Revisiting Justice Powell’s Affirmative Action Legacy

Asad Rahim, Diversity to Deradicalize, available at SSRN.

It is difficult to say anything new about affirmative action. Scholars have analyzed the effect of affirmative action on white students and on people of color through the lenses of many disciplines. They have considered the philosophical consequences of a system that takes account of race in comparison to one that is race blind. They have asked whether a system can be race blind. Perhaps more than any other topic, scholars have exhaustively discussed diversity. The focus is not surprising, given that diversity is the only rationale for affirmative action that will withstand strict scrutiny, absent a narrow exception for institutions attempting to remedy their own past discrimination. But to offer anything new about diversity is a difficult task.

Despite the rich work already available, in Diversity to Deradicalize Asad Rahim offers a provocative and novel addition to the affirmative action canon. His sharp look at Bakke and diversity hones in on the father of the diversity rationale, Justice Lewis Powell. Justice Powell’s solo concurrence in Bakke v. Regents of the University of California first articulated the diversity rationale for lower courts and institutions of higher learning. Powell’s opinion has drawn praise and criticism. Some saw it as a unifying opinion that furthered racial harmony by demonstrating that integration is good for those of all races. Others have criticized the diversity rationale for affirmative action as ahistorical, ignoring centuries of racial injustice in favor of a rationale that emphasized what people of color could do for white people. Whatever their beliefs, litigants have found themselves advocating forcefully for the merits of diversity in order to preserve affirmative action at state schools. Continue reading "Revisiting Justice Powell’s Affirmative Action Legacy"

Paying to be the Product

Stacy-Ann Elvy, Commodifying Consumer Data in the Era of the Internet of Things, 59 B.C. L. Rev. 423 (2018).

Just after the turn of the millennium, it was common to hear the burgeoning data economy ethically justified through the following refrain: “If you’re not paying for it, you’re the product.” Consumers, wittingly or unwittingly, pay for free services by giving companies access to their personal information and data logs.

Nobody says that anymore. Stacy-Ann Elvy’s excellent article, Commodifying Consumer Data in the Era of the Internet of Things explains why. No matter how much you pay, under current US law you’re the product if the company’s privacy policy says so. A company’s privacy policy typically is not in the contract consumers agree to and can be changed at any time. Elvy cites a study that estimates that by 2020 companies will be able to earn more profits by transferring and disclosing consumer Internet of Things (IoT) data than by selling IoT devices to the consumers themselves. This includes cars, typically the most expensive good most consumers ever purchase.1 Continue reading "Paying to be the Product"

Presidential Speech in Court

Katherine Shaw, Speech, Intent, and the President, 104 Cornell L. Rev. __ (forthcoming 2019), available at SSRN.

What happens to presidential statements in court? Recently, litigants have sought to use public statements—including tweets—by President Trump to challenge the various iterations of the travel ban, the prohibition against transgender individuals in the military, and the administration’s decision to withhold cost-sharing reductions from health insurance issuers. As Katherine Shaw makes clear in Speech, Intent, and the President, forthcoming in the Cornell Law Review, courts lack a clear interpretive framework for evaluating the president’s speech. In Trump v. Hawaii, for example, the majority largely set aside the presidential statements that the plaintiffs had assembled as proof that the President’s proclamation violated the Establishment Clause. Justice Sotomayor, by contrast, catalogued these statements in her dissent to conclude that the ban was “driven by anti-Muslim animus.”

Shaw’s is one of several new articles to take on the issue of Presidential speech in the courts. Shaw’s own Beyond the Bully Pulpit: Presidential Speech in Courts, the subject of a jot last year by Mila Sohoni, exemplified this new area of scholarship and established Shaw as a leader in the field (in addition to co-host of the fabulous Strict Scrutiny podcast). In Beyond the Bully Pulpit, Shaw argued that Presidential speech was mostly aimed at “political storytelling” and therefore inappropriate for judicial reliance. There were several exceptions, though, one of which is the subject of this article. The focus on this exception—speech used to indicate presidential intent—makes Shaw’s work timely indeed. In addition to addressing longstanding questions in administrative and constitutional law, Speech, Intent, and the President puts forth a coherent proposal for when and how courts should consider presidential speech to determine intent. Her proposal may come in handy as readers struggle to evaluate legal battles surrounding the Trump administration. Continue reading "Presidential Speech in Court"

