Showing papers in "Notre Dame Law Review in 2018"

The algorithm game

Abstract: Most of the discourse on algorithmic decisionmaking, whether it comes in the form of praise or warning, assumes that algorithms apply to a static world. But automated decisionmaking is a dynamic process. Algorithms attempt to estimate some difficult-to-measure quality about a subject using proxies, and the subjects in turn change their behavior in order to game the system and get a better treatment for themselves (or, in some cases, to protest the system.) These behavioral changes can then prompt the algorithm to make corrections. The moves and countermoves create a dance that has great import to the fairness and efficiency of a decision-making process. And this dance can be structured through law. Yet existing law lacks a clear policy vision or even a coherent language to foster productive debate. This Article provides the foundation. We describe gaming and countergaming strategies using credit scoring, employment markets, criminal investigation, and corporate reputation management as key examples. We then show how the law implicitly promotes or discourages these behaviors, with mixed effects on accuracy, distributional fairness, efficiency, and autonomy.

Computationally Assisted Regulatory Participation

Abstract: With the increased politicization of agency rulemaking and the reduced cost of participating in the notice-and-comment rulemaking process, administrative agencies have, in recent years, found themselves deluged in a flood of public comments. In this Article, we argue that this deluge presents both challenges and opportunities, and we explore how advances in natural language processing technologies can help agencies address the challenges and take advantage of the opportunities created by the recent growth of public participation in the regulatory process. We also examine how scholars of public bureaucracies can use this important new publicly available data to better understand how agencies interact with the public. To illustrate the value of these new tools, we carry out computational text analysis of nearly three million public comments that were received by administrative agencies over the course of the Obama administration. Our findings indicate that advances in natural language processing technology show great promise for both researchers and policymakers who are interested in understanding, and improving, regulatory decision-making.

Life in the Sweatbox

Abstract: The time before a person files bankruptcy is sometimes called the financial “sweatbox.” Using original data from the Consumer Bankruptcy Project, we find that people are living longer in the sweatbox before filing bankruptcy than they have in the past. We also describe the depletion of wealth and well-being that defines people’s time in the sweatbox. For those people who struggle for more than two years before filing bankruptcy — the “long strugglers” — their time in the sweatbox is particularly damaging. During their years in the sweatbox, long strugglers deal with persistent collection calls, go without healthcare, food, and utilities, lose homes and other property, and yet remain ashamed of needing to file. For these people in particular, though time in the sweatbox undermines their ability to realize bankruptcy’s “fresh start,” they do not file until long after the costs outweigh the benefits. This Article’s findings challenge longstanding narratives about who files bankruptcy and why. These narratives underlie our laws, influence how judges rule in individual cases, and affect how attorneys interact with their clients.

Too Much of a Good Thing: Overcrowding at America's National Parks

Abstract: INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 986 R I. BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 989 R II. RESPONSE TO THE 1978 AMENDMENTS . . . . . . . . . . . . . . . . . . . . . 992 R A. Channel Islands National Park . . . . . . . . . . . . . . . . . . . . . . . . . 992 R B. Dry Tortugas National Park . . . . . . . . . . . . . . . . . . . . . . . . . . . . 993 R C. Everglades National Park . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 994 R D. Saguaro National Park . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 995 R III. RAMIFICATIONS OF NONRESPONSE . . . . . . . . . . . . . . . . . . . . . . . . . . 996 R A. Zion National Park . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 996 R B. Pinpointing Contributing Factors . . . . . . . . . . . . . . . . . . . . . . . . 1000 R IV. POSSIBLE FIXES NOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002 R A. Effecting Compliance with the Federal Statute . . . . . . . . . . . . . 1003 R 1. Revocation of Federal Funding . . . . . . . . . . . . . . . . . . . 1003 R 2. Removal of Executive Branch Officials . . . . . . . . . . . . 1004 R 3. Individual Lawsuits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005 R B. Possible Fixes for Overcrowding . . . . . . . . . . . . . . . . . . . . . . . . . . 1008 R 1. Mandatory Use of Shuttle Systems in Other Parks . 1008 R 2. Reservation Systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010 R 3. Changing the Focus of Advertising Campaigns . . . . 1012 R 4. Charging Children Entrance Fees . . . . . . . . . . . . . . . . 1013 R 5. Consider Technology Limitations . . . . . . . . . . . . . . . . . 1014 R CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016 R

