Judging by the Cover: On the Relationship Between Media Coverage on Crime and Harshness in Sentencing by Itay Ravid

Article | Miscellaneous
Judging by the Cover: On the Relationship Between Media Coverage on Crime and Harshness in Sentencing 

by Itay Ravid*

Vol. 93, No.6 (February 2021)
93 S. Cal. L. Rev. 1121 (2020)

Keywords: Media Coverage, Harshness in Sentencing 

Abstract

Does the mass media affect judicial decisionmaking? This first of its kind empirical study delves into this long-lasting question, and investigates the relationship between media coverage of crime and criminal sentencing. To do so, I construct a novel data set of media reports on crime, which I link to administrative state court sentencing records. The data span five years and more than forty-three thousand sentencing decisions across three jurisdictions that differ in their judicial selection models: Pennsylvania, Maryland, and Virginia. I find that crime coverage increases sentencing harshness. I also find evidence to suggest that this effect is mitigated through a state’s method of judicial selection. The findings go beyond traditional, case-study scholarship on the nexus between the media and the judiciary, offering evidence that the media can affect judicial decisionmaking in broader contexts. These findings hold significant implications for policy and judicial politics and raise questions at the core of the criminal justice system. Particularly, they call for renewed attention to the media as an important factor in the criminal process and a potential obstacle towards achieving the constitutional ideal of fair trials. The Article concludes by suggesting methods for countering such media effects.

 

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*Assistant Professor of Law, Villanova University, Charles Widger School of Law, J.S.D ’20, J.S.M ’13, Stanford Law School. I’d like to thank John Donohue, David Engstrom, Shanto Iyengar, H W Perry Jr., Jacob Goldin, David Sklansky, Amalia Kessler, Michael McConnell, Deborah Hensler, Dave Voelker, Barbara Fried, David Lang, Fernan Restrepo, Gilat Bachar, Binyamin Blum, Renana Keydar, and conference participants at Yale, Stanford, Emory and UT (Austin) law schools for helpful comments and conversations. I’d also like to thank Laura E. Little and the Temple Law School librarians and the Maryland, Virginia and Pennsylvania state court librarians and administration for all their invaluable help in collecting data on their respective state court judiciaries. I’m grateful for the generous research support provided by the John M. Olin Program in Law and Economics at Stanford Law School and Stanford’s Vice-provost for Graduate Education Diversity Research Grant. Chelsea House, Celina Jackson, Jasmin Issacs, and Darius Namazi provided excellent research assistance. Last, but not least, I’d like to thank the SCLR editorial board for their careful and diligent work on this piece. All errors are, of course, my own.

Shareholder Value(s): Index Fund ESG Activism and the New Millennial Corporate Governance by Michal Barzuza, Quinn Curtis & David H. Webber

Article | Corporate Law
Shareholder Value(s): Index Fund ESG Activism and the New Millennial Corporate Governance

by Michal Barzuza,* Quinn Curtis† & David H. Webber‡

Vol. 93, No.6 (February 2021)
93 S. Cal. L. Rev. 1243 (2020)

Keywords: ESG Activism, Index Fund, Corporate Governance 

Abstract

Major index fund operators have been criticized as ineffective stewards of the firms in which they are now the largest shareholders. While scholars debate whether this passivity is a serious problem, index funds’ generally docile approach to ownership is broadly acknowledged. However, this Article argues that the notion that index funds are passive owners overlooks an important dimension in which index funds have demonstrated outspoken, confrontational, and effective stewardship. Specifically, we document that index funds have taken a leading role in challenging management and voting against directors in order to advance board diversity and corporate sustainability. We show that index funds have engaged in a pattern of competitive escalation in their policies on environmental, social, and governance (“ESG”) issues. Index funds’ confrontational and competitive activism on ESG issues is hard to square with their passive approach to more conventional corporate governance questions.

To explain this dichotomy in approaches, we argue that index funds are locked in a fierce contest to win the soon-to-accumulate assets of the millennial generation, who place a significant premium on social issues in their economic lives. With fee competition exhausted and returns irrelevant for index investors, signaling a commitment to social issues is one of the few dimensions on which index funds can differentiate themselves and avoid commoditization. For index funds, the threat of millennial migration to another fund is more significant than the threat of management retaliation. Furthermore, managers themselves, we argue, face intense pressure from their millennial employees and customers to respond to their social preferences. This three-dimensional millennial effect—as investors, customers, and employees—we argue, is an important development with the potential to provide a counterweight to the wealth-maximization paradigm of corporate governance.

