University of Toronto Law Journal – Volume 67, Number 1, Winter 2017


The Moral Unity Of Public Law
T.R.S. Allan

De-Ciphering Self-Help
Zoë Sinel

The Puzzle Of Intra-Familial Commodification
Ram Rivlin


False Security: The Radicalization of Canadian Anti-Terrorism by Craig Forcese and Kent Roach
Robert Diab


How to end mass imprisonment: The legal and cultural strategies of Bryan Stevenson
Lisa Kerr

Full text of the University of Toronto Law Journal is available online at UTLJ Online, Project Muse, JSTOR, HeinOnline, Westlaw, Westlaw-CARSWELL, LexisNexis and Quicklaw.


In Light of Recent Developments . . .

I thought I would repost my favorite quote from John Bingham:

When the vital principle of our government, the equality of the human race, shall be fully realized, when every fetter within our borders shall be broken, where the holy Temple of Freedom, the foundations of which our fathers laid amidst prayers, and sacrifices, and battles and tears, shall be complete, lifting its head-stone of beauty above the towers of watch and war, then conscious of duty performed, and a noble mission fulfilled, we may call to the down-trodden and oppressed of all lands–come.


Vanderbilt Law Review, Volume 70, Number 1

The Vanderbilt Law Review is pleased to announce the publication of our January 2017 issue:


Nicole Stelle Garnett, Sector Agnosticism and the Coming Transformation of Education Law, 70 Vand. L. Rev. 1 (2017)

Elizabeth Chamblee Burch, Monopolies in Multidistrict Litigation, 70 Vand. L. Rev. 67 (2017)

Jason Parkin, Aging Injunctions and the Legacy of Institutional Reform Litigation, 70 Vand. L. Rev. 167 (2017)

J. Maria Glover, A Regulatory Theory of Legal Claims, 70 Vand. L. Rev. 221 (2017)


Brian P. Baxter, The Securities Black Market: Dark Pool Trading and the Need for a More Expansive Regulation ATS-N, 70 Vand. L. Rev. 311 (2017)

Stanley Onyeador, The Chancery Bank of Delaware: Appraisal Arbitrageurs Expose Need to Further Reform Defective Appraisal Statute, 70 Vand. L. Rev. 339 (2017)

Laura C. Williams, An Ocean Between Us: The Implications of Inconsistencies Between the Navigational Laws of Coastal Arctic Council Nations and the United  Nations Convention on the Law of the Sea for
Arctic Navigation
, 70 Vand. L. Rev. 379 (2017)



Interstate Representation and the Electoral College

Yesterday I posted about the advantages and drawbacks of expanding the membership of the House of Representatives. Let’s now focus on some structural aspects of this issue and think about whether partisan politics stand in the way.

One problem that others have pointed out is that the relatively small size of the House violates the spirit of the “one-person, one-vote” principle. The reason is that the average population of a House district now exceeds the population of our smallest states. Each state must get at least one member (under Article One of the Constitution) even though some of them would get less than one if you only looked at the population figures.  Take a simple example.  California has 53 House members and Wyoming 1.  But California (as of the 2010 census) has 66 times more people than Wyoming. This means that Wyoming is overrepresented or California is underrepresented. This does not rise to the level of a constitutional violation (at least not so far) but expanding the size of the House is a way of eliminating this disparity.

Another consequence of the small size of the House is that the unequal representation of the states in the Electoral College is getting worse.  Wyoming, for example, is overrepresented in the Electoral College because it gets two votes because of its two senators.  But it’s even more overrepresented (or the large states are more underrepresented) because Wyoming is, in effect, getting three electoral votes instead of something like 2.75.  Is this distortion large?  No, but it might have changed the outcome of the 2000 election. (I need to crunch numbers on that.)

If you enlarge the House and reduce the average population of each district, these problems would diminish or go away.  Would one party benefit from this disproportionately?  I don’t think so.  The state that would see the biggest increase in House members would be California.  But Texas would also benefit. Moreover, the partisan effect would depend in part on how the new districts would be drawn, which would in turn depend on who controlled each state’s government at the time.