Extremist Speech, Compelled Conformity, and Censorship Creep

Abstract: Silicon Valley has long been viewed as a full-throated champion of First Amendment values. The dominant online platforms, however, have recently adopted speech policies and processes that depart from the U.S. model. In an agreement with the European Commission, tech companies have pledged to respond to reports of hate speech within twenty-four hours, a hasty process that may trade valuable expression for speedy results. Plans have been announced for an industry database that will allow the same companies to share hashed images of banned extremist content for review and removal elsewhere. These changes are less the result of voluntary market choices than a bowing to governmental pressure. Private speech rules and policies about extremist content have been altered to stave off threatened European regulation. Far more than illegal hate speech or violent terrorist imagery is in EU lawmakers’ sights, so too is online radicalization and “fake news.” Newsworthy content may end up being removed along with terrorist beheading videos, “kill lists” of U.S. servicemen, and instructions on how to blow up houses of worship. The impact of extralegal coercion will be far reaching. Unlike national laws that are limited by geographic borders, terms-of-service agreements apply to platforms’ services on a global scale. Whereas local courts can only order platforms to block material viewed in their jurisdictions, a blacklist database raises the risk of total censorship. Companies should counter the serious potential for censorship creep with definitional clarity, robust accountability, detailed transparency, and ombudsman oversight.

Progressive Genetic Ownership

Abstract: Recently, property scholars have challenged neoclassical economic theory as the primary lens for understanding ownership. As an alternative to the all-too familiar concepts of welfarism, the rational-actor theory, and cost-benefit analysis, they offer “progressive property,” a school of thought grounded in value pluralism, communitarianism, and redistribution. To date, much of the progressive property literature has focused exclusively on land use. This Article tests the versatility of this new property school by applying it to a novel context: genetic ownership. As with real property, discussions surrounding genetic ownership have been entrenched in neoclassical law and economics. Given the proliferation of deontological concerns related to genetic research — such as privacy, identity, autonomy, and distributive justice — neoclassical economic theory is woefully incomplete as a theory of genetic ownership. Progressive property promises a more complete approach. Yet this conclusion does not establish progressive property as universally appropriate. Certain unexpected similarities exist between land and genetic data. Thus, while progressive property is well-suited to situations dealing with unique objects of ownership that raise deontological concerns, it should not necessarily supplant law and economics in all contexts.

The Branch Best Qualified to Abolish Immunity

Abstract: Qualified immunity—the legal doctrine that shields government officials from suit for constitutional violations unless the right they violate “is sufficiently clear that every reasonable official would have understood that what he is doing violates that right”—has come under increasing judicial and scholarly criticism from diverse ideological viewpoints. This Essay considers the question of which branch of government should fix it. I take as a starting point the many critiques of qualified immunity and then turn to the question of whether courts should wait for Congress to reform this problematic doctrine. Do considerations of stare decisis or institutional competence counsel in favor in leaving to Congress the task of reform? I argue that they do not. In light of the Supreme Court’s persistent and pervasive involvement with the development of all aspects of modern qualified immunity doctrine, from its content to its scope to the manner and timing of its assertion and resolution in the courts, qualified immunity has become a special province of the Court rather than a mere byproduct of statutory interpretation that should be corrected (if at all) by Congress. The Court is best positioned to understand the effects of the doctrine on the development of constitutional law. Moreover, the criteria to which the Court traditionally looks in deciding whether it should overrule a precedent counsel in favor of judicial reform. The factual and legal foundations underlying qualified immunity have been eroded. The doctrine is unworkable, producing contradictions and confusions and stultifying the development of constitutional law. Although it is reasonable to assume that officers and municipal governments rely on the protection of qualified immunity for the protection of municipal coffers, the Court should not, and in prior cases did not, afford weight to a reliance interest in violating the Constitution. From Pierson to Pearson, qualified immunity is a mess of the Supreme Court’s making, and the Supreme Court should clean it up.

