Volume 164

Essays

On April 8, 2015, the United States deported Salvadoran General Carlos Eugenio Vides Casanova, whom The New York Times described as “the highest‐ranking foreign official to be deported under laws enacted in 2004 to prevent human rights violators from seeking haven in this country.” Thirteen years earlier, a Florida jury found General Vides and a co‐defendant liable for $54.6 million in damages for torture and killings by El Salvador National Guard troops under the general's command, the same conduct for which he was ultimately deported. On the same day that General Vides was deported, the U.S. Department of Justice filed a request seeking the extradition of Salvadoran Colonel Inocente Orlando Montano Morales, the former Vice Minister of Defense and Public Safety, to face murder charges in Spain for his role in the 1989 Jesuit massacre in El Salvador.

These cases are high‐profile, but not unique. The United States is in the process of deporting 150 Bosnians who immigration officials believe participated in war crimes and other atrocities during the 1990s conflict in the former Yugoslavia. The State Department is also seeking to prohibit the entry of certain accused human rights violators. For example, in February, the United States announced new visa restrictions for individual Venezuelan officials accused of human rights violations and corruption in Venezuela. Venezuelan President Nicolas Maduro condemned the visa restrictions as an attack on Venezuelan sovereignty. Similarly, the chief representative in Washington of Republika Srpska said that the Bosnians “are being hounded just because they wore the uniform of the Serbian Army, or the Army of the Republika Srpska.” The United States has not found these objections persuasive as a matter of either law or policy.

When one country imposes consequences for internationally unlawful conduct on an individual who acted on behalf of another country, it enforces international law horizontally. This is because sovereign states are, in theory, situated on a level plane vis‐à‐vis each other, despite their obvious differences in size and resources. The principle of sovereign equality and the need to conduct foreign relations impose certain limits on one state's ability to exercise jurisdiction over another state or its officials. For example, sitting heads of state, ambassadors, and foreign ministers, who enjoy “status‐based” or ratione personae immunity, are shielded from the legal processes of foreign states, even though they are subject to proceedings in certain international criminal tribunals. Other foreign officials, and former heads of state and ambassadors, enjoy “conduct‐based” or ratione materiae immunity for certain official acts, although the precise scope of this immunity remains contested.

Some have claimed that the principle of sovereign equality categorically prohibits one state from exercising jurisdiction over another state's current—and even its former—officials. This extreme position asserts that, even if a foreign state itself is not a named defendant, pronouncing on the lawfulness of conduct that is attributable to a foreign state impermissibly violates that state's sovereignty. Yet those who take this position rarely challenge measures, such as immigration consequences, that also involve pronouncing on the conduct of foreign states. The idea that an individual's conduct is immune from scrutiny if it is attributable to a foreign state turns out to be more rhetoric than reality.

This Essay argues that we should view criminal, civil, and immigration consequences (“detention,” “damages,” and “deportation”) as manifestations of the same underlying principle: that individual officials can bear personal responsibility for their acts under international law, and that the domestic institutions of one state can in certain circumstances attach consequences to that responsibility without violating the sovereignty of foreign states.

The integrated approach proposed here has at least three important implications. First, it supports the view that an individual's and a foreign state's immunity need not be congruent simply because individual and state responsibility are occasionally concurrent. Second, it suggests that we should treat states' decisions (and foreign states' reactions) regarding detention, damages, and deportation as all being relevant to delineating the contours of conduct‐based immunity under customary international law, which is based on consistent state practice accompanied by a belief that such practice is legally required (opinio juris). Third, it highlights that, although we tend to think of state sovereignty in absolute terms, our understandings of sovereignty—as manifested in the state practice and opinio juris described below—are actually varied and context‐dependent. Our ultimate goal should be to tailor horizontal enforcement regimes that respect the core of state sovereignty while promoting individual accountability consistent with due process.

If government statistics are correct, almost all of us engage in what the Internal Revenue Service (IRS) calls “voluntary tax compliance.” One of the IRS's principle goals is to maximize this voluntary compliance. For example, the IRS has an official policy stating that civil tax penalties are primarily designed and imposed against taxpayers to encourage voluntary compliance. Closing the “tax gap,” the difference between the tax properly due and the amount the IRS receives through voluntary compliance, is a persistent problem for the IRS. In most congressional reports, the IRS emphasizes voluntary taxpayer compliance as a foundational principle of the U.S. tax system.

Yet, most taxpayers do not believe they have a choice when it comes to filing and paying their taxes. There is often a great deal of confusion and consternation when taxpayers discover that the IRS refers to this annual filing ritual as “voluntary.” What does voluntary compliance mean? Does it mean taxpayers can volunteer to file returns and pay taxes, as one might volunteer to make a charitable donation? Does it mean taxpayers do not have to comply with the tax laws if they do not feel like it? How can it be a federal crime to not file or pay taxes if compliance is voluntary? This is a very real problem for taxpayers, as demonstrated by U.S. Tax Court cases litigating taxpayer confusion over the meaning of voluntary compliance. Additionally, at times the Tax Court has taken a very stern position on noncompliance, to the detriment of confused taxpayers.

