David Louk

The Republican Guarantee Clause of Article IV, Section 4 promises that "[t]he United States shall guarantee to every State in this Union a Republican Form of Government " Although this clause might seem to confer significant power to oversee the political structures of the states, ambiguity about the Clause's meaning, coupled with the Supreme Court's historic disinclination to define its contours, have led some observers to question whether the Clause is a paper tiger While recent scholarship has focused mostly on what a "Republican Form of Government" might entail, less attention has been given to the threshold questions of who might serve as guarantors of the Clause and precisely what forms of action they might take under it This Article concludes that while all federal branches may have a role to play as guarantors of republican government, the logic, location, and history of the Republican Guarantee Clause suggest that the Clause most directly empower...

Although a maxim of statutory drafting is to identify the relevant audience and draft so that the audience can “get the message,” conventional theories of statutory interpretation often overlook important considerations about how statutes communicate and delegate to a diverse range of intended audiences. Statutes exist to change the conduct and behavior of many kinds of intended audiences, including administrative agencies, state and local governments, law enforcement officers, corporations, interest groups, lawyers, and laypeople. Influenced by lessons from the philosophies of law and language, this Article contends that judicial statutory interpretation serves an important yet underappreciated role in providing a legal grammar for how other legal audiences are expected by law to understand, implement, and conform their conduct to the law. If so, then prevailing judicial methods of interpretation may not be equally suitable for all statutory audiences. This is because diverse audie...

Although a maxim of statutory drafting is to identify the relevant audience and draft so that the audience can "get the message," conventional theories of statutory interpretation often overlook important considerations about how statutes communicate and delegate to a diverse range of intended audiences. Statutes exist to change the conduct and behavior of many kinds of intended audiences, including administrative agencies, state and local governments, law enforcement officers, corporations, interest groups, lawyers, and laypeople. Influenced by lessons from the philosophies of law and language, this Article contends that judicial statutory interpretation serves an important yet underappreciated role in providing a legal grammar for how other legal audiences are expected by law to understand, implement, and conform their conduct to the law. If so, then prevailing judicial methods of interpretation may not be equally suitable for all statutory audiences. This is because diverse audiences have distinct roles, interests, and capabilities, and statutes communicate to, and alter the conduct of, relevant audiences in very different ways. Some statutes set out specific rules that apply directly to the conduct of lay audiences, others conscript qualified third parties to transmit legal knowledge to affected members of the public, and others furnish open-ended mandates for governmental audiences to implement through subsequent regulation and enforcement. Yet dominant interpretive theories like textualism and purposivism often seem to treat judges as the chief audience for statutes, and therefore call for the same methods of interpretation regardless of the statute or its intended audience(s).

This Article argues that considerations of statutory audience and canons and methods of interpretation are necessarily linked, and it offers the first extensive account of the relationship between judicial statutory interpretation methodology and statutory audience. This ambit is both descriptive and normative. Descriptively, this Article identifies the subtle ways in which courts already implicitly, if inconsistently, seem influenced by statutory audience considerations. Courts invoke substantive canons of interpretation that can be understood in part as audience canons: the rule of lenity (for laypeople), interpretive deference (for administrative agencies), clear notice rules (for states as Spending Clause counterparties), and mistake-of-law defenses (for deficient taxpayers but not criminal defendants). These substantive judicial doctrines recognize that statutes communicate to, and alter the behavior of, different audiences in distinctive ways. Yet when it comes to choices of interpretive methods, courts often employ onesize-fits-all approaches to interpretation, drawing (or not drawing) on the same preferred semantic and syntactic canons of construction, evidence of linguistic usage, and other sources of statutory meaning regardless of the statute or its audience(s). Courts do so even when this approach may undermine both the normative goals that motivate audience-oriented substantive doctrines as well as the efficacy of the statutory scheme itself.

Normatively, this Article contends that many disagreements in statutory interpretation may be attributed to conflicts in prioritizing competing statutory audiences, because many statutes are directed at multiple and distinct audiences. To demonstrate this, this Article revisits prominent statutory interpretation cases in financial fraud, environmental, and civil rights law from the standpoint of statutory audience. Viewed through this lens, canonical statutory interpretation debates that typically register as disputes about method can also be understood as disagreements about audience. Indeed, judicial opinions often seem written with distinct (and conflicting) statutory audiences in mind. This Article concludes that explicitly addressing audience considerations in interpretation can highlight the important normative stakes of statutory interpretation theory; enhance the efficacy of statutes; offer lessons for legislative and regulatory drafting; and may even provide a way forward beyond debates between textualism and purposivism.

