Law and Politics Commons^™

Politics And Agencies In The Administrative State: The U.S. Case, Peter L. Strauss

Faculty Scholarship

The pending American presidential election, culminating a period of extreme political partisanship in our national government generally, gives point to an essay on politics and agencies in the American regulatory state. In our two-party system, it has often been the case in recent times, including the last six years, that the President comes from one of our two major political parties and one or both houses of Congress are controlled by the other. All American agencies (including, in the American case, the so-called independent regulatory bodies) are associated with the President in the executive branch, yet dependent on the Senate …

The Political Economy Of "Constitutional Political Economy", Jeremy K. Kessler

Faculty Scholarship

Since the early 1990s, constitutional history has experienced a renaissance. This revival had many causes, but three stand out: the Rehnquist Court's attack on formerly sacrosanct features of the "New Deal agenda"; Reagan-Era reassessments of American political development by political scientists, historians, and historical sociologists; and the frustration of constitutional scholars with the inability of legal process theory or political philosophy to produce "authoritative constitutional principles." Spurred by legal crisis and this mix of disciplinary innovation and stagnation, law professors began to tell new stories about our constitutional heritage. They focused on the sources and significance of the New Deal's …

Vermeule Unbound, Philip A. Hamburger

Faculty Scholarship

My book asks Is Administrative Law Unlawful? Adrian Vermeule answers “No.” In support of his position, he claims that my book does not really make arguments from the U.S. Constitution, that it foolishly denounces administrative power for lacking legislative authorization, that it grossly misunderstands this power and the underlying judicial doctrines, and ultimately that I argue “like a child.”

My book actually presents a new conception of administrative power, its history, and its unconstitutionality; as Vermeule has noted elsewhere, it offers a new paradigm. Readers therefore should take seriously the arguments against the book. They also, however, should recognize that …

Building Labor's Constitution, Kate Andrias

Faculty Scholarship

This essay begins with a puzzle: scholars have built a robust set of constitutional claims about labor rights, claims with deep roots in the labor movement’s own past struggles and its own traditions of constitutional claim-making. Yet, workers’ movements today have made no use of these claims, Andrias reports. The reason, she suggests, has to do with the deep mutual hostility between workers’ movements and the courts. If past were prologue, workers could at least use such arguments outside the courts, but, she argues, “in our [contemporary] legal culture, constitutional arguments are primarily judicial arguments,” and have a way of …

The Politics Of Global Humanitarianism: R2p Before And After Libya, Michael W. Doyle

Faculty Scholarship

The responsibility to protect (R2P) is both a license for and a leash against forcible intervention. It succeeded in widening the scope of legitimate armed intervention by licensing some (protective) interventions but only because it was seen as a leash against other (exploitative) interventions. This chapter traces the origins of the R2P doctrine in the Kosovo and ICISS reports, highlights the special features of the 2005 Outcome Document, notes how the doctrine was strengthened in practice by careful attention to non-coercive measures in Myanmar, Kenya, and Guinea, and then examines the landmark case of its use to sanction and then …

Impact Investing As A Form Of Lobbying And Its Corporate-Governance Effects, Andrzej Rapaczynski

Faculty Scholarship

Impact investment is attractive to many because it seems to combine support for progressive causes with an apparent commitment to the principles of a market economy. In fact, however, a rational impact investor is not simply creating demand for certain types of corporate actions; he/she is attempting to use corporate governance mechanisms to influence fiduciary decisions of the management. The cost of this tactic for the health of the capitalist economy is potentially very considerable. The American capitalist system relies heavily on a relatively fragile corporate governance arrangement in which the agency problems of a modern corporation are minimized by …

Early Prerogative And Administrative Power: A Response To Paul Craig, Philip A. Hamburger

Faculty Scholarship

What does English experience imply about American constitutional law? My book, Is Administrative Law Unlawful?, argues that federal administrative power generally is unconstitutional. In supporting this conclusion, the book observes that eighteenth-century Americans adopted their constitutions not only with their eyes on the future, but also looking over their shoulder at the past – especially the English past. This much should not be controversial. There remain, however, all sorts of questions about how to understand the English history and its relevance for early Americans.

In opposition to my claims about American law, Paul Craig lobs three critiques from across the …

The ’73 Graft: Punishment, Political Economy, And The Genealogy Of Morals, Bernard E. Harcourt

Faculty Scholarship

In this essay, I explore the place of a genealogy of morals within the context of a history of political economy. More specifically, I investigate the types of moralization – of criminals and delinquents, of the disorderly, but also of political economic systems, of workers and managers, of rules and rule-breaking – that are necessary and integral to making a population accept new styles of political and economic governance, especially the punitive institutions that accompany modern political economies in the contemporary period.