We marshal evidence for this new dynamic, situate it within the existing literature, and consider the implications for the debate over index funds as shareholders and corporate law generally.

 

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*. Professor of Law, University of Virginia School of Law. For useful comments and suggestions, we are grateful to Steve Bainbridge, Ryan Bubb, Emiliano Catan, George Geis, Scott Hirst, Kate Judge, Dorothy Lund, Alma Oliar, Ariel Porat, Adriana Robertson, Mark Roe, Leo Strine, Andrew Tuch, and participants at the Association of American Law Schools Annual Meeting—Business Associations Section, the UVA/UCLA Corporate & Securities Law Conference, Tel Aviv Corporate Governance Seminar, Tel Aviv Law & Economics Workshop, Tulane Corporate & Securities Law Round Table, University of Chicago Law School Faculty Workshop, and Corporate Law Academic Webinar Series. The authors wish to acknowledge excellent research assistance from Brianna Isaacson and Jordan Voccola.

†. Professor of Law, University of Virginia School of Law.

‡. Associate Dean for Intellectual Life and Professor of Law, Boston University School of Law.

The Case Against Equity in American Contract Law – by JODY P. KRAUS & ROBERT E. SCOTT

Article | Contract Law
The Case Against Equity in American Contract Law
 

by Jody P. Kraus* & Robert E. Scott†

 

Vol. 93, No.6 (February 2021)
93 S. Cal. L. Rev. 1323 (2020)

Keywords: Contract Law, Equity, Ex Post Perspective

Abtract

The American common law of contracts appears to direct courts to decide contract disputes by considering two opposing points of view: the ex ante perspective of the parties’ intent at the time of formation, and the ex post perspective of justice and fairness to the parties at the time of adjudication. Despite the black letter authority for both perspectives, the ex post perspective cannot withstand scrutiny. Contract doctrines taking the ex post perspective—such as the penalty, just compensation, and forfeiture doctrines—were created by equity in the early common law to police against abuses of the then prevalent penal bond. However, when the industrial revolution pushed courts to accommodate fully executory agreements, and parties abandoned the use of penal bonds, the exclusively ex ante focus of the new contract law that emerged rendered the ex post doctrines obsolete. While initially intended to do justice between the parties, if used today these doctrines perversely and unjustly deny parties contractual rights that were bargained for in a free and fair agreement. Yet judges continue to recognize the ex post doctrines, even as they struggle to reconcile them with respect for the parties’ intent. Although infrequently applied, the ex post doctrines are far from dead letter. The penumbra of uncertainty they cast over contract adjudication continues to undermine contracting parties’ personal sovereignty. The only case for continuing to recognize these equitable interventions, therefore, must turn on whether they serve a new valid purpose. We consider and reject the possible purposes of paternalism and anti-opportunism suggested by contemporary pluralist scholars. In our view, the criteria governing theories of legal interpretation support the interpretation of contract law as exclusively serving personal sovereignty rather than any pluralist interpretation. Under its best interpretation, contract law has no place for the ex post perspective.

 

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*. Patricia D. & R. Paul Yetter Professor of Law and Professor of Philosophy, Columbia Law School, and Co-Director, Center for Law and Philosophy, Columbia Law School.

†. Alfred McCormack Professor of Law and Director, Center for Contract and Economic Organization, Columbia Law School. We are grateful for comments on earlier drafts of this Article from Charles Fried, Michael Gilbert, Mitu Gulati, Hanoch Dagan, Ethan Leib, Paul Mahoney, Alan Schwartz, George Triantis, David Waddilove and participants at faculty workshops at Columbia Law School and the University of Virginia Law School and the 2019 North American Workshop on Private Law Theory VII, University of Western Ontario.

