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Text Over Intent And The Demise Of Legislative History, Thomas W. Merrill, Michael S. Paulsen, Saikrishna Prakash, Lawrence B. Solum, Sandra Segal Ikuta

Faculty Scholarship

The following is the transcript of a 2016 Federalist Society panel entitled: Text Over Intent and the Demise of Legislative History. The panel originally occurred on November 17, 2016 during the National Lawyers Convention in Washington, D.C. The participants were: Prof. Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia Law School; Prof. Michael S. Paulsen, Distinguished University Chair and Professor, University of St. Thomas School of Law; Prof. Saikrishna Prakash, James Monroe Distinguished Professor of Law, University of Virginia School of Law; Prof. Lawrence B. Solum, Carmack Waterhouse Professor of Law, Georgetown University Law Center. The moderator was …

Impeachment: A Handbook, Philip C. Bobbitt

Faculty Scholarship

Charles Black’s Impeachment: A Handbook, first published in 1974 at the height of the Watergate crisis, has become the authoritative guide on the subject of presidential impeachment. In September, the Yale University Press published a new edition of the classic handbook, incorporating a new preface and new material by constitutional theorist Philip Bobbitt. Bobbitt’s contribution to the new edition appears in the Essay that follows.

Because Professor Black’s original text had no accompanying notes, the publisher decided to continue this format in the new print edition. In this re-publication, the Journal worked with Bobbitt to present his chapters with …

A Private Law Court In A Public Law System, Jamal Greene

Faculty Scholarship

The U.S. Supreme Court’s approach to human rights is a global outlier. In conceiving of rights adjudication in categorical terms rather than embracing proportionality analysis, the Court limits its ability to make the kinds of qualitative judgments about rights application required to adjudicate claims of disparate impact, social and economic rights, and horizontal effects, among others. This approach, derivative of a private-law model of dispute resolution, sits in tension with the rights claims typical of a pluralistic jurisdiction with a mature rights culture, in which litigants more often disagree, reasonably, about the scope of rights rather than deny that others …

The Administrative Evasion Of Procedural Rights, Philip A. Hamburger

Faculty Scholarship

Administrative power does profound harm to civil liberties, and nowhere is this clearer than in the administrative evasion of procedural rights. All administrative power is a mode of evasion, but the evasion of juries, due process, and other procedural rights is especially interesting as it most concretely reveals the administrative threat to civil liberties.

In contemporary doctrine, due process and most other procedural rights are understood mainly as standards for adjudication in the courts. Traditionally, however, they were understood, at least as much, to bar adjudication outside the courts. That is, they were understood to block evasions of the courts …

Sparking King's Revolution, Bernard E. Harcourt

Faculty Scholarship

Fifty years ago, Martin Luther King, Jr., protested our country’s counterinsurgency war in Vietnam. King passionately decried the bombings and civilian deaths, the destruction of families and villages, and the herding of the population into “concentration camps.” King denounced our imperialist arrogance and urged “a radical revolution of values.” From the pulpit at Riverside Church in New York City, King declared: “These are revolutionary times.” Indeed they were. And if anything, they have become even more so today.

Rethinking Criminalization Of Hiv Exposure – Lessons From California’S New Legislation, Y. Tony Yang, Kristen Underhill

Faculty Scholarship

Laws that criminalize certain behaviors on the basis of the person’s HIV status have long been challenged as ineffective prevention measures that harm public health. They are nevertheless widespread: according to the Center for HIV Law and Policy, 34 states have HIV-specific criminal statutes, and 23 have applied more general laws (e.g., against assault with a deadly weapon) in order to criminalize HIV exposure. Most of these laws don’t reflect current evidence regarding protective factors such as antiretroviral treatment (ART), and many encompass behaviors that carry negligible risk.

Fulfilling States’ Duty To Evaluate Medicaid Waivers, Kristen Underhill, Atheendar Venkataramani, Kevin G. Volpp

Faculty Scholarship

Nearly 75 million U.S. residents have health insurance coverage through Medicaid. Benefits and program designs vary from state to state. One source of state-based variation is Section 1115 projects, which are defined as “experimental, pilot, or demonstration” programs that are “likely to assist in promoting the objectives” of the Medicaid statute. States seeking to implement experimental policies in their Medicaid programs must apply to the Centers for Medicare and Medicaid Services (CMS) for a Section 1115 waiver, which lifts certain federal regulations for 5 years. Thirty-seven states had active Section 1115 waivers as of October 31, 2018, and more than …