The American Deep State

Abstract: Given the mood of the nation, there is good reason to reject the very premise of an American deep state. This is especially true so long as the concept serves primarily as fodder for conspiracy-mongering and fuel for the domestic culture wars. Yet such a wholesale rejection of the "deep state" label comes at the expense of accuracy, nuance, and opportunity. In truth, we do have—and have long enjoyed—bureaucratic depth. And Donald Trump, more than any other president, has brought into relief its legal and political raisons d'etre. This Essay insists that the American deep state has very little in common with those regimes—think Egypt, Turkey, and Pakistan—usually understood to harbor deep states; that, far from being shadowy or elitist, the American bureaucracy is very much a demotic institution, demographically diverse, highly accountable, and lacking financial or caste incentives to subvert popular will; that demotic depth of the American variety should be celebrated, not feared; and that, going forward, we need greater not lesser depth insofar as the American bureaucracy serves an important, salutary, and quite possibly necessary role safeguarding our constitutional commitments and enriching our public policies.

Whatever Did Happen to the Antitrust Movement

Abstract: Antitrust in the United States today is caught between its pursuit of technical rules designed to define and implement defensible economic goals, and increasing calls for a new antitrust “movement.” The goals of this movement have been variously defined as combating industrial concentration, limiting the economic or political power of large firms, correcting the maldistribution of wealth, control of high profits, increasing wages, or protection of small business. High output and low consumer prices are typically unmentioned. In the 1960s the great policy historian Richard Hofstadter lamented the passing of the antitrust “movement” as one of the “faded passions of American reform.” In its early history, he observed, antitrust had a powerful movement quality but very little success in the courts. Later, it ceased to be a movement just as it was attaining litigation success. As a movement, antitrust often succeeds at capturing political attention, but it fails at making effective – or even coherent – policy. The coherence problem shows up in goals that are both unmeasurable and fundamentally inconsistent, but with their contradictions rarely exposed. Among the most problematic contradictions is the one between small business protection and consumer welfare. Consumers benefit from low prices, high output and high quality and variety of products and services. But when a firm is able to offer these things it invariably injures rivals -- typically smaller firms or those dedicated to older technologies. Although movement antitrust rhetoric is often opaque about specifics, its general effect is invariably to encourage higher prices or reduced output or innovation, mainly for the protection of small business or firms dedicated to older technologies. Indeed, some spokespersons for movement antitrust write as if low prices are the evil that antitrust law should be combating. This piece sets out to do three things. First it describes so-called “movement” antitrust, focusing on recent writings disparaging consumer welfare in favor of alternatives that seek to protect small business welfare, redistribute wealth, or pursue other goals. Then it describes the fundamental contours of technical antitrust, whose stated goal is the protection of high output and low prices, and explains why this approach is much more consistent with concerns about economic rationality, due process, administrability, and federalism. Finally, it examines several areas where technical antitrust rules could be improved, focusing mainly on merger policy and one particularly problematic area, which is antitrust’s historical failure to deal adequately with monopsony power in labor markets.

Gains, Losses, and Judges: Framing and the Judiciary

Abstract: Losses hurt more than foregone gains—an asymmetry that psychologists call “loss aversion.” Losses cause more regret than foregone gains, and people struggle harder to avoid losses than to obtain equivalent gains. Loss aversion produces a variety of anomalous behaviors: people’s preferences depend upon the initial reference point (reference-dependent choice); people are overly focused on maintaining the status quo (status quo bias); people attach more value to goods they own than to identical goods that they do not (endowment effect); and people take excessive risks to avoid sure losses (risk seeking in the face of losses). These phenomena are so pervasive that legal scholars have assumed that they influence the development of law. Although numerous studies reveal that framing influences how ordinary people think about their rights, a clear demonstration that judges decide cases differently when the underlying facts present gains as opposed to losses does not exist. This Article fills that gap. We present eight studies with over one thousand judges as research participants that demonstrate that all four of these anomalous features of framing influence how sitting judges evaluate legal cases.

The Case against Qualified Immunity

Abstract: In Ziglar v. Abbasi, Justice Clarence Thomas recommended to the Court that, “[i]n an appropriate case, we should reconsider our qualified immunity jurisprudence.” If the Supreme Court did find an appropriate case to reconsider qualified immunity, and took seriously available evidence about qualified immunity’s historical precedents and current operation, it could not justify continued existence of the doctrine in its current form. Qualified immunity is historically unmoored, ineffective at achieving its policy ends, and detrimental to the development of constitutional law. Scholarly defenses of the doctrine are similarly unpersuasive. The Court should not feel constrained by stare decisis, given the questionable foundations of qualified immunity and the liberty the Court has taken with its scope and structure over the fifty years of its existence. And there are many ways, short of downright repeal, that the Court could adjust the doctrine to better reflect its role in constitutional litigation. The Supreme Court has created the mess that is qualified immunity, and it is time for them to clean it up.

