Volume 160

Professor Linda Simard Sandstrom responds to both Professor Fitzpatrick and Professor Marcus on the topic of class action attorneys' fees. Professor Fitzpatrick provocatively argued that attorneys cannot bring many class actions that would deter harm to the public because they are not financially viable. To solve this problem, Fitzpatrick suggested that class action attorneys should be given significantly higher fees. Professor Marcus argued in response that the proposition faces doctrinal challenges and may not truly lead to greater deterrence. Professor Simard adds two additional challenges to Professor Fitzpatrick, arguing that increasing attorneys' fees could lead to more attorneys pursuing less meritorious cases. Simard argues that these cases are ultimately less likely to be successful and thus will not add to any deterrent effect. Moreover, she concludes, what small increase in deterrence may result is unlikely to outweigh the increased burden to the system which could prevent stronger cases from efficient access to relief.

In Law and Humanity, Michael Serota argues that legal scholarship and the humanities can and should complement each other. His response to Christine Stark's Run, a creative memoir published in a Law Review Symposium issue on the topic of human trafficking, argues that placing a survivor's memoir at the beginning of the issue impacts the way readers understand the articles that follow. Serota suggests that incorporating art and narrative into legal research gives a depth and perspective to scholarship that helps keep it connected to humanity.

While critics of the individual mandate to purchase health care coverage have mounted a vigorous attack on its constitutionality, Professor Mark Hall skillfully dismantles their claims. Mandate opponents have erected a Potemkin village of logic that has a facade of credibility but ultimately is deeply flawed. As Professor Hall observes, one might reject the mandate on the basis of plausible readings of the constitutional text or in terms of nineteenth-century and early twentieth-century Supreme Court opinions. However, critics cannot square their view with the Court’s understanding of constitutional doctrine and theory over the past seventy years.

In this Response, I will highlight important points in Professor Hall’s analysis and extend his argument with additional considerations. For example, the individual mandate should be upheld not only on the basis of the Commerce Clause power, as Professor Hall argues, but also on the basis of the taxing power.

If the constitutional arguments against the mandate are weak, then how can we explain the unexpectedly high level of uncertainty about the mandate’s validity? The answer to this question lies in politics, not law.

In The Role of Lawmakers, Lobbyists, and Scholars in the Normative Evaluation of Timing Rules, Frank Fagan and Michael Faure respond to Rebecca M. Kysar's argument in Lasting Legislation that legislatures should prefer permanent legislation to legislation with a sunset date. Fagan and Faure argue that while Kysar's position is compelling for tax regulation, she takes an argument that works well in a specific regulatory context and applies it too broadly. Instead, they contend, whether legislation should be lasting or temporary depends on a variety of factors and deserves more nuanced attention.

The Political Economy of Fraud on the Market provides a wide-ranging criticism of and thoughtful reforms for securities class actions....However, both their critique of contemporary class actions and their model of the reforms they propose leave unexamined a good many matters relevant to both the criticism and reform of securities class actions....Bratton and Wachter earn high marks for being less passionate and much more thoughtful than others in the chorus calling for reform; indeed, their observations are among the most thoughtful to be found in this area. Nonetheless, their analysis is incomplete in many important areas, and in addition to the lacunae in their analysis, they commit an even more fundamental error by taking the narrow view that securities class actions have only a private and not a public mission.

In this Response, I do not disagree with any of the core points made in The Political Economy of Fraud on the Market. (My scholarship has similarly emphasized the benefits of shifting away from FOTM to greater reliance on public enforcement mechanisms.) Instead, I take the opportunity to elaborate on the deterrence and governance shortcomings of FOTM, strengthening further the case Bratton and Wachter make for an enhanced public enforcement role. In conclusion, I suggest avenues for overcoming the political hurdles to reform that the authors identify, so that we might someday actually “get there from here.”

Section 2 of the Voting Rights Act is a doctrinal mess. Through a totality of circumstances inquiry, Section 2 has evolved from its modest beginnings as a codification of the Fifteenth Amendment into a “mysterious judicial inquiry" that places the Supreme Court in the enviable position of policing the contours of the politics of race . . . Professor Elmendorf's article is a welcome response to this state of affairs. He offers an understanding of Section 2 “as a delegation of authority to the courts to develop a common law of racially fair elections, guided by certain substantive and evidentiary norms, as well as norms about legal change.” This is a thoughtful and intriguing proposal...That said, I part company with Professor Elmendorf, if modestly so, in one crucial respect. His proposal requires much greater faith in the conservative Justices on the Court than the existing evidence allows me to endorse.

