In its recent decision in McDonnell v. United States, a case concerning corruption charges against the former Governor of Virginia, Robert McDonnell, the Supreme Court faced a seemingly simple question of statutory interpretation: what constituted an “official act” for the purposes of the bribery statute, 18 U.S.C. § 201(a)(3). In reality, not only did it answer a question far more complicated, but also, it provided far more than a simple answer.
In its attempt to reinforce democracy, the Court failed. Instead, it validated a pernicious definition of access, in which paid-for access, pay-to-play schemes, and bribery are the norm. Specifically, in claiming that this maligned form of access was necessary for a functioning democracy, the Court endorsed political norms that are, in fact, corrosive to society: stratified access to politicians and by association, democratic institutions. The Court ignored the reality of pervasive and systemic inequality—ranging from political, economic, social, and racial—in contemporary American society and the effect that inequality has on access. However, the Court did not arrive there alone—the many amici filing on behalf of the petitioner blinded it—at least partially—to the aforementioned realities and public opinion.
This Article argues that the Preamble to the Constitution of the United States of America deserves a primary place in constitutional law, in federal judicial decision-making, and in the nation’s civic discourse. The Preamble does more than set forth general, vague aspirations. It epitomizes the particular purposes behind the adoption of the Constitution that were desperately needed to repair and replace the faltering Articles of Confederation. The Preamble’s words were specifically and methodically chosen, both in the Preamble itself and often within the body of the Constitution. Based on their prompt affirmative vote, all members of the Constitutional Convention, which drafted the version of the Constitution that was submitted to the thirteen states for ratification, readily embraced the Preamble. Some delegates stated explicitly that it should be used as the key to interpreting the Constitution, its meanings, intentions, purposes, and limitations. Indeed, it is doubtful that the Constitution would have been ratified without the text of the Preamble prominently standing at the top of the proposed document, and the Preamble occupied a dominant and valuable position at the head of constitutional analysis throughout the nineteenth century.
In 1905, however, the United States Supreme Court decided the case of Jacobson v. Massachusetts. This case has been rarely discussed at any length and is only cited summarily. Perhaps somewhat unwittingly, the Court used language that has been understood to relegate the Preamble to a minor, insubstantial role: “Although that Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments.” The Court then went on summarily to treat the Preamble as irrelevant to the case.
For nearly six decades, States have entered into approximately 3,000 bilateral investment promotion and protection treaties (“BITs”) and some multilateral treaties (“MITs”), which possess the same dual purposes as the North American Free Trade Agreement (“NAFTA”) and the Energy Charter Treaty (“ECT”). They have been signed, ratified, and entered into force for mutual benefit: investment in the States party to the BIT or MIT is mutually encouraged, in good part by each State party guaranteeing the other State party’s investors an acceptable level of legal protection, usually consisting of “fair and equitable treatment” (“FET”), “full protection and security” (“FPS”), specific rules governing compensation for expropriation, and, via a “most-favored-nation clause” (“MFN”), the same overall level of legal protection as is accorded to nationals of other States with whom the respondent State party to the BIT or MIT has similar treaties in force.
Key to the nationals of each State party who invest in the other State is the mechanism for enforcing those protections, which is known as investor-State arbitration, or investor-State dispute settlement (“ISDS”). As most treaty parties do not wish their nationals investing abroad to be compelled to dispute with the host State over whether the involved treaty has been breached decided by a national court of the host State, the parties agree in the BIT or the MIT that any dispute between a national of one party investing in the other party will be decided by, typically, a three-person arbitral tribunal, to which each party to the dispute—the investor and the host State—appoints one arbitrator. The third person, who is to chair the arbitration, is appointed by the other two arbitrators, or by the parties to the dispute, or—failing success in that effort for a stated period of time—by an agreed “appointing authority.” All three members of the arbitral tribunal are required and pledge to be independent and impartial to the arbitrating parties.