Global Rankings of Global Firms and the Distance between Formality and Reality

The new Global 100 law firm ranking is out, and it reports that Big Law is thriving. Despite challenges and change experienced by elite law firms, there is a continuing—indeed growing—appetite for the work of Big Law’s global actors. For example, gross revenue for the firms on the list grew by more than 8% in 2018, “a step up from 2017’s already robust 6.7% growth and a showing that dwarfs the 2.8% and 3.1% growth from the two preceding years. These firms brought in a collective $114.2 billion, more than the 2018 gross domestic product of Ecuador, the 60th largest economy in the world.”1 And despite the turbulence over the last decade in the market for legal services in which Big Law participates, these law firms have deepened their footprint internationally: the firms on the Global 100 list have added nearly 200 additional offices outside of the U.S. and more than 6,600 lawyers during the decade ending in 2019.2

But what does it mean to be a global “firm” for purposes of the Global 100? Most law firms on the Global 100 reflect an organizational structure that uses offices as the connective tissue of the firm, but the notion of a law firm as a coherent organization glosses over important differences that suggest the rankings of firms are as much about pretense as reality. Jing Li takes on this topic in a new article, All roads lead to Rome: Internationalization strategies of Chinese law firms, where she analyzed the websites of 123 China-based law firms in order to assess how their internationalization strategies compare to the expectation of the one-firm-integrated-office model. Continue reading "Global Rankings of Global Firms and the Distance between Formality and Reality"

Constructing Doctrines for Modern Legislative Realities

Jesse M. Cross, The Staffer’s Error Doctrine, 56 Harv. J. Leg. 83 (2019).

In recent years, legal scholars have begun to focus in earnest on the realities of the legislative process. Just to name a few topics, this research has included studies about congressional drafting and canons, agency involvement in legislative drafting, how legislative drafting has changed over time, how statutory drafters make discrete drafting decisions, and much more. Understanding these realities is essential to how we use, and make meaning of, the statutes that pervade our legal system.

Jesse Cross’s recently published article, The Staffer’s Error Doctrine, is an important contribution to this body of work. In this article, Cross provides a deep account of how Congress has come to rely upon what Cross calls a “staffer delegation model.” Cross explains that Congress has not always relied so extensively on congressional staff to draft legislation. Rather, Congress previously used a mix of committees and delegation to agencies. Cross argues that concern over executive power, along with expanded internal bureaucracy, has prompted Congress instead to increasingly turn to an army of congressional staffers to draft legislation. As Cross explores, members of Congress have acknowledged that this turn to staffers gives staffers not only clerical tasks, but also significant power to make policy through legislation. And, as Cross persuasively argues, this is a systematic byproduct of a Constitution that creates generalist legislators, notwithstanding a world that increasingly requires subject-matter experts to create good law. Continue reading "Constructing Doctrines for Modern Legislative Realities"

Reclaiming Place-Based Development Incentive

Michelle D. Layser, The Pro-Gentrification Origins of Place-Based Investment Tax Incentives and a Path Toward Community Oriented Reform, __ Wisc. L. Rev. __ (forthcoming 2019), available at SSRN.

Professor Michelle Layser’s forthcoming article is an attack on the current form of place-based tax incentive programs. Layser argues that while rhetorically such programs are said to help the poor, by design they support gentrification in ways that harm the poor. The article ends with a call to reform place-based incentive programs so that the poor in selected areas actually benefit.

The Pro-Gentrification Origins of Place-Based Investment Tax Incentives and a Path Toward Community Oriented Reform speaks to a number of academic audiences. For tax folks, the article contributes to the expanding universe of critical tax scholarship. For property and local government people, the article does a valuable job connecting tax incentives with both urban redevelopment and place. And for poverty law scholars, Layser takes down an entire program type that might otherwise be seen as a rare bright spot when it comes to how the nation responds to poverty. Continue reading "Reclaiming Place-Based Development Incentive"

Reconsidering the Strength of the Boundary Line

David A. Dana & Nadav Shoked, Property’s Edges, 60 B.C. L. Rev. 753 (2019).

