Articles

The world in which we live, a world in which law pervades the practice of democratic politics—from advance regulation of public assemblies to detailed rules governing elections—is the product of a particular period of American history. Between 1880 and 1930, states and municipalities increased governmental controls over the full range of nineteenth-century avenues for democratic participation. Prior to this legal transformation, the practice of democratic politics in the United States was less structured by law and more autonomous from formal state institutions than it is today.

Exposing this history challenges two core assumptions that drive the work of contemporary scholars who write about the law of the American political process. First, a study of the nineteenth-century mode of regulating politics belies the existing literature’s assumption that law must extensively structure democratic politics. Second, this account of democracy in nineteenth-century America serves as a reminder that elections, political parties, and voting, while critical to democracy, are not the whole deal. It thereby challenges law of democracy scholars to move beyond the existing literature’s narrow conception of democracy as elections and to consider more broadly the practice of democracy in America.

Since the early 1970s, the Fourteenth Amendment’s emancipatory potential has dramatically eroded, with rapid plunges followed by ever-lower plateaus. In 2007, we entered another cycle of precipitous devolution. Today, this latest drop seems to be accelerating along two supposedly distinct tracks: intent doctrine and colorblindness.

Ostensibly, the search for discriminatory intent provides a means of ferreting out unconstitutional racial discrimination. In contrast, colorblindness subjects race-conscious laws to strict scrutiny whether their impetus is benign or invidious, rendering intent irrelevant. On and off the Supreme Court, supporters and critics spar over whether these doctrines fulfill the Fourteenth Amendment’s guarantee of equal protection. Nevertheless, both sides accept the seemingly fundamental division in racial jurisprudence between intent and colorblindness.

This Article challenges the notion of a divided equal protection. First, it shows that before the advent of colorblindness, intent doctrine formed the undivided—and reasonably efficacious—heart of equal protection. Intent doctrine once worked tolerably well for detecting the mistreatment of non-Whites, and also in distinguishing benign from invidious discrimination—the two tasks at which current equal protection grievously fails. Second, it demonstrates that colorblindness developed in response to intent doctrine, and in turn led to a disastrous reworking of that approach. Intent and colorblindness are not separate, but inextricably intertwined. Rather than seeing equal protection today as bifurcated, we should understand it as again unified, though under what might best be termed “intentional blindness.”
Combining the names of the two doctrines, this portmanteau captures the marrow of the Court’s racial jurisprudence—which seems intentionally blind to the persistence of racial discrimination against non-Whites. It is this resistance that connects the current assaults on antidiscrimination statutes to the impending demise of affirmative action. It also links both of these to a larger history of reversals in equality law spanning four decades.

The Federal Rules of Civil Procedure were originally based upon a straightforward model of adjudication: Resolve the merits of cases at trial and use pretrial procedures to facilitate accurate trial outcomes. Though appealing in principle, this model has little relevance today. As is now well known, the endpoint around which the Federal Rules were structured—trial—virtually never occurs. Today, the vast majority of civil cases terminate in settlement. This Article is the first to argue that the current litigation process needs a new regime of civil procedure for the world of settlement.

This Article begins by providing a systemic analysis of why the Federal Rules inadequately prevent settlement outcomes from being distorted relative to the underlying merits—as defined by reference to substantive law—of a given dispute. It then explains how the Federal Rules can actually amplify these distortions. Indeed, notwithstanding the well-worn adage that settlement occurs in the “shadow of the law,” scholars have shown that non-merits factors exert significant influence on settlement outcomes. However, these insights have not been considered together and combined with a systemic focus on the ways in which the influence of these factors on settlement outcomes is actually a product of the basic structural features of the Federal Rules. This Article takes these next steps to explain that the “shadow of the law” that is cast on settlements is fading. Further, this Article discusses a new phenomenon in the current litigation environment—namely, that litigants’ increased reliance on prior settlements as “precedent” for future settlement decisions may move settlement even further out of the “shadow of the law” and into the “shadow of settlement” itself.

This Article then traces these problems to three foundational assumptions underlying the Federal Rules of Civil Procedure, all of which have become outmoded in a world of settlement. In rethinking these assumptions, it provides a new conceptual account that contextualizes previously isolated procedural reform proposals as challenges to these foundational assumptions. It also explains how these reformefforts ought to be refined and extended with a specific view toward systematically redesigning the basic model and operation of the Federal Rules for a world of settlement. Lastly, it sets forth new proposals that seek to reorient current rules expressly toward the goal of aligning settlement outcomes with the merits of underlying claims.