Copyright As Market Prospect, Shyamkrishna Balganesh

Faculty Scholarship

For many decades now, copyright jurisprudence and scholarship have looked to the common law of torts – principally trespass and negligence – in order to understand copyright’s structure of entitlement and liability. This focus on property – and harm-based torts – has altogether ignored an area of tort law with significant import for our understanding of copyright law: tortious interference with a prospective economic advantage. This Article develops an understanding of copyright law using tortious interference with a prospect as a homology. Tortious interference with a prospect allows a plaintiff to recover when a defendant’s volitional actions interfere with a …

The Supreme Court, Judicial Elections, And Dark Money, Richard Briffault

Faculty Scholarship

Judges, even when popularly elected, are not representatives; they are not agents for their voters, nor should they take voter preferences into account in adjudicating cases. However, popularly elected judges are representatives for some election law purposes. Unlike other elected officials, judges are not politicians. But judges are policy-makers. Judicial elections are subject to the same constitutional doctrines that govern voting on legislators, executives, and ballot propositions. Except when they are not. The same First Amendment doctrine that protects campaign speech in legislative, executive, and ballot proposition elections applies to campaign speech in judicial elections – but not in quite …

Expectations As Property: Histories, Contexualizations, Critiques, Freya Irani, Katharina Pistor

Faculty Scholarship

The last four decades have seen an enormous expansion in the number of international investment treaties (particularly bilateral investment treaties) and in investment treaty-based arbitrations and awards. Traditionally made between capital-exporters and capital-importing states (that is, along a North-South axis), such treaties generally assure investors of one signatory state (the "home state") protection on the basis of pre-determined standards in the other signatory state or states (the "host state"). Such treaties also provide for compensation in case of breaches of these standards, and give investors recourse to arbitration in case of disputes. Given these provisions alongside arbitral treaties themselves, in …

Interpreting An Unamendable Text, Thomas W. Merrill

Faculty Scholarship

Many of the most important legal texts in the United States are highly unamendable. This applies not only to the Constitution, which has not been amended in over forty years, but also to many framework statutes, like the Administrative Procedure Act and the Sherman Antitrust Act. The problem is becoming increasingly severe, as political polarization makes amendment of these texts even more unlikely. This Article considers how interpreters should respond to highly unamendable texts. Unamendable texts have a number of pathologies, such as excluding the people and their representatives from any direct participation in legal change. They also pose an …

The State's Role In The Regulation And Provision Of Legal Services In South Africa And The United States: Supporting, Nudging Or Interfering?, Helen Kruuse, Philip Genty

Faculty Scholarship

An independent legal profession is said to be “the bulwark of a free and democratic society.” It is also said that a high measure of independence of mind and action by legal actors is necessary for the maintenance of the rule of law. However, too often, there is the allegation (within the sociological literature in particular) that the legal profession has used the concepts of independence and the rule of law as a shield or cuirass rather than as a sword. The image of lawyers representing unpopular clients fearlessly and advocating on behalf of unpopular causes, so as to uphold …

Free Expression On Campus: Mitigating The Costs Of Contentious Speakers, Suzanne B. Goldberg

Faculty Scholarship

“If you’re afraid to offend, you can’t be honest.”

“If you offend me, I can’t hear what you’re trying to tell me.”

—overheard on campus

The debate over how colleges and universities should respond to contentious guest speakers on campus is not a new one. A quick look back to the early 1990s, among other times, shows commentators squaring off much as they do today about the tensions between protecting free expression and ensuring meaningful equality.

Perhaps not surprisingly, the issues that contested speakers address are also much the same as they have been for several decades – government action …

What Does It Mean To Be ‘Pro-Arbitration’?, George A. Bermann

Faculty Scholarship

International arbitration commentators commonly ask of a proposed policy or practice whether it is ‘pro-’ or ‘anti-arbitration’. Framing the question that way presupposes a shared understanding of what does or does not make a policy or practice arbitration-friendly. In truth, the ways in which policies or practices may affect international arbitration’s well-being are manifold. They may even distinctly serve international arbitration’s well-being in some respects while equally distinctly disserving it in others. It behooves those who take international; arbitration’s well-being seriously to acknowledge the multiplicity of metrics for identifying what is ‘pro-’ and what is ‘anti-arbitration’ and to seek the …

Green Finance: Leveraging Investment For Environmental Protection, Michael B. Gerrard, Charles E. Di Leva, John Rousakis, Douglas Sims

Faculty Scholarship

Some political narratives describe the relationship between environmental protection and economic growth as two inherently incompatible goals. As the global community turns its attention to implementing international climate agreements, this story is ceding ground to the realization that the economy must facilitate a transition to sustainability. With limited government funding available, private investments offer an opportunity to dramatically increase and leverage funding to address daunting environmental problems. Green financing will play a critical role in the shift to a green economy.

