Articles

This Article considers a trend toward what I have termed the “new multiculturalism,”
in which conflicts between law and religion are less about recognition
and symbolism and more about conflicting legal orders. Nothing typifies this trend
more than the increased visibility of religious arbitration, whereby religious groups
use current arbitration doctrine to adjudicate their disputes not in U.S. courts and
under U.S. law, but before religious courts and under religious law. This dynamic
has pushed the following question to the forefront of the multicultural agenda:
Under what circumstances should U.S. courts enforce arbitration awards issued by
religious courts in accordance with religious law? Indeed, with growing skepticism
regarding the oppressive potential of religious majorities, critics have questioned
whether religious arbitration has any place in a regime dedicated to individual liberties.
By contrast, this Article contends that current arbitration doctrine can meet
the challenges of the new multiculturalism. To do so, this Article makes two concrete
policy recommendations: (1) courts should redefine the scope of enforceability
of religious arbitration awards by limiting the application of public policy to vacate religious arbitration awards; and (2) courts should expand the application of
the unconscionability doctrine to void religious arbitration agreements.

In 1974, the Supreme Court declared that an Indian employment preference was
based on a “political rather than racial” classification. The Court’s framing of Indianness
as a political matter and its positioning of “political” and “racial” as
opposing concepts has defined the trajectory of federal Indian law and influenced
common sense ideas about what it means to be Indian ever since. This oppositional
framing has had specific practical consequences, including obscuring the
continuing significance of racialization for Indians and concealing the mutually
constitutive relationship between Indian racialization and Indian political status.
This Article explores the legal roots of the political classification doctrine, its
ongoing significance, and the descriptive limits and normative consequences of the
ideas that it contains. Specifically, this Article argues that the political classification
doctrine constructs race as an irrelevant matter of ancestry and Indianness as a
simple matter of civic participation. This Article suggests a new framework for considering
Indian issues and federal Indian law that draws on a more robust and
realistic understanding of both race and Indianness to acknowledge the cyclical
relationship between Indian racialization and Indian political status.

The Supreme Court began its 2009 Term by addressing the constitutional rights of
corporations. It ended the Term by addressing the incorporated rights of the
Constitution. In Citizens United v. Federal Election Commission, a five-member
majority of the Court held that corporations have a First Amendment right to spend
their own money on political advocacy. A corporation generally is no different than
a natural person when it comes to the First Amendment—at least as it relates to
political speech. In McDonald v. City of Chicago, a plurality of the Court held that
the Second Amendment to the United States Constitution is incorporated through
the Due Process Clause and applies to states and municipalities. Neither the federal
government nor states may prevent persons from keeping and bearing arms in their
homes for self-defense.

Given this new world in both senses of incorporation, the time has come to explore
the issue of Second Amendment rights and the corporate form. This Article will
offer an analysis of the potential Second Amendment rights of the corporation.
And it will, in the process, provide a more systematic critique of corporate constitutional
rights in general.

Accident compensation, and particularly auto accident compensation, is typically
thought to take one of two dichotomous forms: either no-fault or traditional tort.
Further, conventional wisdom holds that while pure no-fault may be an option in
theory, it is not one in practice. No pure no-fault auto regime has ever been enacted
in the United States, and states these days are repealing, rather than enacting, modified
no-fault legislation. Yet something peculiar is happening on the ground. Far
out of the light of day, high-volume personal injury firms that I call “settlement
mills” are quietly achieving many of no-fault’s objectives—speeding recoveries,
lowering systemic costs, and delivering relatively standardized sums to an apparently
expanded set of clients—while ostensibly operating within traditional tort.
What settlement mills are accomplishing, then, is in some respects astonishing—and
certainly commendable. Yet, the fact settlement mills’ distinctive operations are out
of the light of day and rarely revealed to clients is problematic, raising profound
issues of informed consent and highlighting severe information deficiencies in the
market for legal services. A well-designed disclosure regime can preserve settlement
mills’ substantial benefits, ameliorate their unique costs, and, more broadly,
improve the tort system’s operation and address the vexing problem of attorney
choice.

Federal law is enforced through a combination of public and private efforts. Commentary
on the choice between public and private enforcement has generated a
remarkably stable set of arguments about the strengths and weaknesses of each
type. But the conventional wisdom tells only part of the story, as it ignores variations
within the category of public enforcement. Many federal statutes authorize
civil enforcement by both a federal agency and the states. State enforcement is different
from federal enforcement in several important respects, representing a unique
model of public enforcement. The authority to enforce federal law is also a unique
form of state power. As I show, enforcement authority can serve as a potent means
of state influence by enabling states to adjust the intensity of enforcement and to
press their own interpretations of federal law. To date, enforcement has been
neglected in the federalism literature, which tends to equate state power with state
regulation. But enforcement authority may exist outside of regulatory authority,
allowing states to operate even in areas where state law is preempted or state regulators
have chosen not to act. And enforcement empowers a distinct breed of state
representatives—elected, generalist attorneys general. Just as state attorneys general
differ from federal agencies as agents of enforcement, they differ from state agencies
as agents of federal-state interaction. Moreover, attorneys general in most states
are independent from the state legislature and governor, and may represent different
constituencies. Enforcement authority therefore opens up new outlets for
state-centered policy, empowering actors whose interests and incentives distinguish
them from the state institutions that dominate other channels of federal-state
dialogue.

