Articles

Courts interpreting Title VII have long treated race and ethnicity as biological, morphological concepts and discrimination as a reaction to a set of biologically fixed traits. Meanwhile, they have rejected claims concerning discrimination based on voluntarily chosen physical traits or “performed” behaviors and that communicate racial or ethnic identity. Yet race and ethnicity are effectively produced—that is, they do not exist until one is socially acknowledged as possessing socially coded racial or ethnic markers, whether they are fixed physical features, voluntary appearance choices, or behaviors. This Article argues that it is error to distinguish between Title VII cases concerning morphological as opposed to voluntary racially or ethnically marked features, as the discriminator’s motives and the effects of her behavior are the same. Moreover, the morphological model of race/ethnicity is fundamentally contradicted by contemporary biological and sociological studies on race, discrimination studies, and identity performance theories, which indicate that individuals actively work to “perform” racial and ethnic status regardless of, and sometimes in spite of their morphological traits. Drawing on these studies, this Article shows that courts must hear discrimination claims based on voluntary features if they are to provide a more credible analysis of modern forms of discrimination.

At the time of America’s constitutional origins, there was not a singular understanding of the proper relationship between the government and religion, but rather multiple understandings. Those multiple understandings are best understood through a close investigation of the experiences in each of the original states. This Article seeks to add the experience in Georgia—the thirteenth colony—to the larger discussion regarding the status of religious liberty in the various colonies and states in the eighteenth century.

From its founding in 1732 throughout the eighteenth century, Georgia was a place of both religious tolerance and religious pluralism. Georgia’s Royal Charter provided for liberty of conscience for all, and for the free exercise of religion by all except Roman Catholics. The Charter did not establish the Church of England or any other church. (Although the Church of England would later be established by law in 1758, it was, in practice, a weak establishment with little real ecclesiastical presence.) Between the Revolution and 1800, the new State of Georgia had three constitutions (1777, 1789, and 1798), each of which explicitly addressed religion and provided for varying levels of free exercise (including liberty of conscience) and disestablishment.

These principles of religious liberty that were reified and realized in the governing documents stemmed from the necessity of recognizing a variety of religious beliefs, for from early times the colony contained adherents of a number of religious faiths. These included Jews, Anglicans, Lutherans, Presbyterians, and others—who formed, according to one author, “a rich generation of religious ferment in the colony.” This admixture of religious adherents was welcomed—indeed, invited—to the new territory. And the various worshipers were not asked to conform to, nor required to support, the Church of England, but instead received governmental funding and support for their own endeavors (including land grants, salaries for ministers, and some control over church and civil governance).

By analyzing Georgia’s law and experience, this Article seeks to unearth and illuminate those principles of religious liberty valued in early Georgia. This Article reveals that early Georgians cherished liberty of conscience, free exercise, direct (but non-preferential) governmental support for religion, respect for religious pluralism, and non-discrimination on the basis of religion. Further, while Georgians gradually moved toward recognizing the value of disestablishment, there was never an intellectual adherence to a strict Jeffersonian ideal of “separation of church and state.” By adding Georgia’s experience in church-state relations to the larger conversation about religious liberty in the early Republic, this Article opens the conversation to a fuller discussion of the multiple understandings of religious liberty present from the beginning.

Over one million defendants pass through the criminal justice system every year, yet we almost never hear from them. From the first Miranda warnings, through trial or guilty plea, and finally at sentencing, most defendants remain silent. They are spoken for by their lawyers or not at all. The criminal system treats this pervasive silencing as protective, a victory for defendants. This Article argues that this silencing is also a massive democratic and human failure. Our democracy prizes individual speech as the main antidote to governmental tyranny, yet it silences the millions of poor, socially disadvantaged individuals who directly face the coercive power of the state. Speech also has important cognitive and dignitary functions: It is through speech that defendants engage with the law, understand it, and express anger, remorse, and their acceptance or rejection of the criminal justice process. Since defendants speak so rarely, however, these speech functions too often go unfulfilled. Finally, silencing excludes defendants from the social narratives that shape the criminal justice system itself, in which society ultimately decides which collective decisions are fair and who should be punished. This Article describes the silencing phenomenon in practice and in doctrine, and identifies the many unrecognized harms that silence causes to individual defendants, to the effectiveness of the criminal justice system, and to the democratic values that underlie the process. It concludes that defendant silencing should be understood and addressed in the context of broader inquiries into the (non)adversarial and (un)democratic features of our criminal justice system.

An increasingly prominent strain of legal commentary warns that the democratic good of robust political competition is endangered by legislators’ penchant for enacting, and preserving, statutes that entrench incumbent officials and dominant political parties. This political entrenchment dynamic is thought to warrant external regulation of election law by a politically insulated constitutional court or regulatory commission. Drawing on recent institutional innovations in Australia, Canada, and the United Kingdom, this Article suggests a different institutional remedy for the entrenchment problem: a permanent advisory commission, authorized to draft bills for the legislature to consider under a closed-rule procedure, or for the citizenry to address by referendum. The approach suggested here provides an answer to the two main criticisms that have been lodged against external regulation in the interest of fair political competition: that such regulation is democratically illegitimate, and that the regulator itself is likely to be captured by political insiders. The standing advisory commission can be expected to do a better job of identifying and pursuing normatively appropriate reforms than would an otherwise similar external regulator. The very tenuousness of the advisory commission’s de facto power to reform the law (depending as it does on public opinion) should make the body a more reliable agent of the citizenry’s interests and concerns. And in the event that the body falls under the sway of political insiders, it stands to do much less damage than a captured external regulator, thanks to the voters’ freedom to ignore it.