 

My Car Is My Castle: the Failed Historical Roots of the Vehicle Exception to the Fourth Amendment by Thomas J. Snyder

Article | Constitutional Law
My Car Is My Castle: the Failed Historical Roots of the Vehicle Exception to the Fourth Amendment
by Thomas J. Snyder*

Vol. 93, Article (December 2020)
93 S. Cal. L. Rev. Postscript 987 (2020)

Keywords: Collection Act of 1789, Fourth Amendment, Admiralty Jurisdiction, Border Exception

INTRODUCTION

This Article will demonstrate that the originalist argument in Carroll is based on an incorrect historical interpretation of the history of the Fourth Amendment. As discussed in greater detail below, the Carroll argument hinges on the allowance of warrantless ship searches by the First Congress (the same Congress that proposed the Fourth Amendment), coupled with a further analytic step of analogizing ship searches to land vehicle searches. This Article will show that warrantless ship searches were considered permissible under the Fourth Amendment because they were confined to federal admiralty jurisdiction at the time of the Founding. In contrast, land searches were treated differently by the First Congress. Thus, as this Article will demonstrate, the originalist argument in Carroll fails.

Finally, this Article will refute the pragmatic policy arguments offered by the Supreme Court to justify the vehicle exception. While policy arguments are not necessarily meritless, they are the weakest justifications in this instance, because the vehicle exception goes against both the text and the original intent of the Fourth Amendment. There are two main arguments in favor of a warrantless search exception: (1) the mobility of vehicles and (2) the substantial government regulation of vehicles. This Article will demonstrate that both rest on faulty premises that do not justify the abrogation of the Fourth Amendment warrant requirement.

Even upon its creation in 1925, the vehicle exception to the Fourth Amendment has always rested on a shaky ground. The time has come for the Supreme Court to overturn this exception and instead apply the text and history of the Fourth Amendment to require warrants for the search of vehicles.

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*. Ph.D. Candidate in History, University of Chicago; A.B. 2013, Harvard University; M.A. 2014, University of Chicago; J.D. 2018, Harvard Law School. He would like to thank Tracey Maclin for his very helpful comments and suggestions on an earlier draft of this Article.

Corporate Law as Myth by Jonathan R. Macey

Article | Corporate Law
Corporate Law as Myth
by Jonathan R. Macey*

Vol. 93, Article (December 2020)
93 S. Cal. L. Rev. Article 923 (2020)

Keywords: Fundamental Rules of Corporate Law, Fundamental Principles, Myth 

INTRODUCTION

This Article shows that a variety of fundamental rules of corporate law are based on myth. The Article explains that the myths on which corporate law is based play an important role in attracting public acceptance and support for what otherwise would likely be unpopular and controversial regulations. Thus, one can view the role played by myth in corporate law in a particular context as having either positive or negative characteristics depending on one’s opinion of the social value of the underlying legal rule that is being buttressed and affirmed by the myth.


Four political and sociological myths that continue to play important roles in law are examined. These are: (1) the myth that corporations are owned by their shareholders and represent ownership interests in businesses rather than mere financial claims on the cash flows of those businesses, coupled with certain political (voting) rights that protect those claims; (2) the “shareholder value myth,” that corporate officers and directors are legally required to maximize firm value; (3) that subsidiary companies are entirely independent from and not subject to the control of their parent companies and must remain so in order for the parent company to avoid liability for the contract and tort debts of the subsidiary under various alter ego and piercing the corporate veil theories of corporate law; and (4) the legal regulation of insider trading is justified because of the necessity of creating a “level playing field” among participants in financial markets. Reasonable people can disagree about whether the role played by these myths is normatively positive or negative in each of these contexts.

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*. Sam Harris Professor of Corporate Law, Corporate Finance & Securities Regulation, Yale Law School. I am grateful for comments from Logan Beirne, Zach Liscow, Josh Macey, Belisa A. Pang, Amanda Rose, Leo Strine, and Andrew Verstein. I received valuable research assistance from Maria Nozadze.

Administering Artificial Intelligence – Article by Alicia Solow-Niederman

Article | Technology
Administering Artificial Intelligence
by Alicia Solow-Niederman*

From Vol. 93, No. 4 (September 2020)
93 S. Cal. L. Rev. 633 (2019)

Keywords: Artificial Intelligence, Data Governance

As AI increasingly features in everyday life, it is not surprising to hear calls to step up regulation of the technology. In particular, a turn to administrative law to grapple with the consequences of AI is understandable because the technology’s regulatory challenges appear facially similar to those in other technocratic domains, such as the pharmaceutical industry or environmental law. But AI is unique, even if it is not different in kind. AI’s distinctiveness comes from technical attributes—namely, speed, complexity, and unpredictability—that strain administrative law tactics, in conjunction with the institutional settings and incentives, or strategic context, that affect its development path. And this distinctiveness means both that traditional, sectoral approaches hit their limits, and that turns to a new agency like an “FDA for algorithms” or a “federal robotics commission” are of limited utility in constructing enduring governance solutions