The Sharing Economy as an Equalizing Economy

Abstract: Economic equality is often said to be the key problem of our time. But information technology dematerializes the world in ways that are helpful to the 99 percent, because information can be shared. This essay looks how one fruit of the information revolution—the sharing economy—has important equalizing features on both its supply and demand side. First, on the supply side, the intermediaries in the sharing economy, like Airbnb and Uber, allow owners of housing and cars to monetize their most important capital assets. The gig aspect of this economy also creates spot markets in jobs that have flexible hours and monetize people’s passions, such as cooking meals in their home. Such benefits make these jobs even more valuable than the earnings that show up imperfectly in income statistics. The law and economics analysis of Hernando De Soto has shown how creating property rights and more formal markets can help those of modest means in the developing world. The sharing economy performs a similar function for people of modest means in the developed world. Second, on the demand side, the sharing economy also creates gains for consumers that largely go to the 99 percent. Airbnb finds them cheaper accommodations in places that may have been unaffordable. But the advantages go beyond price. Summoning a ridesharing car almost anywhere with the press of smart phone is a much closer approximation of having a chauffeur— a hallmark of wealth—than hailing a taxi. The law and economics analysis of Ronald Coase shows how replacing such physical agents with online agents redounds largely to the benefit of those with modest incomes. If the sharing economy has equalizing as well as efficiency features, regulations must be careful not to disturb them. But because the sharing economy permits new entry into markets, incumbents will respond with new regulatory efforts to hamper it. The essay provides a taxonomy of the different kinds of regulation to help preserve the equalizing features from being impaired. The essay ends by showing how the sharing economy more generally problematizes the conventional story of growing material inequality. The dematerialization of the world provides greater opportunities for broadly shared consumption, like that on Facebook, and improves working conditions, particularly for the middling classes. Only by taking account of these trends can we understand the changing relative material conditions of people.

The Canon of Rational Basis Review

Abstract: The modern constitutional law canon fundamentally misdescribes rational basis review. Through a series of errors — of omission, simplification, and recharacterization — we have largely erased a robust history of the use of rational basis review by social movements to generate constitutional change. Instead, the story the canon tells is one of dismal prospects for challengers of government action — in which rational basis review is an empty, almost meaningless form of review. This Article suggests that far from the weak and ineffectual mechanism that most contemporary accounts suggest, rational basis review has, in the modern era, served as one of the primary equal protection entry points for social movements seeking to disrupt the status quo. Moreover, it suggests that unlike the narrowly constrained theories of robust rational basis review that predominate today, the actual history (and present) of rational basis review has included a wide diversity of more meaningful forms of review. To elucidate the problems with canonical accounts of rational basis review, this Article focuses on four ways in which the contemporary constitutional canon misdescribes or distorts our understanding of the real role of rational basis review: (1) by misdescribing how contemporary social movements achieve meaningful scrutiny under the Equal Protection Clause; (2) by recharacterizing successful rational basis cases as only “purporting” to apply rational basis review; (3) by ignoring many sites of constitutional contestation, including the lower and state courts and the political branches; and (4) by oversimplifying and thus narrowly cabining any acknowledgment of more meaningful forms of rational basis review. Correcting these errors would afford a far different vision of rational basis review. Rather than a uniformly deferential form of review, rational basis review would be understood, correctly, as a deeply inconsistent, “persistently confused” area of constitutional law. Moreover, this very inconsistency would be understood as offering social movements — both historically and today — among the most promising avenues for generating constitutional change.

