Statutory Interpretation
Treaties as Contracts: Textualism, Contract Theory, and the Interpretation of Treaties
116 Yale L.J. 824 (2007) With the nation's treaty obligations proliferating and foreign affairs cases taking up a growing share of the Supreme Court's docket, it is surprising how undertheorized the field of treaty interpretation remains. To fill this void, some have suggested that textualism, which has had a major impact on statutory interpretation over the past two decades, should be applied to treaty interpretation. This Note rebuts that notion and suggests instead that courts draw from modern contract theory in developing canons of treaty interpretation.
Justice Breyer's Democratic Pragmatism
115 Yale L.J. 1719 (2006) As a law professor at Harvard Law School, Stephen Breyer specialized in administrative law. His important work in that field was marked above all by its unmistakably pragmatic foundations. In an influential book, Breyer emphasized that regulatory problems were "mismatched" to regulatory tools; he urged that an understanding of the particular problem that justified regulation would help in the selection of the right tool. One of Breyer's major innovations lay in an insistence on evaluating traditional doctrines not in a vacuum, but in light of the concrete effects of regulation on the real world. Hence Breyer argued for a close connection between administrative law and regulatory policy. Continuing his pragmatic orientation, he also emphasized the importance of better priority-setting in regulation--of finding mechanisms to ensure that resources are devoted to large problems rather than small ones. While some of Breyer's work touched on the separation of powers, constitutional law was not his field. But as a member of the Supreme Court, Breyer has slowly been developing a distinctive approach of his own, one that also has a pragmatic dimension, and that can be seen as directly responsive to his colleague, Justice Antonin Scalia, and to Scalia's embrace of "originalism": the view that the Constitution should be interpreted to mean what it originally meant.
Validation Procedures and the Burden of Ballot Access Regulations
115 Yale L.J. 1833 (2006) Despite the prominent role they play in election contests, validation mechanisms have largely escaped judicial and scholarly scrutiny. This Comment urges courts to assess the constitutionality of a state's ballot access scheme in light of how the state evaluates and certifies a candidate's nomination materials. As Part I explains, Nader v. Keith, a Seventh Circuit decision authored by Judge Posner, takes some tentative steps in the right direction. Part II builds on Judge Posner's analysis to suggest that ballot access doctrine obliges courts to be sensitive to the difficulties validation mechanisms can create. Part III then explains why giving partisan actors a central role in challenging an opponent's nomination filings may present special constitutional problems because private challenges can be a potent way to limit the political participation of disfavored candidates.
Can Attorneys and Clients Conspire?
114 Yale L.J. 1819 (2005) A conspiracy is traditionally defined as "[a]n agreement between two or more persons to commit an unlawful act." The condition that two or more persons be involved is known as the "plurality" requirement. In Farese v. Scherer, the Eleventh Circuit held that an attorney acting within the scope of representation cannot be counted as a conspirator for purposes of the plurality requirement. In other words, there can be no such thing as a conspiracy between an attorney and her client. This Comment argues that the Eleventh Circuit's limitation on attorney-client conspiracies is illegitimate as a matter of statutory interpretation and ill advised as a matter of policy. Part I sets out the facts of Farese. Part II argues that a categorical rule against attorney-client conspiracies is misguided. Part III concludes.
