Divided Agencies

Clashes between presidential appointees and civil servants are front-page news. Whether styled as a “deep state” hostile to its democratically selected political principals or as bold “resisters” countering those principals’ ultra vires proposals, accounts of civil servant opposition are legion. Move beyond headlines, however, and little is known about the impact of political divisions within agencies on their workaday functioning.

This Article presents the first comprehensive, empirical examination of the effects of intra-agency political dynamics on policymaking. Leveraging data on political preferences based on campaign donations, we identify “ideological scores” for both appointees and civil servants in dozens of agencies over thirty-four years—the first measure of the political gap between these two groups across agencies and time. We use these scores to examine how ideological divergence between appointees and civil servants affects regulatory activity.

We find that agencies with greater distance between these two groups—which we term “divided agencies”—may adopt a more cautious posture. They tend to extend the rulemaking process and allow consideration of late-filed comments. These features provide appointees with extra time to gather and digest comments from politically aligned outside experts. Divided agencies’ caution may extend to the completion of final rules, which—in some but not all models—tend to be less numerous. Remarkably, we find no evidence that divided agencies are any less successful in shepherding proposed rules to final status. That finding casts doubt on the claim that the longer rulemaking timeframes in these agencies are attributable to civil servants’ attempts to derail oppositional appointees’ initiatives. Instead, one possible interpretation is that divided agencies’ caution pays off.

These findings imply that, with agency heads oscillating between left and right based on the party in power, the generally more moderate civil service can serve as a ballast. Specifically, faced with appointees that may be responsive only to a bare electoral majority, the presence of oppositional civil servants may encourage regulatory caution and push decision-making away from the extremes—thus, paradoxically, moving policy toward the median voter.

Our findings also spotlight the critical role that the notice-and-comment process—which is often maligned as pretextual—can play in divided agencies. Generalist appointees face a principal-agent problem when crafting rules: their key source of necessary in-house expertise, civil servants, may be misaligned. In this circumstance, comments from outside allies can provide a check on civil servants’ work. That civil servants can play a promajoritarian, moderating role in divided agencies highlights the importance of preserving civil service protections—especially in today’s polarized political climate.


Secretary of the Interior Ryan Zinke, who served during the Trump Administration, and John Morton, who helmed Immigration and Customs Enforcement (“ICE”) under President Obama, may not have much in common politically, but they do share one experience: they managed agencies in which approximately one-third of their workforce was estranged. A proponent of increasing industry access to public lands, Secretary Zinke believed he had “thirty [percent] of the crew that’s not loyal to the flag” concerning that goal.[1] He compared his situation to capturing “a prized ship at sea and only the captain”—that would be Secretary Zinke, incidentally, a former Navy SEAL—“and the first mate row over” to manage the captured crew.[2] In response, some Interior Department civil servants styled themselves “the disloyals,” printing T-shirts with that epithet.[3]

Director Morton faced a similar mutiny. After issuing a directive prioritizing deportations of people convicted of crimes and urging prosecutorial discretion in other cases,[4] the union representing nearly thirty-nine percent of ICE employees passed a no-confidence vote against Morton’s leadership.[5] That move was unprecedented.[6]

That other apostates can be found across the executive branch is unsurprising;[7] the conditions are ripe for such conflicts. Civil servants often hold differing views from appointees.[8] With only four thousand appointees atop a federal workforce of over two million[9]—many of whom hold job protections—the former group’s ability to supervise the latter will, by practical necessity, be incomplete. As political polarization grows and hardball tactics typically associated with electoral politics enter administrative agencies,[10] we expect that conflicts between appointees and civil servants will only increase.

In recent years, legal scholars have turned their attention to examining these inner workings of administrative agencies. For instance, some scholars posit that competing centers of power within agencies—civil servants and appointees, along with public participants—serve a checking function on each other’s power and thus mimic the more familiar constitutional separation of powers.[11] Others theorize about the policies produced by agencies that contain competing powers, some of which pull in majoritarian and others in countermajoritarian directions.[12]

Yet while the legislative consequences of political divisions among the branches of government are well studied,[13] relatively little empirical work analyzes the impact on policy of political divisions within agencies.[14] Empirically, political dynamics inside administrative agencies remain terra incognita in some important respects. How do agencies in which key subgroups are at loggerheads differ from agencies that are more politically cohesive? Do deeply divided agencies take longer to regulate, perhaps because of distrust or civil servant foot-dragging? Is White House review more exacting for these agencies, on the theory that White House officials are less likely to trust proposed rules emanating from ideologically divided entities? And do these agencies ultimately produce fewer rules?

This Article seeks answers to these questions. It examines how ideological differences between political appointees and civil servants affect the rulemaking process. These two groups share power within agencies, with generalist appointees relying on expert civil servants to implement the former group’s preferred policies. That division gives rise to a well-studied principal-agent problem: appointees must rely on civil servants who may have very different policy preferences and over whom appointees have limited ability to monitor or control.[15]

Faced with agents they may distrust, appointees may seek out and spend more time considering informed “second opinions” from other sources. These alternative sources of information include comments received during the notice-and-comment process, informal feedback from allies in Congress, and recommendations from advisory committees of outside experts occupying a privileged position within agencies. Indeed, public choice theorists posit that administrative structures and processes can serve just this purpose.[16]

We put this theory to the test, examining how appointees respond when their agents in the civil service hold differing views. To do so, we first develop a measure of ideological distance over time and within agencies so that we can identify divided agencies.

Existing measures are inadequate for that purpose,[17] so we create our own. We leverage a dataset on ideological preferences based on campaign donations to do so. We use these data to generate dynamic “ideal point” estimates for agency heads and civil servants in forty-seven agencies over thirty-four years—and thus, a new measure of the ideological gap between these two groups across agencies and time.[18] We then connect this measure to data concerning the rulemaking process.