In short, I don’t think that this sort of change would far a partisan roadblock the way, say, getting rid of the Electoral College will.


Should the Membership of the House of Representatives Be Enlarged?

Another question I’m looking at in my reapportionment research (along with the Section Two issue discussed in my prior posts) is whether the current size of the House of Representatives is too small.  Since the 1910s, the House has had 435 members (except for a brief time after Alaska and Hawaii became states).  Over the past century, the population of the United States has trebled.  You can do the math–each representative now represents three times as many people as was the case in 1917. It is also fair to say that a Representative represents far more people than an equivalent legislator in other major democracies, such as Canada, Britain, Germany, etc.

What would be some benefits of adding, say, 200 more members to the House?

  1. Better constituent service.  You might think that if each member (on average) represented fewer people, members would be more responsive to the needs of his or her constituency.
  2. A reduced workload.  More members would mean less committee service for each member (if you assume that the number of committees stays constant).  That would also allow more time for helping constituents or just working on other matters.
  3. More viewpoints.  More members would bring more ideas to the table. If constituencies were smaller, you might also think that certain local perspectives that are not being represented now would get represented.
  4. Reduced cost of campaigning.  If each district was smaller on average, then the cost of running for the House would be reduced without any campaign finance reform.
  5. More competition.  In the initial election or elections after an expansion, you would be creating many new seats without an incumbent.  This would allow lots of new people into politics and give us something other than the usual “reelect most members” result that we get every two years.
  6. Better oversight.  Maybe you’d think that more members of the House would lead to more eyes looking at the executive agencies to hold them accountable.

What are some downsides of this proposal? Well, it would cost money.  (New offices, more staff, etc.) The transaction costs of legislative action would also go up, in that there would more people to negotiate with to get a majority for a bill, more time required for debate on the floor, etc. These do not strike more as especially strong objections, but I want to give that more thought.

Is there a partisan valence to increasing the number of House members that dooms the idea?  (In the way that there almost always is for enlarging the membership of the Supreme Court.) I’ll take that up in a separate post.

UPDATE:  I didn’t realize until now that the New Hampshire House of Representatives has 400 members.  This is an outlier among the states, but this does suggest that 435 could be too small for the entire nation.




The Supreme Court Decision on Brexit

Today the British Supreme Court held (by an 8-3 vote) that Parliament must approve the invocation of Article 50 for the country to leave the European Union. I think this conclusion is correct, but the decision does open up at least one can of worms.

The House of Commons will almost certainly approve such a bill, but what about the House of Lords?  The Lords still have the power to delay the enactment of any legislation passed by the Commons for up to one year. If they do that (and they well might, given that the Lords are far more pro-EU than everyone else), then that would delay the start of the exit process until 2018. I wonder what elected representatives and voters will think about that if it happens.


FAN 139 (First Amendment News) Gov. Cuomo turns to Floyd Abrams for First Amendment Help

Gov. Cuomo has hired prominent First Amendment lawyer Floyd Abrams to defend him against a federal lawsuit challenging a new law that requires politically active non-profit organizations to publicly disclose their donors.N.Y. Daily News, Jan. 23, 2017

Seattle. Yes, it’s true: Floyd Abrams, the nation’s preeminent First Amendment lawyer and author of the forthcoming The Soul of the First Amendment is defending two government officials against a claim of a First Amendment violation.

Floyd Abrams

The lawsuit was brought by Citizens Union. It claims that a New York ethics law violates First Amendment protections of free speech. It names Gov. Cuomo and state Attorney General Eric Schneiderman as defendants.

According to the New York Daily News, Mr. Abrams is representing the Governor thought it is “unclear how much Abrams and his firm are being paid since no contract has been filed yet with the state controller’s office. A Cuomo spokesman said the details with Abram’s firm are still being worked out.”

When I asked about his involvement in the case, Mr. Abrams said:  “I have long thought — and so has the Supreme Court — that more disclosure of who is spending significant sums of money to persuade the public who to vote for and how to view  public policy issues is not only not violative of the First Amendment but significantly pro-First Amendment in its impact. There are, to be sure,  exceptions to this when the identification of speakers will lead to threats, harassment or the like  (and such an exception is in the New York law) but as a general proposition more sunlight about such matters is not only good policy but consistent with well established First Amendment law.”