To the common ear, the term “voluntary compliance” may seem an odd, even Pickwickian, turn of phrase. It implies that compliance with the federal tax laws is voluntary. The Tax Court, however, has labeled such an interpretation as “arrogant sophistry.” Taxpayers have a legal obligation to comply with the tax laws, just as they are obligated to comply with all rules that carry the force and effect of law. Penal sections of the tax code reinforce this obligation. Therefore, the government's position is that voluntary compliance means that taxpayers behave in a way required by law, but without direct compulsion from the IRS.

Still, this definition does not comport with the current use and understanding of the word “voluntary.” The modern connotation implies an act done because one wants to do it, not because one has to. A voluntary act is an unrestricted act in the absence of a pre‐existing obligation. Since taxpayers have a legal obligation to act in accordance with the internal revenue laws, tax compliance is anything but voluntary in this sense.

This Essay offers a government perspective as to why the IRS uses this perplexing term. After investigating (and dismissing) a possible literal defense, the Essay surveys the IRS's history to see why voluntary compliance is such a critical part of the U.S. tax system. The Essay then recommends changing the term from voluntary to cooperative compliance to retain the government's meaning while lessening taxpayer confusion.

For the last several years, the Commonwealth of Pennsylvania has quietly attempted to curtail capital defendants' representation in state postconviction proceedings. In 2011, various justices on the Pennsylvania Supreme Court began to call for federally funded community defender organizations to stop representing capital defendants in state postconviction proceedings. The justices argued, among other things, that the organizations' representation of capital defendants constituted impermissible federal interference with state governmental processes and burdened state judicial resources. The court also alleged the community defender organizations were in violation of federal statutes, which only authorized the organizations to assist state prisoners in federal, but not state, court. It did not take long for the Philadelphia District Attorney's Office to pick up on these signals. The District Attorney's Office filed suit in state court to preclude all federal community defender organizations from representing defendants in state postconviction proceedings. But after the community defenders organization removed the suit to federal court, the District Attorney's Office voluntarily dismissed the case.

Then something curious happened. Instead of giving up on the effort altogether, the Pennsylvania Supreme Court, sometimes on its own motion and sometimes at the invitation of the District Attorney's Office, issued orders disqualifying federal community defender organizations from representing prisoners in individual state postconviction proceedings. The orders disqualified the organizations on the ground that federal law did not authorize them to assist in state postconviction proceedings. By pursuing the argument in this way, the Commonwealth sought to ensure the issue would be heard in state, not federal court. Under the general removal statute, state postconviction proceedings cannot be removed to federal court, nor can disqualification motions ancillary to those proceedings be removed to federal court. The community defender organizations have instead sought to remove these cases under a less well‐known removal statute providing for the removal of suits directed against acts under color of a federal office.

The Pennsylvania litigation is fascinating for a number of reasons. The litigation involves serious allegations about the federal community defenders' actions in state court and whether federal law permits such organizations to represent state prisoners in state court. The case also raises a litany of interesting federal courts questions, for example, whether the statute regulating community defender organizations contains a private right of action that allows the Commonwealth to sue to enforce it.

This Essay focuses on a more basic question. Do federal courts have the power to hear the Commonwealth's claims that the defender organizations should be disqualified from individual postconviction proceedings because their participation in those proceedings violates a federal statute? Several federal district courts reached different conclusions. The U.S. Court of Appeals for the Third Circuit recently held the suits were removable under a little‐known statute permitting removal of suits against federal officers. While the Third Circuit's bottom line is sound, the Pennsylvania litigation illustrates several gaps in our jurisdictional policy—gaps that the federal‐officer removal statute often fails to address. First, the Pennsylvania litigation illustrates how jurisdictional rules other than the well‐pleaded complaint rule ensure that serious issues of federal law may never find their way into federal court. Second, the Pennsylvania litigation shows how basic jurisdictional rules that purportedly ensure against state‐court bias—such as the district court's federal question jurisdiction—fail to address very real possible claims of state‐court bias.

Our national DNA database, CODIS, now contains over two million individual profiles taken from arrestees. Most states and the federal government collect felony arrestee DNA. The justification is clear: if we collect DNA after conviction, why not earlier? But what if the arrestee's case goes nowhere, either because the charges are dropped, never brought at all, or the arrestee is acquitted? Every jurisdiction that collects arrestee DNA permits, by the terms of its collection statute, those eligible to have their genetic information expunged. Indeed, federal law requires all states participating in CODIS to establish expungement provisions. Otherwise, a mere arrest would result in the permanent relinquishment of a person's genetic information.

But arrestee DNA expungement is a largely a myth. In most states where the police collect DNA samples upon arrest, the process of expungement is burdensome, costly, and must be initiated by the arrestee. Consequently, very few arrestees eligible for DNA expungement—because they were never charged or because their charges were dismissed—actually have their genetic profiles removed. For several states investigated here, only a handful of the thousands of arrestee DNA profiles added to the database have ever been expunged.

As a result, an arrest alone does lead to permanent forfeiture of genetic privacy in most states. These states are following the letter but not the spirit of the federal expungement requirement. If states wish to keep the genetic information of all arrestees indefinitely, legislators should debate such policies openly, rather than establishing them through onerous expungement procedures. This Essay is the first to provide information on the number of actual DNA expungements, and argues for automatic expungement policies. In states where such policies exist, a significant fraction of arrestee DNA profiles have been expunged, nearing the estimated proportion of arrestees eligible for expungement.

