Law and Politics Commons^™

From Race-Conscious To Race-Neutral: The Next Generation Of Litigation Over Selective Admissions, Rachel F. Moran

Faculty Scholarship

In the wake of the United States Supreme Court’s decision in Students for Fair Admissions v. President and Fellows of Harvard College, there have been fierce debates over the meaning of colorblindness in the higher education admissions process. Setting the stage for these controversies are recent lawsuits challenging changes to admissions policies at selective public high schools. In these cases, the plaintiffs allege that although school officials relied on facially race-neutral criteria, their actions were motivated by a desire to improve the representation of Black and Latino students. According to the complaints, these revised policies are an impermissible form …

The United States Healthcare System: From Medicare To Post-Pandemic Health Policy, William M. Sage

Faculty Scholarship

My purpose in this essay is to comment on national health policy in the United States over the past sixty years.  My conclusions are less optimistic than what I had hoped when I began my teaching and research career in the 1990s to be able to say in 2025.  In particular, the successful expansion of publicly supported health coverage via the passage of the Affordable Care Act (“ACA” or “Obamacare”) in 2010 seems to have triggered -- though I hesitate to say that it caused – a backsliding from broader commitments to clinical performance, population health, and social solidarity that …

"Arbitration In Name Only": A Race Claims Mismatch, Michael Z. Green

Faculty Scholarship

With arbitration's meteoric rise as a tool in resolving statutory employment discrimination matters beginning in the 1990s, concerns about lack of employee bargaining power received little consideration when raised in court challenges to the enforcement of employer-mandated agreements to arbitrate those claims. Only in rare circumstances, when an employer appeared to go to extremes in using its overwhelming bargaining power to implement an arbitration process so clearly unfair would a court find the agreement created an unfair "arbitration in name only" that should not be enforced. 

Employers have become savvier in how they require employees to agree to resolve discrimination …

Self-Regulation In Emerging And Innovative Industries, Daniel E. Walters, Hannah J. Wiseman

Faculty Scholarship

Self-regulation—governance of firm behavior by private entities—has a long history both in the United States and globally, and there is an extensive literature on the topic. But there has been far less attention paid to the role self-regulation can play in spurring and enabling innovation and growth within emerging industries. These industries—both currently ascendant ones such as hydrogen and artificial intelligence, as well as formerly new (but now well established) activities in hydraulic fracturing and Internet communications—plausibly benefit from self-regulation’s ability to coordinate economic actors and reassure often skeptical publics. Examining the ways that self-regulation impacts this special type of …

The Globalization Of Copyright Exceptions For Ai Training, Matthew Sag, Peter K. Yu

Faculty Scholarship

Generative AI, machine learning and other computational uses of copyrighted works pose profound questions for copyright law. This article conducts of global survey of how different countries have attempted to answer these questions in relation to the unauthorized use of copyrighted works for training. Although the world has yet to achieve international consensus on this issue, an international equilibrium is emerging. Jurisdictions with common law and civil law traditions, and with varying economic conditions, technological capabilities, political systems, and cultural backgrounds, have found ways to reconcile copyright law and AI training. In this equilibrium, countries recognize that text data mining, …

The Right To Inequality: Conservative Politics And Precedent Collide, Jonathan Feingold

Faculty Scholarship

The “end of affirmative action” is the beginning of this story. In Students for Fair Admissions v. Harvard (SFFA), the Supreme Court struck a near fatal blow to race-consciousness. Many institutions have since pivoted to “race neutral alternatives.” This is a natural turn. But one that faces immediate headwinds.

The same entities that demanded Harvard pursue racial diversity through colorblind means have sued public high schools for doing just that. These litigants assert a “right to inequality”—a theory that would pit the equal protection clause against equality itself. Even if normatively jarring, a right to inequality might seem a …

Shaping Preferences With Pigouvian Taxes, Gary M. Lucas Jr.

Faculty Scholarship

A Pigouvian tax is a tax that is imposed to correct an externality, which arises when a person engages in behavior that harms others without their consent. Pigouvian taxes are popular among academics—with prominent economists and legal scholars arguing for their imposition on myriad goods and activities that harm third parties, like carbon emissions and alcohol. Policymakers have recently been receptive to at least some of these arguments as evidenced by taxes imposed on or proposed for a variety of externality-generating goods, including guns, plastic bags, and sugary drinks.

