The Vice President’s Non-Existent Unilateral Power to Reject Electoral Votes

(Working Paper)

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. That Unilateral Rejection Power theory is fatally flawed in four respects. First, it rests on a misreading of the critical phrase in the Twelfth Amendment that does not follow from its text. If anything, the text indicates the Unilateral Rejection Power is incorrect. Second, it draws on an erroneous history of the Vice President’s role in the electoral counts of the 1796 and 1800 presidential elections. Third, it ignores the dispositive drafting history of the Twelfth Amendment, which definitively demonstrates that both chambers of Congress understood Article II, section 1, clause 3 to assign to Congress rather than the President of the Senate the power to count votes and decide disputes relating to that count. Congress drafted the Twelfth Amendment using precisely the same words regarding the process of counting electoral votes, thus incorporating that settled understanding. Finally, it defies reason that the Founding generation, who had just fought the Revolutionary War to overthrow a monarch to establish a representative democracy, would create a constitution that vested a single official with the legal authority to retain power for a lifetime.

Disputed Presidential Elections and the Collapse of Constitutional Norms

(Working Paper)

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

(Working Paper)

Reforming the Supreme Court is at the center of the political and legal landscape for the first time in generations. The growing gap between the ideological composition of the Court and the democratic will of the electorate, along with perceived procedural irregularities in the appointment of Justices over the last five years, has fueled calls for radical change including expanding the size of the Court. Those calls have in turn triggered renewed efforts to repair the appointments process through term limits and a regularized appointments schedule. But in an age of peaking partisanship, the bipartisan cooperation that would be necessary for that proposal to pass seems far out of reach.

This Article offers a novel path forward. First, it completes the unfinished work of designing a full solution to the broken appointments process by addressing the problem of Senate stonewalling, like that we saw in 2016 when the Republican Senate refused to confirm any nominee put forward by President Obama. It offers the only viable solution to that problem: 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 game theory. It offers three models of the parties’ strategic behavior in the face of a cycle of escalation: the Prisoner’s Dilemma, the Hawk-Dove Game, and the Asymmetric Hawk-Dove Game. The analysis shows that the increased salience of escalating constitutional hardball tactics in general alters the incentive structure for the parties in a way that makes judicial appointments reform the winning strategy for both parties. It arrives at the counterintuitive conclusion that in this moment of cratering cooperation and collapsing constitutional norms, there may thus be a rare political and legal opportunity to restructure the judicial appointments process for the better and for good.

Personalized Choice of Private Law

(Working Paper)

Personalized choice of private law is a novel framework for designing the legal rules that govern transactions and interactions between private parties. It addresses a pervasive theoretical and practical problem in private law: Private ordering is supposed to enable parties to choose the terms of their transactions, but under modern commercial conditions, many people do not actually consent to important terms of their contracts and other interactions with firms. Personalized choice of private law responds to that failure by empowering 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.

This Article offers a synoptic view of personalized choice of private law, addressing questions of scope, design, and justification. It first situates the framework within the theoretical and doctrinal landscape of existing approaches to private law and analyzes important scope and design choices facing lawmakers in its implementation. It then offers twin justifications grounded in foundational norms of private law: autonomy and economic efficiency. It proceeds to consider how the framework should be crafted to account for concerns about the unequal distribution or the improper commodification of legal rights and rules that personalization might entail.

The Article concludes by offering a proof of concept of personalized choice of private law by sketching its implementation in two contexts: arbitration and data privacy. A Do Not Arbitrate List could render arbitration clauses unenforceable against you. A Digital Data Privacy Registry could empower you to choose a legal rule that prohibits any company from collecting, using, or selling data about you. These two potential implementations of personalized choice of private law illustrate its promise as a new tool for the design of private law.

Moral Diversity and Efficient Breach

117 Michigan Law Review 885 (2019)

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. The literature has ignored the profound legal, economic, and normative implications of that asymmetry between individuals’ and firms’ approaches to breach. To individuals, a contract is a promise that cannot be broken regardless of the financial stakes. For example, millions of homeowners refused to breach their mortgage contracts in the aftermath of the housing crisis even though doing so could have saved them tens or even hundreds of thousands of dollars. Their moral beliefs led homeowners to forgo opportunities for efficient breach that firms would have seized, thus exacerbating already swelling wealth inequalities.

This Article explains this phenomenon, identifies its consequences and examines strategies to address it. Neither ex post judicial interventions (such as adjusting the remedies for breach) nor traditional ex ante regulatory interventions (such as disclosure requirements) will effectively address the problem. Instead, the most promising approach is a novel solution based on the framework of choice architecture: requiring contracts to include an express term creating an option to exit the contract and pay a fee equivalent to expectation damages. An express exit term elevates an implicit legal option into an explicit contractual option, 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. The presence of that exit term thereby aligns individuals’ perceptions of their moral obligations under the contract with sophisticated firms’ approaches to breach.

The Article concludes with new empirical evidence that demonstrates the practical impact of an exit clause. It presents the results of two experimental studies I performed that demonstrate the effectiveness of a mandatory exit clause in reducing the effects of the asymmetry between individuals and firms. Those results show 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)

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 will make three contributions to fill that gap. First, it will establish just how widespread the phenomenon is among non-lawyers. After synthesizing the existing evidence of false beliefs about contract law, it will contribute 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.