On September 17, 2015, the Federal Circuit issued another decision in the epic Apple v. Samsung smartphone war. This was the fourth court decision in the ongoing saga to deal with injunctions. Apple IV explained the level of proof necessary to satisfy the “causal nexus” requirement for obtaining an injunction. This requirement had emerged as a response to patent litigation involving products with thousands of features, the vast majority of which are unrelated to the asserted patent. To prove a causal nexus, patentees seeking an injunction have to do more than just show that the infringing product caused the patentee irreparable harm. The harm must be specifically attributable to the infringing feature. In Apple IV, the Federal Circuit noted that proving causation was “nearly impossible” in these multicomponent cases. The court decided to water down the causal nexus requirement, saying that it was enough for Apple to show that the infringing features were “important” and customers sought these particular features.

This lower standard is an ill‐advised mistake that leaves multicomponent product manufacturers more susceptible to patent holdup. My critique takes two parts. First, I argue that a single infringing feature rarely, if ever, “causes” consumers to buy the infringer's multicomponent products. The minor features at issue in Apple IV vividly illustrate this point. Thus, the new causal nexus standard does not accurately reflect how causation and harm operate in a multicomponent world. Second, I explain why the court was so willing to accept such little evidence of real injury. It improperly applied notions of traditional property law to patents. Specifically, the court viewed patent infringement as harmful in and of itself, regardless of any concrete consequences. This view may resonate for other forms of property where an owner's rights are paramount and a trespass is considered offensive in and of itself. But the same concepts do not apply to patent law where the Supreme Court has consistently said that private interests must take a back seat to the public good. Based on these principles, the courts should restore the “causal nexus” requirement and not presume causation.

Mellouli v. Lynch, decided in June 2015, evaluated whether a state conviction for possession of drug paraphernalia used to conceal unknown pills could trigger an immigrant's deportation under federal law. Justice Thomas's dissent chastised the majority opinion, authored by Justice Ginsburg, for “12 references to the sock that Mellouli used to conceal the pills.” In the dissent's view, this specific fact was “entirely beside the point”—irrelevant to the statutory interpretation. The dissent did not remark, though, on the majority's extensive discussion of Mr. Mellouli's life prior to the deportation proceedings. In the 2014–2015 Term, both Mellouli and the more prominent Obergefell v. Hodges discussed the lives of petitioners—members of minority groups seeking relief against state exercises of power—in remarkable depth. This Essay seeks to highlight the similarities between the characterizations of the petitioners in the two opinions, to explore the function of such depictions, and to suggest that such descriptions require careful thought because they may, counterintuitively, subvert counter‐majoritarian goals.

Lesbian and gay parents figured prominently in two decades of litigation concerning marriage equality, and Obergefell v. Hodges was no exception. Although only 16‐18% of same‐sex couples are raising children, about 69% of the plaintiff couples in the combined cases that made up Obergefell were parents. This disproportionate number was the culmination of an extraordinary transformation. For most of the past twenty years, opponents brandished the wellbeing of children as a weapon against marriage equality. But in recent years, and especially after the Supreme Court's ruling in United States v. Windsor, marriage equality advocates claimed the offensive, using the wellbeing of children as an argument against same‐sex marriage bans. This essay explores that transformation and its underacknowledged racial dimension.

Support for a wide diversity of family forms and relationships was a tenet of the LGBT rights movement for four decades. During this same period, conservatives began blaming the decline of lifelong heterosexual marriage for a vast array of social problems. They explicitly targeted women raising children outside of marriage, a group that is disproportionately populated by women of color, for the greatest disapproval. They posited marriage, rather than a shift in public priorities, as the solution to poverty, violence, homelessness, illiteracy, crime, and other problems.

Initially, opposition to same‐sex marriage was part of the conservative canon. But over time, some conservatives revised their position to encompass support for same‐sex marriage precisely because it was marriage. To capture or solidify this support, LGBT advocates often either adopted or acquiesced in positions preferring childrearing by married parents—as long as same‐sex couples could marry.

Attributing greater social welfare to married families is the corollary to blaming unmarried women of color and their male partners for social ills. Any such stance is bound to alienate same‐sex couples of color, who raise children in much greater proportion than their same‐sex White counterparts, endure significantly greater economic disadvantages, and overwhelmingly live in the same neighborhoods as stigmatized unmarried parents of color. The wellbeing of those children is indelibly bound up with issues of racial and economic justice, which marriage equality cannot bring.

The most important abortion rights Supreme Court case in decades may hinge on the answer to a seemingly trivial question—is ⅙ a large fraction?

Last year, the Fifth Circuit answered by stating, with minimal analysis, that ⅙ is not a large fraction. The impact of this assertion is potentially enormous. The state of Texas's recently‐enacted abortion regulations—which require doctors who work at abortion clinics to obtain admitting privileges at local hospitals and mandate that clinics where abortions are performed meet the exacting standards of ambulatory surgical centers—were found to be constitutional. As a result, a state that used to have over 40 clinics could have only 8 or 9.