Race as Mission Critical: The Occupational Need Rationale in Military Affirmative Action and Beyond
113 Yale L.J. 1093 (2004) In Grutter v. Bollinger, the much-anticipated case challenging affirmative action practices at the University of Michigan Law School, the Supreme Court held for the first time that "obtaining the educational benefits that flow from a diverse student body" represents a compelling state interest. Adopting much of Justice Powell's analysis from the landmark Bakke case, the Grutter majority emphasized that racial diversity within a student body promotes the "'robust exchange of ideas,'" and renders classroom discussions "'more enlightening and interesting.'" The Court further reasoned that universities deserve substantial leeway in making admissions decisions because they are uniquely positioned to assess the pedagogical values associated with racial diversity. Notably, however, the Court did not confine its analysis of the educational benefits of diversity to matters concerning the quality of the educational experience at the University of Michigan. Rather, it relied heavily on a separate strand of argument that emphasized the need to produce students whose training or experience "'prepares them as professionals'" to function effectively within "'an increasingly diverse workforce.'" To underscore this point, the Grutter majority described the American military's reliance on race-conscious recruitment and admissions policies for its service academies and Reserve Officer Training Corps (ROTC) programs. Citing claims raised by a group of retired military personnel in an amicus filing, the Court intimated that the return to a racially homogenous officer corps would compromise the military's ability to provide national security. From here, "'only a small step'" was required for the Court to conclude that the "'country's other most selective institutions'" likewise depend on racially diverse leadership to ensure their continued success. Hence, the majority explained that in the realm of business, "exposure to widely diverse people, cultures, ideas, and viewpoints" cultivates skills necessary to succeed in today's "increasingly global marketplace." Likewise, it described the visible presence of minority lawyers in the upper echelons of politics and the judiciary as crucial to the public's continued confidence in these institutions. What is striking about these claims is that they regard the project of diversifying higher education as a means of populating the professional ranks with a new generation of racially diverse, or at least racially attuned, leaders. In effect, it is the Court's appeal to these occupational needs for diversity, as opposed to the intrinsic importance of cross-racial understanding, that forms much of the basis for its conclusion that the educational benefits of diversity constitute a compelling state interest. The notion that racially diverse leadership contributes to the functionality of certain professions is not a recent innovation. Rather, such claims have been advanced by numerous industry leaders, sociologists, and historians. In the legal context, occupational need arguments have most often arisen as defenses against allegations of racially biased hiring practices. Accordingly, both Congress and the courts have grappled with the question of how to strike the proper balance between catering to important occupational needs and upholding the law's broader prohibition against racial discrimination. During the legislative debate over Title VII of the Civil Rights Act of 1964, Congress resolved this dilemma by unambiguously rejecting the concept that a person's race could ever constitute a "bona fide occupational qualification" (BFOQ). Underpinning this decision was the overriding fear that employers might otherwise hire only whites, claiming that this was essential to the smooth functioning of their businesses. In light of this statutory barrier, no court has ever accepted occupational need defenses where racially discriminatory employment practices have been challenged under Title VII. Paradoxically, however, where such practices have instead been challenged on Fourteenth Amendment grounds, courts have increasingly allowed a small number of professions--such as law enforcement and prison administration--to raise valid occupational need defenses. On these occasions, judges have distinguished between employers merely catering to client preferences and those whose race-conscious decisionmaking reflects a genuine concern about the functionality of their profession. As a result of these developments, the statutory and constitutional frameworks governing racial discrimination now provide contradictory responses to occupational need defenses raised by certain professions. This inconsistency was prominently on display in the recent case of Patrolmen's Benevolent Ass'n v. City of New York, in which Judge Scheindlin found that racially motivated employment decisions furthered the state's compelling interest in effective law enforcement--thereby satisfying the first prong of the court's equal protection analysis--yet held that the police were nonetheless barred from mounting an occupational need defense under Title VII. Against this backdrop, the Grutter Court further expanded the boundaries of the constitutional occupational need defense in two important respects. First, it suggested that a profession's reliance on racially diverse representation may warrant use of race-conscious admissions procedures at the stage of professional education. Logically, those professions citing an occupational interest in the continued use of affirmative action at universities should be doubly justified in granting preferences to racial minorities who have actually graduated and entered the labor market. Rather than consider the tensions that this reasoning would generate with current Title VII law, however, the Court simply reiterated that its holding reaches only educational--rather than hiring--decisions. Second, the Grutter Court identified occupational needs for diversity in fields such as business and law, which differ substantially from the more public-safety-oriented occupations that have successfully raised occupational need defenses in the past. By grouping together professions such as business and law with the military, whose unique features have entitled it to a special exemption under Title VII, the Court proceeded on the questionable assumption that these professions are equally dependent on racially diverse leadership. These problematic implications of the Grutter Court's approach were not lost on the dissenting Justices, who warned that occupational need logic could not be easily cabined within formal educational settings or confined to the field of law. Instead, as Justice Scalia lamented, the Court's reasoning might be used to support discriminatory hiring on the ground that it injects minority representation into a profession solely to enhance the "'cross-racial understanding'" of nonminority coworkers. Wary of the potential for occupational need defenses to shield discriminatory practices across a limitless array of professions, the dissenting Justices in Grutter sided with the framers of Title VII by resisting such arguments altogether. For all its intellectual clarity, however, the Grutter dissent's categorical rejection of occupational need claims proved no more nuanced than the majority opinion. Justice Scalia's scathing critique of the Court's logic, while useful in highlighting the extremes to which occupational need arguments may be taken, recognized no contexts