State & Local Government Law
Save the Cities, Stop the Suburbs?
116 Yale L.J. 598 (2006) Sprawl: A Compact History BY ROBERT BRUEGMANN CHICAGO: UNIVERSITY OF CHICAGO PRESS, 2005. PP. 306. $27.50 The City: A Global History BY JOEL KOTKIN NEW YORK: MODERN LIBRARY CHRONICLES, 2005. PP. 256. $21.95
Can Strong Mayors Empower Weak Cities? On the Power of Local Executives in a Federal System
This Essay considers the historic weakness of the American mayoralty and recent reform efforts designed to strengthen it. I argue that the strong mayoralty is a potential instrument for democratic self-government to the extent that it is able to amass power on behalf of the city.
Why (and When) Cities Have a Stake in Enforcing the Constitution
115 Yale L.J. 2218 (2006) This Essay examines independent constitutional interpretation from the bottom up. It focuses on San Francisco's recent challenge to the California ban against same-sex marriage and the judicial response it provoked in Lockyer v. City & County of San Francisco. The Essay argues against the conventional view that cities either have no distinctive role in interpreting the Constitution or that their interpretations should be considered suspect, even dangerous. But it also contends that cities should generally be permitted to decline to enforce state laws on constitutional grounds, or to challenge their constitutionality in court, only when they do so in order to expand the scope of local policymaking discretion. Thus, the Essay concludes that the problem with San Francisco's disregard of California's marriage laws was not (as the California Supreme Court suggested in Lockyer) that its action was too localist, but rather that it was not localist enough. San Francisco was not seeking freedom from state law so that its officers could adopt a distinct, local marriage policy for San Franciscans. Instead, the city claimed that higher law required all local officers to grant, rather than deny, licenses to same-sex couples seeking to marry. Thus, while San Francisco may have seemed to strike a blow for city power when it took the Constitution into its own hands, a deeper consideration of the controversy suggests that advocates of decentralization should have little reason to cheer the city's actions.
Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Ports of Entry
115 Yale L.J. 1564 (2006) Legal theorists are engaged in understanding the legitimacy of techniques by which principles of rights-holding travel across borders. Sovereigntists in the United States object to that migration. The history of both protest about and the incorporation of "foreign" law provides important lessons for contemporary debates. Through examples from conflicts about slavery, the rights of women, and the creation of the United Nations, I chart the anxiety occasioned when American law interacts with human rights movements. At times, through silent absorption rather than express citation, some of the "foreign" sources become lost in translation, and the new rights become constitutive elements of "American" identity. To conceive of these debates as engaging only questions of national boundaries is, however, to miss the reliance on federalism as a justification for declining to participate in transnational rights work. Yet America's federalist structure also serves as a path for the movement of international rights across borders. As illustrated by the adoption by mayors, city councils, state legislatures, and state judges of transnational rights stemming from the U.N. Charter, the Convention to Eliminate All Forms of Discrimination Against Women (CEDAW), and the Kyoto Protocol on global warming, the debate about transnationalism is deeply democratic, with significant popular engagement reframing American norms. Such local government actions require revisiting legal doctrines that presume the exclusivity of national power in foreign affairs--as that which is "foreign" is domesticated through several routes.
Rehabilitating Rehab Through State Building Codes
115 Yale L.J. 1744 (2006) Building codes are not neutral documents. Traditional codes have the effect of deterring the rehabilitation of older structures. But rehabilitation--which can have many positive effects, especially on cities--should be encouraged, not deterred. One promising method of encouraging rehabilitation has been the adoption of "rehabilitation codes": building codes that establish flexible but clear requirements for renovators. After analyzing traditional building codes and three different rehabilitation codes, this Note concludes that more states should adopt mandatory rehabilitation codes.
