VOLUME 167, ISSUE 6 May 2019

Articles

Central Clearing Of Financial Contracts: Theory And Regulatory Implications

Steven L. Schwarcz

To protect economic stability, postcrisis regulation requires financial institutions to clear and settle most of their derivatives contracts through central counterparties, such as clearinghouses associated with securities exchanges. This Article asks whether regulators should expand the central clearing requirement to nonderivative financial contracts, such as loan agreements.

This Article begins by theorizing how and why central clearing can reduce systemic risk. It then examines the theory’s regulatory and economic efficiency implications, first for current requirements to centrally clear derivatives contracts and thereafter for deciding whether to extend those requirements to nonderivative contracts. The inquiry has real practical importance because the aggregate monetary exposure on nonderivative financial contracts—and thus the potential systemic risk that could be triggered by that exposure—greatly exceeds that on derivatives contracts. The inquiry also raises fundamental legal questions as to why (and the extent to which) regulators should tell financial institutions how to control risk and whether to require the mutualization of risk.

Balancing Versus Structured Decision Procedures: Antitrust, Title VII Disparate Impact, And Constitutional Law Strict Scrutiny

Louis Kaplow

Important doctrines in diverse areas of law employ structured decision procedures requiring, in rough terms, that the plaintiff first make some demonstration of harm; if but only if that is done, the defendant must make some showing of benefit; and if but only if that occurs, balancing is performed. In‐depth analysis of such protocols reveals them to be inferior to unconstrained balancing with respect to the quality of final decisions and the guidance they provide for the collection of information and thus the conduct of adjudication. This Article applies this analysis to the rule of reason and merger regulation under antitrust law, Title VII disparate impact law, and the practices of strict scrutiny and proportionality analysis in constitutional law. Longstanding controversies are addressed and unappreciated deficiencies are discovered. In all three domains, existing law is cast in a substantially different light, both descriptively and normatively.

The Interior Structure Of Immigration Enforcement

Eisha Jain

Deportation dominates immigration policy debates, yet it amounts to a fraction of the work the immigration enforcement system does. This Article maps the interior structure of immigration enforcement, and it seeks to show how attention to its structure offers both practical and conceptual payoffs for contemporary enforcement debates. First, deportation should not be conceptualized as synonymous with immigration enforcement; rather, it is merely the tip of a much larger enforcement pyramid.

At the pyramid’s base, immigration enforcement operates through a host of initiatives that build immigration screening into common interactions, such as with police and employers. Second, this enforcement structure has far‐reaching hidden costs. Scholars have recognized some of these costs, such as the exploitation of undocumented noncitizens. Yet the full cost of this enforcement structure goes deeper. Beyond enabling exploitative actors, it leaves little room for good faith actors to incentivize socially valuable behavior. In its impact, immigration enforcement bears unappreciated structural similarities to certain low‐level criminal law enforcement techniques, where a large population is likewise subject to ubiquitous monitoring by public and private actors alike.

As important criminal law and sociological literature shows, this enforcement structure can carry far‐reaching costs for society at large. It can create system avoidance (where the regulated population avoids contact with key legal institutions) and law enforcement tradeoffs (where efforts to enforce one law result in underenforcement of other laws). This Article applies structural insights from low‐level criminal law enforcement to immigration enforcement to assess the costs of monitoring an undocumented population long‐term. It calls for restructuring immigration enforcement to consider the full impact of interior enforcement in light of those who remain present in the United States long term.

Comments

ICWA And The Unwed Father: A Constitutional Corrective

Taylor Dow

The Indian Child Welfare Act provides important procedural protections for American Indian children, the parents of American Indian children, tribes, and Indian custodians in state court child custody proceedings. However, the Act excludes unwed fathers who have not “acknowledged or established” their paternity from its definition of “parent.” This effectively forecloses their ability to assert rights to their biological children under the Act. State courts have varied in their interpretations of “acknowledged or established,” with some incorporating their own laws and others adopting amorphous standards of reasonableness to determine whether an unwed father is a “parent” under the Act.

The varying approaches adopted by state courts have highlighted the need for a more standardized interpretation of “acknowledged or established.” This Comment looks to the Supreme Court’s decision in Adoptive Couple v. Baby Girl for guidance. Though Adoptive Couple did not directly address the definition of “parent,” it appeared to invoke the Court’s “biology plus” jurisprudence while interpreting the Act. That case law etched the parameters of putative fathers’ paternal rights. This Comment incorporates the principles elucidated in those cases into “acknowledged or established” and posits that where enough time has passed for an unwed putative father to develop a constitutionally protectable relationship with his American Indian child, but where that father has not met state law paternity requirements consistent with the Act, a state court should next consider whether the putative father, consistent with the Court’s biology plus jurisprudence, has developed a parent–child relationship sufficient for due process protections to attach.

The Logic Of Experience: The Role Of History In Recognizing Public Rights Of Access Under The First Amendment

Shira Poliak

This Comment addresses this dearth in scholarship by identifying eight ways lower courts use history to analyze the experience prong of the experience and logic test for whether a First Amendment right attaches to right of access to certain legal proceedings. I identified these taxonomies by reviewing 185 federal circuit court opinions in Westlaw that cited Press‐Enterprise II, seventy‐six of which applied the experience and logic test. I also reviewed some federal district court and state court opinions cited in the circuit court opinions and scholarly articles. I focus on the range of ways courts have handled “mixed history”—a proceeding that is replete with examples of both open and closed practices.

This Comment analyzes to what degree these different taxonomies are in line with, or depart from, the Supreme Court’s jurisprudence on the topic. Like Levine, I argue that some of the different approaches reflect uncertainty and unanswered questions in the Supreme Court’s opinions. This analysis demonstrates that lower courts have little direction regarding how to conceptualize historical traditions that are beset by open and closed practices, or proceedings that lack a historical tradition of access because they are relatively new.

Nevertheless, while this Comment shows that a range of approaches to the experience prong are in line with the Supreme Court’s jurisprudence, analyzing the different uses of history by lower courts in detail underscores scholars’ critiques of the doctrine. In particular, it shows that the experience prong is not suited to address new practices when there may be no history of openness or closure, and that the emphasis on history does not allow the right of access doctrine to accommodate changes in governmental practice and innovation.