This from Professor Richard Hasen: “I think Floyd Abrams recognizes that campaign finance disclosure serves a valuable democratic function in helping voters make informed decisions in elections. I am pleased he has taken on this case.”  (See also Richard Hasen, Floyd Abrams, Who Argued Citizens United, Writes Letter for Gov. Cuomo Defending New NY Disclosure Requirements, Election Law Blog, Jan. 4, 2017)

The N.Y. Ethics Law

As set out in the Plaintiffs’ complaint, Section 172-e of the New York ethics law ‘mandates the public disclosure of all donors and donations to a 501(c)(3) in excess of $2,500 whenever that organization makes an ‘in-kind donation” of over $2,500 to certain 501(c)(4)s engaged in lobbying activity. N.Y. Exec. Law § 172-e[1][a], [d], [2]. An ‘in- kind donation’ is defined as ‘donations of staff, staff time, personnel, offices, office supplies, financial support of any kind or any other resources.’ N.Y. Exec. Law § 172-e[1][b].

Randy M. Mastro, lead counsel for Plaintiffs

“Section 172-e requires disclosure reports to be filed with the Department of Law within thirty days of the close of a reporting period. The disclosures must include:

(i) the name and address of the covered entity that made the in‐kind donation;
(ii) the name and address of the recipient entity that received or benefitted from the in‐kind donation;

(iii) the names of any persons who exert operational or managerial control over the covered entity. The disclosures required by this paragraph shall include the name of at least one natural person;

(iv) the date the in‐kind donation was made by the covered entity;

(v) any donation in excess of two thousand five hundred dollars to the covered entity during the relevant reporting period including the identity of the donor of any such donation; and

(vi) the date of any such donation to a covered entity.”

“Section 172-f requires 501(c)(4)s to disclose publicly donations over $1,000—including the donor’s identity and the amount of the donation—whenever the organization makes ‘expenditures for covered communications’ totaling over $10,000 in a calendar year. N.Y. Exec. Law § 172-f[1][a], [2]-[3].”

First Amendment Challenges

In Citizens Union v. Governor of New York the Plaintiffs make the following First Amendment arguments:

  • “Nonprofit Organizations Like Citizens Union And Citizens Union Foundation Depend On Donors To Function, Including Donors Who Choose To Give Anonymously To Support Speech On Matters Of Public Concern.”
  • “On Their Face, Sections 172-e And 172-f Substantially Burden The Rights Of Organizations Like Plaintiffs And Of Their Donors.”

“In order to avoid harsh penalties, including fines and revocation of its registration, under Section 172-e, Citizens Union Foundation and similarly situated 501(c)(3)s must disclose publicly all donations over $2,500 whenever they make an in-kind donation of more than $2,500 to certain 501(c)(4)s engaged in lobbying activity. Not only does this requirement directly chill speech by 501(c)(3)s, but it imposes significant compliance costs on covered organizations. . . . Section 172-e simply has nothing to do with protecting against quid pro quo corruption or promoting transparency in campaign finance. These disclosure requirements thus reach much farther than the disclosure requirements upheld in Citizens United, which were targeted at “electioneering communications” that were related to electoral politics.”

“Requiring these disclosures does not meaningfully advance the government’s interest in preventing quid pro quo arrangements with public officials, promoting transparency in campaign finance, or rooting out corruption. Unlike those upheld in Citizens United, the disclosures here are not linked with an informational interest in ‘election-related’ financing that may justify disclosures pertaining to electioneering communications.”

 “The law seems to be a solution in search of a problem and mainly serves to curtail the work of organizations like ours which seek to promote the public good,” said Dick Dadey, Executive Director. 