The Secret Ambition of Racial Profiling
115 Yale L.J. 491 (2005) In 2000, a year after the shooting of Amadou Diallo, a select committee of the New York City Council held a series of meetings in the Bronx to address police-community relations. The committee intended the meetings "to open a dialogue between police officers and city residents, perhaps even repair relations," but the first meeting degenerated into a torrent of accusations from over two hundred attendees on police mistreatment of African-Americans. "[O]ne resident after another relat[ed], with a mixture of passion and anger, humiliating encounters with the police" that they attributed to their race. By the end, police officers could do nothing but sit quietly and hear out the people they were supposed to serve. The meeting failed for a simple reason: The committee placed too much faith in the power of open dialogue and overlooked the bitterness then underlying any discussion of police-minority relations. A similar problem afflicts R. Richard Banks's Beyond Profiling: Race, Policing, and the Drug War, which criticizes the current debate over racial profiling for focusing too much on profiling's alleged irrationality. For Banks, the argument that racial profiling is irrational is mere masking rhetoric, obscuring underlying grievances about the consequences of profiling for minorities and minority communities. Banks urges opponents of racial profiling to debate these grievances openly rather than cloak them with claims of irrationality. This Comment argues that Banks does not properly take into account the dangers of open dialogue. Dan Kahan pointed to these dangers six years ago in The Secret Ambition of Deterrence, which argued that masking rhetoric is sometimes necessary to avoid conflicts over controversial topics. After providing background on the two articles, I argue that the debates Banks wants us to have about racial profiling are prone to the types of value conflicts that Kahan identified in Secret Ambition. I conclude that progress is possible if we forego Banks's contentious debates: The current rhetoric on racial profiling, despite its many weaknesses, enables us to make limited but important reforms.
The Tenth Amendment and Local Government
This Comment posits that the Constitution may well carve out a limited space for the people to express themselves and exercise certain powers through local self-government—without interference by the state. More specifically, the Tenth Amendment endows the people with the right to choose and define their local government.
Homes Rule
112 Yale L.J. 617 (2002) In this important new book on local governance, economist William Fischel presents and defends a deceptively simple and intuitively resonant proposition: "that homeowners, who are the most numerous and politically influential group within most localities, are guided by their concern for the value of their homes to make political decisions that are more efficient than those that would be made at a higher level of government." The book makes both positive and normative claims about the workings of local government. The positive claim can be boiled down to two words: Homes rule. The home represents most homeowners' single largest asset, an undiversified holding subject to uninsurable drops in value. In Fischel's account, homeowners are driven to wield their considerable political power in the manner that will maximize the value of this asset. He dubs these property-value-conscious homeowners "homevoters" to emphasize the link between their home ownership and their political behavior. The normative claim can be approximated with the addition of an exuberant exclamation point: Homes rule! Fischel reins in his enthusiasm for the outcomes generated by risk-averse homevoters in the final chapter, but the book generally smiles on the results that flow from allowing home values to dominate the political process. Thus, Fischel undertakes to show us not only how local politics works, but also how well local politics works--at least when evaluated using the criterion of efficiency and when considered in comparison with the available alternatives. A homeowner will generally make socially responsible political decisions, Fischel argues, because anything that affects the community will ultimately be reflected in her home's value through capitalization. While one need not accept Fischel's normative points to appreciate his positive ones, the normative tilt of the book is integral to the analysis and indeed appears to have been an important catalyst for the work. Drawing on decades of his prior work, Fischel formulates a careful, thoughtful, and well-supported apology for local government. By the time Fischel confronts some of the failures of local government in the final chapter, there is no doubt that the "tough love" reforms he prescribes are based on real, abiding, and well-considered appreciation. This is clearly a form of governance that he wants to see survive. Fischel's book reflects genuine affection not only for the subject of his study--local government--but also for the scholarly undertaking itself. He writes in an entertaining and accessible style and deftly synthesizes much of the current legal and economic scholarship on local governance. Not content to theorize abstractly from the armchair, Fischel goes out to real places and sniffs things out (sometimes quite literally) to see whether his claims square with conditions in the real world. Whether or not one ultimately agrees with Fischel's arguments, the