The Republican Guarantee Clause of Article IV, Section 4 promises that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.” Although this clause might seem to confer significant power to oversee the political structures of the states, ambiguity about the Clause’s meaning, coupled with the Supreme Court’s historic disinclination to define its contours, have led some observers to question whether the Clause is a paper tiger. While recent scholarship has focused mostly on what a “Republican Form of Government” might entail, less attention has been given to the threshold questions of who might serve as guarantors of the Clause and precisely what forms of action they might take under it.

This Article concludes that while all federal branches may have a role to play as guarantors of republican government, the logic, location, and history of the Republican Guarantee Clause suggest that the Clause most directly empowers the political branches, and especially Congress, to act as guarantor. Often forgotten, but of critical importance, is that the Clause served as the chief constitutional basis for Reconstruction after the Civil War, and it helped pave the way for ratification of the Fourteenth and Fifteenth Amendments in the southern states. This history suggests that the Clause and those Amendments—on which twentieth-century voting rights legislation was based—should be understood and interpreted in light of one another.

This Article explores the role the Clause might play as an alternative source of federal legislative power to guarantee basic political processes alongside—or in place of—these Reconstruction Amendments. These questions have renewed significance today, given recent and frequent constitutional confrontations between Congress and the Supreme Court regarding the scope of Congress’s constitutional power to interpret and enforce the Reconstruction Amendments. Most recently, in Shelby County v. Holder (2013), the Court struck down portions of the Voting Rights Act as extending beyond Congress’s Fifteenth Amendment Enforcement Clause power. Around the same time, many state governments began to impose new restrictions on voter registration and access to the ballot box. These new measures, coupled with the Supreme Court’s holding in Rucho v. Common Cause (2019) that legal challenges to partisan gerrymandering are not justiciable in federal courts, has provoked renewed calls for federal protections to guarantee fairness in state political processes. Other recent developments, including the 2020 coronavirus pandemic, have also led to calls for greater congressional oversight of state electoral procedures.

This Article considers whether the Clause might serve as an additional constitutional basis for federal legislation and explores the interpretive arguments Congress might raise to justify the power to reform electoral processes in the states under the Clause. This Article also questions the prevailing view that the Supreme Court has always treated the Clause as functionally nonjusticiable. It argues that even following established precedents, the contemporary Court might well engage with the merits of legislation and litigation commenced under the Clause, given the Court’s recent penchant for enhanced scrutiny of congressional enforcement powers under the Reconstruction Amendments. Such challenges would spark a historical constitutional confrontation between Congress and the Court as to the meaning of the Clause. The Court might take one of several approaches when interpreting Congress’s power to legislate under the Clause, and this Article concludes that the Clause is the rare constitutional provision that would seem to grant both the courts and the political branches independent and complementary bases to guarantee republican government. Judicial scrutiny of congressional actions taken under the Clause should be heightened when congressional efforts can more readily be achieved by the states or by the courts and diminished when only Congress or president could effectively serve as the guarantor.

The text of a Supreme Court opinion rarely tells the full story of the debates, discussions, and disagreements that resulted in a particular decision. Drawing on previously unexamined archival papers of the Justices of the Burger Court, this Note tells the story of the Burger Court’s federalism jurisprudence between 1975 and 1985, famously bookended by a pair of rare and abrupt reversals of Supreme Court precedent. The Note documents the Justices’ deliberations for the first time, sheds new light on the institutional workings of the Court, and enriches our understanding of the foundations of modern federalism. In its federalism cases, the Burger Court grappled with the challenge of balancing the states’ autonomy against the rise of new national problems and an expanding federal government’s solutions to them. The Justices’ papers show that they were more attuned to policy outcomes and the real-world consequences of their decisions than may typically be assumed. Above all, the papers reveal the Burger Court’s deep struggle to articulate a sustainable federalism jurisprudence given the constraints of judicial craft. As the Note concludes, however, the Burger Court’s uneven federalism experiments nonetheless laid the groundwork for the Court’s subsequent attempts to fashion more workable doctrines. The Rehnquist and Roberts Courts have adjudicated federalism disputes more effectively by avoiding impracticable doctrines and remaining mindful of the institutional limitations of courts as federalism referees.

Roughly half of U.S. states allow labor unions and public-sector employers to establish “agency shop” arrangements that cover state and local government workplaces. These arrangements require employees to pay agency fees to cover their local union’s collective-bargaining costs, regardless of whether the employee joins the union. Agency shop supporters justify these arrangements as a means of preventing non-union members from free-riding off the union’s bargaining efforts, while opponents contend that agency shop arrangements violate the First Amendment rights of non-union members forced to pay the agency fee. Although the Supreme Court permitted agency fees over First Amendment objections in Abood v. Detroit Board of Education (1977), the Court will reconsider that ruling in Friedrichs v. California Teachers Association in early 2016. Many observers predict the Court may use Friedrichs as an opportunity to overrule Abood, with the consequence that public-sector unions will lose the ability to deter free-riding by nonmembers.

