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The Perennial Eclipse: Race, Immigration, and How Latinx Count in American Politics
Get PDFIn 2016, the U.S. Supreme Court decided Evenwel v. Abbott, a case challenging the use of total population in state legislative apportionment as a violation of the Equal Protection Clause. The plaintiffs sued Texas, alleging that the State impermissibly diluted their voting power because they lived in areas with a high proportion of voting-age citizens. When total population was used to draw district lines, the plaintiffs had to compete with more voters to get their desired electoral outcomes than was true for voters in districts with low proportions of voting-age citizens. The Court rejected the argument, finding that states enjoy the discretion to choose among different population bases, including total population.
Since the Evenwel decision, there has been ongoing interest at both the federal and state levels in using alternatives such as citizen voting-age population (CVAP) to apportion representation. So far, the lack of accurate data on citizenship status has stymied these efforts. Even so, the issues in Evenwel deserve more attention than they have received. The choice about how to count when redistricting can have significant ramifications for both partisan power and minority voices. The litigation reveals the ways in which demographic change, especially the rise of immigrant populations, has tested the efficacy of a voting rights jurisprudence that largely focuses on citizens.
After describing the lawsuit and its aftermath, this Article turns to CVAP’s potential impact on political representation. The discussion first draws on the work of law professors Joseph Fishkin and Ilya Somin, both of whom conclude that alternative forms of representation significantly mitigate the shortcomings of the formal electoral process. Professor Fishkin focuses on virtual representation of those unable to vote, while Professor Somin emphasizes foot voting to express individual preferences. This Article suggests the limits of these strategies, especially for the undocumented, and then examines the issues from the perspective of immigrant integration. While most immigrants who are legally present in the United States eventually will be eligible to cast a ballot, those without legal status remain disenfranchised no matter how long they reside in and contribute to their communities.
For that reason, it is important to address how a switch to CVAP will affect the political representation of minority communities with substantial numbers of immigrants. This Article’s concluding section shows how this change might violate Section 2 of the Voting Rights Act if adopted in Texas. Redrawn maps could result in voter denial if large districts in areas with high proportions of noncitizens depress minority turnout. Under a totality of the circumstances test, altered district lines would be particularly vulnerable because of Texas’s history of electoral discrimination, ongoing racial and ethnic disparities, and continuing polarization. The shift could also lead to impermissible voter dilution. Empirical data reveals that Texans remain deeply divided along both partisan and racial lines. Using CVAP instead of total population would strengthen non-Hispanic white and Republican representation while weakening Latinx and Democratic representation. Those effects would be pronounced and, therefore, should be subject to the most exacting judicial scrutiny. Otherwise, a purportedly race-neutral choice about population count could be manipulated to suppress minority voters’ influence. By considering how the exclusion of those ineligible to vote will harm the minority electorate, courts can retool and revitalize Section 2 jurisprudence to meet the challenges of a changing demography
Turning Point: Green Industrial Policy and the Future of U.S. Climate Action
Get PDFIn the first two years of the Biden presidency, Congress passed three massive funding bills, which poured hundreds of billions of dollars into clean energy infrastructure, research and development, and deployment of clean energy. Although these bills are not what lawyers are accustomed to thinking of as “environmental law,” they have the potential to launch a transformation of the energy sector. This development could not have come at a better time, given the Supreme Court’s increasingly skeptical attitude toward federal regulation.
Although the direct effect of these laws will be dramatic, this Article focuses on positive feedback loops that will amplify those direct effects. These feedback loops operate via impacts on innovation, regulation, and politics, all of which lead to expanded use of clean energy at the expense of fossil fuels. In turn, these impacts expand the production and use of clean energy, closing the feedback loops. Taking full advantage of these dynamics will require a more coordinated government effort, and this Article discusses a coordination method pioneered by some states
“Can I have it non-personalised?” An Empirical Investigation of Consumer Willingness to Share Data for Personalized Services and Ads
Get PDFEuropean regulators, courts, and scholars are currently debating the legality of data processing for personalization purposes. Should businesses require separate consent for processing user data for personalized advertising, especially when offering free services reliant on such ads for revenue? Or is general consent for the contract enough, given personalized advertising’s role in fulfilling contractual obligations? This study investigates whether these legal distinctions reflect differences in people’s willingness to share data with businesses for personalization. Are consumers less willing to share their data for personalized advertising than for personalized services that they clearly contracted for? Does that change if the service is offered for free? Drawing from both the privacy calculus and privacy as contextual integrity theory, the hypothesis posits that individuals would be more inclined to share their data when it is used to personalize the services offered by businesses (e.g., music or news recommendations) rather than for personalized advertising, yet this difference will be smaller when services are offered for free. Using three vignette experiments involving music, shopping, and news services (N = 3,436), the study demonstrates that, contrary to predictions, most individuals are hesitant to share their data for personalization, regardless of whether it’s for advertisements or contracted services. This absence of distinction persists across both paid and free services. The findings strongly support the claim that if the law considers people’s reluctance to share personal data, both personalized advertising and personalized contracted services should require separate consent to data processing from consumers
An Antitrust Analysis of the NCAA Transfer Policy
Get PDFThe National Collegiate Athletic Association (“NCAA”) is no stranger to antitrust law. As a trade association composed of nearly all U.S. colleges offering competitive sports, its rules are regularly challenged under antitrust law. In the past 40 years, the NCAA has faced challenges to rules limiting televised game broadcasts, curtailing assistant coaches’ pay, and restraining players’ compensation, among other issues. Restraints on college athlete transfers also could subject the Association to reasonable legal scrutiny.