book is an eye-opening analysis that challenges the conventional wisdom about local government and offers a powerful template for rethinking the way municipalities function. The plan of the book is both straightforward and ambitious. In the first four chapters, Fischel explains his homevoter-driven model of local government, working systematically through discussions of capitalization, zoning, the Tiebout hypothesis, and the theory of the median voter. In the next six chapters, Fischel takes his model out into the real world to see how well it works (both in terms of explanatory power and in terms of generating normatively desirable results), scrutinizing the model's applicability to such issues as environmental quality, school funding, and metropolitan sprawl. In the final chapter, Fischel takes a harder look at local government, acknowledges many of the real and unresolved problems of localism, and outlines some ideas for reform. Here, he acknowledges that homevoters may be too risk-averse for their own (and everyone else's) good, and explains that their obsessive fixation on property values can at times yield suboptimal outcomes. Fischel's well-crafted explication and defense of local government is subtle, perceptive, and quite persuasive. My reservations about the hypothesis involve a cluster of concerns that fall under the general rubric of distributive justice. Although Fischel gives some attention to these concerns, existing inequities in the provision of local public goods are far more troubling than his analysis would suggest. These inequities cannot be dismissed as regrettable by-products of an efficiently operating market-oriented system. Despite the rhetoric of free consumer choice that often surrounds localism, the fragmented and stratified forms of local control that exist in America today are extensively shaped by government intervention. In this Review, I work through some of the central themes presented in Fischel's book as they relate to the distributive consequences of localism. Significantly, the distributive concerns I raise are also symptomatic of inefficiencies that directly bear on Fischel's efficiency-based normative defense of local government. In Part I, I focus on the background conditions necessary to the operation of Fischel's model and take a closer look at his "homevoters" and their portfolio choices. In Part II, I examine the distributive issues implicated by the model and explain how these distributive concerns correspond to inefficiencies in Fischel's model. In particular, I explore the role played by homeowners' preferences about the people with whom they will be consuming local public goods and the ways in which those preferences--and the socioeconomic stratification that results--can profoundly affect home values, exclusionary zoning choices, locational decisions, and the quality of the local public goods themselves. Because exclusionary choices can push costs across jurisdictional boundaries within a metropolitan region, homeowners' decisions about exclusion are likely to be suboptimal. In Part III, I evaluate Fischel's ideas for reform by assessing their traction in addressing these distributive concerns.
Categorical Federalism: Jurisdiction, Gender, and the Globe
111 Yale L.J. 619 (2001) An absence of bounded categories may be unsettling but, in lieu of (false) comfort, multi-faceted federalism offers something else, hopefully more useful if less supportive. Under the rubric of multi-faceted federalism, the deployment of categories is accompanied by a sense that they are neither exclusive nor necessarily enduring. With an understanding that "the local" and "the national" are not naturally bounded sites, multi-faceted federalism serves as a reminder about how much work is required to make democratic institutions accountable, at any level. The diminished clarity of physical boundaries becomes an invitation to renew interest in the work of local, subnational, and transnational structures, to interrogate current practices, and to imagine new ones. Freed from a sense of siege and a desire for fortifications, inquiry can proceed about the vitality of the United States's institutions and the array of joint ventures that subnational organizations have created. How could federalism discussions change? First, United States history ought to be retold to recognize the impressive contributions of local political structures. Rather than reading this century as a triumph of the national on the one hand or as a narrow escape from federal overreaching on the other, the persistence of local governance structures should be highlighted. Take the example of Indian tribes, which, in the face of federal efforts expressly aimed at "termination" of tribal identity, have had force sufficient to require return of tribal artifacts and the fulfillment of treaty obligations. Consider also the powerful role of states and cities, which, as demonstrated by the election of 2000, remain central players in national elections. Not only have local forms proven to be notably resistant to collapse through nationalization, they have also generated a range of national but not federal institutions. Indeed, as Theda Skocpol comments, the layers of federalism with its multiple sites of power create an "opportunity structure" that has made the United States specially nurturant to an array of associations. Thus, and second, we ought to pay more attention to the legal and political import of the many forms of federalism extant within this country. One important example is