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Democratic Erosion and the United States Supreme Court
Full text linkFor many decades, confidence in American institutions and political culture consistently led scholars to sideline questions about “regime change” in the United States. And for many years, that approach seemed justified. Democratic institutions were firmly rooted and stable, and American voters participated in free and fair elections that resulted in the peaceful transfer of power between parties and candidates. Then came the campaign of Donald Trump and all that has followed since, including open challenges to the most basic and fundamental democratic norms. These changes have led many voters, commentators, and scholars to ask: Is democracy eroding in the United States?
This Article is the first to employ its novel approach to the examination of democratic erosion in the United States by adopting a comprehensive method from the comparative politics literature. Through identification of four key areas for studies of democratic erosion— electoral rules, executive aggrandizement, income inequality, and speech rights—and an examination of how the Supreme Court has intervened in each area between the 2016 and 2022 terms, this Article provides a new perspective on the Court’s role in democratic erosion. The key question for this project is thus empirical, not doctrinal. What has the Court done when it has confronted issues central to democratic erosion?
Part I of the Article provides a brief survey of the comparative politics literature to identify the categories that will guide the analysis of Supreme Court caselaw. Part II of the Article examines the opinions in each category—sixty-four cases—with a focus on the Court’s impact on erosion. This snapshot of Supreme Court intervention in areas that are crucial to democratic stability is a worrisome one. Though the wide range of cases examined permits room for much nuance, generally speaking, the Article finds the Court abets democratic erosion more than democratic stability
Keeping the Perpetual in Florida\u27s Conservation Easements
Full text linkHundreds of millions of dollars are being invested in the protection of the Florida Wildlife Corridor and other environmentally sensitive lands. One of the primary tools being used to accomplish this protection is the perpetual conservation easement, which is touted to landowners and the public as providing a permanent guarantee that the subject lands will never be developed. There is a very real danger, however, that perpetual conservation easements in Florida may not, in fact, be perpetual, and that the protections put in place today will vanish over time—along with the public funds invested therein—as government and nonprofit holders “release” the easements in the face of economic, political, and development pressures. Florida landowners may also find themselves unable to benefit from the subsidies offered through federal tax incentive and purchase programs due to an inability to qualify for those programs, which mandate that strict limits be placed on the release or extinguishment of conservation easements.
This Article raises the alarm regarding the potential lack of durability of conservation easements in Florida. It explains the significant disconnect between what landowners and the public are being told about the permanence of conservation easements and the realities of existing law. It also seeks to address these problems by recommending two steps that should be taken now to ensure that perpetual conservation easements in Florida will, in fact, be perpetual: (i) revise Florida law to place clear limits on the extinguishment or amendment of perpetual conservation easements, as has been done in several other states, and (ii) draft conservation easements to make clear that the grantor, the grantee, and their successors in interest are bound by the easement terms. With hundreds of landowners reportedly waiting to grant perpetual conservation easements to protect the Florida Wildlife Corridor, the time to act is now
The Constitutional Meaning of Financial Terms
Full text linkThe Constitution has sixty-three financial terms. These financial terms include, for instance, “compensation,” “expenditures,” “debt,” “coin,” “revenue,” “securities,” and “bankruptcies”—all of which determine the elementary building blocks of our governmental makeup. When the Supreme Court interprets the meaning of these financial terms, it does so in isolation and without a consistent framework. This Article proposes a unified framework for the interpretation of financial terms in the Constitution which comprises two fundamental canons of construction.
First, this Article proposes that all financial terms in the Constitution should be interpreted with fiscal and monetary neutrality—interpreting financial terms in a way that does not favor one kind of economic policy over another. The Supreme Court is not the right institution to manage the economy, as it lacks the expertise to do so. Moreover, fiscal and monetary policy is a governmental object that is intended to be governed by, and is best left to, the political process. The Supreme Court should thus interpret all financial terms in the Constitution in a manner that will leave fiscal and monetary policy open for implementation by either the legislative and executive branches, or the various states, as appropriate. Second, this Article proposes that if the Supreme Court is able to avoid deciding the meaning of a constitutional financial term, and, instead, decide the relevant case on another basis (such as either federal or state law, or procedural grounds), it should do so. In other words, the Supreme Court should invoke the constitutional avoidance doctrine when facing a constitutional financial term.