in which such claims could be appropriate. Conspicuously absent from his dissent was any mention of the military's distinctive justification for affirmative action. Likewise, no consideration was given to other professions that might raise compelling arguments along similar lines. Taken as a whole, the Supreme Court's discussion of occupational need in Grutter proved unsatisfactory in two respects, both of which this Note addresses. First, both the majority and the dissent adopted a polarized, all-or-nothing approach to occupational need defenses instead of acknowledging the possibility that such arguments may be persuasive in certain contexts while pernicious in others. As an alternative to the Court's stark approach, what is needed is a theoretical framework for determining when occupational need arguments should be accepted as compelling state interests and when they should be rejected as pretextual grounds for racial discrimination. This Note begins to develop such a framework through the case study of the military, the profession that has most often framed its defense of affirmative action in terms of occupational need. Once the link between racial awareness and occupational performance is more precisely understood, we may then consider what institutional features make the military particularly dependent on racial diversity. To the extent that similar features exist in other contexts, the military experience should be seen as translatable, rather than entirely exceptional. Rather than draw an arbitrary line between higher education and work settings, this Note proposes that occupational need arguments should be evaluated according to the characteristics of each profession. Taking into account the social urgency of a profession as well as the degree to which its basic functionality depends on race-conscious decisionmaking, I argue that occupational need defenses should generally be limited to a small subset of professions that address public safety matters rather than extended to encompass professions such as business and law. While the appropriate outer bounds of the occupational need defense will undoubtedly remain subject to disagreement, the Grutter Court's treatment of occupational need claims clearly overlooks crucial differences in the nature and degree to which various professions rely on racially diverse leadership. The second shortcoming of the Grutter decision lies in its failure to address the growing divide between statutory and constitutional approaches to occupational need defenses. Where racial discrimination has been alleged, there is now a pressing need for a more unified legal response to such defenses. As a simple matter of intellectual coherence, Congress and the courts should agree on the extent to which American law recognizes that a person's race may affect her ability to perform certain tasks within an organization or profession. From a judicial perspective, the current inconsistency between the statutory and constitutional precedents in this area creates unnecessary confusion, undermining the clarity and force of opinions that must address occupational need claims. Finally, in the context of public employment discrimination, where Title VII and the Fourteenth Amendment are most obviously in tension, the success of occupational need defenses turns primarily on the nature of the allegations raised, which may be a function of little more than the plaintiff's degree of legal sophistication. Rather than countenance such anomalies, we should reconsider the proper place of such arguments within antidiscrimination law more broadly. Accordingly, this Note proposes that Congress amend the language of Title VII to remove the statutory barrier against race-based bona fide occupational qualification defenses. Courts should then permit occupational need defenses only in those narrow circumstances where a profession establishes that racial discrimination is vital to the essence of its business. Where state actors differentiate on the basis of race, courts should impose the additional requirement that a profession demonstrate how its disruption would compromise public safety. By building upon the doctrinal approach used in response to similar arguments in the sex discrimination context, courts could construct a limited occupational need defense that would reduce the potential for abuse while still allowing racial preferences where they legitimately further a compelling state interest. The Grutter Court's turn toward occupational need as a prominent justification for race-conscious decisionmaking is unsettling, even for proponents of affirmative action. The doctrine of occupational need is malleable and may be used to defend forms of racial discrimination that do not comport with societally held conceptions of racial justice. Insofar as we would balk at the notion of discriminating against racial minorities for the sake of preserving an occupation's survival, we should question whether concern over occupational needs is what truly motivates our support for affirmative action policies at institutions such as the University of Michigan Law School. If instead our commitment to affirmative action stems from some deeper value, then this value should be openly acknowledged and discussed rather than hidden behind the guise of an occupational need rationale. Indeed, occupational need arguments risk diverting attention from the social justice claims that would otherwise underpin the campaign for affirmative action. For these reasons, I sympathize with the outcome in Grutter yet remain wary of expanding the occupational need rationale as it pertains to race. To warn against the potential excesses of occupational need defenses is not to preclude their use under all circumstances, however. By advocating rigorous scrutiny of occupational need claims, this Note seeks to limit such claims to situations where race-conscious measures genuinely contribute to an occupation's functionality and where the smooth operation of that occupation is of paramount interest. Part I of this Note situates the Grutter outcome within the context of the Supreme Court's earlier affirmative action jurisprudence. This Part begins by examining how the Court's understanding of what constitutes a compelling state interest has expanded to include forward-looking or nonremedial justifications for affirmative action. The remainder of the Part outlines the salient features of what I have identified as the Grutter Court's occupational need rationale for diversity. Part II considers the most serious criticisms of the occupational need rationale, comparing claims that appear in the Grutter dissents with similar arguments that have arisen in previous cases and legislative debate. Part III evaluates the case for affirmative action in military higher education with an eye toward assessing which features make certain institutions better able to invoke occupational need arguments than others. Drawing lessons from the military case study, Part IV suggests a framework for how to approach occupational need defenses in the future, arguing that a limited occupational need defense would strike the proper balance between preserving occupational performance and creating a dangerous precedent that invites invidious discrimination. Part V then advances a two-part proposal for harmonizing the statutory and constitutional approaches to occupational need defenses. It concludes by underscoring the important role that judges must play in limiting race-based occupational need defenses once the statutory barrier against such claims has been removed.