the interstate compact, which permits lawful means for joint ventures between contracting states. A classical use of compacts has been to resolve border disputes. But dozens of compacts now do more, ranging from sharing natural resources to managing transportation systems to administering economic programs. The use of compacts increased during the twentieth century, and a greater number and more varieties (including interstate agreements that do not result in formal legal compacts) are likely in the coming years. Attention to such agreements opens up possibilities for legislative innovation. For example, why assume that a new cause of action for VAWA victims could only exist in a state or a federal court? State court systems might coordinate their responses to victims of gender-based violence, as they already coordinate the movement and transfer of prisoners, and as they have begun to do in response to certain kinds of multistate actions such as mass torts and consumer products litigation. Further, in an array of such aggregate litigations (including a school desegregation case in Baltimore, asbestos claims in New York, and environmental injuries in Alaska), state and federal judges have crossed jurisdictional lines to respond to shared problems. A comparable joint venture, drawing on state courts' claimed advantages from working directly with families in disarray and on federal courts' association with equality law, could be forged to address violence against women. In addition to prompting invention, awareness of interstate compacts and judicial joint ventures ought to prompt sustained investigation into the allocation of power within such agreements. Who has decisionmaking power? What patronage arrangements are facilitated? Should law and policy create incentives for or strictures on making such accords? For example, should multistate agreements be channeled through the compact model, requiring congressional approval, or ought we be supportive of more diverse and less formal forms of such contracts? Should legal rules, such as the presumptive longevity of interstate compacts and the current formal barriers to joint venturing by state and federal judges, be restructured? Compacts could be conceived either as threats to the intelligibility of states or as a kind of "morphing" of states, in issue-specific arenas, to take into account subject matters that do not track state boundaries. Responsive policymaking ought to depend on a thicker understanding of the degree to which formal compacts enhance the visibility and accountability of governing structures, as well as better empiricism on the frequency and form of noncompact multistate agreements. The central question is the degree to which compacts enhance or impede democratic goals identified with state-based federalism, including accountability and participation. Third, as joint and interactive decisionmaking becomes the subject of lawmaking, conflicts should be addressed under the rubric of preemption doctrine. Given that state and federal laws address aspects of family law or international relations, the issues become narrowed to whether, in a particular circumstance, legal regimes can cohabit and whether one set of rules needs to be set aside. These focused inquiries would require judges to retreat from their forays into global political theory and thin historicizing. Instead, they would have to detail how and why joint governance was or was not possible in a specific context. Crosby, the Court's decision in the Massachusetts Burma case, is exemplary of this preferable, albeit more mundane and less powerful, role for judges, confined to discussion of the degree to which redundant or overlapping governance can be tolerated in a particular instance. That such decisions do not etch clear lines for all further lawmaking becomes their virtue, as adjudication becomes appropriately "local" in the sense of being limited by legal rules applied to discrete factual circumstances. Of course, preemption is not a magic bullet. Freewheeling Justices can impute intent to legislation and hence enhance their powers, but the methodology--examine statutes, apply facts, presume concurrency--cabins the reach of even the adventuresome. Fourth, in addition to looking within the United States to survey and to analyze the range of federalism here, multi-faceted federalism may draw on lessons from abroad. The challenges of coexisting and coextensive legal regimes are common to all federations, which must address when to permit shared "competence" and when to require preemption. While one cannot transport one federation's solution to another, countries can learn of the plausibility of particular delineations of authority. Take, for example, the increasing and formalized position of NGOs in the United Nations, which permits these nongovernmental groups to have a place in some official meetings. In 1948, 41 NGOs played an official consultative role; in 1993, 978 did so. Scholars of NGOs argue that the increased prevalence of NGOs should prompt a revision of theories about how authority and power are exercised. What role NGOs play in the United States has been given less attention. For example, might the National Association of Attorneys General be understood as an NGO, representing segments of state interests distinct from those presented through senators and members of Congress? Should the work of a host of such organizations become a part of political policymaking through formalized roles? What are the positive and the perverse effects of