This Article assesses algorithmic governance strategies in light of the attributes and institutional factors that make AI unique. In addition to technical attributes and the contemporary imbalance of public and private resources and expertise, AI governance must contend with a fundamental conceptual challenge: algorithmic applications permit seemingly technical decisions to de facto regulate human behavior, with a greater potential for physical and social impact than ever before. This Article warns that the current trajectory of AI development, which is dominated by large private firms, augurs an era of private governance. To maintain the public voice, it suggests an approach rooted in governance of data—a fundamental AI input—rather than only contending with the consequences of algorithmic outputs. Without rethinking regulatory strategies to ensure that public values inform AI research, development, and deployment, we risk losing the democratic accountability that is at the heart of public law.

*. 2020–2022 Climenko Fellow and Lecturer on Law, Harvard Law School; 2017–2019 PULSE Fellow, UCLA School of Law and 2019-2020 Law Clerk, U.S. District Court for the District of Columbia. Alicia Solow-Niederman drafted this work during her tenure as a PULSE Fellow, and the arguments advanced here are made in her personal capacity. This Article reflects the regulatory and statutory state of play as of early March 2020. Thank you to Jon Michaels, Ted Parson, and Richard Re for substantive engagement and tireless support; to Jennifer Chacon, Ignacio Cofone, Rebecca Crootof, Ingrid Eagly, Joanna Schwartz, Vivek Krishnamurthy, Guy Van den Broeck, Morgan Weiland, Josephine Wolff, Jonathan Zittrain, participants at We Robot 2019, and the UCLAI working group for invaluable comments and encouragement; to Urs Gasser for conversations that inspired this research project; and to the editors of the Southern California Law Review for their hard work in preparing this Article for publication. Thanks also to the Solow-Niederman family and especially to Nancy Solow for her patience and kindness, and to the Tower 26 team for helping me to maintain a sound mind in a sound body. Any errors are my own.

Partisan Voting on the California Supreme Court

Article | Miscellaneous
Partisan Voting on the California Supreme Court
by Mark P. Gergen*, David A. Carrillo, Benjamin Minhao Chen & Kevin M. Quinn§

From Vol. 93, No. 4 (September 2020)
93 S. Cal. L. Rev. 763 (2020)

Keywords: California Supreme Court, Patterned Voting, Partisan Voting

When did ideology become the major fault line of the California Supreme Court? To answer this question, we use a two-parameter item response theory (IRT) model to identify voting patterns in non-unanimous decisions by California Supreme Court justices from 1910 to 2011. The model shows that voting on the court became polarized on recognizably partisan lines beginning in the mid-1900s. Justices usually did not vote in a pattern that matched their political reputations and party affiliation during the first half of the century. This began to change in the 1950s. After 1959 the dominant voting pattern is partisan and closely aligns with each justice’s political reputation. Our findings after 1959 largely confirm the conventional wisdom that voting on the modern court is on political lines. But our findings call into question the usual characterization of the Lucas court (1987–1996) as a moderately conservative court. Our model shows that the conservatives dominated the Lucas court to the same degree the liberals dominated the Traynor court (1964–1970).

More broadly, this Article confirms that an important development occurred in American law at the turn of the half-century. A previous study used the same model to identify voting patterns on the New York Court of Appeals from 1900 to 1941 and to investigate whether those voting patterns were best explained by the justices’ political reputations. That study found consistently patterned voting for most of the 40 years. But the dominant dimension of disagreement on the court for much of the period was not political in the usual sense of that term. Our finding that the dominant voting pattern on the California Supreme Court was non-political in the first half of the 1900s parallels the New York study’s findings for the period before 1941. Carrying the voting pattern analysis forward in time, this Article finds that in the mid-1900s the dominant voting pattern became aligned with the justices’ political reputations due to a change in the voting pattern in criminal law and tort cases that dominated the court’s docket. Together, these two studies provide empirical evidence that judicial decision-making changed in the United States in the mid-1900s as judges divided into ideological camps on a broad swath of issues.

* Robert and Joann Burch D.P. Professor of Tax Law and Policy and Associate Dean for Faculty Development and Research at the University of California, Berkeley School of Law.
† Lecturer in Residence and the Executive Director of the California Constitution Center, University of California, Berkeley School of Law.
‡ Assistant Professor of Law, University of Hong Kong.
§ Professor of Political Science, University of Michigan.

