Publications
The Vice President’s Non-Existent Unilateral Power to Reject Electoral Votes
This Essay explains the errors in the theory advanced by John Eastman in a memorandum presented to President Donald Trump and Vice President Mike Pence which claimed that Pence had the unilateral authority to reject electoral votes when Congress convened on January 6, 2021. Every major tool of constitutional interpretation shows it is incorrect: the text of the Twelfth Amendment, historical practice in the Founding Era prior to its ratification, the drafting history of the Twelfth Amendment, and the basic principles of constitutional democracy.
Disputed Presidential Elections and the Collapse of Constitutional Norms
This Article exposes the vulnerabilities of the legal framework governing Congress’s role in resolving disputed presidential elections: the Electoral Count Act of 1887. It first illustrates just how easy it could be for unscrupulous political actors to reverse the results of a presidential election by exploiting the Act’s weaknesses. It then offers a blueprint for a redesigned Electoral Count Modernization Act that protects the process of presidential elections, as well as it can, from that exploitation.
Court Packing, Senate Stonewalling, and the Constitutional Politics of Judicial Appointments Reform
(Forthcoming, Arizona State Law Journal)
This Article offers a novel path forward to reforming the Supreme Court. First, it completes the unfinished work of designing a full solution to the broken appointments process by addressing the problem of Senate stonewalling: vesting the appointment power in the President in office at the time the vacancy arises. Second, because that solution would require a constitutional amendment, it analyzes the prospects of achieving that challenging goal through a game theoretic analysis of iterated rounds of court packing.
Personalized Choice of Private Law
This Article explores personalized choice of private law, a novel framework for designing the legal rules that govern transactions and interactions between private parties. It empowers individuals to choose, from a government- authored, centralized catalogue of options, the private law rule that will apply to them. Through that choice, it grants people a greater say in crafting their transactions and interactions with powerful private parties who would otherwise dictate the terms of engagement. The Article examines two potential applications of the framework: a Do Not Arbitrate List and a Digital Data Privacy Registry.
Moral Diversity and Efficient Breach
117 Michigan Law Review 885 (2019)
This Article explains the phenomenon of moral diversity about breach of contract, identifies its consequences and examines strategies to address it. Most people think it is morally wrong to breach a contract. But sophisticated commercial parties, like large corporations, have no objection to breaching contracts and paying the price in damages when doing so is in their self-interest. This disparity results in distributional injustice and economic inefficiency. The Article propose a novel solution: requiring contracts to include an express term creating an option to exit the contract and pay a fee equivalent to expectation damages, reframing the moral choice so individuals would perceive exiting the contract as a morally permissible performance of their promise rather than a morally forbidden breaking of it. It then presents empirical data demonstrating that exit clauses could have substantial practical implications for the regulation of contracts in contexts like consumer and mortgage contracts.
The Error Theory of Contract
78 Maryland Law Review 147 (2018)
This Article explores the implications of the fact that many people have false beliefs about contract doctrine. That pervasive phenomenon has profound practical, theoretical, and normative implications that neither courts nor scholars have recognized. This Article establishes just how widespread the phenomenon is among non-lawyers, contributing a new empirical study showing that between one-third and one-half of people falsely believe specific performance rather than damages is the remedy for breach. It then argues that people’s false beliefs about contract doctrine pose a fundamental challenge to prominent promise- and consent-based theories of contract, which serve as the principal theoretical alternative to law and economics theories of contract. Finally, it explores the implications of that conclusion for ongoing doctrinal disputes.
Neutral Principles and Political Power: A Response to Reverse Political Process Theory
70 Vanderbilt Law Review En Banc 301 (2017)
This Response Essay examines Professor Aaron Tang’s reverse political process theory, which argues that the Constitution should not provide that special protection to the most politically powerful parties. It explores questions about Tang’s descriptive account of the Court’s recent cases and the place of his normative account within a broader theory of constitutional interpretation and implementation. First, it questions whether the doctrinal trends Tang identifies really are best explained by a special solicitude to politically powerful parties rather than as the consequences of the Court ignoring political power. Second, it presses on Tang’s claim that his preferred version of reverse political process theory forms an “overlapping consensus,” which constitutional theorists of all stripes should support.
Harrington’s Wake: Unanswered Questions on AEDPA’s Application to Summary Dispositions
64 Stanford Law Review 469 (2012)
This Note proposes a new solution to the problem of the Antiterrorism and Effective Death Penalty Act’s application to state court summary dispositions: When is a state court decision “unreasonable” if it provides no reasons? To answer this question, I reorient the debate away from the question of whether AEDPA applies and toward an examination of the state court’s deliberative processes in generating its decision. I distinguish between record-based claims, which are predicated on evidence contained in the trial record, and extra-record claims, which are predicated on evidence outside that record, such as a claim for ineffective assistance of counsel under Strickland v. Washington. When a state court decides a record-based claim by summary disposition, a federal court cannot assume that the state court failed to examine the evidence it had before it. However, in certain procedural contexts, the issuance of a summary disposition necessarily entails that the state court never examined extra-record evidence. Such summary dispositions of extra-record claims are unreasonable because, as the Supreme Court itself recognized in Williams v. Taylor, it is always unreasonable to apply law in the absence of fact.
Luck, Leverage, and Equality: A Bargaining Problem for Luck Egalitarians
35 Philosophy and Public Affairs 266 (2007)
This Article examines a bargaining problem for luck egalitarian theories of distributional justice. On such theories, the distribution that grants some members of society so little is just only if their disadvantage is the result of choices rather than mere chance. The bargaining problem emerges only when distributions are considered in light of economic interactions occurring over time. Those who become wealthier due to their choices are subsequently able to exercise bargaining leverage over those who remain less wealthy. That bargaining leverage exacerbates unjustifiable inequalities in ways that cannot be attributed to mere chance, thus presenting a counterexample to the luck egalitarian criterion of distributional justice.
The Moral Galilean Intuition: An Essay on Metaethics, Morals, and Colors
This Dissertation examines the content of ordinary moral judgments. A fundamental question in moral theory is whether any moral judgments could be true. Moral Realism holds that moral judgments are capable of truth, and some are true. The Error Theory of Morality, by contrast, holds that moral judgments are always false, because all such judgments are predicated upon a metaphysical superstition. Any metaethical view must provide an account of the content of moral judgments in order to ground its claim about the possible truth or universal falsity of those judgments. Drawing on the insights of the Error theory of Color, this Dissertation argues that the Moral Galilean Intuition is correct: the content of moral judgments is naively realistic, as argued by Non-Natural Moral Realism. To reach that conclusion, it argues that each of the alternative semantic theories of moral judgments are incorrect: Ethical Naturalism, Constructivism, and Quietism.