Our results show that divided agencies—that is, those with ideologically opposed agency heads and civil servants—adopt a slower rulemaking posture than agencies that are more unified. Several of our findings suggest that greater caution may be at play. Once civil servants generate a proposed rule, appointees take their time. While we cannot rule out all alternative explanations, we observe that one feature of the delay is consideration of late-filed comments. Considering late-filed comments allows appointees to hear from a greater number of ideologically aligned outside groups as a check on civil servants’ work. Delay may also result from appointees spending additional time assessing those comments. In either case, slower rulemaking at divided agencies suggests that appointees may be utilizing rulemaking procedures to blunt civil servants’ informational advantages. Additionally, divided agencies may tend to issue fewer rules. That their rules are no less likely to become final, however, is perhaps evidence that their caution pays off.

This claimed cautious approach means that, whatever policy changes one desires in a first-best world, the reality of policymaking in divided agencies likely will leave one disappointed. Indeed, divided agencies are likely status quo-preserving. Whether this feature is normatively desirable turns, in part, on one’s risk aversion and the extent to which one values policy certainty.

Given that partisan polarization—and thus divided agencies—likely will persist into the foreseeable future, our findings provide a set of best practices for agencies to function as well as possible under these conditions. The policy implication that most closely follows from our findings is that officials must preserve the independence of the civil service. At a time when that independence is challenged, our findings about rulemaking suggest that civil servants comprise a moderating counterweight against more ideologically extreme appointees; thus, they serve as a bulwark against wild changes in regulatory policy. With agency leadership swinging between liberal and conservative poles, as we find, civil servants—who tend to be more moderate, albeit left of center—can pull agency policies toward the median voter. This moderation serves to improve democratic representation in agency policymaking: appointees are aligned with the Presidents who appoint them, and Presidents tend to be more ideologically extreme than the median voter. Allowing policy to swing all the way to their appointees’ preferences would therefore not reflect the public’s preferences. In contrast to common laments of employment-protected civil servants serving as a countermajoritarian force in policymaking, we show that they can serve a democratizing function in divided agencies.[19]

Further, to prevent divided agencies from descending into the gridlock and paralysis that plague other polarized institutions, appointees must have access to high-quality information from ideological allies, which we infer from divided agencies’ greater willingness to consider late-filed comments. We argue that the notice-and-comment process is well suited to transferring high-quality information to distrustful appointees. Notice-and-comment also may discourage civil servants, aware that their work will be “checked” by outsiders, from straying too far from their principals’ goals. Additional measures to inject diverse outside sources of information into agency decision-making could further enhance agencies’ ability to function, even in a challenging partisan climate within their walls—though they would increase resource costs associated with rulemaking.

This Article proceeds in four parts. Part I situates our study in twin literatures: empirical scholarship examining extra-agency influences on regulatory dynamics and descriptive and positive work concerning intra-agency dynamics. Part II presents our theory and expectations concerning the effects of appointee-civil servant preference divergence on regulatory processes and outputs. In Part III, we describe our research design, including our creation of an original dataset identifying appointees’ and civil servants’ political ideologies across agencies and time, and we present our analysis. Part IV discusses normative implications and offers policy prescriptions.

          [1].      Evan Osnos, Trump vs. the “Deep State, New Yorker (May 14, 2018), https://
http://www.newyorker.com/magazine/2018/05/21/trump-vs-the-deep-state [https://perma.cc/9862-ZBGM].

          [2].      Matthew Daly, Interior Chief’s Loyalty Comments Draw Widespread Criticism, Associated Press (Sept. 26, 2017), https://apnews.com/article/8c3ae77664f44159823903b3add31e65 [https://

          [3].      Osnos, supra note 1.

          [4].      Memorandum from John Morton, Dir., U.S. Immigr. & Customs Enf’t, to All Field Off. Dirs., All Special Agents in Charge, & All Chief Couns., U.S. Immigr. & Customs Enf’t (June 17, 2011), https://
http://www.ice.gov/doclib/foia/prosecutorial-discretion/certain-victims-witnesses-plaintiffs.pdf [https://perma.

          [5].      Ted Hesson, 7 Numbers that Tell the Story of an Immigration Boss’s Tenure, ABC News (June 17, 2013, 12:34 PM), https://abcnews.go.com/ABC_Univision/Politics/ice-director-john-mortons-
tenure-numbers/story?id=19422159 [https://perma.cc/W37D-R4QM]; see also Julia Preston, Single-Minded Mission to Block an Immigration Bill, N.Y. Times (June 1, 2013), https://www.nytimes
.com/2013/06/02/us/for-chris-crane-a-quest-to-block-an-immigration-bill.html [https://perma.cc/2ZLK-
TXUC] (providing figures used to calculate the union’s share of ICE’s workforce).

          [6].      Preston, supra note 5.

          [7].      See Osnos, supra note 1 (providing other examples).

          [8].      See infra Part III.

          [9].      Fiona Hill, Public Service and the Federal Government, Brookings (May 27, 2020), https://
http://www.brookings.edu/policy2020/votervital/public-service-and-the-federal-government [https://perma.cc/
JRK2-QYRM] (reporting the size of the federal nonmilitary, nonpostal workforce and the approximate number of political appointees).

        [10].      See Brian D. Feinstein & M. Todd Henderson, Congress’s Commissioners: Former Hill Staffers at the S.E.C. and Other Independent Regulatory Commissions, 38 Yale J. on Regul. 175, 223, 226 (2021) (documenting these developments).

        [11].      See Jon D. Michaels, Of Constitutional Custodians and Regulatory Rivals: An Account of the Old and New Separation of Powers, 91 N.Y.U. L. Rev. 227, 238–39 (2016); Gillian E. Metzger, The Interdependent Relationship Between Internal and External Separation of Powers, 59 Emory L.J. 423, 425 (2009); Neal Kumar Katyal, Internal Separation of Powers: Checking Today’s Most Dangerous Branch from Within, 115 Yale L.J. 2314, 2346 (2006).

