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October 1, 2018

#SoWhiteMale: Federal Civil Rulemaking

116 out of 136. That is the number of white men who have served on the eighty-two-year-old committee responsible for creating and maintaining the Federal Rules of Civil Procedure. The tiny number of non-white, non-male committee members is disproportionate, even in the context of the white-male-dominated legal profession. If the rules were simply a technical set of instructions made by a neutral set of experts, then perhaps these numbers might not be as disturbing. But that is not the case. The Civil Rules embody normative judgments about the values that have primacy in our civil justice system, and the rule-makers—while expert—are not apolitical actors. This Essay argues that the homogeneous composition of the Civil Rules Committee, not only historically, but also today, limits the quality of the rules produced and perpetuates inequality. The remedy to this problem is straightforward: appoint different people to the Committee. To be sure, the federal civil rulemaking process is but one small part of where and how gender and racial identity matter. Even still, this Essay argues that the Civil Rules Committee members, the Judiciary, and the Bar should demand that the civil rulemaking Committee cease being #SoWhiteMale.

Editor's Note:I am grateful to Zachary Clopton, Andrew Hammond, Elizabeth Porter, and Adam Steinman for their comments. Thank you also to Evanie Parr for her fabulous research assistance. This paper benefitted greatly from comments at the AALS 2018 Annual Meeting.

September 24, 2018

McDonnell v. United States: Legalized Corruption and the Need For Statutory Reform

In 2016, the Supreme Court granted certiorari to former Governor Bob McDonnell’s public corruption case. In 2014, a federal jury found McDonnell guilty of eleven counts of public corruption for accepting over $175,000 worth of gifts and loans from Virginia businessman Jonnie Williams. The conviction was affirmed by the Fourth Circuit. In overturning the Fourth Circuit, the Supreme Court significantly narrowed the definition of an “official act” in the federal bribery statute, which is the controlling statute in most public corruption cases. This Comment argues that the Court’s decision unduly narrows the bribery statute’s scope to punish only the most egregious acts of public corruption. This Comment suggests drawing upon a hybrid between the agency and corporate duties of loyalty in private law to amend the federal bribery statute and provide a more practicable standard by which courts can distinguish between regular constituent services and unlawful public corruption.

May 31, 2018

Cheers to Central Hudson: How Traditional Intermediate Scrutiny Helps Keep Independent Craft Beer Viable

Independent craft breweries contributed approximately $68 billion to the national economy last year. However, an arcane regulatory scheme governs the alcohol industry in general and the craft beer industry specifically, posing both obstacles and benefits to independent craft brewers. This Essay examines regulations that arguably infringe on free speech: namely, commercial speech regulations that prohibit alcohol manufacturers from purchasing advertising space from retailers. Such regulations were enacted to prohibit undue influence and anticompetitive behavior stemming from vertical and horizontal integration in the alcohol market. Although these regulations are necessary to prevent global corporate brewers from dominating the craft beer market at the expense of independent craft beer and consumer choice, evolving commercial speech doctrine threatens to invalidate them due to a trend towards increased protections for commercial speech. Without these regulations, and many others like them, nothing would restrain global corporate brands from engaging in illegal pay-to-play conduct to regain lost market share and force independent craft beer from the shelves and tap handles.

Editor's Note:Thank you to Paige Davidson and Jessica Gandara for powerful research assistance and insights.

May 17, 2018

Leveraging Social Science Expertise in Immigration Policymaking

The longstanding uncertainty about how policymakers should grapple with social science demonstrating racism persists in the modern administrative state. This Essay examines the uses and misuses of social science and expertise in immigration policymaking. More specifically, it highlights three immigration policies that dismiss social scientific findings and expertise as part of presidential and agency decision-making: border control, crime control, and extreme vetting of refugees to prevent terrorism. The Essay claims that these rejections of expertise undermine both substantive and procedural protections for immigrants and undermine important functions of the administrative state as a curb on irrationality in policymaking. It concludes by suggesting administrative, political, and judicial mechanisms that would encourage policymakers to leverage expertise and curb irrationality in immigration policymaking.