commingling or disaggregating the idea of "state interests" and states' decisional authority? In short, once willing to let go of categorical federalism's strictures, opportunities for invention multiply. The options are great because political practitioners are engaging in a range of group-based actions, enlisting the local, state-level, national, and transnational, the governmental and the nongovernmental, and whatever other entities they can, all to bring them closer to whatever their aspirations may be. Fifth, multi-faceted federalism makes more difficult the valorization of certain levels of government as specially able to get any particular social policy "right." Take the claim that the "national" is a venue committed to civil rights and that the federal courts are specially able to implement such commitments. Relying on the symbolic capital of a link between national lawmaking and civil rights, VAWA proponents argued that it was a traditional function of the national government to protect equality and to do so by vesting federal judges with jurisdiction. But that "tradition" was painfully incomplete when the country was founded, invigorated after the Civil War, then dismantled, then renewed, and now called again into question. The identity of the federal courts has shifted during the twentieth century--at times courts have been seen to be institutions of oppression (by labor and other populists) and at other times perceived to be institutions of salvation (by civil rights claimants). Both state and national constitutions speak of their commitments to equality, as do many other countries' constitutions and many international declarations. But to embody equality requires recommitment of national law in that direction, not simply the invocation of the nation as if it has intrinsically and inevitably allied itself with practices of equality. To equate the "local" with progressive human rights movements would also be erroneous. Above, I discussed a series of local innovations--focused on forced labor, land mines, apartheid, and women's rights--cheerfully allied with transnational human rights movements. But another group of local activities in the United States stands in opposition to such efforts and has been the brunt of targeted criticism from abroad. For example, the "local" in the United States has insisted on its right to execute individuals, juveniles included, despite transnational efforts to ban capital punishment. The phrase "states' rights" has been a shorthand for hostility to African Americans. Localities have also enacted ordinances aimed at limiting rights of lesbians and gays and of immigrants. In short, multi-faceted federalism counsels against assuming that either "the national" or "the local" has an intrinsically rosy glow. In parallel fashion, while CEDAW has been discussed as a powerful example of the possibilities of transnationalism to improve gender relations, neither transnational lawmaking nor globalism is necessarily an engine of equality. Indeed, some current expressions of globalization do significant harm to women. An oft-cited example is that offshore manufacturing is made attractive by the unending supply of impoverished female workforces, seeking to survive through a range of underpaid jobs. I claim no essence for globalization but only its existence, in that physical distances which had previously precluded certain forms of interactions no longer serve that function. What globalization--under current market and political conditions--has done is promote interest in forms of governance that regulate transactions outside and beyond the nation-state. That interest, in turn, has generated new opportunities for women to advance equality claims. Equality is not a necessary outcome of federating, but with the formulations of new structures come opportunities for alternative allocation of power. Gaps in governance are spaces in which all power-seekers, be they entrenched or newly fabricated, try to gain toeholds. And in this era, women's rights and human rights advocates have prompted governance institutions to make statements of commitment to equal treatment. That women have windows of opportunity to participate in generating laws does not necessarily result in laws good for all women. Serious questions, constant within feminism, remain about how to shape such equality demands and about which women will benefit. The category "women"--like the others discussed herein--is neither unitary nor necessarily permanent. Indeed, proponents of many forms of affirmative action deploy categories of identity in the hope of their future incoherence. Further, provisions that may benefit one group of women may not serve others of differing classes and races. The debates about the enactment of VAWA addressed such concerns. Transnational rights advanced in the name of women must also be interrogated to understand how their applications vary. Moreover, words about equality committed to paper in transnational documents such as CEDAW do not necessarily translate into conditions of equality in the lives of women and men. For example, some of the 165 countries that have ratified CEDAW have conditions oppressive to women more detrimental than those in the United States, a country that has not ratified CEDAW. Further, even when countries ratified CEDAW, they did so with unusually high numbers of reservations. In addition, CEDAW has limited means of implementation. CEDAW constitutes an achievement of significant legal and political proportions, but its translation into