Restrictions on the ability to transfer can harm athletes by preventing their immediate eligibility even though transferring could allow them to be closer to family, enroll in more academically rigorous schools, or escape abusive coaches. Transfer restraints have an especially restrictive effect on players hoping to one day play in the National Football League (“NFL”). For these individuals, the college football system is the primary opportunity to showcase talent before declaring for the League’s draft. The NCAA’s transfer rules keep many of these elite players on their teams’ benches. This hurts their ability to prepare for careers in the NFL. And it denies football fans the opportunity to watch them perform in college.
The NCAA’s rules that prevent football players from freely transferring between schools have changed over time. Why? Because of the changing preferences of members of the NCAA Division I Council (“NCAA Council”), a group of college athletic directors and administrators. In April 2021, the NCAA Council changed its rules to facilitate the movement of football players between schools, allowing athletes who had not previously switched schools to pursue transfer opportunities by entering a portal within a 60-day window. On October 4, 2023, the NCAA Council reduced the transfer window from 60 to 45 days.
In this Essay, we explore the antitrust consequences of this latest action by the NCAA Council, as well as the broader competitive effects of limits on college football player movement. We conclude that: (1) the NCAA’s transfer limits impose substantial anticompetitive effects; (2) the NCAA could offer (but would need to prove) a justification based on reduced fan interest from a lack of team stability; (3) less restrictive alternatives (including the 60-day transfer window) are available; and (4) the restraint’s anticompetitive effects are likely to outweigh its procompetitive effects
The Wages of Crying Roe: Some Realism About Dobbs v. Jackson Women’s Health Organization
No full textThe U.S. Supreme Court’s reasoning in Dobbs v. Jackson Women’s Health Organizationcannot be taken seriously. The Court’s stated rationale for rejecting continued protection of the abortion right—that abortion is not deeply rooted in nineteenth century history and tradition—applies with equal force to other substantive due process rights that the DobbsCourt repeatedly insisted were not under threat even without considering stare decisis, including contraception, sexual intimacy between consenting adults, and same-sex marriage. One should add inter-racial marriage and protection from involuntary sterilization to that list. Rather than applying its draconian version of the “history and tradition” test in a principled fashion, the Court decided the case based upon moral opposition to abortion and a failure to appreciate that abortion bans old and new are also shaped by gender bias, not just by concerns for fetal life. Further evidence for this realist account of the Court’s decision can be found in the Dobbs Court’s disregard of self-restraint both procedurally and in the opinion-writing process. It is not going too far to charge the Court with having acted lawlessly. A future Court will readily be able to explain why it is overruling Dobbs
A Tall Summit: Securing Lasting, Reliable Public Access For Recreational Use On Colorado’s Privately Owned Fourteeners
Get PDFFrom the National Scenic Trails to mountains to other destinations in nature drawing the public’s interest and time for recreational activities, privately owned land can cause difficulties in ensuring reliable and consistent public access. A specific example is the Decalibron Loop, a trail in Colorado linking together a few mountains; public access has wavered over the years, and a recent Tenth Circuit case, Nelson v. United States, greatly affected landowner dispositions—particularly with regard to liability—toward the privately owned property. Similar situations across the country provide a variety of potential approaches to helping provide public access and reducing landowner concerns.
With the goals of respecting private property ownership and addressing landowner concerns, this Comment explores and analyzes various potential solutions as applied to the Decalibron Loop. Actions such as creating new easements or utilizing the government’s power of eminent domain have significant weaknesses. Creating a reliable partnership and updating the Colorado Recreational Use Statute are the two most viable options. These solutions take into account landowners’ vocal concerns, local organizations’ opinions and insight, and the uncertain future in this area of law following the Nelson case
Equity\u27s System of Open-Ended Wrongs and Limited Remedies
Get PDFIt is well-known that equity gives courts considerable discretion to override the normal operation of legal rules to prevent an injustice in a particular case. This Article shows equity combined this discretion with limited remedies (rescission, restitution, reformation, and estoppel), and that these limited remedies strike a balance between the value of doing justice in a particular case and the cost of destabilizing the law in a way that places a heavy thumb on the scale favoring stability over justice. Henry Smith has described equity as a “second-order safety valve.” Equity’s limited remedies make it a weak “second-order safety valve.”