The marriage of political economy and a genealogy of morals: this essay explores how the moralization of certain …

The Administrative Conference And The Political Thumb, Peter L. Strauss

Faculty Scholarship

In his valuable contribution to this special issue, Richard Pierce underscores the role the Administrative Conference of the United States (“ACUS”) has played over the years in encouraging on the ground fact-finding by its consultants, who have usually been academics consulted at the beginning of careers that ever after would be marked by this encounter with the realities of the administrative process. As the mentee of Walter Gellhorn, who directed the remarkable empirical studies of federal agency procedures that underlay the eventual Administrative Procedure Act (“APA”) and who was a member of the ACUS Council from its initiation in 1964 …

Of Constituents And Contributors, Richard Briffault

Faculty Scholarship

In the stirring conclusion to his plurality opinion in McCutcheon v. Federal Election Commission, Chief Justice Roberts pointed to the close connection between campaign contributions and what he called the "political responsiveness at the heart of the democratic process." Quoting Edmund Burke's statement in his famous Speech to the Electors of Bristol that a representative's judgment should be informed by "the closest correspondence, and the most unreserved communication with his constituents," the Chief Justice eloquently declaimed that "[c]onstituents have the right to support candidates who share their views and concerns. Representatives are not to follow constituent orders, but can …

Uncivil Obedience, Jessica Bulman-Pozen, David E. Pozen

Faculty Scholarship

Scholars and activists have long been interested in conscientious law-breaking as a means of dissent. The civil disobedient violates the law in a bid to highlight its illegitimacy and motivate reform. A less heralded form of social action, however, involves nearly the opposite approach. As a wide range of examples attest, dissenters may also seek to disrupt legal regimes through hyperbolic, literalistic, or otherwise unanticipated adherence to their formal rules.

This Article asks how to make sense of these more paradoxical protests, involving not explicit law-breaking but rather extreme law following. We seek to identify, elucidate, and call attention to …

Agencies, Polarization, And The States, Gillian E. Metzger

Faculty Scholarship

Political polarization is all the rage. Yet administrative agencies are strikingly absent from leading accounts of contemporary polarization. To the extent they appear, it is largely as acted-upon entities that bear the fallout from the congressional-presidential confrontations that polarization fuels, or as the tools of presidential unilateralism. This failure to incorporate administrative agencies into polarization accounts is a major omission. Agencies possess broad grants of preexisting authority that they can use to reshape governing policy and law, often at presidential instigation, thereby putting pressure on Congress to respond. In the process, they can construct new alliances and arrangements that have …

Appointments, Innovation, And The Judicial-Political Divide, Gillian E. Metzger

Faculty Scholarship

The federal appointments process is having its proverbial day in the sun. The appointment and removal of federal officers figured centrally in the Supreme Court's two major recent separation-of-powers decisions, Free Enterprise Fund v. Public Company Accounting Oversight Board and National Labor Relations Board v. Noel Canning. The appointments process has featured even more prominently in the political sphere, figuring in a number of congressional-presidential confrontations. Such simultaneous top billing in the judicial and political spheres is hardly coincidental. After all, it was President Obama's use of the Recess Appointments Clause in response to pro forma sessions that triggered …

The Uncertain Future Of The Corporate Contribution Ban, Richard Briffault

Faculty Scholarship

Concern about the role of corporate money in democracy has been a longstanding theme in American politics. In the late nineteenth century, the states began to adopt laws restricting the use of corporate funds in elections. The first permanent federal campaign finance law – the Tillman Act of 1907 – targeted corporations by prohibiting federally-chartered corporations from making contributions in any election and prohibiting all corporations from making contributions in federal elections. Subsequently amended, continued, and strengthened by the Federal Corrupt Practices Act of 1925, the Taft-Hartley Act of 1947, the Federal Election Campaign Act of 1971, and the Bipartisan …

Exclusion And Equality: How Exclusion From The Political Process Renders Religious Liberty Unequal, Philip A. Hamburger

Faculty Scholarship

Exclusion from the political process is a central question in American law. Thus far, however, it has not been recognized how religious Americans are excluded from the political process and what this means for religious equality.

Put simply, both administrative lawmaking and § 501 (c)(3) of the Internal Revenue Code substantially exclude religious Americans from the political process that produces laws. As a result, apparently equal laws are apt, in reality, to be unequal for religious Americans. Political exclusion threatens religious equality.