In this article, Professors Lindquist and Cross empirically study the effect of precedent on judicial decisionmaking. The framework for their analysis is Ronald Dworkin’s “chain novel” metaphor, an influential theory of the role of precedent whose validity has not previously been empirically tested. The chain novel metaphor suggests that the judicial use of precedent can be likened to a group of authors writing a novel seriatim, in which the accumulation of chapters increasingly constrains the choices and freedom of subsequent writers. Precedent is one of the most important areas of legal research, but currently there is no dominant working theory, and only limited empirical evidence, about its role in judicial decisionmaking.

The first part of the authors’ study examines cases of first impression using a statistical model of judicial voting data from four United States Courts of Appeals between 1984 and 1988. Examining the influence of ideology on judicial decisionmaking in cases of first impression, and controlling for a number of external factors such as regional effects and litigant identity, Lindquist and Cross find that judicial ideology plays a statistically more significant role in cases where judges acknowledge that they are not bound by precedent (as in cases of first impression) than in cases where prior precedent exists. These findings provide preliminary support for the chain novel theory, as the existence of prior precedent appears to limit the degree to which judges are free to decide cases based on their own ideological preferences.

The second part of this study tests the evolving role of precedent over time. Lindquist and Cross examine over seven hundred decisions from five United States Courts of Appeals interpreting the phrase “under color of’ state law from 42 U.S.C. § 1983. To test whether the gradual accretion of precedent increasingly constrains judicial behavior, the authors select cases over a thirty-year period subsequent to the Supreme Court’s liberalization of the § 1983 cause of action in 1961. Controlling for other factors, including potential agenda effects based on the kinds of cases brought before the courts, Lindquist and Cross find that the importance of precedent in judicial decisionmaking is initially stable or increasing over time. However, contrary to the chain novel hypothesis, as the number of prior decisions grows further, precedent plays a decreased role. Judges appear to be relatively more free to decide cases based on their ideological preferences as precedents accumulate, rather than (as Dworkin suggests) more constrained. The study thus provides only limited support for the chain novel theory of judicial decisionmaking, finding that judges are indeed more free to decide based on their ideological preferences where no prior precedents exist. However, the fact that judicial discretion expands with the gradual accretion of precedent suggests that the chain novel thesis does not describe fully the operation of U.S. law.

What is it about the nude female body that inspires irrationality, fear, and pandemonium, or at least inspires judges to write bad decisions? This Article offers an analysis of the Supreme Court’s nude dancing cases from a perspective that is surprising within First Amendment discourse. This perspective is surprising because it is feminist in spirit and because it is literary and psychoanalytic in methodology. In my view, this unique approach is warranted because the cases have been so notoriously resistant to traditional legal logic. I show that the legal struggles over the meanings and the dangers of the gyrating, naked female body can be fully understood only when placed within a broader context: the highly charged terrain of female sexuality. By rereading the cases as texts regulating gender and sexuality and not just speech, a dramatically new understanding of them emerges: The nude dancing cases are built on a foundation of sexual panic, driven by dread of the female body. Ultimately, this analysis reveals a previously hidden gender anxiety that has implications not only for the law of nude dancing, but for First Amendment law more broadly. By presenting the ways in which irrational cultural forces shape the Court’s supposedly rational analysis in the nude dancing cases, in the end I point toward an unusual conception of First Amendment law: Free speech law governs culture, yet in surprising ways, culture also governs free speech law.

How can groups elicit and aggregate the information held by their individual members? There are three possibilities. Groups might use the statistical mean of individual judgments; they might encourage deliberation; or they might use information markets. In both private and public institutions, deliberation is the standard way of proceeding; but for two reasons, deliberating groups often fail to make good decisions. First, the statements and acts of some group members convey relevant information, and that information often leads other people not to disclose what they know. Second, social pressures, imposed by some group members, often lead other group members to silence themselves because of fear of disapproval and associated harms. As a result, deliberation often produces a series of unfortunate results: the amplification of errors, hidden profiles, cascade effects, and group polarization. A variety of steps can be taken to ensure that deliberating groups obtain the information held by their members; restructuring private incentives, in a way that increases disclosure, is the place to start. Information markets have substantial advantages over group deliberation; such markets count among the most intriguing institutional innovations of the last quarter-century and should be used far more frequently than they now are. One advantage of information markets is that they tend to correct, rather than to amplify, the effects of individual errors. Another advantage is that they create powerful incentives to disclose, rather than to conceal, privately held information. Information markets thus provide the basis for a Hayekian critique of many current celebrations of political deliberation. They also provide a valuable heuristic for understanding how to make deliberation work better. These points bear on the discussion of normative issues, in which deliberation might also fail to improve group thinking, and in which identifiable reforms could produce better outcomes. Applications include the behavior of juries, multimember judicial panels, administrative agencies, and congressional committees; analogies, also involving information aggregation, include open source software, Internet “wikis,” and weblogs.

