Online Features

This article identifies a profound and previously overlooked incentive for excessive risk- taking by infrastructure providers. The magnitude and critical nature of infrastructure implies that negative externalities potentially far exceed the net assets of the infrastructure provider. The nonconsensual relationship of infrastructure providers with their stakeholders implies that excessive risks cannot be contracted for and incorporated into price. Shareholders of infrastructure providers thus develop asymmetric preferences towards excessive risk-taking: They could gain from risks if things go well but are shielded by limited liability rules if things do not. The article identifies this moral hazard and terms it “The Infrastructure Ratchet Effect.”

This Article shows that normal market forces and legal mechanisms fail to counter these distorted incentives in infrastructure providers: Regulation, reputation, litigation, and debt pricing all fail to deter excessive risk-taking in infrastructure. Project finance, leverage, executive compensation, and behavioral tendencies exacerbate the problem.

To illustrate the infrastructure ratchet effect, this Article presents the 2017 data breach at Equifax as a case study, arguing that Equifax is a data public utility and should be considered an infrastructure provider. It surveys the events leading to the massive Equifax data breach and shows that despite cataclysmic implications, Equifax eschewed adequate controls to ensure the security of its data. This Article proposes the infrastructure ratchet effect as a possible explanation for this series of events.

In addition to shedding new light on the infrastructure ratchet effect as a potential source of cataclysmic risks caused by infrastructure providers, this Article considers possible tools to tackle these distorted incentives. Insight is drawn from literature surrounding banking-risk regulation, where a similar moral hazard is well understood.

Judicial style and rhetoric are objects of perennial and often intense concern. Innumerable books, scholarly and popular articles, and blog posts are devoted to the topic. Current discussions of judicial writing often feature Neil Gorsuch’s opinions. Despite the fervor around Gorsuch’s style and rhetoric, there have been no attempts to systematically quantify his stylistic proclivities. This Article presents results from a quantitative study of almost all published majority opinions that the Tenth Circuit Court of Appeals issued during Gorsuch’s tenure there. Through analyses of extensive stylistic data, I illuminate Gorsuch’s stylistic fingerprint, revealing, in quantitative terms, how Gorsuch has achieved the stylistic effect that has impressed many observers. Moreover, I analyze Gorsuch’s stylistic drift over the past decade, revealing trends that might give us a sense of what to expect from the Justice’s writing going forward. I find that Gorsuch’s writing style is remarkably informal and unconventional compared to his Tenth Circuit peers. Moreover, Gorsuch’s opinions have a lot in common with short stories. His opinions are often suspenseful, withholding the legal conclusion until the end. He also employs a broad vocabulary and uses the passive voice sparingly. Regardless of the merit of Gorsuch’s writing style, it has captivated many readers, among both the public and the legal community. This Article pinpoints, in kind and degree, some of the properties that make Gorsuch’s writing stand out—properties that have helped form his reputation as a jurist.

Response to Tara Leigh Grove, The Power of “So-Called Judges”, 93 N.Y.U. L. Rev. Online 14 (2018).

President Trump’s rhetoric has raised fears that the administration might defy a judicial order or take other steps to subvert the authority and independence of the judiciary. Trump’s rhetoric is, to be sure, worrisome. The authority of the American courts to adhere to the rule of law cannot be taken for granted. In moments of extreme conflict between the courts and elected officials, it might be expected that politicians will seek to curb the power of the courts to obstruct their political and policy goals. American courts can now boast hard-won bipartisan support for their authority. Courts can likely weather the storm in a conflict with the President if the broader range of political elites, including those within the Republican Party, continue to see that a powerful and independent judiciary is in their long-term political interest.

Response to Tara Leigh Grove, The Power of “So-Called Judges”, 93 N.Y.U. L. Rev. Online 14 (2018).

James Gibson and Michael Nelson have written another compelling paper examining how Americans think about the Supreme Court. Their essential finding is that various versions of criticisms of the Court made by President Donald J. Trump are not substantially undermining public support for the Court. This Reply—prepared for a symposium held at the New York University School of Law—questions how much this and related papers tell us about how people think about the Court when they actually care about the Court. This study and other important ones like it are measuring how people think about the Court when the policy implications of Court decisions are presented to subjects as relatively low. Their findings tell us a lot, but not everything. They do not tell us what happens when passions about the Court are high—precisely the moment when the Court could be at its greatest jeopardy and convincing people to believe in the Court for reasons independent of the policies it delivers is the hardest. We can have confidence about how people think about the Court when they do not care about it, but not how they think about it when they do.

In this essay, I argue that a constitutional scheme grounded in the Rule of Law cannot rely primarily on a self-executing, mechanistic vision of Madison’s ambitious branches checking one another. Rather, “We the People” depend on self-regulation—in the form of constitutional good faith—by the vast majority of our constitutional actors. I then offer a meditation on the nature of good faith required for healthy American constitutionalism.

President Trump’s repeated and unsparing criticisms of the federal judiciary provide an opportunity to examine how public critique of the U.S. Supreme Court affects Americans’ willingness to support the institution. We report the results of an experiment embedded in a nationally-representative survey of Americans that varied in both the source (President Trump or distinguished law professors) and content (legal or political) of the criticism aimed at the Court. Our results—perhaps surprising to many—demonstrate that the greatest decline in support for the Court came among those respondents who learned of criticism by law professors that the Court’s decisions are politicized. The results have important implications for our understanding of the Court’s legitimacy under President Trump.

Can national judiciaries play a role in resisting democratic backsliding? This essay explores the role of courts in the context of democratic erosion by examining case studies from South Africa and Colombia that showcase positive models of judicial intervention. Such positive results are not pervasive—Hungary’s and Poland’s experiences, for example, cut in the other direction. But by examining the institutional and political conditions under which national judiciaries have impeded, if not prevented, backsliding, it is possible to gain some insight into how courts can play a role in supporting democratic practice.