The primary practical conclusion concerns administrative law. It will be seen that this sort of "law" is made …

Secession, Then And Now, Jessica Bulman-Pozen

Faculty Scholarship

Secession has been back in the news of late. Hundreds of thousands of individuals across the country signed petitions seeking permission for their states to leave the United States after President Obama’s reelection; Governor Perry riffed on Texas’s departure from the Union “if Washington continues to thumb their nose at the American people”; and members of the Second Vermont Republic insist the Green Mountain State would be better off alone. Overseas, a bid for Scottish independence from the United Kingdom nearly prevailed last fall.

Good Will Hunting: How The Supreme Court's Hunter Doctrine Can Still Shield Minorities From Political-Process Discrimination, Kerrel Murray

Faculty Scholarship

When the Sixth Circuit struck down Michigan’s anti-affirmative-action Proposal 2 in 2012, its reasoning may have left some observers hunting for their Fourteenth Amendment treatises. Rather than applying conventional equal protection doctrine, the court rested its decision on an obscure branch of equal protection jurisprudence known as the Hunter doctrine, which originated over forty years ago. The doctrine, only used twice by the Supreme Court to invalidate a law since its creation, purports to protect the political-process rights of minorities by letting courts invalidate laws that work nonneutrally to make it more difficult for them to “achieve legislation that is …

Corporate Headhunting, Daniel C. Richman

Faculty Scholarship

A wide range of commentators – including some pretty sophisticated ones – have raked through the ruins of the 2008 financial collapse, confident that there are significant criminal prosecutions to bring against individuals and that the Justice Department should be faulted for its failure to bring them. Their confidence that blockbuster criminal cases could have been made rests on shaky grounds. So, too, does their faith that the hunting of heads is a socially productive response to the collapse. If anything, a focus on headhunting will only distract from, and reduce the pressure for, efforts to explain the collapse and …

Hollowed-Out Democracy, Kate Andrias

Faculty Scholarship

Professors Joseph Fishkin’s and Heather Gerken’s essay for this symposium, The Two Trends That Matter for Party Politics, along with the larger project of which it is a part, marks a notable turn (orc return) in the law-of-democracy field. Unlike much recent scholarship, Fishkin’s and Gerken’s work does not offer a comprehensive theory of corruption or equality, but instead analyzes the relationship between campaign finance law and the actual functioning of political parties in our democracy.

In brief, Fishkin and Gerken tell us that our contemporary political parties are at once highly polarized and oddly weak. They claim this …

Correcting Criminal Justice Through Collective Experience Rigorously Examined, James S. Liebman, David Mattern

Faculty Scholarship

Federal and state law confers broad discretion on courts to administer the criminal laws, impose powerful penalties, and leave serious criminal behavior unpunished. Each time an appellate court reviews a criminal verdict, it performs an important systemic function of regulating the exercise of that power. Trial courts do the same when, for example, they admit or exclude evidence generated by government investigators. For decades, judicial decisions of this sort have been guided by case law made during the Supreme Court's Criminal Procedure Revolution of the 1960s and 1970s. It is becoming increasingly clear, however, that the rule-bound, essentially bureaucratic regulatory …

Partisan Federalism, Jessica Bulman-Pozen

Faculty Scholarship

Among the questions that vex the federalism literature are why states check the federal government and whether Americans identify with the states as well as the nation. This Article argues that partisanship supplies the core of an answer to both questions. Competition between today’s ideologically coherent, polarized parties leads state actors to make demands for autonomy, to enact laws rejected by the federal government, and to fight federal programs from within. States thus check the federal government by channeling partisan conflict through federalism’s institutional framework. Partisanship also recasts the longstanding debate about whether Americans identify with the states. Democratic and …

Market Structure And Political Law: A Taxonomy Of Power, Zephyr Teachout, Lina M. Khan

Faculty Scholarship

The goal of this Article is to create a way of seeing how market structure is innately political. It provides a taxonomy of ways in which large companies frequently exercise powers that possess the character of governance. Broadly, these exercises of power map onto three bodies of activity we generally assign to government: to set policy, to regulate markets, and to tax. We add a fourth category – which we call "dominance," after Brandeis – as a kind of catchall describing the other political impacts. The activities we outline will not always fit neatly into these categories, nor do all …

The Anxiety Of Influence: The Evolving Regulation Of Lobbying, Richard Briffault

Faculty Scholarship

Lobbying has long been a source of anxiety. As early as the mid-nineteenth century courts expressed concern about the “designing and corrupt men” who sought to wield “secret influence.” Lobbying is a multi-billion dollar business today, but the association of “lobbying” with improper influence is so strong that the American League of Lobbyists – the lobbyists’ trade association – recently renamed itself to drop the word “lobbyist.” Yet, courts have also long recognized that people have a legitimate interest in being able to influence government action, and that they may need to be able to hire agents to help them, …