The conventional economic rationale for Pigouvian taxes assumes that they affect …

Intellectual Property, Innovation And Economic Inequality, Daniel Benoliel, Peter K. Yu, Francis Gurry, Keun Lee

Faculty Scholarship

While growing disparities in wealth and income are well-documented across the globe, the role of intellectual property rights is often overlooked. This volume brings together leading commentators from around the world to interrogate the interrelationship between intellectual property and economic inequality. Interdisciplinary and globally oriented by design, the book features economists, legal scholars, policy analysts, and other experts. Chapters address the impact of intellectual property rights on economic inequality, the effect of economic inequality on the protection and enforcement of these rights, and the potential use of innovation law and policy to help reduce economic inequality. The volume also tackles …

Reconstructing Citizenship, Jenny E. Carroll, James Jeter

Faculty Scholarship

In our republican democracy, voting is a central right of citizenship. Yet millions of voters are routinely disenfranchised as a result of convictions or because their carceral status creates barriers to voting. In the past decade, academic scholarship has focused on the impact of disenfranchisement based on conviction. This work has mapped the legal and social implications of policies that deny voting rights to over five million otherwise eligible voters nationwide. Yet this work has some gaps. First, by focusing solely on conviction-based disenfranchisement, the existing scholarship has largely ignored fatal barriers to voting created (and at times perpetuated) by …

Affirmative Action’S Asian American Problem, Huyen Pham, Joseph Thai

Faculty Scholarship

Asian American opponents of affirmative action have received both credit and blame for their pivotal role in toppling racial preferences in university admissions in Students for Fair Admissions v. Harvard (SFFA). Allied conservatives highlighted evidence of discrimination against Asian American applicants as a compelling reason to dismantle affirmative action; liberals either denied this discrimination existed or tolerated it as an acceptable cost of helping other minority applicants. But largely unacknowledged is the precipitating history of the Supreme Court’s marginalization of Asian American applicants and its decades of tacit approval of their exclusion from affirmative action programs. This unwritten …

Shifting Toward Boilerplate Regulation, Wayne R. Barnes

Faculty Scholarship

Consumer assent to standard form contracts has been creating cognitive dissonance among contracts scholars for a century. Businesses impose standard forms on consumers, who never read the terms. But consumers would not understand them if they did. And they don’t have the bargaining power to change them anyway—the terms are famously “take it or leave it.” Contracting is ideally theorized as an act of voluntary, knowing consent to all the terms agreed to. The dissonance is that consumers, although ostensibly signaling their assent to the boilerplate by signing (or clicking, or tapping their phone screen), do not in fact know …

A New Era Of Deference: From Chevron To Loper Bright, Daniel E. Walters

Faculty Scholarship

Deference to administrative agencies’ interpretations of ambiguous statutory provisions has been a hallmark of administrative law and regulatory policy for the past forty years. The Supreme Court recently upended that settled allocation of power between agencies and courts, granting interpretive primacy to courts even where statutes essentially require policy choices. However, questions remain about precisely how courts will exercise this policymaking authority that agencies used to exercise, as well as about the multiple “offramps” from this nondeferential standard that the Court left open. Rather than a new era of nondeference, it is just as likely we are embarking on a …

Critical Race Theory As Legal Epistemic Justice, Jasmine Gonzales Rose

Faculty Scholarship

“Critical Thinking: Not Critical Race Theory” and “Teach Truth: Not CRT,” proclaimed the front and back of a T-shirt on a fellow traveler passing in the airport. I was startled by the blatant misconceptions. The core pursuits of critical race theory (“CRT”) are to think critically, discover truth, and diversify knowledge about race and racism. Although I was aware of then-President Trump’s executive order barring federal diversity training and bills modeled after it, nothing had prepared me for the realization that my academic subfield had become so widely criticized that it was now the subject of T-shirt slogans. A few …

On Critical Geneaology, Bernard E. Harcourt

Faculty Scholarship

Today most critical theorists who deploy history use a genealogical method forged by Nietzsche and Foucault. This genealogical approach now dominates historically inflected critique. But not all genealogical writings today, nor all philosophical debates surrounding genealogy, advance the goals of critical philosophy. It is crucial now that we assess the value of genealogical critiques. The proper metric against which to evaluate such work is whether it contributes to transforming ourselves, others, and society in a valuable way. In this article, I propose that we use the term “critical genealogy” to identify those genealogical practices that positively nourish our activity and, …

The Limits Of Immigrant Resilience, Huyen Pham, Natalie C. Cook, Ernesto Amaral, Raymond Robertson, Suojin Wang