What emerges is a new vision of procedure—one in which the application of pretrial procedural rules do not merely facilitate trial but are designed to provide litigants with guidance regarding the merits of claims and are used to align settlement outcomes more meaningfully with the dictates of the substantive law. In describing this vision, this Article lays the groundwork for the design of a new Federal Rules of Civil Settlement.

Many people—perhaps most—want to make money and lower their taxes, but few want to unabashedly break the law. These twin desires have led to a range of strategies, such as the use of “paper corporations” and offshore tax havens, that produce sizable profits with minimal costs. The most successful and ingenious plans do not involve shady deals with corrupt third parties, but strictly adhere to the letter of the law. Yet the technically legal nature of the schemes has not deterred government lawyers from challenging them in court as “nothing more than good old-fashioned fraud.”

In this Article, we focus on government challenges to corporate financial plans—often labeled “corporate shams”—in an effort to understand how and why courts draw the line between legal and fraudulent behavior. The scholars and commentators who have investigated this question nearly all agree: Judicial decision making in this area of the law is erratic and unpredictable. We build on the extant literature with the help of a new, large dataset, and uncover important and heretofore unobserved trends. We find that courts have not produced a confusing morass of outcomes (as some have argued), but instead have generated more than a century of opinions that collectively highlight the point at which ostensibly legal planning shades into abuse and fraud. We then show how both government and corporate attorneys can exploit our empirical results and explore how these results bolster many of the normative views set forth by the scholarly and policymaking communities.

American civil rights regulation is generally understood as relying on private enforcement in courts rather than imposing positive duties on state actors to further equity goals. This Article argues that this dominant conception of American civil rights regulation is incomplete. American civil rights regulation also contains a set of “equality directives,” whose emergence and reach in recent years have gone unrecognized in the commentary. These federal-level equality directives use administrative tools of conditioned spending, policymaking, and oversight powerfully to promote substantive inclusion with regard to race, ethnicity, language, and disability. These directives move beyond the constraints of the standard private attorney general regime of antidiscrimination law. They engage broader tools of state power, just as recent Supreme Court decisions have constrained private enforcement. They require states to take proactive, front-end, affirmative measures, rather than relying on backward-looking, individually driven complaints. And these directives move beyond a narrow focus on individual bias to address current, structural barriers to equality. As a result, these directives are profoundly transforming the operation and design of programs at the state and local levels. They are engaging both traditional civil rights groups and community-based groups in innovative and promising new forms of advocacy and implementation.

This Article identifies a market-based solution for monitoring large-scale litigation proceeding outside of Rule 23’s safeguards. Although class actions dominate the scholarly discussion of mass litigation, the ever increasing restrictions on certifying a class mean that plaintiffs’ lawyers routinely rely on aggregate, multidistrict litigation to seek redress for group-wide harms. Despite sharing key features with its class action counterpart—such as attenuated attorney-client relationships, attorney- client conflicts of interest, and high agency costs—no monitor exists in aggregate litigation. Informal group litigation not only lacks Rule 23’s judicial protections against attorney overreaching and self-dealing, but plaintiff’s themselves cannot adequately supervise their attorneys’ behavior. Plaintiffs’ attorneys may represent thousands of geographically dispersed clients, which fosters collective-action problems and makes individual, case-specific information hard to obtain.

An answer to this monitoring problem comes from an unlikely and potentially controversial source: alternative litigation financing. Self-dealing and high agency costs arise in aggregate litigation principally because of the contingent-fee attorney’s dual roles as agent and investor. These roles can pull lawyers in divergent directions; because attorneys front massive litigation costs, they may be tempted to coerce clients into settling so that they can recoup and profit from their investment. Third-party litigation financing, which involves hedge funds, private investors, and venture capitalists investing in and profiting from large-scale litigation, can ameliorate this critical conflict of interest by allowing the financier to bear the financial risk. Shorn of financial self-interest, the lawyer is then free to act as a faithful agent. Although alternative litigation financing can be controversial, this Article seeks to marry profit-seeking capitalists and aggregate litigation in a way that benefits society as a whole and plaintiffs in particular.

This Article examines the enforcement of racialized gender norms through the regulation of dress in prisons. Dress, including hair and clothing, is central to the ways government and other institutions enforce hierarchical social norms. These norms are based on the intersection of race and gender, as well as religion, sexuality, class, age, and disability. For many people, dress is a way to express identity, exercise autonomy, practice religion, participate politically, experience pleasure, preserve health, or avoid violence. My review of prison dress regulations shows that prison systems commonly impose penalties including solitary confinement for deviations from dominant social norms. Examples of these deviations include wearing hair in an Afro, covering hair with a headscarf, or having long hair if incarcerated as a man. I situate prison rules in the historical context of dress regulation and prison evolution in the United States. The justifications—such as repression of homosexuality and group affiliation, prevention of attacks and escapes, and promotion of hygiene and rehabilitation—that prison officials offer for these rules raise normative and instrumental concerns. Nonetheless, courts frequently diminish individual and community interests in dress while deferring to prison regulations that lack complete or credible justifications. In furtherance of the goal of prison abolition, I propose an integrated approach for change through policy amendments, doctrinal shifts, and broader grassroots efforts for social transformation.