I was thrilled when I discovered Property’s Edges, a recent article by David Dana and Nadav Shoked, who are both at Northwestern University School of Law. Their article sets up an extremely helpful framework to think about boundaries, borders, and the liminal spaces in between purely public and purely private. Specifically, Dana and Shoked suggest that property law distinguishes the borders of an asset from its center. Thus, we have (or should have) weaker rights of ownership in the edges of an asset, which are close to its boundary with private property, than we do at its core.

They use this framework—viewing ownership on a continuum from public to private—to dismantle the prevailing belief, espoused by many lawmakers and some scholars, that private property protections are unitary across a given asset, with the boundary line serving as a hard division between private and public space. Continue reading "Reconsidering the Strength of the Boundary Line"

Congressional Administration

Rebecca Ingber, Congressional Administration of Foreign Affairs, 106 Va. L. Rev. __ (forthcoming, 2019), available at SSRN.

In Congressional Administration of Foreign Affairs, Rebecca Ingber directly challenges deep-seated assumptions about presidential power in the field of foreign affairs. Her account should prompt a rethinking of reigning assumptions about presidential power over administration of domestic affairs as well.

Ingber demonstrates that Congress can shape the President’s foreign policy and national security policies without constraining the President directly or dictating the substantive terms of foreign policy, but rather by structuring and reorienting the decision-making processes and relative powers of executive branch actors. She argues that Congressional input on matters of foreign affairs is normatively desirable, but there are legal, constitutional, and political hurdles to Congress substantively mandating foreign policy. Congressional administration avoids these hurdles and, according to Ingber, actually can be more effective than direct confrontation with the President. Continue reading "Congressional Administration"

Towards Universal Coverage? Reflections on the Promise and Pitfalls of a Public Option

Democratic voters in America are currently witnessing a contest between three broad visions of the role of the federal government.  One vision is “democratic socialist” in nature and argues for governments to be the exclusive provider of a range of “core goods”—goods central to a life of full human dignity. This is a common theme of democratic socialist proposals on healthcare, for example.  Another vision is market-based: markets should continue to play a leading role and the role of government should be limited to supporting or at times subsidizing access to core goods by low-income earners. A third position is “democratic liberal” in character (or what Jospeh Stiglitz has called “progressive capitalist”). It argues that governments should guarantee universal access to core goods, but not necessarily through exclusive public provision. Instead, it suggests that governments should seek to achieve universal access to core goods in one of two ways: either through an appropriate mix of sticks and carrots for private providers (taxes and subsidies), or a mix of public and private provision.

Enter the idea of the “public option” outlined by Ganesh Sitaraman and Anne Alstott in The Public Option: they argue that the government should provide either a “competitive” or “baseline” public option for citizens wanting to access core goods such as healthcare, housing, education, or childcare. To this list, they also add services such as banking, retirement savings, credit reporting, public defense, and guaranteed employment. Continue reading "Towards Universal Coverage? Reflections on the Promise and Pitfalls of a Public Option"

New Courts, New Perspectives

  • Matthew Erie, The New Legal Hubs: The Emergent Landscape of International Commercial Dispute Resolution, __ Va. J. Int’l L. __ (forthcoming 2020), available at SSRN.
  • Will Moon, Delaware’s New Competition, __ Nw. U. L. Rev. __ (forthcoming 2020), available at SSRN.

Fascinating developments are afoot in other countries’ courts. Recent articles by Matthew Erie and Will Moon offer terrific insights into a variety of innovative developments in foreign business courts. These articles have implications for those interested in procedural innovation, the development of legal institutions, transnational governance, the international development and influence of the common law, the role of courts in establishing and maintaining the rule of law, and the role of U.S. courts in transnational litigation and as an international judicial leader.

Erie’s article describes the rise of “new legal hubs” (NLHs) across “Inter-Asia,” including in Hong Kong, China, Singapore, Dubai, and Kazakhstan. Erie defines an NLH “as a ‘one-stop shop’ for cross-border commercial-dispute resolution, often located in financial centers, promoted as an official policy by nondemocratic or hybrid [democratic and authoritarian] states.” NLHs have been established over the past few decades—some as recently as earlier this year. These new institutions establish courts in combination with arbitration centers and mediation services, often housed in the same state-of-the-art buildings. Continue reading "New Courts, New Perspectives"

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