Governments, intergovernmental organizations, financial institutions, corporations, and nongovernmental organizations (NGOs) are examining green financing mechanisms in earnest. Financial institutions …

Informed Trading And Its Regulation, Merritt B. Fox, Lawrence R. Glosten, Gabriel Rauterberg

Faculty Scholarship

Informed trading – trading on information not yet reflected in a stock’s price – drives the stock market. Such informational advantages can arise from astute analysis of varied pieces of public news, from just released public information, or from confidential information from inside a firm. We argue that these disparate types of trading are all better regulated as part of the broader phenomenon of informed trading. Informed trading makes share prices more accurate, enhancing the allocation of capital, but also makes markets less liquid, which is costly to the efficiency of trade. Informed trading thus poses a fundamental trade-off in …

Righting Research Wrongs: An Empirical Study Of How U.S. Institutions Resolve Grievances Involving Human Subjects, Kristen Underhill

Faculty Scholarship

Tens of millions of people enroll in research studies in the United States every year, making human subjects research a multi-billion-dollar industry in the U.S. alone. Research carries risks: although many harms are inevitable, some also arise from errors or mistreatment by researchers, and the history of research ethics is in many ways a history of scandal. Despite regulatory efforts to remedy these abuses, injured subjects nonetheless have little recourse to U.S. courts. In the absence of tort remedies for research-related injuries, the only venue for resolving such disputes is through alternative dispute resolution (ADR) – or more commonly, internal …

The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias

Faculty Scholarship

As Parts I and II of this Essay elaborate, the examination yields three observations of relevance to constitutional law more generally: First, judge-made constitutional doctrine, though by no means the primary cause of rising inequality, has played an important role in reinforcing and exacerbating it. Judges have acquiesced to legislatively structured economic inequality, while also restricting the ability of legislatures to remedy it. Second, while economic inequality has become a cause célèbre only in the last few years, much of the constitutional doctrine that has contributed to its flourishing is longstanding. Moreover, for several decades, even the Court’s more liberal …

Trump As A Constitutional Failure, Jamal Greene

Faculty Scholarship

The election of Donald Trump as president represented a failure of American politics. Trump is a serial liar, a sexual predator, deeply conflicted financially, hostile to bedrock democratic institutions such as free press, and ignorant of even the broad brushstrokes of important policy matters. The best evidence suggests that he is a white nationalist, a plutocrat, and a professional con artist, dangerously attracted to corrupt and incompetent sycophants, self-obsessed and aggressive to the point of psychopathy, and otherwise temperamentally unfit to be in charge of the world’s largest military and nuclear arsenal. There is some evidence that Trump or members …

Reliable Perfection Of Security Interests In Crypto-Currency, Ronald J. Mann

Faculty Scholarship

As you all know, the organizers of this event chose a topic of burning interest when they selected crypto-currency as the focus of this year’s panel. Fortunately, unlike most of the similar events at which the author has been asked to speak, we have not been asked to talk about Bitcoin as the currency of the future; my doubts about the ability of Bitcoin to succeed as a currency of routine use – as opposed to a speculative investment vehicle – dampen my interest in talking repeatedly about that subject. The task they have set for the speakers is one …

Rights As Trumps?, Jamal Greene

Faculty Scholarship

Rights are more than mere interests, but they are not absolute. And so two competing frames have emerged for adjudicating conflicts over rights. Under the first frame, rights are absolute but for the exceptional circumstances in which they may be limited. Constitutional adjudication within this frame is primarily an interpretive exercise fixed on identifying the substance and reach of any constitutional rights at issue. Under the second frame, rights are limited but for the exceptional circumstances in which they are absolute. Adjudication within this frame is primarily an empirical exercise fixed on testing the government’s justification for its action. In …

The Lopsided Harms Of Reproductive Negligence, Carol Sanger

Faculty Scholarship

The concept of reproductive negligence is probably not unfamiliar to men and women of child-bearing or child-begetting age. Many a restless hour has been spent worrying about the consequences of a skipped pill, an abandoned condom, or some other form of contraceptive carelessness. The general rule in such circumstances is that the injured party has no recourse in tort against a sexual partner whose negligence resulted, say, in a pregnancy. (Interestingly, liability may arise as the result of the negligent transmission of herpes.) To be sure, not all reproductive misconduct is negligent; some is intentional, as when a sexual partner …