        [12].      See Matthew C. Stephenson, Optimal Political Control of the Bureaucracy, 107 Mich. L. Rev. 53, 72 (2008).

        [13].      See generally Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311 (2006); Gary W. Cox & Mathew D. McCubbins, Setting the Agenda: Responsible Party Government in the U.S. House of Representatives (2005); John J. Coleman, Unified Government, Divided Government, and Party Responsiveness, 93 Am. Pol. Sci. Rev. 821 (1999); David R. Mayhew, Divided We Govern: Party Control, Lawmaking, and Investigations, 1946–2002 (2d ed. 2005).

        [14].      But see generally Rachel Augustine Potter, Bending the Rules: Procedural Politicking in the Bureaucracy (2019); Rachel Augustine Potter, Slow-Rolling, Fast-Tracking, and the Pace of Bureaucratic Decisions in Rulemaking, 79 J. Pol. 841 (2017) [hereinafter Potter, Slow-Rolling, Fast-Tracking]; Anne Joseph O’Connell, Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State, 94 Va. L. Rev. 889 (2008); George A. Krause, A Two-Way Street: The Institutional Dynamics of the Modern Administrative State (1999).

        [15].      See Mathew D. McCubbins, Roger G. Noll & Barry R. Weingast, Administrative Procedures as Instruments of Political Control, 3 J.L. Econ. & Org. 243, 243–44 (1987) (outlining this principal-agent problem).

        [16].      See, e.g., id. at 255 (“[P]olitical principals in both branches of government suffer an informational disadvantage with respect to the bureaucracy. . . . [M]any of the provisions of the Administrative Procedures [sic] Act solve this asymmetric information problem.”).

        [17].      For instance, measures based solely on the ideology of the appointing President fail to capture ideological differences in consecutive agency heads appointed by the same President. In other words, they do not capture enough variation over time. Other measures only occur sporadically in time.

        [18].      The included executive agencies are the Departments of Agriculture, Commerce, Defense, Education, Energy, Health and Human Services, Homeland Security, Housing and Urban Development, Interior, Justice, Labor, State, Transportation, Treasury, and Veterans Affairs (operating as the Veterans Administration until 1989); Environmental Protection Agency; and Small Business Administration. The included independent agencies are the Agency for International Development, Civil Aeronautics Board (until its dissolution in 1985), Commodity Futures Trading Commission, Equal Employment Opportunity Commission, Farm Credit Administration, Federal Communications Commission, Federal Deposit Insurance Corporation, Federal Emergency Management Agency (until its subordination to the Department of Homeland Security in 2003), Federal Energy Regulatory Commission, Federal Housing Finance Agency, Federal Housing Finance Board (until its dissolution in 2009), Federal Labor Relations Authority, Federal Maritime Commission, Federal Reserve Board, Federal Trade Commission, General Services Administration, Interstate Commerce Commission (until its dissolution in 1996), National Aeronautics and Space Administration, National Archives and Records Administration, National Credit Union Administration, National Transportation Safety Board, Nuclear Regulatory Commission, Office of Federal Housing Enterprise Oversight (until its dissolution in 2009), Office of Personnel Management, Pension Benefit Guaranty Corporation, Securities and Exchange Commission, Social Security Administration, Surface Transportation Board, and U.S. Postal Service. Also, the Internal Revenue Service, although part of the Treasury Department, is included as a separate agency.

        [19].      See Stephenson, supra note 12, at 72 (presenting a positive theory of this dynamic).

           *      Assistant Professor of Legal Studies and Business Ethics, the Wharton School of the University of Pennsylvania.

           †      Professor of Law, Political Science and Public Policy, University of Southern California Gould School of Law. We thank Adam Bonica, Devin Judge-Lord, and Rachel Potter for data, and Ming Hsu Chen, John Harrison, Erin Hartman, Kathryn Kovacs, Jeff Lubbers, Neysun Mahboubi, Jennifer Mascott, John McGinnis, Jon Michaels, David Noll, Anne Joseph O’Connell, Richard Pierce, Zach Price, Michael Rappaport, Noah Rosenblum, Amy Semet, Bijal Shah, Kevin Stack, Matthew Stephenson, Chris Walker, Dan Walters, Adam White, and participants at the Presidential Administration in a Polarized Era conference at the C. Boyden Gray Center for the Study of the Administrative State for helpful comments. The authors also gratefully acknowledge the Gray Center’s financial support of this research. 


The Modern American Law of Race by David E. Bernstein

Article | Anti-discrimination Law
The Modern American Law of Race
by David E. Bernstein*

From Vol. 94, No. 2
94 S. Cal. L. Rev. 171 (2021)

Keywords: Anti-discrimination Law, Public Policy


Most Americans believe that a person’s ethnic or racial identity is currently a matter of self-identification in the United States, but that is not entirely true. Government agencies and courts have established rules for what makes someone African American, Asian, Hispanic, Native American, or white, and for how one proves that one meets the relevant criteria.1 One can get a sense of the scope of these rules by considering how authorities would resolve some recent public controversies over individuals’ racial and ethnic identities.

For example, is golf star Tiger Woods, who calls himself “Cablinasian,” legally classified as Asian based on his predominant ethnic origin,2 African American based on his appearance and the principle of hypo-descent,3 or something else? Until 2019, in Washington State, a government employee would have determined Woods’ ethnic status by looking at his picture.4 Under federal law, Woods could claim Asian American or African American status based on his partial Asian and African ancestry, but he would need to affirm that he holds himself out as a member of the group.5 Whether identifying as “Cablinasian” counts as holding oneself out as Black or Asian is not clear. To successfully claim Native American status based on his Native American great-grandparent, Woods would generally need to show membership in a federally recognized tribe.6 There is, of course, no official Cablinasian category, nor could Woods claim a Thai or Chinese identity separate from the general Asian category.