Ecosystem services are created by the interactions of living organisms with their environment, and they support our society by providing clean air and water, decomposing waste, pollinating flowers, regulating climate, and supplying a host of other benefits. Yet, with rare exception, ecosystem services are neither prized by markets nor explicitly protected by the law. In recent years, an increasing number of initiatives around the world have sought to create markets for services, some dependent on government intervention and some created by entirely private ventures. These experiences have demonstrated that investing in natural capital rather than built capital can make both economic and policy sense. Informed by the author’s recent experiences establishing a market for water quality in Australia, this Article examines the challenges and opportunities of an ecosystem services approach to environmental protection. This Article reviews the range of current payment schemes and identifies the key requirements for instrument design. Building off these insights, the piece then examines the fundamental policy challenge of payments for environmental improvements. Despite their poor reputation among policy analysts as wasteful or inefficient subsidies, payment schemes are found throughout environmental law and policy, both in the U.S. and abroad. This Article takes such payments seriously, demonstrating that they should be favored over the more traditional regulatory and tax-based approaches in far more settings than commonly assumed.

The canonical law and economics view holds that corporate managers do and should have a duty to profit-maximize because such conduct is socially efficient given that general legal sanctions do or can redress any harm that corporate or noncorporate businesses inflict on others. Professor Elhauge argues that this canonical view is mistaken both descriptively and normatively. In fact, the law gives corporate managers considerable implicit and explicit discretion to sacrifice profits in the public interest. They would have such discretion even if the law pursued the normative goal of corporate profit-maximization because minimizing total agency costs requires giving managers a business judgment rule deference that necessarily confers such profit sacrificing discretion. Nor is corporate profit-maximization a socially efficient goal because even optimal legal sanctions are necessarily imperfect and require supplementation by social and moral sanctions to fully optimize conduct. Accordingly, pure profit-maximization would worsen corporate conduct by overriding these social and moral sanctions. In addition to being socially inefficient, pure profit-maximization would harm shareholder welfare whenever shareholders value the incremental profits less than avoiding social and moral sanctions. For companies with a controlling shareholder, that shareholder is exposed to social and moral sanctions and has incentives to act on them, and thus controlling shareholders are well-placed to decide when to sacrifice corporate profits in the public interest. In contrast, the structure of large publicly-held corporations insulates dispersed shareholders from social and moral sanctions and creates collective action obstacles to acting on any social or moral impulses they do feel. Thus, in public corporations, optimizing corporate conduct requires giving managers some operational discretion to sacrifice profits in the public interest even without shareholder approval because, unlike shareholders, managers are sufficiently exposed to social and moral sanctions. Managerial incentives toward excessive generosity are constrained by various market forces, which generally mean that any managerial decision to sacrifice profits in the public interest substitutes for more self-interested profit sacrificing exercises of agency slack. Managerial discretion to sacrifice profits is further constrained by legal limits on the amount of profit sacrificing, which become much tighter when market constraints are inoperable because of last-period problems. Managers should have donative discretion because courts cannot distinguish profit-enhancing donations from profit sacrificing ones, because shareholders are insulated from the social and moral processes that desirably generate the special donative impulses that arise from running business operations, and because otherwise managers would often inefficiently substitute more costly operational profit sacrificing decisions to avoid social and moral sanctions. This explains the legal requirement that corporate donations have a nexus to corporate operations. Antitakeover laws can partly be explained as necessary to preserve sufficient managerial discretion to consider social and moral norms.

Previous empirical studies have examined various aspects of medical malpractice damages caps, focusing primarily upon their overall effect in reducing insurance premium rates and plaintiffs’ recoveries, and(to a lesser degree) upon other effects such as physicians’ geographic choice of where to practice and the “anchoring” effect of caps that might inadvertently increase award amounts. This Article is the first to explore an unintended crossover effect that may be dampening the intended effects of caps. It posits that, where noneconomic damages are limited by caps, plaintiffs’ attorneys will more vigorously pursue, and juries will award, larger economic damages, which are often unbounded. Implicit in such a crossover effect is the malleability of various components of medical malpractice damages, which often are considered categorically distinct, particularly in the tort reform context. This Article challenges this conventional wisdom.

My original empirical analysis, using a comprehensive dataset of jury verdicts from 1992, 1996, and 2001, in counties located in twenty-two states, collected by the National Center for State Courts, concludes that the imposition of caps on noneconomic damages has no statistically significant effect on overall compensatory damages in medical malpractice jury verdicts or trial court judgments. This result is consistent with the crossover theory. Given the promulgation of noneconomic damages caps, the crossover effect may also partially explain the recently documented trend of rising economic (as opposed to noneconomic) damages in medical malpractice cases.