The Sorcerer's Apprentice: Sandoval, Chevron, and Agency Power to Define Private Rights of Action
113 Yale L.J. 939 (2004) Private individuals have long played a key role in enforcing federal rights. Yet in a series of recent decisions, the Supreme Court has limited the ability of individuals to enforce federal rights through private suits. In Alexander v. Sandoval, for example, the Court held that there was no private right of action to enforce disparate impact regulations promulgated under Title VI of the Civil Rights Act of 1964. It is unclear, however, whether that decision precluded private rights of action to enforce other regulations promulgated under Title VI and comparable civil rights statutes. Even more significantly, Sandoval left unclear whether, and to what extent, federal agencies can shape private rights of action. While Sandoval's broad language implied that agencies can play only a limited role in creating private rights of action, its holding still allows substantial room for agencies to define those rights. Indeed, a recent split between the Fourth and the Eleventh Circuits illustrates that Sandoval does not necessarily preclude agencies from playing such a role. Although the Eleventh Circuit, in Jackson v. Birmingham Board of Education, held that there was no private right of action to enforce anti-retaliation regulations promulgated under Title IX of the Education Amendments of 1972, the Fourth Circuit, in Peters v. Jenney, held that a private individual can sue under Title VI of the Civil Rights Act of 1964 to enforce the anti-retaliation regulations promulgated under that statute. The critical distinction between the two courts' analyses was the significance each attached to the requirement of deference to agency regulations established by Chevron U.S.A. Inc. v. National Resources Defense Council, Inc. This Comment argues that the Fourth Circuit was correct to incorporate Chevron into its analysis, and that its decision suggests a role for agencies in creating implied private rights of action that is much greater than the one articulated in Sandoval. While Sandoval may prevent agencies from creating private rights of action by themselves, they can achieve much the same effect by expansively interpreting the statutory rights of action created by Congress. With careful regulatory and statutory drafting, agencies and Congress can--and should--capitalize on the Chevron deference shown by the Fourth Circuit in Peters v. Jenney.
Judicial Review, the Congressional Process, and the Federalism Cases: An Interdisciplinary Critique
111 Yale L.J. 1707 (2002) Following the lead of Alexander Bickel's The Least Dangerous Branch: The Supreme Court at the Bar of Politics, legal scholars have been obsessed with the countermajoritarian aspects of judicial review. Much of the literature is normative--how can the dilemma of judicial review in a democracy be reconciled theoretically? In this vast, important, and sometimes self-important literature, one might, in the whimsical manner of William Prosser, find examples of arguments ranging from the philosophical to the lawyerly. In contrast, political scientists who study judicial behavior generally take a descriptive tack, contending that judicial review is best understood as simply correlating with the political values of the Justices or as representing the strategic behavior of self-interested actors in a complex institutional setting. One would be hard-pressed in academe to find many other scholarly areas with so much overlap and so little congruence. Generally speaking, judges are probably untroubled by these conflicts, finding them, if you will, academic. Recently, however, the Supreme Court has operationalized judicial review in cases concerning congressional authority to invade state prerogatives, not so much by normative articulation of constitutional standards as by descriptive evaluation of the nature and quality of the congressional process underlying the enactment of the statute. In this respect, the Court has invited a new intersection of legal scholarship and political science, one concerning the judicial capacity to evaluate and to control congressional processes under our constitutional system of separated national powers. In this Essay, we combine our mutual perspectives to analyze the Court's performance at this new juncture of constitutional law and political science. We demonstrate that the Court's intrusion into congressional processes is not simply too rigorous, but institutionally wrongheaded in a variety of ways. Whatever might be said about the outcomes in these federalism cases--and for purposes of this Essay, we remain agnostic on that score--some of the techniques of judicial review exercised in them are contrary to any plausible scholarly understanding of Congress as an institution. Whatever might be said, whimsically or otherwise, about the Court as philosopher or lawyer, it has flunked political science. We are not the first commentators to criticize the methodology of the