This Article also examines what became of this system in the United States after the merger of law and equity. The most interesting developments involve the doctrines of constructive fraud and abuse of a confidential relationship, which are treated as torts with compensatory and punitive damages. This has had a small effect because of two developments. Courts reject most claims seeking compensatory damages by imposing categorical restrictions on the doctrines, while courts ignore these restrictions when a plaintiff seeks an equitable remedy. Thus, courts generally continue to do equity much as it has always been done in cases that would be covered by these doctrines, albeit in an ad hoc and confusing wa
ERISA Principles
No full textERISA, the detailed and technical amalgam of labor law, trust law, and tax law, directly governs trillions of dollars spent on retirement savings, health care, and other important benefits for more than 100 million Americans. Despite playing this central role in the US economy and social insurance systems, the complexities of ERISA are often understood by only a few specialists. ERISA Principles elucidates employee benefit law from a policy perspective, concisely explaining how common themes apply across a wide range of benefit plans and factual contexts. The book\u27s non-technical language and cross-cutting conceptual organization reveal latent similarities and rationalize differences between the regulatory treatment of apparently disparate programs, including traditional pensions, 401(k), and health care plans. Important legal developments - whether statutory, judicial, or administrative - are framed and analyzed in an accessible, principles-centric manner, explaining how ERISA functions as a coherent whol
Constitutional Rights and Remedial Consistency
Get PDFWhen the Supreme Court declined definitively to block Texas’s S.B. 8, which effectively eliminated pre-enforcement federal remedies for what was then a plainly unconstitutional restriction on abortion rights, a prominent criticism was that the majority would have never tolerated the similar treatment of preferred legal protections—like gun rights. This refrain reemerged when California enacted a copycat regime for firearms regulation. This theme sounds in the deep-rooted idea that judge-made law should adhere to generality and neutrality values requiring doctrines to derive justification from controlling a meaningful class of cases ascertained by objective legal criteria.This Article is about consistency, and inconsistency, in judicial decision-making—and more specifically, about the extent to which federal courts should provide similar opportunities to obtain relief for wrongs to discrete constitutional rights. The Article explores how a commitment to generality and neutrality values can translate into a paradigm promoting transsubstantivity (meaning consistent applicability across separate substantive concerns) for constitutional remedies (meaning rules for implementing and preventing or punishing the violation of constitutional rights)—and how the Supreme Court has deviated from this paradigm. Supported by an array of examples, the Article proposes a novel framework turning on the notion that remedial inconsistency can be transparent, translucent, or opaque given the clarity of doctrinal inconsistency. Prophylactic remedial doctrines (like the Miranda-warning mandate and First Amendment overbreadth) are transparently inconsistent, for instance, because they apply differently to discrete rights on their faces. And indeterminate remedial standards (like the political question doctrine for justiciability and the “plan ofthe Convention” doctrine for state sovereign immunity) are opaquely inconsistent because discerning their variable character requires inductive analysis of actual applications.After these descriptive claims, the Article proceeds to a normative examination of how this framework could help improve judicial approaches to constitutional remedies—while recognizing that nontranssubstantive doctrines are desirable in many circumstances. Courts, for example, should work to make doctrines of opaque and translucent inconsistency more transparent so that appropriate institutional actors can more easily assess, affirm, alter, or abandon them. And judges should consider the risk of introducing unnecessary elements of opaque inconsistency before relying on overdeterminative reasoning to reach otherwise established results. Among additionalcontributions, by providing innovative tools for centering remedial consistency as an important—but not absolute—aspect of constitutional law, this Article offers a potential step toward decreasing perceptions of the Supreme Court’s work as pervasively political, thereby reinforcing its legitimacy at this time of widespread skepticism
The NIL Paradox: How Unfettered NIL Rights Will Shrink Student-Athlete Opportunities
Get PDFIn 2019, California passed the Fair Pay to Play Act which granted student-athletes (“SAs”) attending institutions within the state the right to monetize the use of their name, image, and likeness (“NIL”). That enactment ushered in the most transformative change in college sports since the National Collegiate Athletic Association’s (“NCAA”) decision over 50 years ago to allow freshman eligibility to play varsity football. The California law, coupled with the subsequent Supreme Court decision in NCAA v. Alston, which held that the NCAA’s limitations on education-related SA benefits constituted an unlawful restraint of trade under the Sherman Act, unleashed a tidal wave of states legislation conferring SAs within their borders the right to receive compensation for the use of their NIL. In the immediate aftermath of Alston, more than 30 states enacted a version of the Fair Pay to Play Act, creating a dizzying patchwork of NIL laws. In scarcely the two years since Alston, the NIL landscape has devolved into what many describe as the “Wild West” resulting in virtually every stakeholder in this new economy—the NCAA, college leaders and coaches, SAs, and collectives—to plea for federal regulation to bring uniformity and order to the extant chaos. The author concurs with the call for reform and Congressional action. However, this Article argues that key areas of NIL reform—expanded access to institution intellectual property and assets (“IP”) and the elimination of restricted deal categories—are ill-considered and, indeed, will have a material, adverse impact on athletic department wellness