Is George Zimmerman, charged with murder—and ultimately acquitted by a jury—in the controversial shooting of Trayvon Martin, best described as Hispanic, half-Hispanic, mixed-race, white Hispanic, or something else?7 With a Peruvian mother, assuming he self-identifies as Hispanic, Zimmerman likely qualifies as Hispanic under every extant relevant federal and state law, unless, perhaps, his mother’s ancestors immigrated to Peru from a non-Spanish-speaking country.8 Some government agencies might also question Zimmerman’s Hispanic-ness based on his German-sounding last name and his (arguably) white appearance;9 some agencies would require him to present affirmative evidence that he considers himself, and is considered by others, to be Hispanic.10

Whether Zimmerman could successfully claim African American status based on his mother’s purported partial African ancestry is less clear.11 Federal law suggests that any amount of African ancestry is sufficient to qualify someone as African American,12 but there is recent judicial precedent to the contrary.13 Some states rely on the National Minority Supplier Development Council (“NMSDC”) for racial and ethnic classification, and the NMSDC requires that a person be one-quarter African American to claim that status.14 Federal agencies would likely accept Zimmerman’s claim of African American status based on an affidavit from him, though he would have to affirm that he holds himself out as African American.15 The NMSDC would demand documentation, such as a driver’s license or birth certificate, listing Zimmerman’s race as African American.16 California, meanwhile, would require birth certificates specifying race from either Zimmerman, his parents, or his grandparents, or three letters from certified ethnic organizations attesting to Zimmerman’s group membership.17 There is no official mixed-race status to claim in any jurisdiction, though the Department of Education now has a category in its statistics for children whose parents say the children belong in two or more racial categories.

Was former NAACP official Rachel Dolezal, the offspring of two parents of European origin, pretending to be Black by identifying as an African American woman? Or was it acceptable for her to adopt an African American identity, given that race is a socially constructed concept and she sincerely adopted an African American identity?18 Under federal and the vast majority of state laws, Dolezal’s lack of African ancestry means that she would be classified as white.19 In Massachusetts, however, the fact that she held herself out as a Black woman and others treated her as such would allow her to classify herself as Black in some contexts.20

Was Senator Elizabeth Warren justified in identifying herself as Native American based on family lore that she has Native American ancestry,21 or was she engaging in “ethnic fraud”?22 Under federal law, Warren’s lack of membership in a recognized tribe means that she is not Native American for most purposes.23 Warren also likely does not come within the definition of “Indian” in statutes that don’t require tribal membership.24 For statistical purposes, including for enforcement of antidiscrimination legislation, the government includes individuals with Native American ancestry who “maintain[] cultural identification through . . . community recognition.”25 In some states, family lore plus self-identification is likely enough for the government to recognize someone as Native American.26

Some of Vice President Kamala Harris’s political opponents have questioned her Black identity. 27 Harris, the child of an Indian immigrant mother and a father of mixed-race heritage from Jamaica, has identified as Black her entire adult life (including attending a historically Black university, Howard University), is identified by others as such, and has African ancestry.28 Given those facts, legal authorities throughout the United States would recognize her as Black and/or African American.

The controversies discussed above were debated in the court of public opinion; no courts or regulatory bodies were asked to rule on the ethnic or racial identity of any of these individuals. Most Americans undoubtedly prefer it that way, understandably tending to blanch at the idea of having the government, at any level, dictate the boundaries of ethnic identity.29 Such determinations are reminiscent not only of Nazi Germany’s and South Africa’s racial obsessions,30 but of America’s sordid past.31 Not long ago, Southern states divided mixed-race individuals into categories such as “octoroons” and “quadroons” to determine whether they were “white” or “colored” by law.32 The U.S. government, meanwhile, engaged in pseudoscience and pseudo-anthropology to determine which people from Asia counted as “Asians” and were thus not legally eligible to immigrate to the United States or become naturalized citizens, and which people from Asia were sufficiently “white” or “Caucasian” to be classified as such.33

Despite Americans’ understandable modern squeamishness at official racial categorization, racial and ethnic classifications are ubiquitous in American life. Applying for a job, a mortgage, university admission, citizenship, government contracts, and much more involves checking a box stating whether one is white, Hispanic, Asian, African American, or Native American, among other extant classifications. 34

Those seeking information about individuals’ ethnicity typically rely on self-identification and voluntary compliance with general norms regarding such identification.35 As noted, however, legal rules dictate whether someone may claim “minority” status in some contexts. This should not be surprising, given that concrete benefits sometimes accompany one’s identification as a member of a racial or ethnic minority group. In the past, given Jim Crow laws, immigration and naturalization restrictions, and other forms of de jure and de facto race discrimination, it was generally considered beneficial to claim a white identity. Today, while invidious discrimination still presents impediments to minorities, claiming a non-white identity can make one eligible for affirmative action preferences.36 While university affirmative action policies receive far more public attention, there is a strong incentive to claim minority status to be eligible for racial and ethnic preferences that influence the award of hundreds of billions of dollars annually in government contracts.37

This Article addresses two distinct but related issues. This Article first discusses the categories that federal and state governments use to define the “official” racial and ethnic minorities in the United States for data gathering, civil rights enforcement, and affirmative action purposes; the boundaries of those categories; and how those categories came to be. The second issue addressed by this Article is what evidence individuals must provide to demonstrate membership in these categories, and how modern courts and agencies have adjudicated questions of racial or ethnic identity when an individual’s claim to minority status has been contested.