new federalism cases. Several articles have examined the trend in the case law, complaining that it, among other things, is contrary to precedent, wrongly transplants to constitutional statutory review the model of judicial review of administrative decisionmaking, unfairly retroactively imposes procedural obligations upon Congress at the expense of the constitutionality of important legislation, constitutes impermissible judicial interference with Congress contrary to the separation of powers, and improperly translates congressional questions of legislative fact into judicial questions of law. There is much to admire in these commentaries, and our analysis necessarily overlaps with them in many more ways than can be demonstrated productively by citation within the confines of the essay format. Our goals are to use our interdisciplinary partnership to advance this literature in two important ways. First, largely from the perspective of public-law theory, we situate the federalism cases within broader jurisprudential frames of reference, examining theories of due process of lawmaking and the intersection of judicial review and statutory interpretation. We ask not only whether the theories undermine the cases, but also whether the cases undermine the theories. Second, largely from the perspective of social science, we present a focused and detailed interdisciplinary evaluation of the legislative deliberation model based on a more complete understanding of congressional decisionmaking processes. In Part I, we begin by identifying three models of judicial interaction with the political branches that turn in large part on institutional and procedural concerns rather than on normative articulation of constitutional principles. Part II then discusses the federalism cases within the domain of our study, with particular focus on the judicial review of congressional processes at the heart of them. These cases appear to fit our third model of judicial proceduralism-institutionalism, one inquiring whether the political actor duly deliberated before making the law in question. Part III provides a thorough evaluation of the "due deliberation" model in the federal cases in light of the common understanding of Congress found in the social sciences. We conclude that Congress is capable of meeting the Court's fact-gathering requirements, but cannot satisfy the Court's requirement of due deliberation and rational, articulated decision. In our judgment, at least this aspect of the Court's model is likely to be abandoned eventually. One reason is that the model is a dysfunctional imposition upon Congress. Another, more ironic, reason is that the majority coalition of Justices in these cases was assembled in apparent violation of the very principles of nonstrategic interaction, deliberation, and articulation of reasoned, sincere decisions that the coalition has seemingly sought to impose upon Congress. The concluding portions of the Essay examine some alternatives suggested in recent literature for the future of judicial review focused on legislative processes.
The Anti-Antidiscrimination Agenda
111 Yale L.J. 1141 (2002) For a brief historical moment, a shadow overhung constitutional law--the shadow of Bush v. Gore. Many people consider the five-Justice majority opinion in that case to have been, legally speaking, a kind of joke. Obviously, those who hold this view wonder whether that case may be the proverbial thirteenth chime of the clock, not only wrong in itself, but calling into question what came before. But I have avoided all discussion of that case here, forgoing any advantage such a discussion might have given to the argument. Bush v. Gore is a singular point in a number of respects, and its shadow has already dissipated to a considerable extent. The aim of this Essay was instead to look at a set of "ordinary" cases that, when viewed in their own doctrinal categories, look perfectly plausible, but when viewed as a whole, juxtaposed across doctrines, begin to look suspicious. If this suspicion proves well-founded, it will mean that the current Court's constitutional case law has to be understood less in terms of its ostensible doctrinal reasoning, and more in terms of an underlying agenda, founded on a deeply held but as yet poorly theorized sense that antidiscrimination law in this country has taken a very wrong turn. If all this is true, the right response might not be to jettison the Court's case law, but to jettison the whole enterprise of taking constitutional doctrine seriously. After all, constitutional law is always driven by one agenda or another. Perhaps the sun set long ago on law's empire; perhaps now is a propitious time finally to put an end to the nonsense about the foundations that "We the People" laid down a century or two ago. Perhaps instead the only kind of question really worth asking is whether the agenda pursued by a particular Court is, for example, legitimated by recent popular elections, or whether it makes the Constitution the best it can be.