Plaintiffs’ Counsel 

Three Gibson Dunn & Crutcher lawyers from its New York offices are representing the Plaintiffs. They are:

Related: FAN 121: New York law to combat Citizens United is “constitutionally unsound” says NYCLU, Aug. 31, 2016

Commentaries on the “Slants” Case

  1. Ronald Abrams, A Review of The Supreme Court’s Questions And Comments In ‘Slants, Forbes, Jan. 20, 2017
  2. Ken Jost, Justices Set to OK Offensive Trademarks?, Jost on Justice, Jan. 23, 2017
  3. Amy Howe, Argument analysis: Justices skeptical of federal bar on disparaging trademarks, SCOTUSblog, Jan. 19, 2017
  4. Steven Mazie, Free expression vs offensive speech at the Supreme Court, The Economist, Jan. 19, 2017
  5. Cristian Farias, Who’s To Say The Word ‘Slants’ Offends Asians? The Supreme Court, That’s Who, Huffington Post, Jan. 19, 2017
  6. Adam Liptak, Justices Appear Willing to Protect Offensive Trademarks, New York Times, Jan. 18, 2017
  7. Tony Mauro, In ‘Slants’ Case, Justices Skeptical of Ban on Disparaging Trademarks, National Law Journal, Jan. 18, 2017
  8. Robert Barnes, Can disparaging trademarks be denied? The Supreme Court is skeptical, Washington Post, Jan. 18, 2017
  9. Ruthann Robson, Court Hears Oral Arguments in Lee v. Tam, First Amendment Challenge to disparaging trademark ban, Constitutional Law Prof Blog, Jan. 18, 2017

 John Shu, Lee v. Tam: “Disparaging” Trademarks & the First Amendment, The Federalist Society, Jan. 17, 2017 (YouTube)

FIRE Celebrates 50th Anniversary of ‘Keyishian’ Decision Read More


The Duty Imposed by Section Two on the Commerce Department

In two posts, I observed that the current statutes regulating the reapportionment of the House of Representatives say nothing about how Section Two of the Fourteenth Amendment–which is still in force–should be taken into account when representatives are allotted to the states after each census. These statutes cannot lawfully prohibit Section Two from being taken into account, but they need not be read as doing so. They can instead be read as delegating authority to the Commerce Department to exercise that constitutional duty. Was that duty fulfilled following the last census?  No, because the Commerce Department ignored Section Two entirely.  Is there any remedy for that now? No. But there should be after the next census if the same thing happens.

A fine Note by Michael Hurta that appeared in the Texas Law Review about two years ago made a similar argument about the Commerce Department’s authority and duty to conduct Section Two review. What do I mean by review?  I mean that the Commerce Department must collect data on people who are eligible to vote under the Constitution but are not permitted to vote by a state. If they decide that no adjustment to representation is warranted by that data, then that conclusion should be reviewed deferentially under ordinary administrative law principles.  But such a review must, in my view, be done.  If not, I would think that almost every state would have standing to say that its allotment of representatives after the next census is invalid (maybe they are entitled to one more, for instance, if somebody else should be getting one fewer).

Here’s one problem though: The Commerce Department is not the right agency to conduct this analysis.  Suppose questions are included on the census about past voting history and someone claims that they were turned away at the polling place.  How could this be verified?  Census data is confidential, in large part to encourage people (even those here illegally) to respond. Moreover, the DOJ is the place where you find experts on voting rights–not the Commerce Department.  Thus, I think all Commerce could do is say “X number of people in a state told us that they were denied the right to vote for what appears to be an invalid reason.”  Now maybe that number would be so small as to be irrelevant, but suppose it were large and Section Two was invoked.  Congress would be free to reject the Department’s conclusion that a state’s representatives should be reduced based on a disputed question of fact, but partisan deadlock might prevent Congress from acting at all.

Consequently, I’m wondering if the reapportionment statute should be amended to require the DOJ to conduct a Section Two review following the census. Section Two does not require an enumeration of the disenfranchised in the way that the Census requirement in the Constitution does.  But I want to think about that some more.


The Legality of a Border Tax Under the WTO

I have a question for those of you who write about or practice international trade law.  (As an aside, congratulations!  Your area is about to become very exciting.)

Suppose that Congress follows through on the President’s idea of imposing a tax on goods manufactured abroad by an American firm that closed a factory here and built the foreign factory.  Would that pass muster under the WTO?  I have no idea, which is why I’m curious.