A Rule-Based Method for Comparing Corporate Laws

Abstract: This Article proposes and describes operationally a rule-based method for comparing corporate or other entity laws. The method consists of six steps. The first step is to create a hypothetical fact scenario that raises the aspect of corporate law that is of interest to the researchers. The second step is to choose two comparable entity types for comparison. The third step is to conduct the research necessary to resolve the scenario under the law applicable to each entity type, in essentially the same manner that an attorney would if tasked with rendering an opinion. The fourth step is to extract from that research the rules — whether legal, practical, or something else — that directly determined the resolution, express those rules in parallel to the extent practical, and juxtapose them. The fifth step is to express the most important respects in which the laws are the same or different. The sixth step is to apply the researchers’ evaluative criteria to reach useful conclusions. Because the method is efficient, flexible, and easy to use, it can be applied by corporate law scholars, legal reformers, judges, and policy-makers to compare specific aspects of corporate law between two jurisdictions, by corporate lawyers to choose entity types internationally or domestically, and by corporate litigators to anticipate the effect of the court’s choice of law.

The Depravity of the 1930s and the Modern Administrative State

Abstract: Gillian Metzger’s 2017 Harvard Law Review foreword, entitled 1930s Redux: The Administrative State Under Siege, is a paean to the modern administrative state, with its massive subdelegations of legislative and judicial power to so-called “expert” bureaucrats, who are layered well out of reach of electoral accountability yet do not have the constitutional status of Article III judges. We disagree with this celebration of technocratic government on just about every level, but this Article focuses on two relatively narrow points. First, responding more to implicit assumptions that pervade modern discourse than specifically to Professor Metzger’s analysis, we challenge the normally unchallenged premise that the 1930s was a decade of moral wisdom about governmental design that should serve as a ground for constitutional reasoning that is superior to the actual text of the Constitution. The 1930s was a thoroughly awful time, worldwide and in the United States; and while America avoided some of the very worst trends of those times (although it was a worldwide leader in others, such as eugenics), the intellectual and political foundations of that decade were a terrible ground for theories of government. We do not make the absurd claim that everything that emerged from the 1930s was therefore bad simply by virtue of that origin, nor do we make the equally absurd ad hominem claim that everyone who supports anything from the 1930s must support everything from that time. We only want to call into question the (generally implicit) premise that the governmental forms of the 1930s are sacrosanct because that decade should be seen as the real constitutional founding. The intellectual foundations of the 1780s and 1860s—the decades that led to the ratification of the actual constitutional text and the Civil War Amendments—are far superior to those of the 1930s. To be clear, we think that constitutional interpretation should be about the Constitution, not about time periods, values, or constitutional “orders,” but if for some reason one wants to focus on time periods, the 1930s should be the last time period to which one looks for guidance. Second, we offer some very modest legislative tweaks to the existing institutions of the administrative state that we believe will move American government more toward the correct constitutional baseline with only minimal changes in actual governmental functions. Major rules should be enacted using constitutional (if expedited) lawmaking procedures; all executive officers

The breakdown of international treaties

Abstract: The past few years have witnessed the rise of anti-globalization sentiments in which certain treaties have succumbed to domestic political backlash. But why are particular treaties susceptible to breakdown while others tend to be more resilient? Paradoxically, this Article argues that the fragility of treaties follows a peculiar logic: treaties are most vulnerable to breakdown or withdrawal if they were originally negotiated in the absence of social conflict among domestic groups. The reason is that having been negotiated and ratified with hardly any political struggle, consensus treaties often lack the support of battle-hardened special interest groups who are willing and able to defend such treaties against downstream political threats. This Article uses the contemporary backlash against both bilateral investment treaties and the Rome Treaty establishing the International Criminal Court to illustrate the vulnerability of consensus treaties. By contrast, treaties negotiated amidst intense political disagreement, such as the GATT/WTO framework governing international trade, have exhibited remarkable resilience over time. On a more speculative note, both the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) were likely rendered politically fragile by the first generation of consensus investment treaties entered into by the United States. Finally, it concludes by recommending measures to counteract the tendency of consensus treaties to collapse by making them more politically sustainable.

Qualified Immunity at Trial

Abstract: Qualified immunity doctrine is complex and important, and for many years it was assumed to have an outsize impact on civil rights cases by imposing significant barriers to success for plaintiffs. Recent empirical work has cast that assumption into doubt, at least as to the impact qualified immunity has at pretrial stages of litigation. This Essay adds to this empirical work by evaluating the impact of qualified immunity at trial, a subject that to date has not been empirically tested. The results reported here suggest that juries are rarely asked to answer questions that bear on the qualified immunity defense. At the same time, the data illustrate that qualified immunity can be a powerful barrier to plaintiffs’ success in the rare instances in which it is presented to a jury.