In this article, we challenge the Fifth Circuit's description of the fraction ⅙. We do so by empirically testing whether individuals consider ⅙ a large fraction in different scenarios. We find that the Fifth Circuit's understanding of ⅙ is at odds with the common semantic understanding of the fraction. In particular, our study produces four conclusions that are inconsistent with the Fifth Circuit's analysis:

(i) In particular scenarios, an overwhelming majority of people characterize ⅙ as a large fraction.
(ii) The expected outcome of a scenario influences whether people describe ⅙ as a large fraction.
(iii) A large majority of people can sometimes consider fractions larger than ⅙ to be small, and fractions smaller than ⅙ to be large.
(iv) In politically‐charged scenarios, political orientation can affect whether a person perceives ⅙ as a large fraction.

What this means for the case before the Supreme Court is quite simple—that the Fifth Circuit's analysis of whether ⅙ is a large fraction has no basis in the everyday understanding of the term “large fraction” or of the fraction ⅙ itself. When the Supreme Court decides this case, it should heed this conclusion and offer a more thoughtful analysis of this potentially decisive question.

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In just an eighteen month period, the Supreme Court decided two cases involving the use of deadly force to end high‐speed police pursuits. Although most police departments have policies limiting when officers can initiate pursuits, in both cases, the Court never questioned whether the initial decision by police officers to engage in a high‐speed pursuit of the suspects was reasonable. The Court also found that shooting into a moving vehicle in an effort to end the pursuit was reasonable despite the fact that most police departments prohibit officers from using this tactic. The Court should reconsider the excessive leeway given to individual officers in light of the growing consensus among the Department of Justice, experts on the use of force, and local police departments that firing into vehicles creates significant risks and can constitute excessive force.

The recent death of Justice Antonin Scalia on February 13, 2016, leaves the U.S. Supreme Court in ideological equipoise. The Court is seemingly at a 4–4 impasse on many charged cases until Justice Scalia is replaced. However, the immediate effect of Justice Scalia’s absence is not as simple in all cases. For example, in Fisher v. University of Texas at Austin (Fisher II)—the pending case about race‐conscious university admissions at the University of Texas at Austin (UT)—one might think that Justice Scalia’s absence would yield a ruling more favorable to proponents of affirmative action. But Fisher II could actually turn out worse for affirmative action proponents than it would have with Justice Scalia on the Court. And ironically, this may happen if Justice Anthony Kennedy votes with the liberal Justices to uphold UT’s race‐conscious policy.

The reasons for this irony are threefold. First, Justice Elena Kagan recused herself from Fisher, due to her role in earlier phases of the case when she was Solicitor General under the Obama Administration. With Justice Scalia’s death, seven Justices will decide Fisher II—eliminating, rather than creating, the possibility of a tie. Because Justice Kennedy is still the Court’s swing vote, his view will probably be outcome‐determinative in Fisher II. Justice Kennedy is likely to write a controlling opinion, as has often been the case in the past decade —but this time by a 4–3 vote. Assuming a ruling on the merits, his Fisher II opinion will become Supreme Court precedent and apply to the entire nation.

Second, with Justice Kagan recused, the effect of Justice Scalia’s absence on Fisher II actually depends on Justice Kennedy’s vote. If Justice Kennedy votes to strike down UT’s race‐conscious admissions policy, then Justice Scalia’s absence does not matter as much. Under that scenario, Justice Kennedy’s opinion would control Fisher II either with Scalia (by a 5–3 majority) or without him (by a 4–3 majority). Either of these would reverse the Fifth Circuit and set precedent.

But if Justice Kennedy votes to uphold UT’s policy, Justice Scalia’s absence comes into play. With Justice Scalia still on the Court, an affirmance by Kennedy would have led to a 4–4 tie in Fisher II, thereby passively upholding the decision of the Fifth Circuit without setting any precedent. Since Justice Scalia is gone, however, a Justice Kennedy affirmance would now control Fisher II and set precedent.

Third, Fisher II itself is unusual for an affirmative action case. The main issue is not the implementation of UT’s race‐conscious policy, but whether UT needs that policy at all. Petitioner Abigail Noel Fisher contends that UT attains its compelling interest in diversity with Texas’s Top Ten Percent Law (TTPL) alone. The TTPL, which grants automatic admission to UT for top Texas public high school students, accounts for three‐quarters of UT’s admitted class on a race‐neutral basis. UT’s use of race applies only to the remainder. Both parties in Fisher conceded that UT’s race‐conscious policy is consistent with the Supreme Court’s Grutter v. Bollinger precedent. The parties also conceded that UT’s policy is actually more modest in scope than the University of Michigan Law School policy upheld in Grutter. Consequently, Justice Kennedy could actually vote to affirm UT’s modest policy and still narrow the scope of Grutter, curbing affirmative action in university admissions in the process. With these considerations in mind, this Essay turns to examine the possible outcomes in Fisher II and their impact on affirmative action more broadly.

Philadelphia, the fifth largest city in the United States with a population over 1.5 million, has a complex and antiquated tax system. The Philadelphia tax system in general, and the City’s business taxes in particular, have long been criticized for driving employers and jobs away from Philadelphia by making it expensive to conduct business in the City. According to Professor Robert Inman of the University of Pennsylvania’s Wharton School, taxes alone make operating a business in Philadelphia 19% more expensive than in the suburbs. And those tax‐induced higher costs have had a dramatic effect. According to Inman, about half of the 300,000 jobs Philadelphia lost between the 1960s and 1990s are attributable to the City’s tax system, which Inman described as “a primary contributor to the city’s decline” over that period.

