Florida Law Review

Christian Turner, State Action Problems

Brock Hankins — Wed, 03 Apr 2013 16:22:01 +0000

The state action doctrine is a mess. Explanations for why federal courts sometimes treat the private actions of private parties as public actions subject to the Constitution, as the Supreme Court did in Shelley v. Kraemer, are either vastly over-inclusive or fail to explain our law and values. A better approach is to understand the state action doctrine in institutional terms. I introduce a two-step, institutionally focused state action theory that is a natural consequence of a broader public–private theory of legal systems. In the first step, a court identifies a “state action problem,” meaning a privately made law that is poorly governed by the ordinary rules governing the making of contracts. If a court finds a state action problem, it proceeds to the second step and decides whether courts have superior capacity to remedy the problem than do other governmental institutions. This theory captures important intuitions about the public regulation of private lawmaking that other approaches either ignore or fail to ground theoretically. In addition, it helps to justify why racial discrimination is often a decisive fact in finding state action, explains why the doctrine is rarely invoked, and provides a firm, theoretical foundation for a doctrine otherwise adrift in search of guiding principles.

Sapna Kumar, The Accidental Agency?

Brock Hankins — Wed, 03 Apr 2013 16:18:46 +0000

This Article presents a new model for examining the role of the Court of Appeals for the Federal Circuit (Federal Circuit) with regard to patent law, positing that the Federal Circuit behaves like an agency and serves as the de facto administrator of the Patent Act. The Federal Circuit has traditionally engaged in a form of substantive rulemaking by issuing mandatory bright-line rules that bind the public. In reviewing patent agency appeals, the Federal Circuit acts more like an agency than a court by minimizing agency deference through the manipulation of standards of review and administrative law doctrines. This position of administrator raises several concerns. Supreme Court intervention has jeopardized the Federal Circuit’s ability to continue engaging in substantive rulemaking, calling into question the sustainability of the lower court’s role as administrator. Furthermore, the Federal Circuit is caught between the Supreme Court’s goal to unify administrative law and Congress’s goal to unify patent law. These problems suggest that a confrontation between the Supreme Court and Congress is inevitable.

Hanah Metchis Volokh, Constitutional Authority Statements in Congress

Brock Hankins — Wed, 03 Apr 2013 16:16:18 +0000

“Congress has the power to enact this legislation pursuant to the following: This bill is enacted pursuant to the power granted to Congress under Article I, Section 8, Clause 2 of the United States Constitution.”

“Congress has the power to enact this legislation pursuant to the following: The Katie Sepich Enhanced DNA Collection Act is constitutionally authorized under Article I, Section 8, Clause 18, the Necessary and Proper Clause. The Necessary and Proper Clause supports the expansion of congressional authority beyond the explicit authorities that are directly discernible from the text. Additionally, the Preamble to the Constitution provides support of the authority to enact legislation to promote the General Welfare.”

“Congress has the power to enact this legislation pursuant to the following: . . . Congress is within its constitutionally prescribed role to direct the Environmental Protection Agency, a body which regulates interstate commerce under the auspices of Congress, to appoint a member of the Science Advisory Board based on the recommendation of the Secretary of Agriculture.”

Statements like the ones quoted here are suddenly flowing through Congress at the rate of several hundred per month. For the first time in history, members of the House of Representatives who introduce a bill must provide a statement explaining which clause of the Constitution gives Congress the authority to enact that bill into law. Constitutional authority statements (CASs) offer a window into how members of Congress think about the Constitution—which often differs starkly from the judiciary‘s approach.

Janai S. Nelson, The First amendment, Equal Protection and Felon Disenfranchisement: A New Viewpoint

Brock Hankins — Wed, 03 Apr 2013 16:10:33 +0000

This Article engages the equality principles of the First Amendment and the Equal Protection Clause to reconsider the constitutionality of one of the last and most entrenched barriers to universal suffrage—felon disenfranchisement. A deeply racialized problem, felon disenfranchisement is additionally and independently a legislative judgment as to which citizen‘s ideas are worthy of inclusion in the electorate. Relying on a series of cases involving state interests in protecting the ballot and promoting its intelligent use, this Article demonstrates that felon disenfranchisement is open to attack under the Supreme Court‘s fundamental rights jurisprudence when it is motivated by a desire to limit political expression based on its perceived content; in other words, when felon disenfranchisement is motivated by viewpoint discrimination.