Evidence without Rules

Abstract: In courtrooms every day, fact finders rely on “evidence”—for example, a style of dress, the presence of family members in the courtroom, and of course race—that rarely passes as evidence in the formal sense, and thus breezes past evidentiary gatekeepers unseen and unchecked. “Evidence Without Rules” calls much needed attention to this other evidence and demonstrates that such unregulated evidence matters in ways that have real consequences. Jurors use this other evidence to decide whether to find for a plaintiff or defendant, whether a defendant should go free or be deprived of liberty, and whether the defendant is deserving of life or death. Even in cases that do not go to trial, this unregulated evidence has outsized consequences, since these cases are negotiated and settled in the “shadow of trial” with prospective jurors in mind. More broadly, the role of other evidence belies what we tell ourselves about the way justice works, that it is based on the “rule of law.” The truth is less comforting. The determination of outcomes, notwithstanding the Rules of Evidence, is often rule-less. To address this state of affairs, this article first offers a modest proposal, a simple jury instruction and directive. It then offers a solution that is anything but modest—a radical rethinking of the Rules of Evidence.

Symbolism and Separation of Powers in Agency Design

Abstract: This Essay was written for a symposium, Administrative Lawmaking in the 21st Century, hosted by the Notre Dame Law Review in November 2017. The Essay describes a series of cases — Free Enterprise Fund v. Public Company Accounting Oversight Board, a series of D.C. Circuit cases brought by the Intercollegiate Broadcasting System against the Copyright Royalty Board, and PHH Corp. v. Consumer Financial Protection Burea — in which courts have remedied a constitutional flaw in the statutory design of a particular federal government agency by severing statutory language to alter the agency’s design. The Essay raises reservations regarding judicial refashioning of agency design via the severance remedy for separation of powers violations: (1) that the remedy may not reflect the judicial restraint that motivates it; (2) that the remedy is sufficiently weak that its repeated use will chill litigation of legitimate constitutional challenges; and (3) that the remedy makes agency officials more politically accountable when, arguably, popular understandings of separation of powers principles might counsel otherwise. To the extent these reservations are accurate, judicial use of the severance remedy to address agency design flaws may, in turn, exacerbate questions regarding the fairness and legitimacy of agency actions.

Executive Orders as Lawful Limits on Agency Policymaking Discretion

Abstract: Agencies are bound generally by the Administrative Procedure Act’s rulemaking requirements, but Presidents emphatically are not.1 That dichotomy presents an interesting question: If a President orders an agency to adopt a specific policy in a rulemaking, and if his chosen policy fits within the broader limits of discretion that Congress conferred upon the agency in its substantive statute, then to what extent does the APA still obligate the agency to respond to criticism of the President’s chosen policy in the notice-andcomment rulemaking process? In the D.C. Circuit, at least, the answer is simple: if the President orders an executive agency to take action within the lawful limits of the agency’s substantive statute and the agency implements that policy choice through a rulemaking, then the agency is not required to respond to public comments challenging the merits of the President’s policy choice.2 In this Article, I consider principles and trends that preceded—and, I think, justify—this doctrinal development, rightly understood. After briefly retracing previous Presidents’ general uses of executive orders and debates over presidential power more generally, culminating with the late twentiethcentury executive orders on White House regulatory oversight, I review the case of Sherley v. Sebelius, in which the D.C. Circuit held that when an agency receives an executive order lawfully cabining or directing the its regulatory discretion, it is excused from its otherwise general duty to respond to rulemaking comments challenging its policy choice.3 Then, examining this general duty of agencies to respond to rulemaking comments, I consider

A Qualified Defense of Qualified Immunity

Abstract: In recent years, we have seen a growing call in the legal academy to revisit qualified immunity—the doctrine that shields a government actor from civil suit for monetary damages unless the government official violates “clearly established law.” On the doctrinal front, for instance, Will Baude argues that qualified immunity’s foundations are suspect as a matter of positive law. On the empirical front, Joanna Schwartz has done groundbreaking work at the district-court level that calls into question qualified immunity’s effect at shielding government officials from discovery and trial. This Essay responds to both sets of criticisms and provides a partial defense of the qualified immunity. Based on the authors’ prior empirical work on qualified immunity in the circuit courts, the Essay concludes with some recommendations on how the Supreme Court could improve the doctrine of qualified immunity to better ensure the doctrine advances its intended objectives.