Citizens Of The State, Maeve Glass

Faculty Scholarship

According to conventional wisdom, state citizenship emerged out of the localism of early America and gave way to national citizenship with the ratification of the Fourteenth Amendment. This Article offers a different account of state citizenship and, with it, new resources for analyzing the Constitution. It argues that far from a primordial category that receded into irrelevance, state citizenship provided a crucial strategic tool in America’s antislavery movement, as abolitionist lawyers used the label of state citizenship to build a coalition with white elites by reframing the issue of slavery from the rights of a black person to the sovereignty …

The Wealth Gap And The Racial Disparities In The Startup Ecosystem, Lynnise E. Pantin

Faculty Scholarship

Although much attention has been given to structural inequality as it manifests in the criminal justice context, little has been said about economic inequality as it relates to the startup ecosystem. This Article details how the historic creation of the wealth gap affects entrepreneurship, highlighting how the wealth gap adversely impacts entrepreneurs of color. Entrepreneurship is a compelling solution to wealth inequality, but wealth inequality can be an impediment to success in entrepreneurship. This Article explains how the United States’ history of bolstering wealth creation for some, while inhibiting wealth creation for people of color, matters for understanding the startup …

The Legacy Of Civil Rights And The Opportunity For Transactional Law Clinics, Lynnise E. Pantin

Faculty Scholarship

At the end of the historic march from Selma to Montgomery in 1965, Reverend Dr. Martin Luther King Jr. famously paraphrased abolitionist and Unitarian minister Theodore Parker stating, “the arc of the moral universe is long, but it bends towards justice.” The implication of the phrase is that the social justice goals of the Civil Rights Movement would eventually be achieved. His prayer was that servants of justice would be rewarded in due time. In other words, that the goals of the Civil Rights Movement would be achievable at some point in the future. President Obama resurrected the phrase throughout …

Legal Tools For Cities To Cope With Extreme Heat, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

Heat causes more deaths in the U.S. than any other natural hazard – more than floods, hurricanes, or tornadoes. As a result of climate change, it is getting worse. Average annual temperatures are now about 1.8°F higher than they were over the period 1895-2016, they will go up to about 2.5°F by mid-century, and if greenhouse gas emissions continue on the current path, they could rise almost 12°F by 2100, and heat waves that now occur once every 20 years could become annual events, according to the U.S. Global Change Research Program.

Too Big To Supervise: The Rise Of Financial Conglomerates And The Decline Of Discretionary Oversight In Banking, Lev Menand

Faculty Scholarship

The authority of government officials to define and elimi­nate “unsafe and unsound” banking practices is one of the oldest and broadest powers in U.S. banking law. But this authority has been neglected in the recent literature, in part because of a movement in the 1990s to convert many supervi­sory judgments about “safety and soundness” into bright-line rules. This movement did not entirely do away with discre­tionary oversight, but it refocused supervisors on compliance, risk management, and governance – in other words, on inter­nal bank processes.

Drawing on the rules versus standards debate, this Arti­cle develops a taxonomy for parsing the …

The Long Environmental Justice Movement, Jedediah S. Purdy

Faculty Scholarship

The standpoint of environmental justice has become integral to environmental law in the last thirty years. Environmental justice criticizes mainstream environmental law and advocacy institutions on three main fronts: for paying too little attention to the distributive effects of environmental policy; for emphasizing elite and professional advocacy over participation in decision making by affected communities; and for adhering to a woods-and-waters view of which problems count as “environmental” that disregards the importance of neighborhoods, workplaces, and cities. This Article highlights the existence of a “long environmental justice movement” that, like the long movements for racial equality and labor organizing, put …

Whose Lands? Which Public? The Shape Of Public-Lands Law And Trump's National Monument Proclamations, Jedediah S. Purdy

Faculty Scholarship

President Trump issued a proclamation in December 2017 purporting to remove two million acres in southern Utah from national monument status, radically shrinking the Grand-Staircase Escalante National Monument and splitting the Bears Ears National Monument into two residual protected areas. Whether the President has the power to revise or revoke existing monuments under the Antiquities Act, which creates the national monument system, is a new question of law for a 112-year-old statute that has been used by Presidents from Theodore Roosevelt to Barack Obama to protect roughly fifteen million acres of federal land and hundreds of millions of marine acres. …

Chevron On Stilts: A Response To Jonathan Siegel, Philip A. Hamburger

Faculty Scholarship

Whither Chevron? For several years, some justices of the Supreme Court have been questioning Chevron deference, partly on the basis of my constitutional critique of it. It was inevitable that someone would stand up in defense of that doctrine, and I am glad to say that my estimable former colleague Jonathan Siegel has stepped up to the plate. But the defense of the indefensible is not easy.

Although the long-standing conventional critique of Chevron was that it violates the separation of powers and federalism, my criticism is that Chevron deference corrupts the judicial process. As adumbrated in my 2014 …