Although Philadelphia is not the only city facing fiscal challenges, the specific problems Philadelphia faces are not widely shared by other cities. Philadelphia places an unusually large tax burden on highly mobile factors of production, such as capital and labor, and less on fixed factors, most notably land. According to a 2014 report, 66% of Philadelphia’s tax revenue comes from taxing mobile wages and profits. In contrast, for New York and Washington, D.C., the comparable figures are 34% and 35%. And only 17% of Philadelphia’s tax revenue comes from real estate, whereas the corresponding figures for New York and Washington, D.C., are 41% and 36%. Moreover, not only does Philadelphia place an excessively high reliance on taxing mobile factors of production, but the centerpiece of the Philadelphia tax system, the Philadelphia wage tax—which raised more than $1.6 billion in 2014—now faces a constitutional challenge. Several petitions recently filed with the Philadelphia Tax Review Board seek a declaration that the wage tax, one of Philadelphia’s largest sources of revenue and one of its most controversial business taxes, is unconstitutional. Although the cases have not yet been heard, let alone decided, in our view the Philadelphia wage tax—is clearly unconstitutional as currently constructed (as described below). Accordingly, the City will soon face the question whether to save the wage tax by reforming it or eliminating it altogether and replacing it with other sources of revenue.

This Essay explains the constitutional challenge to the City wage tax, describes steps that could be taken to save that tax, and raises the question of whether Philadelphia should save or eliminate its wage tax.

This year marks the fortieth anniversary of the Supreme Court’s seminal money‐in‐politics case, Buckley v. Valeo —an anniversary that coincides with a presidential election that promises to be the most expensive in U.S. history and one dominated by big money. At the same time, the death of Justice Scalia presents the country with an unexpected vacancy that could change the balance of the Court. Now is an especially apt time to examine the role of the Justices in creating our current approach to money in politics and to propose and evaluate transformative alternatives.

The overwhelming majority of Americans are unhappy with the current political system, viewing it as corrupt. Today, wealthy interests and individuals are able to translate wealth into influence and thereby distort policy. Empirical evidence demonstrates that the wealthy have different policy preferences than the broader public, and are more likely to succeed in getting those policy preferences enacted into law. Candidates spend their time soliciting large contributions from a wealthy, disproportionately white, “donor class” who constitute less than 1% of the population, wasting time that could be spent more productively and simultaneously developing a skewed impression of the views and values of the people they serve. Candidates who run for office are likely to be wealthy and white; it is difficult for working‐class candidates to amass the resources they need to compete with opponents backed by big money.

The Supreme Court is largely responsible for this situation. Its 1976 decision in Buckley struck down limits on campaign spending, starting down the path of equating spending with speaking. At least as damaging as Buckley’s facile assumption that because speaking costs money, limits on spending are tantamount to limits on speaking, however, was its blindness to the constitutional values other than free speech at play in the campaign finance context. In Buckley, appellees argued that several compelling government interests justified the 1974 amendments to the Federal Election Campaign Act, including the interest in equalizing, as far as practicable, the relative ability of all voters to produce political outcomes they favor. The Buckley Court disagreed, recognizing preventing corruption, or its appearance, as the only government interest to justify limits on big money in politics and explicitly rejecting the equality interest as “wholly foreign to the First Amendment.”

This narrow, “anticorruption” framework has guided money‐in‐politics decisions for the past forty years, with anti‐democratic results. The framework ignores the fact that large differences in wealth or access to wealth give some people dramatically more influence on politics than others. As a result, the Justices have relied on Buckley to take a slew of common‐sense policy reforms off the table, such as limiting how much individuals and candidates can spend on elections, banning corporate or lobbyist contributions, limiting the total amount a single individual can contribute in any given election cycle (“aggregate contribution limits”), or granting extra public financing to candidates who face big spending. The Roberts Court has used Buckley’s narrow conception of corruption to invalidate practically all of the campaign finance regulations that have come before it.

The vision of democracy implicit in the Court’s money‐in‐politics cases is neither faithful to the Constitution, nor normatively attractive. Perhaps for these reasons, it is also in tension with the Court’s rulings in the voting and districting arenas. As David Schultz articulates in his contribution to this Issue, lurking in the Court’s money‐in‐politics jurisprudence is a vision of a neoliberal, “free market democracy.” In cases like Buckley and Citizens United, the only democratic value recognized is the First Amendment, which is reduced to free speech, then further reduced to the freedom to spend money in a marketplace that is “as free as possible, limited only by the need to prevent quid pro quo corruption.” But simply saying the First Amendment always wins is not an adequate or complete vision of American democracy. The Court has failed to balance the freedom to spend money on elections with other vital democratic values, such as equality, effective participation, representation, or pluralism. Some of these competing values have been recognized in other democracy‐law cases: from the One Person, One Vote cases, which were guided by political equality; to evaluating laws preventing campaigning around polling places, which balanced freedom of expression and the electoral integrity; to the White Primary cases, which balanced associational rights of political parties with equal protection rights of individuals.

The Supreme Court has unequivocally and repeatedly rejected as “wholly foreign to the First Amendment” any suggestion that legislatures can regulate electoral speech in order to foster political equality. The Court is not oblivious to the distorting effects on the political process of large financial contributions. Rather, its reluctance to accept regulation of campaign speech in the name of political equality arises out of its skepticism about legislative purposes, in this arena, and its recognition that its institutional role precludes it from devising a measure of adequate political equality, insofar as any such measure would be contestable.