Due Process of War

Abstract: The application of the Due Process Clause of the Fifth Amendment to the government’s deprivation of rights during war is one of the most challenging and contested questions of constitutional law. The Supreme Court has not provided a consistent or historically informed framework for analyzing due process during war. Based on the English background, the text and history of the U.S. Constitution, and early American practice, this Article argues that due process was originally understood to apply to many but not to all deprivations of rights during war. It proposes a framework for analyzing due process during war that accords with this history and suggests useful principles for the “war on terrorism.” First, all deprivations of rights during war were subject to the law of the land. During a state of war, rights were determined by the law of war, treaty, and statute. The President had no constitutional authority to deprive persons, including enemies, of rights contrary to that law. Second, many deprivations of rights during war were also subject to the Due Process Clause. The courts in England and the United States provided a number of judicial remedies to enforce the law of the land. Americans understood these remedies to be a requirement of due process. Importantly, those courts provided such remedies for many deprivations during war. English and American courts considered habeas petitions for enemy noncombatants; considered trespass suits brought against military officers by enemy noncombatants for deprivations of liberty and property; and reviewed the application of military law by courts martial. When such deprivations were within the jurisdiction of a federal court, they were subject to due process of law. Third, many deprivations of rights during war, though subject to the law of the land, were not subject to due process. The deprivation of rights of enemy combatants on a battlefield and the deprivations of rights of civilians by an officer exercising statutory authority to enforce martial law were subject to the law of the land, but not to due process.

The Attorney General and Early Appointments Clause Practice

Abstract: Among the structural provisions of the Constitution are a series of rules specifying the method by which the federal government will be staffed. One of those rules, contained in what is known as the Appointments Clause, establishes the procedures for appointing “all . . . Officers of the United States, whose Appointments are not . . . otherwise provided for” in the Constitution—requiring one mechanism (presidential appointment and senate confirmation) for “principal” officers and permitting a set of alternatives (appointment by the “President alone,” the “Courts of Law,” or the “Heads of Departments”) for “officers” who are considered “inferior.” The Clause has traditionally been understood to require these appointment procedures for a subset of federal government employees who meet some constitutional threshold that establishes their status as “officers,” rather than for all federal employees. In light of that understanding, the Clause naturally raises a question about the precise boundary between constitutional “officers” and other federal “employees”—a question that has recently been the subject of substantial litigation and extensive treatment within the executive branch and the scholarly literature. The caselaw and the scholarly debate, however, have overlooked a significant source of early interpretations of the Clause: opinions construing the Clause written by the Attorneys General of the United States during the nation’s first century. Ever since the Judiciary Act of 1789, the Attorney General has been authorized “to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States.” Using this authority, several Attorneys General opined on the Clause’s meaning. This Article examines their heretofore-neglected opinions, specifically addressing the opinions’ treatment of the constitutional status of the “deputies” of “officers.”

Mischief Managed? the Unconstitutionality of Sec Aljs under the Appointments Clause

Abstract: Since Congress passed the Administrative Procedure Act in 1946 (APA),1 the administrative state has expanded exponentially. Today, federal agencies are critical players in the administrative scheme due to their role in establishing and enforcing regulations.2 An important part within this system is played by Administrative Law Judges (“ALJs”).3 In 2016, the Tenth Circuit4 and the D.C. Circuit5 took up the question of whether ALJs of the Securities and Exchange Commission (SEC) were hired in accordance with the Appointments Clause of the Constitution. The two courts came to opposite conclusions—the Tenth Circuit concluded that SEC ALJs are inferior officers, and as a result, do not comport with the Appointments Clause,6 whereas the D.C. Circuit determined that the SEC ALJs are employees, and so do not run afoul of the Constitution.7 Though similar claims have been