We take no position on whether Abood will, or ought to, survive. Instead, we present a novel alternative mechanism to address the free-rider problem in public-sector workplaces — a mechanism that could be utilized even if Abood is overturned. We suggest that if a public-sector employer wants to make sure that a labor union is compensated for the cost of representing nonmembers, the employer can reimburse the union for those expenses directly. To offset the cost of this direct payment, the employer can reduce each employee’s salary by the employee’s pro rata share of the union’s bargaining expenses, while also freeing employees from the obligation to pay agency fees. This “direct payment alternative” would seem to accomplish the same objective as existing agency shop arrangements: it would prevent non-union members from reaping the benefits of union representation without sharing the costs. And while the wages of public-sector employees would be reduced by their pro rata share of their union’s bargaining costs, existing agency shop arrangements already reduce wages by that amount, because employees must pay their pro rata share in the form of union dues or agency fees.

In fact, our direct payment alternative might leave public-sector employers and employees better off than existing agency shop arrangements. First, the direct payment alternative eases the First Amendment concerns raised in Friedrichs: a direct payment to the union would likely qualify as “government speech,” and would thus be subject to less stringent scrutiny under present First Amendment doctrine. Second, the direct payment alternative would bring with it favorable federal tax consequences for state and local government employees. An employee’s pro rata share of union bargaining expenses would not be included in gross pay for purposes of Social Security and Medicare taxes, and would not be included in adjusted gross income for purposes of personal federal income taxes. Most public-sector employees would fare better on an after-tax basis if their employers adopted the direct payment alternative instead of the agency shop arrangement.

In this short essay, we compare and contrast the basic features of the agency shop and the direct payment alternative, considering the constitutional, economic, and political factors that might lead state and local governments and public-sector unions to choose one approach over the other. We present several hypotheses drawn from behavioral economics and political psychology — and, in particular, from the emerging literature on the “salience” of taxes and fees — that might explain why employers and unions have thus far opted for agency shops. We close by considering the practical consequences of a possible Supreme Court decision overruling Abood. We conclude that while Abood is not entirely irrelevant, the availability of the direct payment alternative suggests that the impact of overruling Abood may be muted.

In nearly every area of law and governance, default policies exist when lawmakers cannot pass new legislation — typically, the status quo simply remains in effect. To its detriment, U.S. budget making at both the state and federal levels lacks effective defaults. If a new budget isn’t passed by year end, there is no budget. This lack of defaults, coupled with a dysfunctional era of budgetary politics, has led to a number of recent high-profile and costly state and federal government shutdowns.

To date, legal scholarship has failed to address both the causes and costs of government shutdowns and near-shutdowns, and thus has also failed to consider possible solutions to prevent them. This Article seeks to fill this gap, exploring the history and sources of recent government shutdowns. Government shutdowns are the result of a perfect storm of contemporary politics: acrimonious budget making characterized by partisan brinkmanship, game-of-chicken-style negotiation strategies, and strong anti-tax sentiment among many conservative legislators. Drawing on political science work on legislative negotiation theory, this Article explains how these new fiscal politics result in regular budget negotiation failures, greatly increasing the risk of costly government shutdowns or near-shutdowns.

From this diagnosis of budgetary dysfunction, this Article advocates for the adoption of default budget policies to maintain government operations in the event that legislators fail to pass a timely budget. This Article explains how default budget policies might be implemented to avert shutdowns and to stabilize the budget-making process. Drawing upon the experiences of several states with automatic continuing appropriations provisions, and the federal experience with sequestration, we explore how default budget policies might work in practice. Properly enacted, default budget policies have the potential to mitigate the harmful consequences of budget negotiation failures and to restore sanity to this era of new fiscal politics.

This updated casebook serves a course in introduction to legal reasoning. It is designed to initiate students in the legal methods of case law analysis and statutory interpretation. In a course of this kind, students should acquire or refine the techniques of close reading, analogizing, distinguishing, positing related fact patterns, and criticizing judicial and legislative exposition and logic.

Law students’ introduction to law can be unsettling: the sink or swim approach favored by many schools casts students adrift in a sea of substantive rules, forms and methods. By contrast, the Legal Methods course seeks to acquaint students with their new rhetorical and logical surroundings before, or together with, the students’ first encounters with the substance of contracts, torts, or other first year courses. This approach may not only be user friendly; it should also prompt students to take a critical distance from the wielding of the methods. In this way, students may avoid (or at least broaden) the tunnel vision that so often afflicts beginning law students.

The fifth edition features a substantially revised chapter on statutory interpretation. It not only highlights recent Supreme Court decisions, but also confronts students with statutory texts to construe independently of judicial exposition. The chapter also includes new sections on ordinary meaning, the use of dictionaries and corpus linguistics, and temporal problems in statutory interpretation.