The justifications for felon disenfranchisement laws reflect a misguided perception of how a voter‘s identity, status, or behavior will affect how he votes. This Article confronts these justifications and examines the linkages between the right to vote and First Amendment protections of freedom of speech. Recognizing the difficulty in proving legislative motive in electoral decisions, this Article draws upon the underexplored theory of First Amendment Equal Protection, as well as the Court‘s jurisprudence in the area of partisan gerrymandering to formulate the claim of viewpoint discrimination and demonstrate increasing judicial intolerance for legislative tampering in the electoral process with suspect motives. Through its viewpoint discrimination analysis, this Article also lays bare the multidimensional impact of felon disenfranchisement in terms of race, class, and partisanship, thereby highlighting the particular segments of society whose political participation and freedom of expression are most directly infringed by felon disenfranchisement—and, perhaps, the underlying motivations for the practice.

Steven J. Cleveland, Resurrecting Deference to the Securities and Exchange Commission: Mark Cuban and Trading on Inside Information

Brock Hankins — Wed, 03 Apr 2013 16:07:23 +0000

By applying the Supreme Court‘s administrative law jurisprudence to the examination of the validity of Rule 10b5-2(b)(1)—a rule recently adopted by the Securities and Exchange Commission (Commission)—this Article fills a significant gap in the existing literature. To date, commentators have argued against the rule‘s validity by applying the Supreme Court‘s securities law jurisprudence without considering the role of administrative law—despite the Court‘s comments that the pertinent statute is ambiguous, despite express delegation of rulemaking authority by Congress to the Commission, and despite developments in administrative law subsequent to the Court‘s relevant securities law decisions. By not considering the role of administrative law, commentators have approached the rule with undue skepticism. Administrative law principles dictate judicial deference to the Commission‘s rule. The Commission once commanded deference from courts. The time has come to resurrect that deference.

David Haddock, Tonja Jacobi, Matthew Sag, League Structure & Stadium Rent Seeking—the Role of Antitrust Revisted

Brock Hankins — Wed, 03 Apr 2013 16:02:47 +0000

Professional North American sporting teams receive enormous public funding for new and renovated stadiums after threatening to depart their hometowns, or by actually moving elsewhere. In contrast, English sporting teams neither receive much public money for such projects, nor move towns. This Article argues that no inherent cultural or political transatlantic variations cause the differences; rather, it is the industrial organization of sports in the two countries—the structure of league control—that enables rent-seeking by American teams but not by their English counterparts. Cross-country time series data contrasting American professional football and baseball stadiums with English soccer grounds support our claim, as does data contrasting the stadiums of geographically flexible National Football League teams with those of functionally immobile major collegiate football teams.

North American sports leagues are cartels: they control entry of teams, then collaborate to maximize effective rent-seeking, stave off competition, and keep prices high. In most of the world, competitive merit determines entrance into leagues via a system known as promotion and relegation, which demotes the worst performing teams in one competitive tier to the next lower tier at season‘s end, simultaneously promoting an equivalent number of top teams from the division below. The fluidity created by promotion and relegation severely undermines the credibility of a team‘s threat to leave town by creating alternative, less costly entry points into the league. Open entry mitigates pressure to engage in intercity competition over scarce team slots, and thus relieves the pressure to transfer wealth from public taxpayers to private team owners through stadium funding.

Stadium rent-seeking illustrates a weakness of antitrust law in remedying problems at the intersection of market and political organization. The anticompetitive structure of American leagues provides the platform for stadium rent-seeking, but the resulting harm is arguably a political injury rather than an antitrust offense. Nonetheless, this Article argues that finding a way to impose a promotion and relegation system would be the least intrusive means for the United States and Canada to limit sporting league cartel behavior to its proper functions, such as arranging schedules and defining uniform rules. The unpromising solution under antitrust law makes it all the more imperative for Congress to address this costly injury.