The Horror Chamber: Unqualified Impunity in Prison

Abstract: The federal courts have been open to prisoners’ constitutional claims for half a century, but to this day, the availability of federal litigation has not stopped prisoners from being tortured, maimed, killed, or otherwise made to suffer chilling abuse. The failure of litigation as a deterrent is due in part to a confluence of legal and situational factors—doctrinal deference, statutory hurdles, and the many difficulties associated with litigating a civil rights case against one’s jailers—that make prison-conditions cases virtually impossible to win. We call this combination of factors “practical immunity.” Practical immunity amounts to a formidable barrier against successful prison-conditions cases. When practical immunity is combined with the well-known doctrine of qualified immunity, it makes the threat of a money judgment against prison defendants almost empty. The Supreme Court’s failure to take stock of practical immunity may help to explain why the landscape is so skewed against prisoners, and why prison officials enjoy a legal regime so forgiving that it borders on de facto absolute immunity.

Qui Tam Litigation Against Government Officials: Constitutional Implications of a Neglected History

Abstract: The Supreme Court concluded twenty-five years ago, in Lujan v. Defenders of Wildlife, that uninjured private plaintiffs may not litigate “generalized grievances” about the legality of executive branch conduct. According to the Lujan Court, Congress lacked power to authorize suit by a plaintiff who could not establish some “particularized” injury from the challenged conduct. The Court believed litigation to require executive branch legal compliance, brought by an uninjured private party, is not a “case” or “controversy” within the Article III judicial power and impermissibly reassigns the President’s Article II responsibility to “take Care that the Laws be faithfully executed.” The decision effectively granted the President a semi-exclusive power to monitor and ensure the legality of a broad range of executive branch activity. The Lujan Court overlooked a now relatively unfamiliar aspect of Anglo-American legal history. From the 14th through the 18th centuries, the English Parliament, American colonial and state legislatures, and early federal Congresses routinely enacted “qui tam” legislation that authorized uninjured private “informers” to collect penalties for unlawful conduct by government officials. These qui tam statutes authorized private litigation against executive officials in circumstances that would be classified as generalized grievances under modern standing jurisprudence. The Lujan Court acknowledged historical use of qui tam legislation, but apparently believed such statutes were limited to regulation of “private part[ies].” The widespread practice of regulating government officials through qui tam legislation in the five centuries leading up to the framing of our Constitution suggests the need to reconsider the reasoning of Lujan, though perhaps not the result, and to revise the Court’s understanding of legislative tools available to monitor the legality of executive branch conduct.

If the Text is Clear—Lexical Ordering in Statutory Interpretation

Abstract: Most courts now endorse lexical ordering for statutory cases. That is, a limited set of top-tier sources, if adequately clear, are supposed to establish statutory meaning. Lower-tier sources are held in reserve for close calls. Examples include legislative history and deference to agency positions, which often are demoted into tiebreaking roles. In fact, some such hierarchy of sources is approved by working majorities at the U.S. Supreme Court and more than forty state supreme courts. Although popular today, lexically ordered interpretation has risen and fallen before. Indeed we should pause to reconsider whether these instructions are justified and whether judges can follow them. This Article explores the core trade-offs and implementation challenges. On trade-offs, the Article spotlights decision quality, decision costs, and, less intuitively, decisiveness. Compared to aggregating all source inferences, lexical ordering threatens decision quality by sometimes throwing out useful information, but it can reduce decision costs and probably will increase the chance of a decisive judgment. Compared to flatly excluding lower-tier sources, lexical ordering probably yields higher quality decisions and decisiveness, but also higher decision costs. Whether the overall compromise seems tolerable depends on a series of debatable judgment calls. Moreover, the actual trade-offs depend on whether judges lexically order sources in their decision making, not only in their opinion writing. To date, we lack evidence either way. The Article goes on to report results from a new vignette experiment conducted with approximately one-hundred appellate judges. These judges showed curiously mixed success at lexical ordering. In a trade name case, we find little evidence that judges were improperly influenced by legislative history. In an election law case, by contrast, we find evidence that judges were improperly influenced by an agency’s position. There is much more to learn about the patterns of judicial behavior in this field. For now, we should expect mixed judicial success at achieving the mixed advantages and disadvantages of lexical ordering. The hard trade-offs cannot be casually assumed or ignored. With that unsettling lesson, more courts might abandon lexical ordering’s complex and sometimes fragile architecture—or at least maintain respect for judges who are committed to less orthodox, more extreme, and simpler methods for deciding statutory cases.