From Sovereignty And Process To Administration And Politics: The Afterlife Of American Federalism, Jessica Bulman-Pozen

Faculty Scholarship

Announcing the death of dual federalism, Edward Corwin asked whether the states could be “saved as the vital cells that they have been heretofore of democratic sentiment, impulse, and action.” The federalism literature has largely answered in the affirmative. Unwilling to abandon dual federalism’s commitment to state autonomy and distinctive interests, scholars have proposed new channels for protecting these forms of state-federal separation. Yet today state and federal governance are more integrated than separate. States act as co-administrators and co-legislatures in federal statutory schemes; they carry out federal law alongside the executive branch and draft the law together with Congress. …

Index Theory: The Law, Promise And Failure Of Financial Indices, Gabriel Rauterberg, Andrew Verstein

Faculty Scholarship

Financial indices, like the S&P 500 or the Consumer Price Index, have become a ubiquitous feature of our financial markets. One index, the London InterBank Offered Rate ("Libor"), may be the world's most important number, an interest rate benchmark upon which hundreds of trillions of dollars depend. Yet, almost every day new revelations emerge that Libor was tampered with during the height of the financial crisis by one or many of the world's most prominent banks, with billions of dollars potentially misappropriated. This index disruption has attracted tremendous interest from regulators, private litigants, and market observers. Despite their importance, however, …

Malpractice Mobs: Medical Dispute Resolution In China, Benjamin L. Liebman

Faculty Scholarship

China has experienced a surge in medical disputes in recent years, on the streets and in the courts. Many disputes result in violence. Quantitative and qualitative empirical evidence of medical malpractice litigation and medical disputes in China reveals a dynamic in which the formal legal system operates in the shadow of protest and violence. The threat of violence leads hospitals to settle claims for more money than would be available in court and also influences how judges handle cases that do wind up in court. The detailed evidence regarding medical disputes presented in this Essay adds depth to existing understanding …

The Moral Significance Of Economic Life, Andrzej Rapaczynski

Faculty Scholarship

Much of the modern perception of the role of economic production in human life – whether on the Left or on the Right of the political spectrum – views it as an inferior, instrumental activity oriented toward self-preservation, self-interest, or profit, and thus as essentially distinct from the truly human action concerned with moral values, justice, and various forms of self-fulfillment. This widely shared worldview is rooted, on the one hand, in the Aristotelian tradition that sees labor as a badge of slavery, and freedom as lying in the domain of politics and pure (not technical) knowledge, and, on the …

"Becker On Ewald On Foucault On Becker": American Neoliberalism And Michel Foucault's 1979 Birth Of Biopolitics Lectures, Gary S. Becker, Francois Ewald, Bernard E. Harcourt

Faculty Scholarship

In a series of lectures delivered in 1979 at the Collège de France under the title The Birth of Biopolitics, Michel Foucault conducted a close reading of Gary Becker’s writings on human capital and on crime and punishment, within the context of an elaboration and critique of American neoliberalism. Foucault was assisted at the time, at the Collège de France, by François Ewald. Since then, there has been ongoing debate over Foucault’s views about neoliberalism. In this historic meeting at the University of Chicago between Professors Becker and Ewald, Professor Ewald presents a framework to understand Foucault’s writings on Becker; …

Super Pacs, Richard Briffault

Faculty Scholarship

The most striking campaign finance development since the Supreme Court's decision in Citizens United v. FEC in January 2010 has not been an upsurge in corporate and union spending, as might have been expected from a decision invalidating the decades-old laws barring such expenditures. Instead, federal election campaigns have been marked by the emergence of an entirely new campaign vehicle, which uses – but is not primarily dependent on – corporate or union funds, and which threatens to upend the federal campaign regulatory regime in place since 1974.

The 2010 election cycle witnessed the birth of the "Super PAC" – …

"Deference" Is Too Confusing – Let's Call Them "Chevron Space" And "Skidmore Weight", Peter L. Strauss

Faculty Scholarship

This Essay suggests an underappreciated, appropriate, and conceptually coherent structure to the Chevron relationship of courts to agencies, grounded in the concept of "allocation." Because the term "deference" muddles rather than clarifies the structure's operation, this Essay avoids speaking of "Chevron deference" and "Skidmore deference." Rather, it argues, one could more profitably think in terms of "Chevron space" and "Skidmore weight." "Chevron space" denotes the area within which an administrative agency has been statutorily empowered to act in a manner that creates legal obligations or constraints – that is, its allocated authority. "Skidmore weight" …