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Volume 109 - Issue 3


Does Institutional Design Make a Difference?

Calabresi, Steven G. | April 1, 2015

This Essay argues that there are two unappreciated aspects of U.S. constitutional design that have contributed to our country’s success. The first is the fact that the United States is divided into fifty rather than four states. This greatly strengthens the national government and renders secession almost impossible. The second is the formidable set of checks and balances set up on presidential power that makes it impossible for U.S. presidents to become dictators. The fact that thirty-nine of the fifty state governors are elected in off-year or midterm elections, elections in which the incumbent president’s party almost always loses ground to the opposition, greatly limits U.S. presidential power.

Creating a Self-Stabilizing Constitution: The Role of the Takings Clause

Jacobi, Tonja, Mittal, Sonia, Weingast, Barry R. | April 1, 2015

The U.S. Constitution has survived for over two centuries, despite the Civil War and numerous other crises. In contrast, most national constitutions last less than two decades. Why has the Constitution sustained a largely stable democratic system while so many others have failed? A self-stabilizing constitution creates incentives for all relevant actors to abide by the rules. Drawing on earlier work, we argue that, to be self- stabilizing, a constitution must (1) lower stakes in politics for both ordinary citizens and powerful elite groups; (2) create focal points that facilitate citizen coordination against transgressions by government officials; and (3) enable adaptation over time. But what is the role of constitutional text in creating such stability? Drawing on the example of the federal Takings Clause, we argue that in addition to their explicit roles in defining rights and powers of government, constitutional clauses often serve a deeper structural purpose: providing the foundations for long-term constitutional stability. In this Article we examine the role of the federal Takings Clause in helping to create a self-stabilizing constitution in the United States. We argue that the text of the Takings Clause was designed to work together with other provisions of the proposed Constitution to lower the stakes in politics for political stakeholders by protecting individual property rights— including, notably, property rights in slaves. This clause was also designed to create a focal point to facilitate coordination against government invasions of property rights, especially at a time when few state constitutions provided similar protections.

In Praise of Faction: How Special Interests Benefit Constitutional Order

Nzelibe, Jide | April 1, 2015

Political factions are rarely treated as normatively desirable entities in constitutional or international law. On the contrary, they are either regarded as forces that thwart the general welfare or as sources of chronic political instability. Thus, the conventional wisdom often focuses on how to deploy institutional or legal structures that minimize the influence of faction. By contrast, this Essay argues that the institutions of constitutional and international law that are forged by self-interested factions can create significant side benefits for the rest of the society. At bottom, such institutions are likely to be more durable and energetic than those created by disinterested or high-minded social designers. Thus, rather than focus on trying to curtail the influence of faction in shaping political institutions, it may make more sense to broaden the scope of such influence to be as inclusive as possible.

Optimal Abuse of Power

Vermeule, Adrian | April 1, 2015

I will argue that in the administrative state, in contrast to classical constitutional theory, the abuse of government power is not something to be strictly minimized, but rather optimized. An administrative regime will tolerate a predictable level of misrule, even abuse of power, as the inevitable byproduct of attaining other ends that are desirable overall.

There are three principal grounds for this claim. First, the architects of the modern administrative state were not only worried about misrule by governmental officials. They were equally worried about “private” misrule—misrule effected through the self-interested or self-serving behavior of economic actors wielding and abusing power under the rules of the 18th-century common law of property, tort, and contract. The administrative state thus trades off governmental and “private” misrule. Second, the rate of change in the policy environment, especially in the economy, is much greater than in the late 18th century—so much greater that the administrative state has been forced, willy-nilly, to speed up the rate of policy adjustment. The main speeding-up mechanism has been ever- greater delegation to the executive branch, accepting the resulting risks of error and abuse. Third, the costs of enforcing legal rules against executive officials are necessarily positive and plausibly large, in part because any institutional monitors created to detect and punish abuses must themselves be monitored for abuse.

The architects of the administrative state believed that a government that always forms undistorted judgments, and that never abuses its power, will do too little, do it too amateurishly, and do it too slowly. In that sense, the administrative state constantly gropes towards an institutional package solution that embodies an optimal level of abuse of power.

The Politics of the Takings Clauses

Versteeg, Mila | April 1, 2015

A long-standing consensus exists that the arbitrary or excessive expropriation of private property by a country hurts its economic growth. Although constitutions can play an important role in protecting private property, remarkably little is known about how they actually restrict the power of eminent domain and whether such restrictions are associated with reduced de facto expropriation risks. This Essay fills that gap by presenting original data on the procedural and substantive protections in constitutional takings clauses from 1946 to 2013. Its main finding is that no observable relationship exists between de jure constitutional restrictions on the power of eminent domain and de facto expropriation risks.

This Essay explores two possible explanations for why constitutional restrictions on the power of eminent domain fail to make a difference in practice. The first is that countries adopt disingenuous promises to bolster their international reputation or to attract foreign aid. The second explanation holds that societal disagreements over the desired level of expropriation might be built into the constitution’s design. Such disagreements emerge when a portion of citizens believe they benefit more from expropriation than from the general benefits that flow from secure property rights.

This Essay finds empirical support for the second explanation. Specifically, it finds that real-world constitutional property regimes are often riddled with ambiguities. That is, constitutions often include strong procedural and substantive restrictions on the power of eminent domain but also include “fine print” that can undermine those restrictions. This Essay finds that when accounting for such fine print, constitutional restrictions on the power of eminent domain appear to be correlated with reduced expropriation risks. This finding suggests that the effectiveness of takings clauses might depend on the politics surrounding their adoption.