The Law of Corporate Investigations and the Global Expansion of Corporate Criminal Enforcement

Article | Corporate Law
The Law of Corporate Investigations and the Global Expansion of Corporate Criminal Enforcement 
by Jennifer Arlen* & Samuel W. Buell†

From Vol. 93, No. 4 (September 2020)
93 S. Cal. L. Rev. 697 (2020)

Keywords: Corporate Investigations, Corporate Criminal Enforcement

The United States model of corporate crime control, developed over the last two decades, couples a broad rule of corporate criminal liability with a practice of reducing sanctions, and often withholding conviction, for firms that assist enforcement authorities by detecting, reporting, and helping prove criminal violations. This model, while subject to skepticism and critiques, has attracted interest among reformers in overseas nations that have sought to increase the frequency and size of their enforcement actions. In both the United States and abroad, insufficient attention has been paid to how laws controlling the conduct of corporate investigations are critical to regimes of corporate criminal liability and public enforcement. Doctrines governing self-incrimination, employee rights, data privacy, and legal privilege, among other areas, largely determine the relative powers of governments and corporations to collect and use evidence of business crime, and thus the incentives for enforcers to offer settlements that reward firms for private efforts to both prevent and disclose employee misconduct. This Article demonstrates the central role that the law controlling corporate investigations plays in determining the effects of corporate criminal liability and enforcement policies. It argues that discussions underway in Europe and elsewhere about expanding both corporate criminal liability and settlement policies—as well as conversations about changes to the U.S. system—must account for the effects of differences in investigative law if effective incentives for reducing corporate crime are, as they should be, a principal goal.

*. Norma Z. Paige Professor of Law, New York University, and Faculty Director, Program on Corporate Compliance and Enforcement, jennifer.arlen@nyu.edu.

†. Bernard M. Fishman Professor of Law, Duke University, buell@law.duke.edu. The authors would like to thank the following people for their thoughtful discussions of foreign law and for comments on earlier drafts of this article: Miriam Baer, Giovani Bakaj, Rachel Barkow, Leonardo Borlini, Nicolas Bourtin, Michael Bowes, Lincoln Caylor, Bruno Cova, Frederick Davis, Kevin Davis, Grainne de Burca, Mark Dsouza, Luca Enriques, Cindy Estlund, Samuel Estreicher, Jens Frankenreiter, Alejandro Turienzo Fernandez, Jose Carlos Abissamra Filho, Matthew Finkin, Jonathan Fisher, Garth Fitzmaurice, Stavros Gadinis, Brandon Garrett, Martin Gelter, Avi Gesser, John Gleeson, Lisa Griffin, Lawrence Helfer, Daniel Hund, Mary Inman, Rani John, Kathryn Judge, Sung Yong Kang, Issa Kohler-Hausmann, Keith Krakauer, Judy Krieg, Mattias Kumm, Katja Langenbucher, Maximo Langer, Joshua Larocca, Penelope Lepeudry, Alun Milford, Mariana Pargendler, Katharina Pistor, Peter Pope, Pablo Quinones, Daniel Richman, Veronica Root, Jacqueline Ross, Jason Schultz, Catherine Sharkey, Nicola Selvaggi, Margot Seve, Peter Solmssen, Tina Söreide, Katherine Strandburg, Nico van Eijk, Thomas Weigend, Spoerr Wolfgang, Yohimitsu Yamauchi, Bruce Yannett, and participants in workshops at Boston College Law School, Cambridge University, Columbia Law School, The London School of Economics, New York University School of Law, The Norwegian School of Economics, Oxford University, University College London, and the University of Texas School of Law. The authors also would like to thank their research assistants for their excellent work: Marc-Anthony de Boccard, Alex Dayneka, Janosch Niklas Engelhardt, Christina Faltermeier, Estelle Houser, Anais Kebir, Charlotte Robin, Marcin Sanetra, Koichi Sekine, Jonathan Silverstone, Melanie Simon, William Taylor, Michael Treves, and Benjamin Wylly.