Stopping Above-Cost Predatory Pricing
111 Yale L.J. 941 (2002) This Essay has refocused the predatory pricing debate on ex ante incentives--i.e., the incentives for entry and limit pricing before the predatory period--instead of the traditional focus of high prices after the predatory period. Ideally, a monopoly incumbent should price reasonably low, and in the event that it prices high, other firms should enter the market. The difficulty arises when the entrants have higher costs than the incumbent and expect to be out-competed upon entry. Consumers would then be worse off than if the monopoly firm did not exist, because they would have to pay higher prices than entrants would charge if they entered. Monopolies that cut prices dramatically in response to entry are exclusionary because the behavior discourages entry. This observation holds even if they are only matching rivals' prices, and even if they are charging prices that exceed their costs. If courts view such behavior as monopolization under section 2 of the Sherman Act, monopolies will price lower than they do now under the Brooke Group rule. Likewise, it is exclusionary for an incumbent monopoly to respond to entry by substantially improving product quality, as when a monopoly airline increases flight frequency. This behavior is no less exclusionary when the product remains priced above cost, as in the AMR Corp. case. If such behavior constitutes monopolization under section 2 of the Sherman Act, monopolies will provide higher-quality products than they do now under the Brooke Group rule. The courts have two choices about how to recognize above-cost price cuts and quality enhancements as exclusionary. The Supreme Court could simply overrule Brooke Group. A more moderate approach in the lower courts would distinguish the monopoly cases at issue in this Essay from oligopoly cases like Brooke Group. As this Essay has pointed out, a monopoly typically has substantial advantages that allow it to drive out entrants without incurring losses, a possibility that is less plausible in oligopoly cases like Brooke Group. This Essay's predation rule essentially makes the market more contestable. A contestable market behaves like a competitive market even when only one incumbent serves the market, because competitors wait in the wings to enter if the incumbent prices high. The great advantage of a contestable market is that low prices are ensured by the decisions of market participants. No regulator needs to know the costs of other firms, and, in fact, firms do not need to know other firms' costs. The market price is never high, because if it were, competitors would enter and drive it down. Certainly, recognizing a new category of above-cost predation would not make markets perfectly contestable, but it would make markets more contestable. This Essay's arguments are strongest in the core case, with homogeneous products, a cost advantage for the incumbent, and a clear understanding of what constitutes substantial entry. Substantial administrative difficulties arise when products are differentiated by quality or other characteristics, when entrants are difficult to identify, or when it is difficult to tell whether the incumbent is reacting after rather than before the entrant has materialized. This Essay only briefly mentioned some of these complexities but suggested as an example that if the overall deal offered by an entrant seems comparable to a twenty percent discount on the incumbent's product, the entrants would qualify as substantial and warrant some protection. Such a standard, however, is easier to state than to implement carefully. The variety of potential administrative difficulties is daunting indeed, but the same is true in other antitrust cases. How is the court to know, for example, whether a merger will or will not be anticompetitive? The Essay has not dealt further with administrative complexities, because to do so in advance would yield limited insights. Such questions are best faced as they come before the courts. Hopefully, this Essay has at least made clear that low prices can harm consumers and also lower total welfare even if prices exceed cost--a possibility that one sees most clearly by focusing on ex ante incentives to enter the market. The principal substantive objection to the rule proposed here is that it protects inefficient entrants. Why would we want inefficient firms in the market, and what business is it of antitrust to protect them? The best answer is that consumers often need inefficient entrants. Recall that the entrant only receives any protection if it is a "substantial entrant," which I suggest operationalizing as one pricing at least twenty percent below the incumbent. Only entrants who provide substantial benefits to consumers receive any protection. From the vantage point of overall wealth maximization, the advantages of this rule are ambiguous if the incumbent does not charge low enough limit prices to bar all entry, because some less efficient firms may enter. Consumer benefits are more certain, however, since limit pricing is encouraged; and at any given incumbent price level, entry is encouraged. Conditional upon entry, the entrant has a strong incentive to price twenty percent below the incumbent instead of ducking just under the monopoly price umbrella. Courts that favor total welfare maximization over maximizing consumer benefits could modify the proposed rule appropriately.
