Category: Articles

The Political Economy of Youngstown – Article by Edward T. Swaine

From Volume 83, Number 2 (January 2010)
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The time is ripe for a nondoctrinal assessment of Justice Jackson’s famous three-category framework for challenges to presidential action, elaborated in Youngstown Sheet & Tube Co. v. Sawyer (also known as the Steel Seizure Case). Recent national security controversies have given the Youngstown framework a whole new lease on life, and its relevance for courts, Congress, and executive branch officials has never been higher. During the same period, empirical and analytical studies of presidential policymaking have advanced beyond the personality-driven accounts of particular administrations. Together, these developments offer a terrific opportunity to assess how well the Youngstown framework fulfills its objective of advancing congressional interests and constraining presidential power. 

A political economy approach better explains the problem to which Justice Jackson was responding—the capacity of presidential unilateralism to establish policy that can withstand statutory correction, regardless of whether it has a legal basis—and also explains more formally how Youngstown’s categories offer a practical, if legally unorthodox, constraint. The assessment becomes more negative, though, once those categories are treated endogenously—that is, once the political branches are modeled as behaving dynamically and reacting to the framework itself. For example, both case studies and empirical surveys of executive orders suggest that the president may react to the risk of legislative disapproval (which, under Youngstown, will likely result in judicial disapproval as well) by avoiding Congress altogether or by seeking only its indirect blessing. Because these and other results disserve the framework’s objectives, this Article proposes several more benign alternatives—and, in general, advocates reseizing Steel Seizure.

 

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What Dignity Demands: The Challenge of Creating Sexual Harassment Protections For Prisons and Other Nonworkplace Settings – Article by Camille Gear Rich

From Volume 83, Number 1 (November 2009)
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In the more than twenty years since the Supreme Court created Title VII’s workplace sexual harassment protections, judges and feminist legal scholars have struggled to create a clear, conceptual account of the harm sexual harassment inflicts. For years, many courts and scholars were content to justify sexual harassment law by arguing that harassment should be prohibited because it interferes with women’s interest in workplace gender equality; however, by the late 1990s, several feminist legal scholars had revealed the inadequacy of this account, suggesting instead that harassment law should be understood as protecting women from dignitary harm. The failure to reach a broad-based consensus about the injury sexual harassment inflicts, and relatedly about sexual harassment law’s purpose, appeared without significant consequence until federal courts began using understandings developed in the context of workplace sexual harassment law to develop new sexual harassment doctrine for nonworkplace settings. Operating without clear conceptual moorings, many federal courts created narrow, cabined sexual harassment protections governing nonworkplace settings, often without principled justifications for doing so. To demonstrate the serious nature of this problem, this Article explores the Eighth Amendment sexual harassment doctrine courts have created to govern prisoners’ sexual harassment claims against guards, demonstrating the myriad ways in which workplace sexual harassment doctrine has distorted the development of prisoners’ sexual harassment protections. Yet the prison cases discussed here are offered as an example of a potentially far broader phenomenon. To address the larger issue—the distorting effects workplace sexual harassment law has had on other areas of sexual harassment doctrine—this Article argues that we should return to the dignitary account of sexual harassment law that was introduced by feminist workplace sexual harassment scholars in the late 1990s. However, in order to use this dignity analysis for settings other than the workplace, the dignitary framework these scholars introduced must be expanded and particularized to account for the different dignity expectations a person may reasonably hold in different institutional contexts. To that end, this Article offers a nuanced, context-specific analysis that will allow federal courts to determine “what dignity demands” in each institutional setting. The Article demonstrates that this dignitary framework will allow federal courts to identify the key considerations that should be weighed when creating sexual harassment doctrine for locations other than the workplace.

 

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CFIUS as a Congressional Notification Service – Article by David Zaring

From Volume 83, Number 1 (November 2009)
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How can Congress play a role in formulating national security policy? This Article identifies one way that Congress already plays such a role: in its oversight of executive branch decisions regarding foreign investments in the United States. The executive’s role in this relationship is passive; it is best understood as a congressional notification service. This Article considers the implications of such a service, which could serve as a model for increased congressional involvement in other aspects of foreign affairs. It offers historical support for the descriptive claim that Congress plays a central role in policing foreign investments for national security concerns; the mildness of the executive role is shown both qualitatively and quantitatively through a content analysis of the “boilerplateness” of executive approvals of foreign acquisitions. The role Congress has played in national security and foreign direct investment policymaking has implications for theories of presidential administration and executive discretion in foreign affairs, and also for practicing lawyers interested in defining what exactly the scope of “national security” might be. The Article concludes with a review of these implications.

 

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Rewriting Frankenstein Contracts: Workout Prohibitions in Residential Mortgage-Backed Securities – Article by Anna Gelpern & Adam J. Levitin

From Volume 82, Number 6 (September 2009)
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Modification-proof contracts boost commitment and can help overcome information problems. But when such rigid contracts are ubiquitous, they can function as social suicide pacts, compelling enforcement despite significant externalities. At the heart of the current financial crisis is a contract designed to be hyperrigid: the pooling and servicing agreement (“PSA”), which governs residential mortgage securitization. The PSA combines formal, structural, and functional barriers to its own modification with restrictions on the modification of underlying mortgage loans. Such layered rigidities fuel foreclosures, with spillover effects for homeowners, communities, financial institutions, financial markets, and the macroeconomy.