Notes and Comments

Easier Easements: A New Path for Conservation Easement Deduction Valuation

Carson, Nicholas | April 1, 2015

Conservation easements, a valuable tool in the conservationist’s toolbox, have grown increasingly popular since the 1980s, when Congress introduced changes to the federal tax code making easement donations more financially attractive. And with deductions reaching hundreds of thousands, or even millions, of dollars, conservation easement deductions are big business. However, expanded incentives and loosened regulations invite abuse, especially when the tax implications are large and donated easements are hard to value. Valuation of real estate remains an inexact science, dependent on inconsistent appraisal methods and subjectivity. Conservation easements can be even more difficult to value than other easements because, by their very nature, they are often placed on a parcel of land with high idiosyncratic value. Thus, easement valuations can vary wildly and justifying a high valuation is not difficult. It should come as no surprise, then, that the Internal Revenue Service (IRS) has examined conservation easement valuations more closely in recent years. Taxpayers risk large fines while the IRS struggles to effectively identify and curb abuse. Both sides would benefit from greater predictability, and as the IRS continues its aggressive litigation, a solution is sorely needed. This Note examines in Part I conservation easements and valuation methods for federal conservation easement deductions. Part II explores recent challenges to taxpayer application of these methods and the problems with the current valuation system revealed by those cases. Finally, Part III first reviews recent proposed reforms to conservation easement deduction valuation as well as their shortfalls, and then introduces a recommendation that would simplify the valuation process as well as promote greater use of conservation easements.

An Appeal to Common Sense: Why “Unappealable” District Court Decisions Should be Subject to Appellate Review

Heins, Matthew D. | April 1, 2015

28 U.S.C. § 1291 vests jurisdiction in the United States Circuit Courts of Appeal to hear “appeals from all final decisions of the district courts of the United States.” Various circuit courts have, however, determined that they may only hear appeals of final “judicial” decisions, and that they do not have jurisdiction to hear appeals from final decisions of United States district courts if those decisions are “administrative.” Circuit courts have been loath to explicitly define the dividing line between the two classes of case, and have frequently invoked the potential availability of mandamus review as a means of placating litigants who are told they cannot receive direct review of their purportedly administrative case. Yet because the distinction is ill defined, and because alternative avenues of review are in reality unavailable, “administrative” has proven broad and unforgiving. This Note critiques the tenuous distinction between administrative and judicial, examining fee reimbursement decisions under the Criminal Justice Act to pinpoint where the line is, where it should be, and how courts should explain its location. If there is to be a line separating administrative from judicial, it should be sharply drawn with an eye to the connectedness of the litigants and the dispute to the inner workings of the court. If administrative decisions remain unreviewable, judicial consistency and legitimacy demand that “administrative” be a narrow classification.

Splitting the Bill: Creating a National Car Insurance Fund to Pay for Accidents in Autonomous Vehicles

Schroll, Carrie | April 1, 2015

While self-driving cars may seem like something that can exist only in a futuristic movie, the technology is developing rapidly, and many states already allow test runs of self-driving cars on state roads. Many car companies have announced that they will make self-driving cars available as early as 2020. However, several manufacturers of the self- driving car technology predict that personal ownership of vehicles will be replaced by a car-sharing system, where companies own the self-driving cars and rent them to consumers who pay per use. With more widespread introduction of this technology comes many questions about how to assess liability for accidents involving self-driving cars, and how insurance should be structured to pay for those accidents. This Note discusses the potential parties who could be held liable: drivers, car-sharing companies, and manufacturers. This Comment suggests the elimination of liability for any accidents involving self-driving cars, and recommends the creation of a National Insurance Fund to pay for all damages resulting from those accidents.

Online Essay

Sox on Fish: A New Harm of Overcriminalization

Haugh, Todd | April 1, 2015

The harms of overcriminalization are usually thought of in a particular way—that the proliferation of criminal laws leads to increasing and inconsistent criminal enforcement and adjudication. For example, an offender commits an unethical or illegal act and, because of the overwhelming breadth and depth of the criminal law, becomes subject to too much prosecutorial discretion or faces disparate enforcement or punishment. But there is an additional, possibly more pernicious, harm of overcriminalization. Drawing from the fields of criminology and behavioral ethics, this Essay makes the case that overcriminalization actually increases the commission of criminal acts themselves, particularly by white-collar offenders. This occurs because overcriminalization fuels offender rationalizations, which are part of the psychological process necessary for the commission of crime—rationalizations allow offenders to square their self-perception as “good people” with the illegal behavior they are contemplating. Overcriminalization, then, is more than a post-act concern. It is inherently criminogenic because it facilitates some of the most prevalent, and powerful, rationalizations used by would-be offenders. This phenomenon is on display in the recently argued Supreme Court case Yates v. United States. Using Yates as a backdrop, this Essay explores a new way of understanding the detriments of overcriminalization.

The Intratextual Independent “Legislature” and the Elections Clause

Morley, Michael T. | April 1, 2015

Many states have delegated substantial authority to regulate federal elections to entities other than their institutional legislatures, such as independent redistricting commissions empowered to determine the boundaries of congressional districts. Article I’s Elections Clause and Article II’s Presidential Electors Clause, however, confer authority to regulate federal elections specifically upon State “legislatures,” rather than granting it to States as a whole. An intratextual analysis of the Constitution reveals that the term “legislature” is best understood as referring solely to the entity within each state comprised of representatives that has the general authority to pass laws. Thus, state constitutional provisions or laws creating independent redistricting commissions that purport to limit a state legislature’s power to draw congressional districts or otherwise regulate federal elections violate the Elections Clause.