Pennhurst, Chevron, and the Spending Power
110 Yale L.J. 1187 (2001) Narrowly construed, Pennhurst is a sensible (even if not necessary) process-based limitation on Congress's power to bind states to costly burdens. If read to mean that a state can never be bound by a grant condition when the statute itself does not unmistakably speak to a particular set of circumstances, however, Pennhurst becomes a substantive limitation on federal authority that significantly impairs Congress's ability to accomplish national goals. And if one reads Pennhurst to support the accountability model, then Pennhurst not only unduly impairs federal authority, but also undermines the interests served by Chevron; indeed, so read, Pennhurst would jeopardize the functioning of the administrative state itself. As I have explained, the question whether a reasonable agency interpretation that postdates a state's receipt of funds should bind the state is a close one. A conclusion that it should, although plausible, would be easier to swallow if some exceptions to the rule were created. Perhaps, for example, a state should not, notwithstanding an express waiver of Eleventh Amendment immunity in accepting federal funds, be held liable for damages in a private suit challenging conduct that is unlawful only under the agency's belated interpretation. And perhaps, if one were to adopt an approach of categorically deferring, there could be an exception when the agency reverses the interpretation that was in force when the state accepted funds. At bottom, however, the question requires a difficult balancing between values that are not easily quantified: state decisionmaking autonomy, on the one hand, and the separation of powers and the application of specialized governmental expertise to concrete problems, on the other. Whichever approach is correct, the question has assumed increased importance as the Supreme Court has closed (or at least erected barriers to) other avenues for the exercise of federal authority over the states. As the federal government increasingly turns to conditioned spending as a means of accomplishing national objectives, this question becomes correspondingly less academic. Its resolution will provide a degree of welcome clarity both for regulators in the federal government and for state recipients of federal funds.
Disaggregating Constitutional Torts
110 Yale L.J. 259 (2000) This Essay has attempted to clarify and reconceptualize constitutional tort law. Current doctrine severs remedies from rights and authorizes money damages on terms that apply indifferently to all constitutional violations. This remedial uniformity is faithful to the Monroe model of statutory interpretation, but at odds with the differences among rights in enforcement strategies and opportunities. In fact, even under current doctrine, various constitutional claims do have--and under any plausible understanding, should have--remedial variation. Restructuring the law of § 1983 to accommodate this insight would invite recognition of the differences among rights and promote clear thinking about remedies to enforce them. Disaggregating constitutional torts would reorient our thinking in three important ways. First, it would inhibit the tendency, evident in virtually all discussions of § 1983, to cite one kind of constitutional violation as if it stood for all. Reasoning based on one type of unconstitutionality will apply across the board only if the particular represents the general. In constitutional tort law, that is rarely true. Virtually any assertion about the role of qualified immunity, or the availability of alternative remedies, or the utility of damage actions in enforcing constitutional rights, will make no sense in some contexts. That does not mean that we should abandon theoretical and systematic analysis of constitutional tort remedies, but it does suggest a need for caution in generating comprehensive doctrine from specific examples. Second, disaggregation of constitutional tort law would encourage remedial comparison. The crucial question in enforcing the Fourth Amendment is not whether the exclusionary rule works well or poorly. The question is--or at least should be--whether it works better than the available alternatives. The same is true of money damages. The costs and benefits of damages liability as a means of enforcing the Fourth Amendment cannot be assessed in isolation. The efficacy of exclusion is also relevant. Such comparisons are local, not global. The fact that exclusion of evidence provides meaningful redress for illegal search and seizure in some contexts does not mean that it applies to all, much less that it has relevance for other constitutional rights. Just as remedial opportunities vary among rights, the comparative advantage of remedial mechanisms will vary as well. The straitjacket of remedial uniformity imposed by the current law of § 1983 hinders comparative evaluation of alternative strategies. A more flexible approach to remedial choice would invite attention to that concern. Finally, I hope that thinking of remedies in relation to specific rights would lead to better enforcement of the Constitution. If the costs and benefits of civil liability vary across rights, remedial uniformity precludes optimal enforcement. Crafting remedial strategies to redress particular kinds of constitutional violations would hold out the prospect, at least, of securing greater compliance at lower cost. Muddled thinking about the relationship between rights and remedies in constitutional law not only leads to intellectual confusion and misplaced argument; it also contributes to shortfall and sloppiness in redressing constitutional violations. A better understanding of the differential role of civil liability in enforcing various rights would not make the hard choices go away, but it would remove the conceptual blinders that prevent us from seeing those choices clearly. Disaggregating constitutional torts would be a step in the right direction.