Most Americans take the categories of “African American,” “Native American,” “Asian American,” and “Hispanic” for granted.38 Yet there is no inherent logic to using these categories, nor to their precise scope,39 and the same, for that matter, is true of the category “[w]hite.”40 As a federal judge has pointed out, the categories are not consistent with one another: “one group [African Americans] is defined by race, another [Hispanics] by culture, another [Asians] by country of origin and another [Native Americans] by blood.”41

The Hispanic category generally includes everyone from Spanish immigrants (including people whose first language is Basque or Catalan, but not Spanish) to Cuban Americans of mixed European extraction to Puerto Ricans of mixed African, European, and indigenous heritage to individuals fully descended from indigenous Mexicans.42 Members of the disparate groups that fall into the “Hispanic” or “Latino” category often self-identify as white,43 often feel more connected to the general white population than to other Spanish-language national-origin groups, and sometimes diverge from members of other Hispanic demographic groups in political outlook as much or more than from the general white population.44 Moreover, “census data show substantial differences in levels of income and educational attainment among the national origin groups in which data about ‘Hispanics’ are usually classified.”45 Not all Hispanics, meanwhile, consider themselves to be part of a minority group, and “some who claim minority status for themselves would reject [that status] for . . . others” (for example, they might “reject it for well-educated professionals who immigrate from South American countries” and who are considered white in their home countries).46 People of Portuguese or Brazilian ancestry, who are not of Spanish culture or origin, are nevertheless sometimes defined as Hispanic by legislative or administrative fiat.

The Asian American category includes people descended from wildly disparate national groups,47 who have dissimilar physical features, practice different religions,48 speak different languages, vary dramatically in culture,49 and sometimes have long histories of conflict with one another.50 Various subgroups of Asian Americans have differing levels of average socioeconomic success in the United States51—Indian Americans, for example, on average have significantly higher-than-average incomes and levels of education, while on average the incomes of Hmong and Burmese Americans are well-below the American mean.52 Korean Americans have the highest rate of business formation for any ethnic group in the United States, while Laotians have the lowest.53 The Asian category meanwhile excludes people from the Western part of Asia, such as Muslim Americans of Yemeni origin, who may face discrimination based on skin color (often dark), religion, and Arab ethnicity.54 Only a minority of people in the Asian category identify with the “Asian” or “Asian American” labels.55

Under most federal rules,56 the Native American category includes someone of remote Indian ancestry who has inherited tribal membership, while excluding some people with much closer genetic and cultural connections to the Native American community who are not tribal members.57 The question of whether the category of African American should sometimes be limited to descendants of American slaves or include African and Caribbean immigrants and their descendants is increasingly debated, as is the question of whether multi-racial individuals with a non- Black-identified parent should be included in the African American category.58

Classification rules generally were not made by Congress or state legislatures, where they would have been subject to public discussion and debate, but by administrative agencies. These agencies have used their authority to determine which groups are covered by classification rules, as well as how to prove membership in those groups. The modern history of racial and ethnic categorization by the government is therefore an example of, among other things, administrative constitutionalism,59 with the bureaucracy creating important baseline rules for society with little input from elected officials and negligible public debate.

Part I of this Article addresses the origins and development of modern racial categorizations in the United States. These categories arose from categories used for federal antidiscrimination enforcement and affirmative action policies. The federal government has never provided a coherent or comprehensive explanation for why some minorities are deemed to be “official” minority groups and others are not, or for why the various categories have the precise, and often seemingly arbitrary, boundaries that they do.

As documented in Part I of this Article, the scope and contours of official minority status have arisen from a combination of groups being deemed analogous to African Americans in facing race discrimination; bureaucratic inertia; lobbying campaigns; political calculations by government officials; a failure to anticipate future immigration patterns; and happenstance. It was far from inevitable, for example, that Americans with ancestry in the Indian subcontinent or the Iberian peninsula would gain official minority status, but that Arab, Greek, Iranian, Italian, Jewish, and Polish Americans would not.

Part II discusses state variations on the scope of the standard ethnic categories, in particular in the states’ Minority Business Enterprise (“MBE”) programs. Federal law requires states that accept federal transportation funds—that is, all states—to have rules for certifying firms owned by members of designated minority groups as MBEs. MBEs are eligible for presumptive status as Disadvantaged Business Enterprises (“DBEs”) for federally funded contracts. States are permitted to use federal standards for this purpose, but may also create and enforce their own standards, both for participation in federally funded projects and for state purposes. Various states’ rules diverge from federal law in determining who is deemed African American, Asian, Hispanic, or Native American. For example, unlike under federal law, some states exclude persons with Portuguese and Spanish ancestry from the Hispanic category. Other states delegate authority to the

NMSDC to use its own idiosyncratic standards to certify minority status.

This Article next turns to the question of what evidence individuals must provide to demonstrate membership in these categories. Conventional wisdom is that these categories are a matter of self-definition based on informal norms. For federal purposes, this is largely true. Most federal programs require only a signed affidavit attesting that the petitioner for minority status is a member of the claimed group and holds himself or herself out as such.60

States, however, often require documentation before granting minority status. This documentation requirement can be met by providing an official document listing one’s race, providing letters of support from ethnic organizations, or relying on certification by the NMSDC. Part III of this Article discusses the evidence various states demand to support a claim that a petitioner is a member of a designated group.

Perhaps surprisingly, challenges to the under- or overinclusiveness of a governmental definition of the scope of particular racial or ethnic categories are rare. Part IV of this Article discusses the only four such cases this author found. In the first case, the Eleventh Circuit Court of Appeals held that, judged by the rational basis standard, a city’s Hispanic category was neither over- nor underinclusive for equal protection purposes.61 In the second case, the Second Circuit, also applying the rational basis test, held that it was not unconstitutionally arbitrary for New York State to exclude companies owned by people from Spain from its Hispanic MBE category, even though the federal government includes such companies.62 In the third case, the Seventh Circuit held that it was unconstitutionally overinclusive to include immigrants from Spain and Portugal and their descendants in the Hispanic category in Cook County, Illinois’ MBE Program.63 In the fourth case, the Sixth Circuit held that Ohio’s MBE law was both overinclusive in including groups that had not been victims of longstanding discrimination in Ohio, and underinclusive in not including groups that had been.64

Conventional wisdom is that there has been only one case in which an individual’s claim to minority status has been adjudicated in an affirmative action context. The case involved white firefighter brothers named Malone who claimed African American status based on dubious evidence that they had an African American great-grandmother.65 It turns out, however, that the Malone case is the tip of a (small) iceberg.