Professor Deborah Hellman turns that recognition on its head and in so doing offers an intriguing and potentially promising avenue through which to revisit the regulatory catastrophe created by Buckley v. Valeo. The Court, she tells us, was misguided to ignore the existence of a competing positive liberty, the interest in determining “how pervasively to extend market‐based principles of distribution and allocation” to influence self‐government.

While Professor Hellman avoids offering a textual link for the liberty of self‐government, a convincing case can be made that the positive liberty identified by Professor Hellman is quintessentially a First Amendment interest. It is beyond debate that protecting the functioning of representative government was, and remains, a core function of the First Amendment.

The Amendment cordons off a space for individual and collective liberty in order to preserve the possibility that democratic majorities will be able to hold elected bodies accountable to the public interest. It guarantees rights in the service of preserving the very conditions necessary to vindicate the positive liberty of self‐government that Professor Hellman elaborates. Those conditions go beyond free expression, which does not capture the entirety of what is required for representative government to function.

Freedom of speech and expression is certainly an important precursor to self‐governance, but it must be paired, at the very least, with protections for political participation if democratic majorities are to determine legislative outcomes. Robust political discourse does not get politicians elected or policies enacted. Changes in public opinion must still be translated into election results and policy shifts. This requires citizens to undertake political acts; they must vote, petition, lobby, and hold meetings, protests, and vigils. It also requires some individuals to choose to run for office.

Put differently, the Amendment protects the conditions necessary for self‐governance, rather than the freedom of speech per se, as evident by its explicit protection of several types of collective political conduct (assembly, petition and, by extension, association). The speech rights granted to individuals under the Amendment, therefore, cannot be so great as to undermine the other prerequisites of self‐governance. Taken together, the above implies, first, that the positive liberty of self‐government that Professor Hellman has identified is itself a First Amendment interest. Second, it implies that a campaign finance jurisprudence true to the First Amendment’s purposes must balance the interest in free speech with other elements protected by the Amendment, most importantly political participation.

Rick Perlstein has described American elections as the “[p]lutocrats’ [r]ight to [c]hoose.” Conservative media and academics have also lamented the influence of a rising politico‐economic elite. A system premised on the trading of money for power, and power for money, can generate oligarchy or worse. Political science responds with “investor theories” of politics, where the key players are not the voters, but the donors. Politicians become vessels for their agendas.

When the public can see the law as a “witness and external deposit of our moral life,” the legitimacy of our Constitution, courts, Congress, and administration is enhanced. That legitimacy in turn empowers each of these instruments of government to better secure ethical values in law. A virtuous cycle prevails. On the other hand, when politics produces little more than a modus vivendi, crafted to reflect and reinforce the interests of the most powerful persons in society, law’s legitimacy suffers. As the legitimacy of legal institutions declines, they are less able to defend the political process from a parasitic and cynical pluralism. This creates a vicious circle familiar all the way back to Aristotle, who modeled the descent of democracy into oligarchy, aristocracy, and tyranny.

When the Supreme Court hears cases on campaign financing, these fundamental dynamics of democratic theory should be at the core of its concerns. Justice Elena Kagan reflected these themes in the opening of her brilliant dissent in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, decided 5–4 at the end of the 2011 term. But they were sidelined by a cynical and incoherent majority committed to freezing into place inequalities in voice and influence. Now that one key voice within that majority has left the Court, it is time to reconsider Bennett with the same degree of respect for precedent that the majority gave to other milestones of campaign finance jurisprudence.

The constitutional law governing campaign finance regulation is back up for grabs. The late Justice Antonin Scalia was an unwavering member of the U.S. Supreme Court majority that cast a skeptical eye on all forms of campaign finance regulation, save disclosure requirements. His death leaves the remaining Justices sharply and evenly divided on the crucial question of what government interests may justify campaign finance regulation. In addition to Justice Scalia, the other justices who made up the majority—Chief Justice Roberts, and Justices Kennedy, Thomas, and Alito—take the position that the only acceptable justification for restricting campaign contributions and expenditures is to prevent the appearance or reality of corruption that stems from the quid pro quo exchange of money for a political benefit. By contrast, the dissenters—Justices Breyer, Ginsburg, Sotomayor, and Kagan—understand corruption in a broader sense, one that includes the superior access and influence that big donors and spenders may enjoy.

If the Court is to embrace equality as a rationale for restricting the flow of campaign dollars, it will require empirical research on how the current system is actually functioning. Since Citizens United v. FEC, independent expenditures have increased dramatically at the federal level, in terms of both the total amount spent and the number of groups engaged in such spending. Yet relatively little is known about how this influx of outside spending affects the process of governance. Our 2014 report The New Soft Money: Outside Spending in Congressional Elections explored these topics, but much more work remains to be done.

What became abundantly clear to us over the course of researching The New Soft Money is that the money flowing into election campaigns is only half the story. To understand its real‐world impact, one must also understand lobbying. For it is through the legislative and administrative process that interest groups are able to pass government policies that benefit those who donate to election campaigns. If campaign contributions and expenditures are where an investment is made, then lobbying is where the payoff occurs. To understand the current system of campaign finance, including the inequalities of access and influence endemic to this system, we must also understand how our lobbying system works.