The Article will then argue 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. Because people have false beliefs about aspects of contract doctrine that affect the value of the contract, the law enforces a bargain materially different from the one to which people thought they agreed. For example, they pay a contract price they think purchases them a guarantee of performance, but the law ultimately provides them only with money damages for breach. People thus did not actually promise or consent to the bargain the law enforces. For that reason, the normative justification for existing contract doctrine cannot be grounded in promise or consent.

Finally, the Article will explore the implications of that conclusion for ongoing doctrinal disputes. First, by removing promise or consent as a potential normative basis for contract doctrine, we may finally have grounds to settle long-standing disputes that ultimately depend on our choice of normative foundations about doctrines like consideration, mitigation, and unconscionability. Second, by failing to recognize the phenomenon of legal ignorance, the current debate about boilerplate misunderstood the problem it poses. If people are ignorant of, and, therefore, do not consent to, both boilerplate contract terms and the background law that would apply if boilerplate were not enforced, then refusing to enforce boilerplate does not solve the problem of lack of consent — it simply moves it from a lack of consent to fine-print terms to a lack of consent to gap-filling background law. The problem of the lack of consent is, therefore, one that banning boilerplate cannot solve. Instead, reform should focus on the remaining problem that boilerplate is substantively biased in favor of the firms that draft it. The solution, then, may be to allow boilerplate, but to regulate its content to ensure it offers terms that are not too slanted in the firms’ favor.

Neutral Principles and Political Power: A Response to Reverse Political Process Theory

70 Vanderbilt Law Review En Banc 301 (2017)

Professor Tang’s reverse political process theory is both theoretically insightful and morally intuitive. Its common sense appeal can seem impossible to deny: even if we cannot agree that the Constitution grants special protection to the least powerful among us, perhaps we can at the very least agree that it should not provide that special protection to the most politically powerful parties, those best equipped to advance their own interests in the pluralist bazaar of politics. That common sense appeal, moreover, should not mask the virtue of its potentially far-reaching implications for doctrine. This Response 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. If neutral principles—or, at least, other principles—can explain the cases while staying true to the Court’s stated rationales, then we should be hesitant to adopt reverse political process theory as an explanatory account. Instead, it is possible his descriptive account is best understood as identifying 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. It could be, on the contrary, that it satisfies no one: political process theorists want courts to go further than merely declining to favor the politically powerful, and constitutional theorists with different foundations (most prominently, but not exclusively, originalists) will see no reason to go that far in the first place.

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)

The notion of choice is essential for luck egalitarians. It plays a crucial role in their conception of the justice of distributional inequalities. On their theory, the distribution that grants some members of society so little is just only if their disadvantage is the result of choices. The jobless and the homeless, for example, have far less material wealth than many other people. Whether their choices, rather than circumstance or chance, generated the inequalities from which they suffer thus determines whether they are entitled to compensation or assistance from the state.

In this Article I will discuss a problem with the luck egalitarian position that only becomes apparent when distributions are considered in light of economic interactions occurring over time. In Section I, I give a precise formulation of the luck egalitarian position I wish to criticize, and will introduce the structure of procedural counterexamples to that position. In Section II, I present a bargaining problem as a procedural counterexample. In Sections III, IV, and V, I execute two strategies on behalf of the luck egalitarian to defeat the bargaining problem as a procedural counterexample, and argue that these strategies both fail. In Section VI, I address two objections to my argument. I will argue that these objections fail, and will conclude with some remarks about the limits on the role the luck egalitarian principle might play in a plausible theory of justice.

The Moral Galilean Intuition: An Essay on Metaethics, Morals, and Colors

Ph.D. Dissertation

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, 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. This dissertation argues that the Moral Galilean Intuition is correct: the content of moral judgments is naively realistic.

Chapter One first presents the varieties of Moral Realism: Non-Natural Moral Realism, Quietism, Ethical Naturalism, and Constructivism. It then argues that the canonical version of the Error Theory fails to recognize the possibility of the latter three of these Moral Realisms, and therefore fails to establish that all moral judgments are false. The Chapter concludes by pointing the way forward for a successful Error Theory: to take the Semantic Path by arguing that the content of moral judgments is naively realistic.

Chapter Two begins by presenting the Error Theory of Color, which provides a framework for the dialectic as well as two methodological lessons. It then addresses a fundamental methodological objection levied by the externalist about mental content: that sometimes we cannot know the contents of our moral judgments via introspection. The Chapter concludes by presenting the structure of the argument to come in the final Chapter: to oppose the Moral Galilean Intuition with the Principle of Charity.

Chapter Three executes this argument. Because the semantics suggested by the Moral Galilean Intuition – Non-Natural Moral Realism – might condemn moral judgments to systematic falsity, the Principle of Charity holds that we should accept that semantics only if the alternatives cannot be correct. The Chapter argues that the semantics offered by the alternative Moral Realisms – Ethical Naturalism, Constructivism, and Quietism – each fail. Because these alternatives are not viable, we have no choice but to accept the semantics of Non-Natural Moral Realism. Accordingly, the Moral Galilean Intuition prevails.