Part V of this Article reviews cases in which the minority status of a petitioner seeking MBE status for his or her company has been adjudicated. Most of the cases discussed in Part V involve the question of Hispanic status, the boundaries of which have proved especially vexing to administrators and courts. Part VI of this Article turns from racial categorization in the MBE context to adjudication of claims of minority status by individuals seeking to benefit from affirmative action in employment.66

Part VII of this Article notes the existence of laws governing racial identity that are beyond the scope of this Article, in particular laws defining whom the federal government classifies as being an “Indian.”

This Article concludes by noting that laws dictating ethnic and racial categories were designed primarily to assist African Americans overcome the legacy of slavery, Jim Crow, and discrimination. As the United States has become more demographically diverse, however, African Americans are now a shrinking minority of those officially classified as members of racial and ethnic minority groups.67 Given high rates of interracial marriage among other minority groups68 and the reality that mixed-race and mixed-ethnicity individuals can check whichever box most benefits them in a given circumstance, the percentage of non-African American individuals eligible for minority status for affirmative action purposes will continue to grow, putting increasing strains on the current method of categorization. The Conclusion suggests several ways to handle these strains.

*. University Professor, Antonin Scalia Law School, and Executive Director, Liberty & Law Center; B.A. 1988, Brandeis University; J.D. 1991, Yale Law School. For their comments, suggestions, and research leads, the author thanks Charles Barzun, Roger Clegg, Jonathan Bean, George La Noue, Peter Schuck, Michael Rosman, John Skrentny, and John Sullivan. The author benefited from feedback received at faculty workshops at the Antonin Scalia Law School and Northwestern University School of Law. Emily Yu provided excellent research assistance.


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Age Diversity by Alexander A. Boni-Saenz

Article | Anti-Discrimination Law
Age Diversity
by Alexander A. Boni-Saenz*

From Vol. 94, No. 2
94 S. Cal. L. Rev. 303 (2021)

Keywords: Anti-Discrimination Law, Diversity, Civil Rights Law, Public Policy


This Article is the first to examine age diversity in the legal literature, mapping out its descriptive, normative, and legal dimensions. Age diversity is a plural concept, as heterogeneity of age can take many forms in various human institutions. Likewise, the normative rationales for these assorted age diversities are rooted in distinct theoretical foundations, making the case for or against age diversity contextual rather than universal. A host of legal rules play a significant role in regulating age diversity, influencing the presence of different generations in the workplace, judiciary, and Congress. Better understanding the nature and consequences of age diversity allows us to recognize the unique set of costs and benefits it entails and enriches our understanding of other forms of difference. Further, examining the law with an age diversity lens highlights fruitful avenues for legal reform in fields as varied as immigration law, employment law, and the law of juries. In an era of increased intergenerational tension and a rapidly aging population, the time is ripe to evaluate age diversity and the law’s role in shaping it.

* Associate Professor of Law, Chicago-Kent College of Law. abonisae@kentlaw.edu. For helpful questions and comments, I would like to thank Lori Andrews, Susan Appleton, Kathy Baker, Felice Batlan, Naomi Cahn, Sungjoon Cho, Adrienne Davis, Graeme Dinwoodie, Danielle D’Onfro, Dan Epps, John Inazu, Andrew Ingram, Peter Joy, Pauline Kim, Hal Krent, Michelle Layser, Ron Levin, Marty Malin, Nancy Marder, Nancy Morrow-Howell, Greg Reilly, César Rosado, Mark Rosen, Rachel Sachs, Chris Schmidt, Carolyn Shapiro, Peggie Smith, Noah Smith-Drelich, Brian Tamanaha, Karen Tokarz, Andrew Tuch, Deb Widiss, the editors at Southern California Law Review, and workshop participants at the American Association of Law Schools Annual Meeting, Chicago-Kent, the Chicagoland Junior Scholars Conference, and Washington University in St. Louis, where I presented earlier versions of this Article. For valuable research assistance, I would like to thank Jessica Arencibia.


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Genetically Edited Sperm: An Ethical Analysis of the Potential for Modified Humans by Avery Nelson

Note | Healthcare & Life Sciences Law
Genetically Edited Sperm: An Ethical Analysis of the Potential for Modified Humans
by Avery Nelson*

From Vol. 94, No. 1
94 S. Cal. L. Rev. 139 (2020)

Keywords: Healthcare & Life Sciences Law, Biotechnology, Public Policy


People have been striving for human “perfection” for as long as human civilization has existed, sometimes with questionable and even catastrophic results.1 The idea of perfecting the human population led to eugenics, the nineteenth and early twentieth-century philosophical movement to “breed better people.”2 Eugenics ultimately laid the framework for forced sterilization laws in a number of countries, including the United States, where lawmakers prohibited certain people from procreating.3 As appalling as forced sterilization was, eugenics took an even darker turn leading up to and during World War II when Nazi Germany murdered millions in the name of creating a superior Aryan race.4 Adolf Hitler did not come up with the concept of genetic purity on his own.5 “In fact, [Hitler] referred to American eugenics in his 1934 book, Mein Kampf.”6 Although eugenics lost momentum after these atrocities,7 the idea of human enhancement has continued. Today, scientific advancements in gene-editing technology offer a new take on human modification.