This Article explores the procedural concerns that arise when regulatory agencies mimic class actions by collecting big monetary judgments on behalf of victims. Over the past decade, agencies have collected over $10 billion to compensate people hurt by massive frauds, false advertising, and defective drugs, using proceeds from penalties levied against regulatory violators. Today, the Securities and Exchange Commission regularly seeks awards against large public companies and distributes the money to injured investors through “Fair Funds.” The Federal Trade Commission similarly seeks restitution against parties profiting from unfair trade practices and distributes awards to consumers. Even the U.S. Postal Service distributes the ill-gotten profits of scam artists to victims of mail fraud. However, unlike private lawsuits, agencies afford few safeguards for the victims they compensate. Agencies lack adequate procedures to hear victims’ claims, identify conflicts between different parties, or coordinate with other kinds of lawsuits. I argue that agencies should continue to play a role—albeit a limited one—in compensating victims for widespread harm. However, when agencies compensate victims, they should adopt rules similar to those that exist in private litigation to resolve differences between victims, improve judicial review, and coordinate with private lawsuits. I propose three solutions to give victims more voice in their own redress, while preserving an agency’s flexibility to enforce the law: (1) that agencies involve representative stakeholders in settlement discussions through negotiated rulemaking; (2) that courts subject agency decisions to hard look review; and (3) that courts and agencies coordinate overlapping settlements before a single federal judge.

Hundreds of millions of consumer and employment contracts include arbitration clauses, class arbitration waivers, and other terms that modify the rules of litigation. These provisions ride the wake of the Supreme Court’s expansive interpretation of the Federal Arbitration Act (FAA). For decades, scholars have criticized the Court’s arbitration jurisprudence for distorting Congress’s intent and tilting the scales of justice in favor of powerful corporations. This Article claims that the Court’s reading of the FAA suffers from a deeper, more fundamental flaw: It has transformed the statute into a private delegation of legislative power. The nondelegation doctrine forbids Congress from allowing private actors to make law unless they do so through a process that internalizes the wishes of affected parties or that is subject to meaningful state oversight. The FAA as construed by the Court violates this rule. First, companies have invoked the statute to create a parallel system of civil procedure for consumer and employment cases. This river of privately made law not only washes away Congress’s procedural rulemaking efforts but dilutes the potency of substantive rights. Second, although businesses ostensibly impose these rules through the mechanism of contracting—a process normally rooted in mutual consent—the Court’s arbitration case law deviates from traditional contract principles. It funnels consumers and employees into arbitration even when they truthfully claim that they did not agree to arbitrate. Third, despite the fact that the FAA as enacted mandates robust judicial review of privately made procedural rules, the Court has all but abolished this safeguard. This Article concludes that the Court should recognize that the FAA as interpreted raises grave private delegation issues and should thus limit the statute.

Deregulation has played both the hero and the villain in recent years. This Article evaluates the impact of deregulation on what may be the single most economically important regulatory regime: the income tax. In order to accomplish this goal, it applies the concepts of fiscal arbitrage and compliance spirals to three deregulatory tax reforms. Compliance spirals describe an enforcement dynamic in which the regulator encourages compliance through a system of rewards for cooperation and punishment for noncooperation. Fiscal arbitrage describes policy measures that exploit cognitive biases and other anomalies to deliver political benefits by using minimal political capital. The combination of these two concepts creates a tool for tax authorities to evaluate deregulatory tax provisions for likely costs and benefits. On balance, this Article finds that tax deregulation is likely to be harmful.

Do campaign contributions affect judicial decisions by elected judges in favor of their contributors’ interests? Although the Supreme Court’s recent decision in Caperton v. A.T. Massey Coal Co. relies on this intuition for its logic, that intuition has largely gone empirically untested. No longer. Using a dataset of every state supreme court case in all fifty states over a four-year period, we find that elected judges are more likely to decide in favor of business interests as the amount of campaign contributions received from those interests increases. In other words, every dollar of direct contributions from business groups is associated with an increase in the probability that the judge in question will vote for business litigants. Surprisingly, though, when we disaggregate partisan and nonpartisan elections, we find that a statistically significant relationship between campaign contributions and judicial decisions in favor of contributors’ interests exists only for judges elected in partisan elections, and not for judges elected in nonpartisan ones. Our findings therefore suggest that political parties play an important causal role in creating this connection between campaign contributions and favorable judicial decisions. In the flurry of reform activity responding to Caperton, our findings support judicial reforms that propose the replacement of partisan elections with nonpartisan methods of judicial selection and retention.