Voting rights law is in the midst of an existential crisis. The Voting Rights Act (VRA) is probably the most celebrated civil rights statute ever enacted by Congress. By most accounts, the central concern that gave rise to the VRA—racial animus against black voters and black candidates by white state and private actors—has, blessedly, retreated into the annals of history since the Act's passage...Though isolated instances of racial animus in voting persist, and may be with us always, the VRA has replaced the systematic, state‐sponsored racial exclusion that affected the rights of millions of American citizens seeking to participate in the political process with a new reality. Literacy tests are no more, at least as a feature of the electoral process; grandfather clauses are buried with the grandfathers; retaliation by private employers against black voters who dared to register to vote exists only in our memories, if at all; and few twenty‐first century Americans could imagine that anyone would assault a voter or group of voters for exercising their right to vote, much less that the state would fail to prosecute such an attacker. The question then is what steps remain for voting rights policy.

I was honored to be asked to respond to Professor Bellin's insightful article, Facebook, Twitter, and the Uncertain Future of Present Sense Impressions. Since I agree with much of what he says, my Response is limited to two tasks: parsing the relationship between modes of communication and the present sense impression exception, and assessing the extent to which at least certain types of electronic communication might be incorporated into the percipient witness requirement he proposes...I have, for well over a decade, devoted much of my time to researching and writing about how our use of cyberspace sometimes requires us to modify existing legal rules but often does not. As I explain when I speak and write on this topic, law—except for specialized areas such as patent and copyright—is concerned with people, not with technology, as such. Given that, I believe we need to be careful not to overestimate the impact technology has on existing law; in many instances, it may be possible to accommodate uses of technology with rules as they exist or by tweaking them only slightly.

Professor Volokh is right that American prisons are considered to be “low quality,” and that they suffer from “high violence rates, bad medical care, [and] overuse of highly punitive measures like administrative segregation . . . .” But his proposed solution—a system of “prison vouchers” that would permit prisoners to choose their facilities and thus create a market for prison services—would provide only an illusion of choice. Even worse, such a system runs the risk of strengthening the self‐interested forces that drive our overgrown system of incarceration. Just when it seems that the United States may be turning a corner, Professor Volokh's “prison vouchers” proposal would create a market that we do not need.

In a terrific new article, Professor Timothy Meyer challenges this exalted view of codification, which numerous scholars since Oppenheim have echoed. Meyer argues in Codifying Custom that codification is a self‐interested project undertaken by rational and perhaps even cunning states seeking to write the rules in their own favor. He does not dismiss the possibility that codification projects clarify or progressively develop international law, but he views this possibility, which he terms the Clarification Thesis, as overstated. He argues that another common motive for codification is what he calls the Capture Thesis: “states often use codification to capture customary international legal rules to benefit themselves at the expense of the general welfare . . . .”

In this Response, I consider the strength of Professor Meyer's Capture Thesis and discuss some implications of his findings. Professor Meyer makes a persuasive case that states might pursue codification to advance understandings of customary international law that will advantage them at the expense of other states. But I have difficulty with his further claim that such capture is in fact a common motive for codification. My objections stem from two main sources. First, Professor Meyer relies on a model that overstates the likely power of capture. Second, the landscape of codification today aligns more with the Clarification Thesis than with the Capture Thesis. Thus, I think the Capture Thesis is much less powerful than Professor Meyer suggests. Since I accept that capture could sometimes drive codification, however, I close this Response by considering how international law might respond to the risk of capture. I argue that international law already responds to these risks by codifying international law through mechanisms that partially bypass the traditional principle of state consent.

In Volume 160 of the University of Pennsylvania Law Review, I present an interpretive reconstruction of the Voting Rights Act's (VRA) core provision of nationwide application, Section 2. My account responds to longstanding critiques of Section 2 as utterly opaque, likely to worsen racial conflict, and probably unconstitutional (because inadequately tethered to the prevention or remediation of actual constitutional violations).

My paper builds upon a shared premise of liberal and conservative jurists: that the Voting Rights Act was meant “to hasten the waning of racism in American politics.” Professor Guy‐Uriel Charles responds, “[T]his move is question‐begging: what is racism in American politics, and how will we know whether it is waning?” I agree with Professor Charles that the apparent consensus against racial discrimination in America is somewhat illusory, resting on divergent understandings of what constitutes discrimination on the basis of race. But I disagree with the thrust of Professor Charles's Response, namely, that reading Section 2 to target state action that discriminates on the basis of race (1) does little to help lawyers and judges applying the statute, given the lack of societal consensus about the meaning of discrimination, and (2) is essentially pointless, because the Fourteenth and Fifteenth Amendments already prohibit race‐discriminatory state action with respect to elections.