Gene editing is a group of technologies that enable scientists to change an individual’s DNA.8 Genetic material can be added, removed, or altered at particular locations in the genome.9 One such gene-editing technique is the revolutionary technology called CRISPR-Cas9, short for “clustered regularly interspaced short palindromic repeats” and CRISPR-associated protein 9,10 which was discovered in 2012.11 In 2013, groups of scientists led by Feng Zhang and George Church used CRISPR to edit human cell cultures for the first time.12 By 2015, Chinese scientist Puping Liang used CRISPR to edit the genes in human tripronuclear zygotes.13 CRISPR has generated much excitement in the scientific community because it is faster and cheaper, as well as more accurate and more efficient than any other existing method to genetically alter DNA.14 This is of particular interest in the prevention and treatment of diseases, because CRISPR has the potential to correct mutations associated with single-gene diseases such as cystic fibrosis, sickle-cell anemia, and hemophilia, as well as complex diseases such as cancer, heart disease, and HIV infection.15

However, CRISPR has rekindled debates about the numerous social, ethical, and policy concerns of genetic manipulation.16 These concerns become even more complicated with germline gene editing, which results in changes in sperm, eggs, or embryos that will be passed on to the next generation.17 Critics of germline editing worry about the potential for “designer babies,” children whose traits, including eye color, height, and even athletic ability, are modified by gene editors at the request of their parent-consumers.18 Genetically modified babies remained speculative until November 2018, when Chinese scientist Dr. He Jankui announced that he had created the world’s first “CRISPR babies,” twin girls named Lulu and Nana.19

To conduct his experiment, Dr. He recruited couples in which the men had HIV infection and the women did not.20 After creating embryos by fertilizing the eggs with the sperm, Dr. He used CRISPR to edit the embryos and disable a gene that helps HIV enter healthy cells, for the purpose of giving the twin girls resistance to HIV.21 Notably, however, “Dr. He admitted that the edit was not successful in one of the embryos, and it is unclear whether it was completely or even partially successful in the other.”22 Dr. He’s experiment generated an outpouring of criticism and hand-wringing from scientists and bioethicists around the world, who labeled him a “rogue” scientist23 whose unethical experiment was “amateurish” and “unconscionable.”24 The safety risks and long-term effects of Dr. He’s experiment will remain a mystery for years to come, meaning the twins will likely be studied for the rest of their lives.25 Although Lulu and Nana brought bioethical considerations of gene editing to the forefront, researchers are still striving to advance CRISPR technology, with one of the most recent developments occurring right now in New York City.26

Currently, reproductive biologists at Weill Cornell Medicine are making the first attempt at genetically editing the DNA in human sperm using CRISPR.27 The controversial research is aimed at preventing genetic disorders that are passed down from men, including certain forms of male infertility.28 The researchers are beginning with a gene that increases the risk of breast, ovarian, prostate and other cancers.29 Because DNA is packed very tightly inside the head of each sperm, it is difficult to insert the microscopic CRISPR tool.30 To overcome this challenge, the Cornell scientists electrically shock the sperm with the goal that the shock will cause the cells to loosen up for a moment so that CRISPR can get inside.31 June Wang, a lab technician conducting the experiments at Cornell, admits that “[i]t’s kind of a weird concept” but states that “it works pretty well.”32

Although the experiments are still underway and are not yet successful, the research raises many of the same hopes—and fears—as editing the genes in human embryos.33 Nevertheless, the researchers defend their work.34 Gianpiero Palermo, who runs the lab where the experiment is being conducted, states, “I think it’s important from the scientific point of view to investigate in an ethical manner to be able to learn if it’s possible.”35 Palermo went on to say, “If we can wipe out a particular gene, it would be incredible.”36 However, Françoise Baylis, a bioethicist at Dalhousie University in Canada who is advising the World Health Organization, expresses the view that editing DNA in sperm raises the same troubling questions as editing DNA in embryos.37 In addition to safety concerns for resulting babies and future generations in the event that the genetically edited sperm is used, there are profound ethical and social concerns about conducting the research in the first place.38 As bioethicist Ben Hurlbut put it,

There’s reason to worry about undertaking the research before we’ve asked the question properly whether we would ever actually want to use those techniques . . . . Once those techniques are developed, it becomes much harder to govern them. If you’ve done the hard work of developing the recipe, someone else can bake the cake.39

The willingness of researchers to develop human uses of CRISPR demonstrates the pressing need to regulate such advancements and, in particular, its possible use to genetically edit human sperm. Part I of this Note will provide a scientific background necessary to understand genetically edited sperm, including a brief history of relevant scientific advancements, a discussion of CRISPR-Cas9 technology, and an explanation of somatic cells and germline cells. Part II will analyze various ethical considerations regarding editing human sperm, including safety concerns, informed consent issues, the debate between treatment and enhancement, and the potential for new forms of social inequality. Part III will discuss the most applicable regulations in the United States under the Food and Drug Administration and National Institutes of Health, and ultimately conclude that as it stands, the law is unprepared for the development of genetically edited sperm. Part IV will propose a resolution to address these concerns, including a federal licensing regime, a call for public engagement, and regulations to mitigate equality and accessibility concerns if sperm editing is commercialized.

* Senior Editor, Southern California Law Review, Volume 94; J.D. Candidate 2021, University of Southern California Gould School of Law; B.S. Finance 2017, University of Florida. I thank my family, friends, and the fantastic editors of the Southern California Law Review for their support and guidance throughout the publication process.