practice has not fully materialized. Similarly, I make no claim that international organizations are particularly receptive to women's rights; indeed, some are notoriously poor places for women to work. Nor are NGOs a glorious alternative, as they often not only reflect gendered allocations of work and authority but risk reinscribing them. Rather, globalism offers a contested political space, an interesting, additional place of potential power, of shifting categories and of new organizations. Proponents of women's rights have had the occasion to work in that venue and have been able to bring attention to injuries and their sources that heretofore were not of great interest to international institutions. A contemporary account can properly point to the correlation between expressions of human rights and certain transnational efforts made possible by historically specific conditions but ought not to lapse into essentializing any level of governance as intrinsically a source of equality norms. Moving toward a multi-faceted approach thus requires a willingness to face such complexities. The nation-state has been the means of governance for some three centuries, and for each harm that form of government has generated, a benefit can also be detailed. The perceived desirability of shifts that diminish the import of the nation as the key unit of governance depends in part on empirical assessments resting inevitably on debatable databases and a host of unknowns. If the nation no longer serves as a unit of accountability, if (for example) within the United States the "one voice" doctrine of international law relaxes, will a larger role for regions and localities do harm to the political stability of the United States and whatever human rights agendas it espouses? Might categorical federalism be a better route to import evolving equality norms into United States jurisprudence, based on an understanding that international law is itself a part of national law and therefore could preempt divergent state practices? Are international human rights obligations assigned at the national level at risk if localities gain prominence and the reliance on national borders diminishes? These questions are not, of course, novel or unique to the United States. Every federation is an ongoing experiment in how to maintain accountability and distinctive agendas concurrent with the reduction of the saliency of borders. While at one time, physical power and physical space provided at least temporizing answers that made plausible that unity of power (democratic or not), those boundaries no longer have the capacity to contain. The argument is not that place is irrelevant. The local is very much present in each person's life, manifested by the persons with whom one forms families and communities, by the weather systems that shape daily routines, and by the regions that are proximate and offer either friendship or hostility. But the boundaries of a given nation no longer control markets and can no longer promise physical security. In a parallel fashion, the family unit (predicated on very undemocratic power) once controlled goods, services, and people. The revolt against patriarchal families also ruptures the ability to confine familiar relationships to only certain kinds of pairings and offspring. The litigation about the civil remedy in VAWA raised an enduring problem of United States constitutional law about how to divide the power of judgment between courts and legislatures and, to a lesser extent, between states and Congress. The majority sought to answer by turning back to old images of state boundaries and to worn equations of jurisdiction and gender. The assumptions that located certain forms of action in the nation and other forms of action in local institutions have been overtaken by the permeability of institutions, both large scale political and small scale familial. Therefore, a retreat to those categories becomes a willed but unsuccessful effort to buffer oneself and one's country from the transformations with which one has to live. One cannot essentialize particular forms of federated governance as guarantees of certain outcomes or particular kinds of family relationships as generative of human growth. In the end, neither categorical nor multi-faceted federalism provides solutions to the problem of democratic organization and accountability. These are but the forms that may, depending on the content and meaning humans import to them, serve such ends.
Abolition Without Deliverance: The Law of Connecticut Slavery 1784-1848
111 Yale L.J. 183 (2001) According to American public memory, slavery in the United States was peculiar to the South. Unless explicitly reminded of the North's history of slavery, most Americans associate the North with abolitionists rather than slaveholders. Alongside this public memory is the work of professional historians that recognizes that slavery existed in the North during the colonial era but asserts that it was abolished during the late eighteenth century. According to such scholarship, as the Revolutionary War brought ideas of natural rights to the forefront of the American consciousness and as economic realities made Northern slavery increasingly unprofitable, states north of Maryland eliminated slavery through a series of legal measures. Some scholars who advance this narrative portray the abolition measures adopted by most Northern states as immediate and comprehensive, as though these measures effectuated the near-instantaneous eradication of slavery in