We would therefore disagree with Bismarck, were he actually responsible for the sausages quotation. At this crossroads moment in the history of campaign finance regulation, it is essential to understand how sausages—by which we mean laws—are made. This requires engaging in careful study of the relationship between what happens at the front end of the political process, when campaign contributions and expenditures are made, and at the back end, when the lobbying takes place. The remainder of this Essay sets forth guidance on what that might mean for future researchers. First, we review the theoretical concern that disparities in wealth cause inequalities of political access and influence. Second, we discuss—based largely upon our experience in writing The New Soft Money—the practical problems inherent in assessing the extent to which this theory manifests in reality, given the ubiquity of money in both electoral campaigns and lobbying. Third, we propose specific research projects that might address this empirical difficulty and which would reveal how wealth disparities affect elections and governance.

The liberty of citizens in a democracy has two components—the negative liberty to be let alone and the positive liberty of self‐government. Both are crucially important, yet promotion of one can eclipse the other. If individual freedom can never be limited, the community is powerless to address significant social ills like the Great Depression. At the same time, if the power of self‐government knows no bounds, individual freedoms can be lost. The fact that any democratic government committed to individual rights must attend to liberty in both of its forms is a familiar idea.

Every society must decide how to organize its economy and how pervasively to extend market‐based principles of distribution and allocation. Given the role that governments can and do play in establishing the framework within which economic activity takes place, meaningful self‐government requires that elected officials be able both to set the rules for the economy and establish its boundaries. Yet, democratic decisions about the reach of the market can affect a person’s ability to exercise her individual rights. The positive liberty of self‐government must be balanced against the negative liberty of individuals to do as they choose. This important and familiar tension has been overlooked in the Supreme Court’s current campaign finance jurisprudence. While the Court has aggressively protected the individual’s interest in spending money to speak, without interference by the state, the Court has neglected the individual’s interest in deciding, along with others, that politics ought to be walled off from the market. Instead, the Supreme Court should safeguard not only individual liberties of speech and action but also collective liberties of self‐government.

Recent controversies in campaign finance have generated concerns that wealthy donors will dominate the political landscape, with Citizens United v. Federal Election Commission and McCutcheon v. Federal Election Commission standing as the high‐water marks in the U.S. Supreme Court’s jurisprudential turn towards deregulation. This short Essay puts this case law in perspective by briefly explaining how our system of federalism gives the states more authority than Congress to restrict campaign spending.

Unlike the federal government, with its system of checks, balances, and “veto gates” that make it difficult to enact legislation, states have a more compelling interest in countering the appearance of corruption and accounting for the distorting influence that money can have in skewing public debate over policies. Because of direct democracy, in particular, these policies are easier to enact than federal law and therefore are more susceptible to being co‐opted by special interests. While this Essay takes no position on the wisdom of direct democracy, it argues that the Court can help ensure that the states’ constitutionally sanctioned choice of direct democracy actually effectuates the preferences of the majority of the electorate by broadening the case law’s current conception of anticorruption and resuscitating the recently deceased antidistortion rationale. In limiting the states’ ability to defend their campaign finance regimes, the Court has not considered that these justifications safeguard the political equality that is vital to the success of direct democracy systems. Thus, defenders of state campaign finance regulations may find greater success by arguing that states have an additional and powerful compelling interest in regulating campaign spending because of its impact on direct democracy.

In the 2010 case of Citizens United v. Federal Election Commission, the United States Supreme Court held that a federal law that placed some restrictions on corporate campaign expenditures was unconstitutional. In dissent, Justice John Paul Stevens argued that in order to reach this conclusion the majority had purposefully constructed a “newly‐minted First Amendment rule” designed to block any and all congressional attempts to regulate this type of spending. He claimed, in essence, that the Court had trapped Congress in a legislative box—a box that in campaign finance law is known as the media exemption problem.

The problem is this: When attempting to address concerns about corporate campaign expenditures (i.e., corporate political speech), Congress essentially has two options. The first option is to exempt media corporations from campaign expenditure regulations. Yet if Congress does this, then the Court claims that Congress has engaged in unconstitutional speaker discrimination by treating one group of speakers differently from another. The other option, however, is to regulate the campaign expenditures of all corporations, including media corporations. But if Congress tries this approach, the Court accuses it of violating basic press freedoms by interfering with the speech rights of the media. Thus, in the words of Justice Stevens, under the majority’s constitutional framework, Congress is “damned if it does and damned if it doesn’t.”

If any area of constitutional adjudication requires philosophizing and a theory about politics, it is election law. Current election law adjudication is theoretically and perhaps even empirically rudderless, or it appeals to an implicit theory about American democracy that is incoherent and empirically deficient. This Essay asserts the need for an American democratic theory of election law and begins to describe how such a theory might look.

Not all conservatives are hostile to democracy or question the legitimacy of the democratic process, but many do, and their hostility matters. This is an attempt to describe, explain, and address that hostility. Most prominently, a large group of conservatives treat the marketplace as better than regulation, implicitly attacking democracy and rendering illegitimate democratic attempts to shape the marketplace in the common interest.