Faculty Scholarship

Economists have identified important adaptations that immigrant workers have made to weather economic crises. During times of economic contraction, immigrant workers have moved across industries or geographical locations, downshifted to part-time work, and accepted lower wages to stay employed. Evidence from the Great Recession (2007–2009) shows the benefits of that economic resilience: immigrant workers were more likely than native-born workers to remain continuously employed, to have shorter periods of unemployment when they lost their jobs, and to regain jobs more quickly in the recovery period. Of course, these adaptations had significant personal costs for immigrant workers and their families, but …

Why Mlp Legal Care Should Be Financed As Health Care, William M. Sage, Keegan D. Warren

Faculty Scholarship

Medical-legal partnership (MLP) integrates the unique expertise of lawyers into collaborative clinical environments. MLP teams meet the needs of individual patients while also detecting structural problems at the root of health inequities and advancing solutions at the institutional, community, and system levels. Yet MLPs today operate in limited settings and survive on scant budgets. Expanding their impact requires secure funding. Financing MLPs as health care can do the following: (1) help address inequity at the point of care; (2) enable expert diagnosis and treatment of nonmedical drivers of health; (3) enhance team-based practice in health care organizations; (4) offer another …

Civic Education And Democracy's Flaws, Robert L. Tsai

Faculty Scholarship

Today, liberalism and democracy are beset by competitors that seek to return power to religious traditionalists or partisans masquerading as civic republicans. In such an environment, can civic education do some good, and even help bridge our society’s deepening divides?

Seana Shiffrin has characteristically brought deep learning and penetrating insight to the project of civic education in a modern democracy. Against a “dominant” model of citizenship in which “citizens vote and hand off power to their representatives”— which she believes encourages the people to maintain an unhealthy distance from government— she proposes a richer account of political community in which …

Negotiating Police Reform, Cynthia Alkon

Faculty Scholarship

In the summer of 2020, after the murder of George Floyd, the national conversation around police reform intensified and was part of a conversation with students at Texas A&M University School of Law. Students wanted more discussion and teaching about police, police misconduct, police reform, and defunding the police. Following those discussions, I created a simulation on local level police reform that, as of this writing, I have used twice in my negotiation class. Simulations are helpful teaching tools in a variety of settings, including law schools. Simulations can be particularly useful to help students discuss difficult topics in different …

Whistle-Blowing And The Incentive To Hire, Jef De Mot, Murat C. Mungan

Faculty Scholarship

We consider a previously neglected cost of whistle-blower awards: employers may base their hiring decisions, on the margin, not on the productivity of an employee but rather on the probability that the employee will become a whistle-blower. We develop a three-stage model to examine how productivity losses due to distortions at the hiring stage influence optimal whistle-blower rewards. We characterize optimal rewards for whistle-blowing, and show that when rewards can be chosen according to either the benefits of the employer from offending or the productivity of the worker being hired, productivity-based rewards are superior to benefit-based rewards.

Immigration Enforcement Creep In Immigrant & Employee Rights, Angela D. Morrison

Faculty Scholarship

As the only agency charged with enforcing the Immigration Reform and Control Act’s antidiscrimination provisions, the Immigrant and Employee Rights (“IER”) section of the Department of Justice’s Civil Rights Division plays an important role in protecting worker rights. Yet over the past decade, IER has moved from worker protection to immigration enforcement: a phenomenon this Article terms “immigration enforcement creep.”

This observation is based on ten years of data collected from IER’s settlement agreements, complaints filed, and telephone interventions. The data show that rather than protect noncitizen workers from unlawful discrimination, IER has moved its focus to enforcing immigration laws …

The Subfederal In Immigration Polarization, Huyen Pham, Pham Hoang Van

Faculty Scholarship

The framing of subfederal immigration regulation as a red- blue divide is conventional wisdom. As more states, cities, and counties have engaged in the regulation of immigrants within their jurisdictions, it is not particularly surprising to see deep-red states like Texas enacting laws that restrict the rights of immigrants in their jurisdictions (e.g., requiring police within the state to honor detainers issued by United States Immigration and Customs Enforcement (ICE)) or deep-blue states like California enacting laws that protect immigrants’ rights (e.g., issuing driver’s licenses without requiring proof of lawful immigration status).