This Article situates PSAs in the context of theoretical and policy debates about contract rigidity, bond contract modification, and contractual bankruptcy. We propose a typology of contract rigidities, ranging from formal prohibition on amendment (formal rigidity) to extreme collective action problems (functional rigidity). We then draw on New Deal jurisprudence for strategies to overcome each type of rigidity. These strategies include narrowly tailored legislation that renders the problematic terms unenforceable on public policy grounds, administrative restructuring mandates, and special bankruptcy regimes.

 

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Courts and The Politics of Backlash: Marriage Equality Litigation, Then and Now – Article by Jane S. Schacter

From Volume 82, Number 6 (September 2009)
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Groundbreaking decisions on same-sex marriage, particularly those from the Hawaii, Massachusetts, and California supreme courts, have generated widespread political backlash in the form of state constitutional amendments and statutes, the federal Defense of Marriage Act (“DOMA”), a proposed federal constitutional amendment, and more. By contrast, the first state supreme court decision to strike down a ban on interracial marriage—Perez v. Sharp, decided by the California Supreme Court in 1948—was met with barely a political whimper, even though it made international headlines and came decades before broad public acceptance of interracial marriage. This Article identifies that puzzling difference, tells the political story of the cases, explores factors that might explain the disparity in political and public reactions, and uses the contrasting case studies to elucidate the political dynamics that surround courts today and to suggest directions for the future study of antijudicial backlash.

 

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“Counter-Counter-Terrorism via Lawsuit”—The Bivens Impasse – Article by George D. Brown

From Volume 82, Number 5 (July 2009)
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This Article deals with one of the most difficult questions arising out of the war on terror: what to do about the victims. How should the legal system respond to claims of collateral damage to constitutional rights when the government has tilted in favor of security at the expense of liberty? The war on terror has already put the American legal system to a severe test, exacerbated by the divide between those who see the problem as essentially one of preserving civil liberties and those who see it as one of preserving national security.

Increasingly, the system will have to grapple with suits by terrorism suspects who seek damages for the governmental conduct to which they have been subjected. The Supreme Court has already decided one such case; others are on their way. Apart from damages for the victims, these suits present the question of potential civil liability for federal officials, particularly those of the previous administration. Much of this litigation will be based on the Bivens doctrine, which permits damages actions for constitutional torts committed by federal officials. This Article contends that the Bivens doctrine exists in two forms: the Marbury-rights model and the prudential-deferential model. The former focuses on the plaintiff and points toward allowing the suit to proceed. The latter focuses on the subject matter and leads to emphasis on protecting the government. It is closely related to the political question doctrine and has prevailed since the 1980s.

 

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Vacant Offices: Delays in Staffing Top Agency Positions – Article by Anne Joseph O’Connell

From Volume 82, Number 5 (July 2009)
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Federal agencies make an astounding number of policy decisions, engaging in more lawmaking and adjudication than Congress and the federal courts. These policy judgments range from the seemingly trivial, such as the size of holes in swiss cheese, to matters of life-and-death importance, such as how to limit power plant emissions of sulfur dioxide, nitrogen oxides, and mercury. According to the statute books, over 1100 Senate-confirmed presidential appointees are supposed to run these agencies and direct these policy decisions, comprising a small but critically important component of a federal workforce of over 2.5 million employees. Yet filling these top-level positions in the federal administrative state is cumbersome, inconsistent, and at times controversial. New administrations are often quick to select the cabinet but take much longer to staff the next few layers. Appointee tenure is short, leading to many new openings a year or two later. Then agency officials flee government service near the end of an administration. Vacancies, particularly if frequent and lengthy, may have detrimental consequences for the modern administrative state. They contribute to agency inaction, foster confusion among nonpolitical employees, and undermine agency legitimacy. More surprising is that vacancies also can have beneficial repercussions for agency performance.

 

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Directors Elections and the Role of Proxy Advisors – Article by Stephen J. Choi, Jill E. Fisch, & Marcel Kahan

From Volume 82, Number 4 (May 2009)
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Using a dataset of proxy recommendations and voting results for uncontested director elections from 2005 and 2006 at Standard & Poor’s 1500 companies, we examine how advisors make their recommendations. Of the four firms we study—Institutional Shareholder Services (“ISS”), PROXY Governance, Inc. (“PG”), Glass, Lewis & Company (“GL”), and Egan-Jones Proxy (“EJ”)—ISS has the largest market share and is widely regarded as the most influential. We find that the four proxy advisory firms differ substantially from each other in their willingness to issue a withhold recommendation, in the factors that affect their recommendations, and in the relative weight of those factors. Specifically, ISS focuses on governance-related factors, PG on compensation-related factors, GL on audit/disclosure-related factors, and EJ on an eclectic mix of factors. To the extent these differences are understood, institutional investors can subscribe to those advisors whose recommendations best conform to the investors’ assessments of value-maximizing corporate governance. But if these differences are not known, then proxy advisors may lack accountability for—and can pursue their own agenda in making—their voting recommendations, thereby impairing the effectiveness of the shareholder franchise.

 

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