It has been suggested, with growing frequency, that the United States may be losing its influence over constitutionalism in other countries because it is increasingly out of sync with an evolving global consensus on issues of human rights. Little is known in an empirical and systematic way, however, about the extent to which the U.S. Constitution influences the revision and adoption of formal constitutions in other countries.

In this Article, we show empirically that other countries have, in recent decades, become increasingly unlikely to model either the rights-related provisions or the basic structural provisions of their own constitutions upon those found in the U.S. Constitution. Analysis of sixty years of comprehensive data on the content of the world’s constitutions reveals that there is a significant and growing generic component to global constitutionalism, in the form of a set of rights provisions that appear in nearly all formal constitutions. On the basis of this data, we are able to identify the world’s most and least generic constitutions. Our analysis also confirms, however, that the U.S. Constitution is increasingly far from the global mainstream.

The fact that the U.S. Constitution is not widely emulated raises the question of whether there is an alternative paradigm that constitutional drafters in other countries now employ as a model instead. One possibility is that their attention has shifted to some other prominent national constitution. To evaluate this possibility, we analyze the content of the world’s constitutions for telltale patterns of similarity to the constitutions of Canada, Germany, South Africa, and India, which have often been identified as especially influential. We find some support in the data for the notion that the Canadian Charter of Rights and Freedoms has influenced constitution making in other countries. This influence is neither uniform nor global in scope, however, but instead reflects an evolutionary path shared primarily by other common law countries. By comparison, we uncover no patterns that would suggest widespread constitutional emulation of Germany, South Africa, or India.

The immunity of foreign officials from legal proceedings in U.S. courts has drawn significant attention from scholars, advocates, and judges in the wake of the Supreme Court’s decision in Samantar v. Yousuf, which held that foreign official immunity is governed by the common law rather than the Foreign Sovereign Immunities Act (FSIA). The common law of foreign official immunity, which the Samantar Court did not define, operates at the intersection of international and domestic law, and it implicates the constitutional separation of powers between the executive and judicial branches. Conflicting visions of the substance and process of common law immunity have already emerged following the Samantar opinion and will continue to compete until the Supreme Court revisits this issue in a future case. At stake is not only the ability of suits to proceed against foreign officials, but also the relationship between the executive branch and the judiciary in matters affecting foreign affairs.

The original research into eighteenth-century practices presented in this Article yields two important observations. First, claims that defendants acted in their official capacities did not automatically bar adjudication on the merits: Foreign officials who were neither diplomatic officials nor heads of state were on the same “footing” as “every other foreigner” with respect to their “suability.” Second, the Executive believed that it did not have constitutional authority to instruct courts to dismiss private suits on immunity grounds. Although twenty-first century advocates might make policy arguments for blanket immunity or absolute executive discretion, such choices are not consistent with—let alone compelled by—the eighteenth-century practices and understandings recovered here.

Can religion or race ever be the basis for legitimate government policies? For several decades, constitutional law concerning both religion and race has moved toward a model of formal neutrality. At its most expansive, the formal neutrality model bars all religion- or race-based decisions by government.

Recently, though, the Court has rejected an absolutist version of neutrality in the religion context. While maintaining that the First Amendment’s religion clauses themselves require only impartiality, the Court has allowed governments space to pursue substantive, constitutionally grounded concerns about religion, even if the resulting policies favor or disfavor individuals based upon their religion. The Court calls this space the “play in the joints” of the religion clauses: It allows governments to pursue separation of church and state or affirmatively protect religious exercise. But in the equal protection context, the Court has not shown such flexibility toward race-based action that is inspired by constitutional concerns, whether the policies are aimed at racial integration or substantive racial equality.

In this Article, I argue that the religion clauses and the Equal Protection Clause serve similar dual goals: protecting minorities from substantive harms and preventing majorities from entrenching their own power via the state. Formal neutrality prevents governments from addressing these constitutionally based concerns. The Court apparently grasps this difficulty in the religion context and has resisted this outcome by providing play in the joints. Yet formal neutrality generates the same problems in the equal protection context. I argue that the Court should extend the notion of play in the joints to race doctrine. I conclude by explaining what this approach would require and how it would address the normative concerns underlying formal neutrality.