties like contradiction, paradox, discontinuity, and antagonism will work simultaneously to disclose and to critique structures of power and domination. Vested with intensely political labor, that conceptual matrix has not only summed up the essence of a radical, left, or progressive politics but also been understood to distinguish such a political project from a (neo)liberal-legalistic-rationalist one
If Only I Had Known: The Challenges of Representation
No full textI began my career as a public defender in the fall of 1998. I was twenty seven years old and one year out of law school. I had spent the intervening year as a law clerk to a federal district court judge in my home state of Texas. To become a public defender, I did not stay home, however. I moved to what I perceived at the time to be the center of public defense work-Washington, D.C.-to become an E. Barrett Prettyman Fellow at Georgetown University Law Center.1 In Washington, D.C., far from my rural home in the Rio
Grande Valley of Texas, I brought my ideals of criminal systems. As I began my career, I imagined that my commitment and the commitment of those like me to adversarial representation could render these systems just. Instead, in the courtrooms of the Superior Court of the District of Columbia and later in King County, Washington, I bore witness to the complexities of representative systems.
Even before going to law school, I believed that whatever failings criminal systems might suffer, they could be corrected, or at least ameliorated, if two capable advocates represented those on either side of the "v"-the prosecutor for the state and the defense attorney for the accused. I believed this, knowing firsthand the disproportionate rates at which such systems policed, criminalized, and incarcerated marginalized people-the Black, Brown, poor, and LGBTQIA+ folks in my community. I believed this while aware
of what appeared to be, even to my pre-law school self, an intentional disregard of the lived realities of complaining witnesses, defendants, and affected communities. I believed in the possibility of change, even as I knew the uncles who never came home and were instead visited on "family day" at Ellis, Hilltop, or Huntsville correctional facilities; 3 the aunties who chose between making rent or keeping a loved one close and reporting crime; the children who lost parents or grandparents as often to shootings as to sentences. I believed this as I experienced the great void left when the "dangerous" or the "criminal" were taken away by sheriffs or police officers. I believed it even as I knew, long before I ever set foot in a law school classroom, much less a courtroom, that criminal systems were broken. I believed this even as I saw the results of these broken systems each day.
Despite all I had known, I still believed that these systems that produced such skewed and awful results could be righted by zealous advocates. I believed that my voice, or my skill as an advocate, would allow the stories of the lives I had known-lives affected by criminal systems and stories I carried with me in my pockets from law school to clerkship, to fellowship to public defenders' office like so much South Texas grit-to pour out onto the pages of briefs or into the ears of equally eager prosecutors, judges, and jurors. I believed that by hearing these stories, these strangers-who might carry their own stories-would be transformed, and systems could be made right by the power of my words. I did not know then what I know now-the cost and loss of representation
The Alchemy of the Public Interest
No full textWhat does it mean to be in the public interest? Who has authority to define that interest? And how might such definitions emerge or be imposed? This Article offers a novel perspective on those questions, drawing from an ethnographic and historical study of the infamous California “water wars” to elucidate the discourses, logics, and practices through which people lay claim to the public interest. Such claims undergird the operation of environmental governance and inform the legal concepts that drive and authorize its implementation. As we continue to evaluate and reform ways of regulating natural resources, we must recognize the cultural norms and modes that construct the public interest and allow certain ways of governing to persist, even when they perpetuate inequality. This Article focuses on those processes and explains their implications. It provides building blocks—both theoretical and methodological—necessary to further a more generalizable account of the public interest as concept and practice
The Nagoya Protocol and the Legal Structure of Global Biogenomic Research
No full textInternational research collaborations have been the engines of some of the most important advances in human health and nutrition over the last century. The Green Revolution, built on networks of scientists and resources drawn from the world's wealthiest and poorest countries, averted critical food shortages that faced the growing world population in the 1950s and 1960s. The most promising vaccine candidates for devastating infectious diseases like Ebola and HIV have resulted from partnerships of financial resources, governments, and scientists from the Democratic Republic of Congo, Guinea, Liberia, Sierra Leone, South Africa, and Thailand. Orchestrated technology transfer and research capacity building in low- and middle-income countries have delivered advances in the ability of low-resource countries to manufacture medicines and vaccines. Scientists have worked together across borders as threats posed by infectious disease, malnutrition, and environmental degradation necessitate partnerships that match the technology and resources in wealthy countries with the knowledge and biodiversity abundant in many poorer ones