This Essay argues that the Supreme Court’s political party jurisprudence is predicated on a set of theoretical assumptions that do not hold true in the real world of contemporary American politics. The Court’s jurisprudence is grounded in a theory of democratic accountability—known as “responsible party government”—which views political parties primarily as speakers and presumes that electoral accountability emerges from the choice...
Essay
Many have argued that the United States’ two major political parties have experienced “asymmetric polarization” in recent decades: The Republican Party has moved significantly further to the right than the Democratic Party has moved to the left. The practice of constitutional hardball, this Essay argues, has followed a similar—and causally related—trajectory. Since at least the mid-1990s, Republican officeholders have been more likely...
There is an aspect of criminal procedure decisions that has for too long gone unnoticed, unrecognized, and unremarked upon. Embedded in the Supreme Court’s criminal procedure jurisprudence—at times hidden in plain sight, at other times hidden below the surface—are asides about what it means to be a “good citizen.” The good citizen, for example, is willing to aid the police, willingly waives their right to silence, and welcomes police...
Historically, the legal system justified family law’s rules and policies through morality, common sense, and prevailing cultural norms. In a sharp departure, and consistent with a broader trend across the legal system, empirical evidence increasingly dominates the regulation of families.
There is much to celebrate in this empirical turn. Properly used, empirical evidence in family law can help the state act more effectively and efficiently,...
This Essay seeks to reframe a longstanding debate by propounding a novel theory of judicial candor. Previous commentators on judicial candor have failed to draw a crucial distinction between obligations of candor, breaches of which constitute highly culpable failures, and ideals of candor that even the best judges fail to satisfy fully. This Essay argues for a theory of judicial candor that defines both minimal obligations and aspirational ideals...
Sharing economy firms such as Uber and Airbnb facilitate trusted transactions between strangers on digital platforms. This creates economic and other value but raises concerns around racial bias, safety, and fairness to competitors and workers that legal scholarship has begun to address. Missing from the literature, however, is a fundamental critique of the sharing economy grounded in asymmetries of information and power. This Essay, coauthored...
This Essay examines the roles that federal administrative agencies have begun to play in response to the rise of private arbitration, particularly in the consumer and employment contexts. Such agency actions have included enforcement strategies designed to mimic the effects of private litigation when such litigation may not be possible due to the presence of arbitration agreements. And, in some cases, they have involved regulatory responses, including...
The problem of managerial agency costs dominates debates in corporate law. Many leading scholars advocate reforms that would reduce agency costs by forcing firms to allocate more control to shareholders. Such proposals disregard the costs that shareholders avoid by delegating control to managers and voluntarily restricting their own control rights. This Essay introduces principal-cost theory, which posits...
The traditional portrait of the administrative state often features the politically-appointed agency head at its center: the Administrator of the Environmental Protection Agency, for instance, or the Secretary of the Department of Labor. This picture of bureaucratic power, however, is incomplete. For much of that power is, in fact, subdelegated within the agency. The implication is that decision rights are often exercised not by statutory delegates,...
A pharmacist fills a prescription for birth control pills with prenatal vitamins. An in vitro lab loses a cancer survivor’s eggs. A fertility clinic exposes embryos to mad cow disease. A sperm bank switches a selected sample with one from a donor of a different race. An obstetrician predicts that a healthy fetus will be born with a debilitating condition.
These errors go virtually unchecked in a profession that operates free of meaningful...