each state that adopted them. In fact, though the number of slaves in the North declined after the Revolutionary War, slavery continued to exist there well into the nineteenth century. Between 1777 and 1804, all of the states north of Maryland did take steps that would eventually doom slavery within their borders. But only in Massachusetts, Vermont, and New Hampshire were slaves emancipated relatively swiftly, and even in these states abolition measures were ambiguous and their implementation inconsistent. In Pennsylvania, New Jersey, New York, Connecticut, and Rhode Island, state legislatures adopted gradual abolition legislation, which dismantled slavery over a period of half a century. Even histories of the North that distinguish gradual from immediate abolition tend to depict the former as an event rather than as a process. Some accounts elide the decades between the enactment of gradual abolition laws and slavery's actual extinction, as though slavery during this period were unworthy of remark because it was in decline. Other works minimize or foreshorten the history of Northern slavery after the adoption of gradual abolition through imprecise language and sweeping generalities. Still other works ignore the mechanics of gradual abolition laws and their effect on slaves entirely. Historians' cursory treatment of this transitional era insinuates that gradual abolition laws produced slavery's straightforward and timely demise and promotes the image of Northern slavery as fleeting and anomalous. Using Connecticut as a case study, this Note begins where the traditional narrative concludes. Unlike the standard histories of African Americans and of slavery in Connecticut, this Note probes the law of slavery between 1784, when the state adopted gradual abolition, and 1848, when the state's last slaves became free. In particular, this Note challenges the standard account of Connecticut abolition in three respects. First, it presents evidence that Connecticut's 1784 Gradual Abolition Act did not remove slavery from the state in a prompt and orderly fashion. In Connecticut--as in all of those states north of Maryland and south of Massachusetts that enacted gradual abolition laws--slavery's termination was protracted and idiosyncratic. Second, the Note demonstrates that Connecticut's Gradual Abolition Act, while central to the decline of slavery in the state, was only one of several legal and extralegal developments that together caused slavery to disintegrate. Third, this Note considers the experience of Connecticut slaves and their children in the wake of gradual abolition; it examines slavery's stubborn hold on people even as it slowly decayed. Part I examines Connecticut's Gradual Abolition Act of 1784 and reveals that the law freed no slaves. It did promise eventual freedom to the future-born children of slaves, but, under the law, even these beneficiaries remained in servitude until the age of twenty-five. The law reflected the legislature's intent to end the institution of slavery in the state in a way that respected property rights and preserved social order. Part II challenges the notion that the 1784 law alone extinguished slavery in Connecticut. The population of slaves did decrease after 1784, but only because the Gradual Abolition Act was combined with other legal developments, both legislative and judicial, that so cut off the supply of new slaves as to ensure slavery's atrophy. Despite these legal restrictions, individuals continued to introduce new slaves into Connecticut through a variety of means, both lawful and unlawful. Furthermore, neither the 1784 law, nor any other law, emancipated living slaves. These slaves' sole hope for freedom was the voluntary acts of slaveholders. To the extent that statutory law addressed such manumissions, it discouraged rather than promoted it. Part III explores the effect of the Gradual Abolition Act on Connecticut slaves. Even after the enactment of gradual abolition, slaves remained subject to the wills of their masters and constrained by a slave code, a legal regime that controlled and managed slaves. In some senses, the 1784 law made slave life more uncertain because the law created incentives for slaveholders to export their bondspeople from Connecticut. Part IV shows that even the future-born children of slaves, to whom the Gradual Abolition Act promised freedom, did not experience unmitigated salvation. For twenty-five years, such individuals remained "in servitude," bound to their mothers' masters in a state of near-slavery, the contours of which were unsettled. Part V concludes with a summary of the Note's principal arguments and seeks to orient its analysis of abolition in Connecticut within the context of scholarship about Northern abolition more generally. The Gradual Abolition Act of 1784 did not neatly lift slavery from the social landscape of Connecticut. Nor did the Act initiate a linear process of abolition. If one keeps an eye on the law and an eye on those whom its vagaries affected, one begins to discover a turbulent story. Certainly, when measured against the alternative of perpetual slavery, the 1784 statute was a monumental achievement. However, through the eyes of both slaves and free black people, and of those who existed--as this Note will show--in between, the decades following the 1784 Act were bittersweet at best. The slaves who lived during these generations lived in a world of social limbo; for them, "abolition" ushered in an era of confusion and ambiguity rather than unqualified deliverance.