Together, fiscal and monetary neutrality, coupled with the constitutional avoidance doctrine, provides a consistent framework for the Supreme Court’s treatment of financial terms that serves both the intended meaning of these terms and their continued utility in today’s modern economy
Distribution Through Taxation Versus Legal Rules, and the Epistemic Limits of Law-and-Economics
Full text linkThis Article develops an epistemic critique of the view, widely held in law-and-economics, that legal rules should always be chosen for efficiency and that redistribution to produce a fair distribution should be conducted solely through the tax-and-transfer system. In place of this orthodox view, I develop an alternative distributive theory.
The canonical ‘double distortion’ argument for the orthodox position, formulated by Kaplow and Shavell (1994), claims that opting for efficient legal rules minimizes economic distortions and maximizes aggregate social wealth, some of which can then be redistributed via the tax-and-transfer system to those who would have been better off under the distributionally fair rules, thereby producing Pareto improvements relative to that latter regime.
My epistemic critique begins with the observation that to create such Pareto improvements, the state must know the counterfactual distribution that would have resulted from adopting the fair legal rules, since this is the baseline used to determine (i) which individuals are to receive (and finance) transfer payments, and (ii) in exactly what amounts. In this respect, the form of reasoning employed by Kaplow and Shavell is the most epistemically demanding of all those commonly utilized in normative lawand- economics. Drawing on literature from the methodology of economics, I develop a number of arguments for why predictions of precise distributions are typically not possible. In practice, policymakers must generally be content to elicit more modest empirical inferences from economic models, such as the directional impact of policies or other coarse-grained properties of outcomes. In the course of this analysis, the epistemic limits of law-and-economics are duly located.
This critique has far-reaching implications for the role of the legal system in the institutional realization of distributive justice. I conclude that on a realistic view of the predictive power of economic and social science, a pluralist approach, which recruits many slightly redistributive legal rules to support the tax-and-transfer system, will be most epistemically feasible. A novel version of this pluralist approach, which I call the ‘prudent investor’ framework, is developed to replace the orthodox distributive method
The Right to Violence
Full text linkScholars have long contended that the state has a monopoly on the use of violence. This monopoly is considered essential for the state to assure the safety and security of its citizens. Whereas public officers have the broadest authority to deploy violence, in order to make arrests or to inflict punishment, private citizens allegedly have severe restrictions on their use of force. Specifically, the state is said to only authorize private violence when civilians face an imminent threat of unlawful force or when civilians are attempting to prevent a crime.
Yet the state explicitly authorized private violence against enslaved people during the colonial and antebellum eras in order to exploit their labor. And from Reconstruction through the civil rights movement, state officials persistently declined to enforce criminal laws when persons classified as white engaged in violence against Black communities, regardless of whether the perpetrator was a public or private actor. Although legal scholars have occasionally acknowledged these historical incidents, they have not sufficiently interrogated how race dictates access to safety and how race influences when the state will surrender its monopoly on violence.
This Article is the first in a series to use criminal law and policy to explore how Black people are excluded from safety guarantees traditionally associated with the social contract. Drawing from antebellum and postbellum case law, the Article illuminates how the state has relinquished its monopoly on violence in order to sustain race- and labor-based hierarchies. As a result, violence has assumed the shape of a legal right. This right can be stated as follows: violence that enables and enforces the dominant position of persons classified as white shall evade punishment, subject to limited exceptions; if punishment is inflicted, such punishment shall be less severe than the punishment that is customarily imposed for the underlying criminal offense.