Rather than only reflecting national polarization on immigration …

The Anti-Innovation Supreme Court: Major Questions, Delegation, Chevron And More, Jack M. Beermann

Faculty Scholarship

The Supreme Court of the United States has generally been a very aggressive enforcer of legal limitations on governmental power. In various periods in its history, the Court has gone far beyond enforcing clearly expressed and easily ascertainable constitutional and statutory provisions and has suppressed innovation by the other branches that do not necessarily transgress widely held social norms. Novel assertions of legislative power, novel interpretations of federal statutes, statutes that are in tension with well-established common law rules and state laws adopted by only a few states are suspect simply because they are novel or rub up against tradition. …

The Submerged Administrative State, Gabriel Scheffler, Daniel E. Walters

Faculty Scholarship

The United States government is experiencing a reputation crisis: after decades of declining public trust, many Americans have lost confidence in the government’s capacity to perform its basic functions. While various explanations have been offered for this worrying trend, these existing accounts overlook a key factor: people are unfamiliar with the institutions that actually do most of the governing—administrative agencies—and they devalue what they cannot easily observe. The “submerged” nature of the administrative state is, we argue, a central reason for declining trust in government.

This Article shows that the administrative state is systematically submerged in two ways. First, administrative …

The Perennial Eclipse: Race, Immigration, And How Latinx Count In American Politics, Rachel F. Moran

Faculty Scholarship

In 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 …

Separation Of Powers By Contract: How Collective Bargaining Reshapes Presidential Power, Nicholas Handler

Faculty Scholarship

This Article demonstrates for the first time how civil servants check and restrain presidential power through collective bargaining. The executive branch is typically depicted as a top-down hierarchy. The President, as chief executive, issues directives with vast implications for federal policy. Usually, the tenured bureaucracy of civil servants below him follow these directives. Occasionally, when the President’s policies appear corrupt or ill-advised, bureaucrats may illicitly “resist” them. This presumed top-down structure shapes many influential critiques of the modern administrative state. Proponents of a strong President decry civil servants as an unelected “deep state” usurping popular will. Skeptics of presidential power …

Four Futures Of Chevron Deference, Daniel Walters

Faculty Scholarship

In two upcoming cases, the Supreme Court will consider whether to overturn the Chevron doctrine, which, since 1984, has required courts to defer to reasonable agency interpretations of otherwise ambiguous statutes. In this short essay, I defend the proposition that, even on death’s door, Chevron deference is likely to be resurrected, and I offer a simple positive political theory model that helps explain why. The core insight of this model is that the prevailing approach to judicial review of agency interpretations of law is politically contingent—that is, it is likely to represent an equilibrium that efficiently maximizes the Supreme Court’s …

Charging Abortion, Milan Markovic

Faculty Scholarship

As long as Roe v. Wade remained good law, prosecutors could largely avoid the question of abortion. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has now placed prosecutors at the forefront of the abortion wars. Some chief prosecutors in antiabortion states have pledged to not enforce antiabortion laws, whereas others are targeting even out-of-state providers. This post-Dobbs reality, wherein the ability to obtain an abortion depends not only on the politics of one’s state but also the policies of one’s local district attorney, has received minimal scrutiny from legal scholars.

Prosecutors have broad charging discretion, …

Yes, Trump’S Pacs Really Can Pay His Legal Fees, Richard Briffault

Faculty Scholarship

Campaign finance data released at the end of January 2024 revealed that Save America, a political action committee founded and controlled by former President Donald Trump, spent more than US$50 million in 2023 on legal fees resulting from Trump’s multiple criminal and civil cases.

OpenSecrets, a nonpartisan nonprofit tracking campaign funds, found that other Trump-aligned organizations also paid a combined $10 million in additional legal fees for Trump in 2023.

Though I have spent much of my career as a scholar of campaign finance law, I’m not certain whether that use of campaign donations is legal under federal election law. …

The Wages Of Crying Roe: Some Realism About Dobbs V. Jackson Women’S Health Organization, Neil S. Siegel

Faculty Scholarship

The 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 …

Corpus Linguistics And The Original Public Meaning Of The Sixteenth Amendment, Thomas R. Lee, Lawrence B. Solum, James C. Phillips, Jesse A. Egbert

Faculty Scholarship

Moore v. United States raises the question whether unrealized gains, such as an increase in property value or a stock portfolio, constitute “incomes, from whatever source derived” under the original meaning of the Sixteenth Amendment. Moore is widely viewed as the most important tax case to reach the United States Supreme Court in decades. It is also an opportunity for the Court to refine its theory and method of finding original meaning.

We focus here on the original public meaning of the Sixteenth Amendment—the ordinary, common meaning attributed to its text by the general public in 1913. So far, the …