The Kabuki Mask of Bush v. Gore
111 Yale L.J. 223 (2001) Is law merely Kabuki politics? Many critics consider the Supreme Court's recent foray into electoral matters, Bush v. Gore, as resounding evidence that it is, with concerns for equality and electoral deadlines constituting the "conservative" Justices' masks. These critics point to flaws in the equal protection argument, the "conservative" Justices' decision not to remand the case to determine appropriate vote-counting standards, and the irony of the pro-federalism Rehnquist Court's intervention in a state supreme court's interpretation of state law. They conclude that political animus must explain the result. In this Case Note, I assume arguendo that the equal protection critiques are valid (even though some disagree ). I nevertheless seek to justify the Court's equal protection holding, not as correct on its own terms, but as a vehicle through which the Court addressed a likely First Amendment freedom of association violation. The real problem was not that the difference between standards was inherently too large but rather that political partisanship (i.e., viewpoint discrimination) may have caused it. In particular, I focus on how the absence of specific standards guiding permissible legal votes--when the instrumental effect of a county's choice of recount standard was immediately apparent--provided counties with an opportunity to try to manipulate the election results. The risk of viewpoint discrimination arose because the county canvassing boards in predominantly Democratic counties, such as Broward (on which I focus in this Case Note), knew that Gore would lose if the pre-recount vote held. There was a substantial possibility that Broward's Democratic agenda may have caused it to choose a more lenient vote-counting standard in order "to maximize the number of recovered votes." Even if the resulting standard were applied equally to Bush and Gore votes (which I presume to be true), this partisan choice of standards would--for reasons that I explain--unconstitutionally restrict Bush voters' freedom of association by intentionally providing Gore with a relative gain. Part I explains the bare-bones facts pertinent to this Case Note and briefly restates the Court's equal protection holding. Part II discusses the doctrinal underpinnings of freedom of association analysis. Part III describes how Bush v. Gore would have presented a unique but cognizable--and potentially meritorious--relative restriction of association.
Deliberative Trouble? Why Groups Go to Extremes
110 Yale L.J. 71 (2000) In this Essay, I have discussed the phenomenon of group polarization and explored some of its implications for deliberation generally and deliberative democracy in particular. The central empirical finding is that group discussion is likely to shift judgments toward a more extreme point in the direction indicated by the median of predeliberation judgments. This is true if a group decision is required; if individuals are polled anonymously afterwards, they are likely to shift in precisely the same way. The underlying mechanisms are twofold. The first involves people's desire to stand in a particular relation to the group, perhaps for reputational reasons, perhaps to maintain their self-conception. Shifts occur as people find that it is necessary to alter their positions in order to maintain their self-conception or their desired relation to the group. The second mechanism involves limited "argument pools," as members of groups with a certain initial tendency typically hear a large number of arguments in support of that tendency, and few arguments in the other direction. When arguments are skewed toward a particular point of view, group members will move in the direction of that point of view. In a finding of special importance to democratic theory, group polarization is heightened if members have a sense of shared identity. And in an equally important finding, group polarization is diminished, and depolarization may result, if members have a degree of flexibility in their views and groups consist of an equal number of people with opposing views. In the abstract, and without knowing anything about the underlying substance, it is impossible to say whether group polarization is good or bad. But the mechanisms that underlie group polarization raise serious questions about the view that deliberation is likely to yield correct answers to social questions. Like-minded people engaged in discussion with one another may lead each other in the direction of error and falsehood, simply because of the limited argument pool and the operation of social influences. This point very much bears on deliberation within insulated groups and hence on emerging communications technologies, which allow a high degree of individual filtering; insulation and filtering can compound error. The point also bears on the design of deliberating courts, legislatures, and regulatory agencies. Above all, an understanding of group polarization helps explain why like-minded people, engaged in deliberation with one another, sometimes go to astonishing extremes and commit criminal or even violent acts. This is the dark side of "enclave deliberation." But I have also emphasized that deliberation within protected enclaves can be highly desirable. Partly as a result of group polarization, enclave deliberation can produce positions that would otherwise fail to emerge and that emphatically deserve a public hearing. The case for enclave deliberation is strengthened by evidence that members of low-status groups are likely to be silent in, or silenced by, broader deliberating bodies. Group polarization within enclaves might even operate as a counterweight to this problem. In the abstract, it is not possible to specify the appropriate mix of enclave deliberation and deliberation within larger publics. But an appreciation of group polarization helps show why a free society takes steps to protect deliberation within enclaves, to ensure that those inside enclaves hear alternative views, and to ensure as well that those outside of particular enclaves are exposed to what enclave members have to say. Above all, it is important to avoid a situation in which people are exposed to softer and louder echoes of their own voices. In a heterogeneous society, this form of self-insulation can create serious deliberative trouble, in the form of mutual incomprehension or much worse. Legal arrangements will increase or reduce that trouble. I have outlined some approaches that might ensure that heterogeneity, far from being a source of social fragmentation, will operate as a creative force, helping to identify problems and even solutions that might otherwise escape notice.