Conceptualizing violence as a legal right has two distinct advantages. First, the right illuminates the potential benefits and pitfalls of securing safety for Black communities through traditional legal channels. Second, the right can help guide the strategic decisions of stakeholders that are pursuing legal interventions grounded in critical theory and abolitionist philosophy
Examining the Constitutionality of Legislative Medical Care Bans for Transgender Youth
Full text linkAs should be abundantly clear by this Article, the stakes of bans on genderaffirming health care for transgender adolescents are existential. The recent flood of state-law bans is a low point in the ongoing fight to ensure that all people truly enjoy the liberties and protections guaranteed by our state and federal constitutions. Stories like Utah’s are more likely the rule, not the exception. Legislatures around the country are rushing to push through this legislation as quickly as possible, seemingly to catch their opponents off guard. The overwhelming majority of federal district courts to consider these laws find them repulsive to the promises of the documents that govern our states and nation. Nonetheless, there is a split among federal circuits that the U.S. Supreme Court has been asked to resolve. If the Court follows the better reasoned, more persuasive arguments against such bans, as it should, it will mark a significant victory in protecting the dignity and lives of transgender youth
Defining \u27Victim\u27 Through Harm: Crime Victim Status in the Crime Victims\u27 Rights Act and Other Victims\u27 Rights Enactments
Full text linkWho qualifies as a “victim” is the foundational question for the Crime Victims’ Rights Act (“CVRA” or “Act”) and other crime victims’ rights laws. This article provides the first comprehensive exploration of this “victim” definition question. It traces how the CVRA (and many states) define “victim” as broadly covering anyone who has been harmed as the result of a crime. This article begins by reviewing how the definition of “victim” has evolved in the criminal justice system since the Nation’s founding. In the last several decades, as crime victims’ rights protections have proliferated, it has become necessary to define “victim” with precision. The definition of “victim” has evolved from a person who was the target of a crime to a much broader understanding of a person who has suffered harm as the result of a crime. The CVRA provides a good illustration of the expansive contemporary definition of “crime victim”—a definition not fully appreciated by courts, prosecutors, and other actors in the federal criminal justice system. The Act defines “victim” as a person “directly and proximately harmed” by a crime, extending crime victims’ protections to many persons who may not have been the target of a crime. This article then analyzes important categories of crimes—violent, property, firearms, environmental, and governmental-process crimes—where “victim” definition issues often occur. It also takes a close look at a significant recent case involving the CVRA’s crime victim definition: the Boeing 737 MAX crashes case. The article concludes by arguing that legislators should adopt, and courts should enforce, a broad conception of a “crime victim” as anyone who suffers harm from a crime. This conception would ensure that victims’ rights are extended to all who need their protection
A State for Second Chances: Utah’s Clean Slate Legislation
Full text linkUtah’s Clean Slate Act and the wave of similar legislation across the country provide a much-needed change to the traditional method of expungements that left many still facing heavy collateral consequences. Utah’s first pass at this legislation struck a good balance, evidenced by bipartisan support. It does not eliminate responsibility for one’s actions, but “[t]hose who violate the law and then pay their debt to society should not be punished indefinitely for the rest of their lives.” This reflects the broader “vision of America, then and now . . . a land of second chances, where one could make a new life through hard work and service to others, where redemption was a possibility.” The Clean Slate Act in Utah will provide numerous benefits, including increased efficiency for the courts, more employees for business, economic prosperity for the state, and, most importantly, reduced collateral consequences for individuals with criminal records and their families. However, Utah should continue to improve its Clean Slate legislation by allowing for more crimes to be expunged, decreasing the waiting period, notifying eligible individuals, and continuing to pass policy that ensures more people have a fair chance at redemption
Inadequate Adequacy?: Empirical Studies on Class Member Preferences of Class Counsel
Full text linkClass members to date have been completely sidelined in class litigation. Representational notice is one way to provide them with a voice and a seat at the table (albeit a distant one). However, we note that expressing unmandated preferences does not solve the agency problem that exists in these actions, nor does it guarantee that class counsel is necessarily operating in class members’ best interests during the course of the litigation or in any settlement, even armed with useful ex ante information. Much is left to be explored as to whether class members are satisfied with the representation they received or the results achieved after the culmination of the litigation. Gaining greater insight into class members’ interests, needs, and preferences narrows agency problems that have plagued class actions and would steer such litigation towards being what at its roots it was meant to be—representationa
Echoing into the Void: Rucho’s State-Level Progeny
Full text linkWhen politicians are given free rein to draw districts, they choose their voters rather than allowing the voters to choose their representatives. They rely on “highprofile paid consultants, armies of lawyers, terabytes worth of voting data, advanced software, and even a supercomputer or two”386 to guarantee large margins for their party. This decennial process has reduced electoral competition, made the House of Representatives less responsive,388 and spread a sentiment of disenfranchisement throughout the electorate.
Now is the time for the judiciary—staffed by judges whose role in our constitutional system is to check the political branches—to take decisive action to protect American democracy from those who seek to undermine it. Instead, the Supreme Court passed responsibility on to the state courts with an empty promise that voters’ “complaints about districting [would not] echo into a void.”390 Millions of voters in Kansas, North Carolina, and New Hampshire are currently yelling into the hole where the judiciary once was. But it does not have to be this way. If the void is the night sky, there are still guiding stars—if there is the political will to follow them