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The Sovereign in Commerce
Get PDFThe federal government is increasingly a commercial actor, providing retail services directly through its own agencies and indirectly through privatesector contractors. Government involvement with and in the private sector is intended to capitalize on the expertise and efficiency of businesses, benefit taxpayers, and promote public ends. Yet this involvement also confers advantages that benefit the executive branch and its contractor allies at the expense of consumers and states. Our prior work in these pages examined how a muddle of doctrines that form a sovereign shield can be exploited by contractors and the executive branch to evade civil liability and regulatory oversight. It tied the expansion of this sovereign shield to the relative empowerment of the federal government at the expense of the states, the executive branch at the expense of the legislative branch, and the private sector at the expense of consumers. In developing a doctrinal response to the risks identified, this Article draws on the insights of scholars who have studied federal–state relations, contractor–agency relations, and business–consumer relations, and it bridges the gaps between these literatures into which the sovereign-shield phenomenon falls.
This Article argues that the solution to the sovereign-shield problem lies in redefining the question. In determining whether an actor enjoys the sovereign shield’s protection from liability and regulation, this Article proposes that the analysis should turn on the nature of the activity performed, not the identity of the actor performing it. If the activity is fundamentally commercial, the actor — whether a government agency acting on its own or through its contractor — should not be protected. This Article outlines a protocol for courts to implement such a proposal, drawing on well-established doctrines dating back to Supreme Court decisions from the early nineteenth century. Shifting to this activity-based approach would help preserve balances of power between states and the federal government, between the executive and legislative branches, and between businesses and consumers
You Can Call Me Al: Regulating How Candidates\u27 Names Appear On Ballots
Get PDFIn electoral politics, names matter. Studies and anecdotal evidence show that candidates whose names suggest a certain ethnic heritage— for example, an Irish-sounding surname in Chicago, or a Hispanic name in South Florida—outperform candidates without such names, and that “American-sounding” names and names with positive connotations can give candidates a leg up. Therefore, candidates for public office often seek to run under the name they regard as most electorally advantageous. Election boards, secretaries of state, and ultimately courts are often called upon to decide whether a particular candidate can run for office under a particular name.
This Article looks at various courts’ efforts to resolve legal challenges concerning a candidate’s eligibility to run for office under a particular name. Part II explains how different courts across the United States have resolved controversies over candidate names. Part III evaluates the various approaches reflected in the opinions discussed in Part II. Part IV discusses what a workable and fair system of regulating candidate names would look like, proposing that candidates should be allowed to appear on the ballot under whatever name they want unless doing so would result in unnecessary confusion between two candidates or some kind of deception, fraud, or bad faith. Part V explores the roles of various government actors in regulating candidate names, arguing that with clear legislative guidance, most controversies can be resolved by election boards and secretaries of state, with court intervention available as a last resort
Electoral Change and Progressive Prosecutors
Get PDFWhile it is clear that a debate is happening about new approaches to the prosecutor\u27s work, it is less clear how deep the changes go. Given the large number of prosecutor offices in the United States, it is possible that much of the change that the media documents is limited to only a few offices; it is also possible that newsworthy stories of recent prosecutor campaign debates are merely the most visible layer of a change that goes deeper. Do the media accounts focus on vivid but exceptional election campaigns, or do news stories over the\u27 last decade reflect a period of widespread change in U.S. prosecution leadership?
We explore this question by collecting the results from prosecutor elections in 200 high-population districts in the United States between 2012 and 2020. Setting aside the difficult issues of measuring how much change a candidate proposes to implement in the prosecutor\u27s office - or how progressive those changes might be - we simply ask whether prosecutor election campaigns are becoming less favorable for incumbents over time