In 1897, a half-dozen great powers claimed sovereignty over nearly half the world’s land and souls, and these empires were expanding. The British Empire alone had grown by fifty million souls and two million square miles since 1891. The eminent naval strategist Alfred T. Mahan feared that the United States was dangerously secluded, in comparison, and sidelined in the global land rush underway. He also worried that the Atlantic Ocean no longer adequately protected the U.S. against European powers in an age of steamships. Like his fellow Republicans Theodore Roosevelt and Massachusetts Senator Henry Cabot Lodge, Mahan influentially advocated U.S. expansionism. He envisioned the United States ruling acquired lands as colonies. Their residents were as politically unfit for rule as children, criminals, women, and African Americans, he believed. But the Constitution presented a problem. Nearly three decades had passed since the last U.S. annexation. As Mahan complained, “any project of extending the sphere of the United States, by annexation or otherwise, is met by the constitutional lion in the path.”
During the 2016 Presidential campaign, the average adult saw at least one “fake news” item on social media. The people distributing the articles had a variety of aims and operated from a variety of locations. Among the locations we know about, some were in Los Angeles, others in Macedonia, and, yes, others were in Russia. The Angelenos aimed to make money and sow chaos. The Macedonians wanted to get rich. And the Russians aimed to weaken Hillary Clinton’s candidacy for president, foster division around fraught social issues, and make a spectacle out of the U.S. election. To these ends, the Russians mobilized trolls, bots, and so-called “useful idiots,” along with sophisticated ad-tracking and micro-targeting techniques to strategically distribute and amplify propaganda. The attacks are ongoing.
Cheap distribution and easy user targeting on social media enable the rapid spread of disinformation. Disinformative content, like other online political advertising, is “micro-targeted” at narrow segments of the electorate, based on their narrow political views or biases. The targeting aims to polarize and fragment the electorate. Tracing the money behind this kind of messaging is next to impossible under current regulations and advertising platforms’ current policies. Voters’ inability to “follow the money” has implications for our democracy, even in the absence of disinformation. And of course, an untraceable flood of disinformation prior to an election stands to undermine voters’ ability to choose the candidate that best aligns with their preferences.
Amidst the backdrop of a federal investigation into the actions of President Donald Trump, a previously unexplored legal question has emerged on a topic that forms the foundation of legal practice: Can a succeeding government official revoke a predecessor’s claim of the attorney-client privilege? Although the question is novel, its role within the government context is well established—having been asserted by Presidents Richard Nixon and Bill Clinton in their respective administrations. The context of current events, however, underscores the need to further define the operation of a privilege that is once again being relied upon by a president under investigation.
Courts and scholars point to the sharing economy as proof that our labor and employment infrastructure is obsolete because it rests on a narrow and outmoded idea that only workers subjected to direct, personalized control by their employers need work-related protections and benefits. Since they diagnose the problem as being our system’s emphasis on control, these critics have long called for reducing or eliminating the primacy of the “control test” in classifying workers as either protected employees or unprotected independent contractors. Despite these persistent criticisms, however, the concept of control has been remarkably sticky in scholarly and judicial circles.
This Article argues that critics have misdiagnosed the reason why the control test is an unsatisfying method of classifying workers and dispensing work-related safeguards. Control-based analysis is faulty because it only captures one of the two conflicting ways in which workers, scholars, and decisionmakers think about freedom at work. One of these ways, freedom-as-non-interference, is adequately captured by the control test. The other, freedom-as-non-domination, is not. The tension between these two conceptions of freedom, both deeply entrenched in American culture, explains why the concept of control has been both “faulty” and “sticky” when it comes to worker classification.
This is the first academic work to show the need for, or to offer, a regulatory framework for exchange-traded funds (“ETFs”). The economic significance of this financial innovation is enormous. U.S.-listed ETFs now hold more than $3.6 trillion in assets and comprise seven of the country’s ten most actively traded securities. ETFs also possess an array of unique characteristics raising distinctive concerns. They offer what we here conceptualize as a nearly frictionless portal to a bewildering, continually expanding universe of plain vanilla and arcane asset classes, passive and active investment strategies, and long, short, and leveraged exposures. And we argue that ETFs are defined by a novel, model-driven device that we refer to as the “arbitrage mechanism,” a device that has sometimes failed catastrophically. These new products and the underlying innovation process create special risks for investors and the financial system.