Responses

Professor Garrett's article on the constitutional standing of corporations employs the heuristic of “effective” litigation to unpack the lack of symmetry between organizations and individuals when personal rights are concerned. Hobby Lobby marks an apotheosis of the recent doctrinal push for corporate persons to become simply persons. The corporate structure has now become a vehicle for associations to actualize their broader instrumental ambitions. Justice Alito, writing for the majority, suggests 501(c)(3) organizations might choose to incorporate so as to make political statements. His opinion recognizes an identity of spiritual orientation between the plaintiff company's management cadre and its 13,000 member workforce. Gone is the Kierkegaardian archetype of the existential pilgrim, or the Joycean expression of the epiphany. The deeply interior feeling of religious expression has given way to a judicial calculus crafted in aggregate impersonal language, of a tendency to a mean statistic. So long as an association can articulate an injury that is “germane to the organization's purpose” (an asymptotic test) then it may stand in court. But should this analytic extend to corporations? In Hobby Lobby, the winning brief reduces the “independent” choices of less evangelical employees to outlier data points. This writing away of company employees should not have legs. However, animals often do have legs—so a related question, who should stand in court for animals? Themselves?

Garrett correctly derides this group–individual equation for personal constitutional rights as bad logic and bad policy. I also agree with Professor Garrett's instinct to divorce the magic language of personhood from standing, and to instead employ a consequentialist inquiry where standing flows from the constitutional right, rather than the legal status of the concerned party. However, I have two responses to Professor Garrett. What does “effective litigation” mean? And, are there prudential concerns that should quiet his call for constitutional rules of recognition to be “drawn broadly and evenhandedly” to build doctrinal coherence? I argue in this Response that the legal writing analytic of core theory provides a proxy for this heuristic of effective litigation, but that recognition of the analogue debate of “animals as 14th Amendment persons” might destroy the already fractured architecture of standing doctrine.

In response to Andrew J. Guilford & Joel Mallord, A Step Aside, Time to Drop the Infield Fly Rule and End a Common Law Anomaly, 164 U. Pa. L. Rev. 281 (2015).

Judge Andrew J. Guilford and Joel Mallord begin their manifesto against the Infield Fly Rule with an unrealistic hypothetical. The Chicago Cubs are at bat in the bottom of the ninth inning of Game Seven of the World Series. They trail by one run and have the bases loaded with no outs. The Cubs’ star hitter lofts a fly ball onto the edge of the outfield grass on the right side, which the second baseman settles under, “shield[ing] his eyes from the blazing sun.”

Guilford and Mallord decry that pursuant to baseball’s historic Infield Fly Rule, the umpire will call the batter out and the runners will likely remain where they are, regardless of whether the second baseman catches the ball. The umpire dictates the outcome of this critical play in baseball’s most important game, not the players and their skill or strategy. And Cubs fans, “on the edge of their seats in anticipation,” must be deflated by the anticlimactic ending.

Speaking as a Cubs fan, however, my reaction to this hypo is “Thank goodness for the Infield Fly Rule.” Without it, this play likely produces an inning‐, game‐, and World Series‐ending triple play. Or, only slightly better, a double play on the lead base runners, leaving the Cubs with two outs and runners on first and second, still down one run. On the other hand, with the Infield Fly Rule, the Cubs still have the bases loaded and still have only one out. In other words, with the Infield Fly Rule, my team still has a pretty good chance to score runs, win the game, and win the World Series for the first time in over a century; without it, my team’s chances plummet.

The University of Pennsylvania Law Review’s symposium on executive discretion is an important undertaking, but it is remarkable for several silences—for things left unsaid on this important subject—and for questions not asked. First, although the Constitution’s “Take Care” Clause is extensively discussed, the one power Article II gives the President over domestic administration—to require the “Opinion, in writing” of the heads of the agencies Congress has invested with administrative duties—is not. Second, the discussion of the President’s undoubted but possibly constrained authority to remove officials of whose actions he disapproves omits discussion of the difference between the strictly political discretion enjoyed by some officers in some functions, and the law‐constrained discretion enjoyed by others. Third, discussion of the executive branch’s clear advantages in dealing with complex, technological issues of fact, as compared to Congress and the courts, omits discussion of the possibility that the opaqueness of the executive’s internal functioning may prevent understanding of the extent to which electorally driven politics, not technical expertise, controls its actions. And finally, the empirical exploration of the public’s attitude toward possible differences between presidential oversight and presidential control frames its questions in a manner likely to have predetermined its outcome, and in considering the impact on public perceptions does not address the possible impact on administrators’ behavior of their understanding whether the President’s views have only political or (rather) legal bearing on the issues statutes say they are to decide. This Response addresses each topic in turn.

Case Notes

Political campaigns can get ugly. Today's political candidates must be prepared for mudslinging targeted not just at their professional lives, but also at their private lives, appearance, genealogy, religion, and countless other minutiae. The media has intensified its coverage of negative political advertising in recent years, and this trend has prompted calls for more regulation to deter false statements in political advertising.

Some states have responded. Currently, at least eighteen states have statutes on the books that punish false political statements with civil or criminal penalties. But recent litigation has cast doubt on the statutes' validity: Washington's statute was held unconstitutional by an intermediate Washington court in 2005, and Susan B. Anthony List v. Driehaus (handed down by the Supreme Court in 2014) paved the way for invalidation of Minnesota's and Ohio's statutes.

With the 2016 presidential election on the horizon, will other states' statutes fall in the wake of Susan B. Anthony List? Given the Supreme Court's other recent speech jurisprudence, the answer is probably yes.

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