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Performative Causation – Noah Smith-Drelich

Article | Legal Theory
Performative Causation

by Noah Smith-Drelich*

From Vol. 93, No. 3 (March 2020)
93 S. Cal. L. Rev. 379 (2020)

Keywords: Specific Causation, General Causation

Specific causation requires plaintiffs to prove that their injury was caused by this defendant and not merely that an injury like theirs could have been caused by a party like the defendant. Science, however, cannot regularly supply such proof: scientific evidence of causation typically comes via epidemiology and statistics, which provide a bounty of detail about population-level effects but little that translates to individual questions of causation. This means that in the considerable number of cases in which medical causation is uncertain—including (but not limited to) nearly all mass torts—plaintiffs are required to prove what science cannot. Even where studies show that widespread harm is a statistical certainty, without any individual-level evidence proving specific causation, no plaintiff should be able to recover.

But yet some do. This Article’s detailed examination of the specific causation requirement reveals how, in the face of specific causation’s impossible and seemingly unjust demands, judges and juries have grown increasingly receptive to “performative causation,” proofs of causation that rely on shoddy scientific evidence and emotional appeals. This impulse, however well-meaning, routinely facilitates judgments against the wrong defendants or on behalf of the wrong plaintiffs. The result is a mass denial of justice—to countless plaintiffs deprived of any hope of recovery and to numerous defendants held liable for harms they may not have committed.

By illustrating the substantive and procedural dimensions of specific causation’s challenges, this Article provides a foundation for future discussions of reform. In its final section, this Article puts forward its own novel proposal: a private law-administrative hybrid model that uses statistical evidence to grant proportional recoveries to plaintiffs. By better aligning the questions asked by the law with the answers provided by science, this model offers a promising mechanism for resolving individual questions of causation—as well as a template for how mass torts resolutions can capture the best and guard against the worst features of both private law and public law adjudicatory systems.

*. Academic Fellow, Columbia Law School; J.D., M.S., Stanford Law School. Thanks to Professors David Bernstein, John Donohue, Nora Engstrom, Dan Farber, David Fischer, Don Gifford, Hank Greely, Clarisa Long, Bob Rabin, David Rosenberg, Allen Rostron, Alan Sykes, Wendy Wagner, and the members of the Civil Procedure Workshop for all of their advice and help with this Article.

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Doctrinal Sunsets – David Schraub

Article | Legal Theory
Doctrinal Sunsets
by David Schraub*

From Vol. 93, No. 3 (March 2020)
93 S. Cal. L. Rev. 431 (2020)

Keywords: Sunset Provision, Grutter v. Bollinger

Sunset provisions—timed expirations of an announced legal or policy rule—occupy a prominent place in the toolkit of legislative policymakers. In the judiciary, by contrast, their presence is far more obscure. This disjuncture is intriguing. The United States’ constitutional text contains several sunset provisions, and an apparent doctrinal sunset appeared in one of the most high-profile and hot-button Supreme Court decisions in recent memory—Grutter v. Bollinger. Grutter’s famous declaration that while affirmative action programs in pursuit of diversity ends were currently constitutional, “25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Yet despite voluminous literature debating the merits of sunset clauses as a legislative practice, scholars have not systematically explored the utility of incorporating sunset clauses into judicial doctrine.

This Article provides the first comprehensive analysis of the place of sunset provisions in judicial doctrine. It defends the conceptual legitimacy of doctrinal sunsets as valid across all theories of legal interpretation, including textualist or originalist accounts which might seem incompatible with admitting any change in legal outcomes without formally amending the underlying text. In addition, it articulates the practical utility of doctrinal sunset clauses in scenarios where predictable changes in circumstances make it unlikely that an initial rule-decision will remain optimal over a long period of time. This can occur in mundane situations where a placeholder rule is necessary to govern until a more complex and tailored rule can be operationalized. It can also occur in sharply controversial scenarios where a decision is needed immediately under conditions that do not allow for optimal deliberation. Finally, sunsets can be beneficial as a means of prompting reassessment and tailored adjustment of prior decisions which— though perhaps products of the best judgment of their eras—are unlikely to continue tracking changing social circumstances.

*. Lecturer in Law and Senior Research Fellow, University of California, Berkeley School of Law. Thanks to Amin Afrouzi, Larry Alexander, Emily Berman, Josh Blackman, Kiel Brennan-Marquez, Franciska Coleman, Anuj Desai, Craig Green, Aziz Huq, George Lambeth, Jud Mathews, Larry Solum, David Strauss, and the participants at the National Conference of Constitutional Law Scholars, the Berkeley Reading Group in Legal Philosophy, and the Loyola University Constitutional Law Colloquium for helpful comments.

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