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Walling Out: Rules and Standards in the Beach Access Context by Timothy M. Mulvaney

Article | State Law
Walling Out: Rules and Standards in the Beach Access Context
by Timothy M. Mulvaney*

From Vol. 94, No. 1
93 S. Cal. L. Rev. 1 (2020)

Keywords: State Law, Beach Access, Public Policy

The overwhelming majority of U.S. states facially allocate exclusionary rights and access privileges to beaches by categorically deciding whom to wall in and whom to wall out. In the conventional terms of the longstanding debate surrounding the design of legal directives, such “rules” are considered substantively determinant ex ante and, in application, analogically transparent across similarly situated cases. Only a small number of jurisdictions have adopted “standards” in the beach access context, which—again, on the conventional account—sacrifice both determinacy and transparency for the ability to accommodate ex post the complexities of individual cases. This Article contends that beach access policy illustrates the familiar limitations of this conventional rules-versus- standards account in two elucidating ways. First, the implementation of contemporary beach access law suggests that the gap between rules and standards with respect to the virtue of determinacy is not nearly as wide as the conventional account allows. In short, beach access rules are not and cannot in actuality be divorced from context, while beach access standards take shape through applications that reveal core archetypes. Second, while beach access rules reflect the virtue of transparency in the sense that they minimize some forms of arbitrariness, standards offer their own, robust version of transparency, which is grounded in promoting dialogue and demanding accountability. The Article offers these contentions not to press the view that standards are necessarily superior to rules en masse, but, instead, to prompt reflection on the nearly uniform and seemingly impulsive rule fetishism that has held sway in the beach access context.

*. Professor of Law and Associate Dean for Faculty Research, Texas A&M University School of Law. Thank you to Gregory Alexander, Vanessa Casado Pérez, Hanoch Dagan, Nestor Davidson, Eric Freyfogle, John Lovett, Nadav Shoked, Joseph Singer, Laura Underkuffler, Brian Weeks, and Katrina Wyman for commenting on earlier drafts of this Article, and to Cole Watson for diligent research assistance. Thanks, too, to Donna, Eugene, Patrick, Jacob, and Blake Mulvaney, Ashley, Tristan, and Ryan Hedrick, Christopher, Arthur, and Amy McCann, Kevin Tray, Michael and Robert Lowe, Paul D’Elia, Edward, Mary, and Allison Norcia, Andrew Martin, Bryan Wallach, Mark Lindquist, Doug Forken, Ryan Morra, Eleanor Hish, David Manzo, James Courtney, Christopher Lilien, Robert Leichte, Chris Seiler, Marc Buttacovoli, Mary Spanburgh, Anthony Casale, Matthew Smith, Maria Dunlap, Benjamin Greer, Craig Irrgang, Maikel O’Hanlon, Matthew Duffy, John Bramlette, Richard Billings, Kevin Gregory, Matthew Popowsky, Michael Newshell, Ashley Reichelman, Michael Hazlet, and Brian Gardner, and the many others along the way who participated in and contributed to the Habitat Paddle to Build project that served as inspiration for this Article. I benefitted from the opportunity to present various iterations and components of this manuscript at Cornell Law School, Harvard Law School, Maastricht University, the University of Cambridge, the University of Edinburgh, and the University of Michigan Law School.

Early Childhood Development and the Law – Article by Clare Huntington

From Volume 90, Number 4 (May 2017)

Early childhood development is a robust and vibrant focus of study in multiple disciplines, from economics and education to psychology and neuroscience. Abundant research from these disciplines has established that early childhood is critical for the development of cognitive abilities, language, and psychosocial skills, all of which turn, in large measure, on the parent-child relationship. And because early childhood relationships and experiences have a deep and lasting impact on a child’s life trajectory, disadvantages during early childhood replicate inequality. Working together, scholars in these disciplines are actively engaged in a national policy debate about reducing inequality through early childhood interventions.

Despite the vital importance of this period, the law and legal scholars have been largely indifferent to the dynamics of early childhood development. Doctrine and legislation are rarely developmentally sensitive, lumping children into an undifferentiated category regardless of age. The legal system thus misses key opportunities to combat inequality and foster healthy development for all children. And most legal scholars do not engage with the wealth of interdisciplinary research on early childhood, nor are they part of the interdisciplinary dialogue and policy debates. As a result, that conversation does not include the voices of lawyers and legal scholars, who are uniquely positioned to add critical insights.

Remedying this stark disconnect requires doing for law what scholars have done in other disciplines: creating a distinctive field. Accordingly, this Article proposes a subdiscipline of early childhood development and the law. The new field crystallizes a distinctive interest that the legal system must attend to and charts a path for legal scholars to follow for years to come. As with the dawning of fields such as juvenile justice, domestic violence, and elder law, early childhood development and the law will be a focal point for research within the legal academy, a vital bridge to scholars in other disciplines, and an important means for bringing lawyers and legal scholars to the heart of emerging policy debates.



Negative Identity – Article by Nancy Leong

From Volume 88, Number 5 (September 2015)

This Article examines the social and legal status of “negative identity”—identity marked by indifference or antipathy to something that much of society considers fundamental. As examples of negative identity, the Article considers those who identify as atheist, asexual, single, or childfree. 

The Article begins by giving content to negative identity. Atheist, asexual, single, and childfree identity consists of more than merely the respective lack of religion, sexual attraction, partnership, or children. Rather, these negative identities are meaningful to group members, add value to society, and thus deserve legitimacy and respect. Unfortunately, respect is not always forthcoming: negative identity group members experience significant animus, discrimination, and marginalization.



Is California Committed?: Why California Should Take Action to Address the Shortcomings of its Assisted Outpatient Commitment Statute – Note by Andrea Reynoso

From Volume 88, Number 4 (May 2015)

The history of the treatment of mental illness in the United States is anything but simple. While both social and scientific understanding of mental illness have developed tremendously in recent decades, there remain significant barriers to implementing effective treatment and rehabilitation programs for people with mental illness. Inherent in this intersection of law and mental health is the delicate balance between preserving liberty and autonomy interests on the one hand, and providing for individual and societal safety on the other. This balance is not easily achieved and remains the core debate surrounding much of today’s mental health legislation.