No Legs to Stand On: Article III Injury and Official Proponents of State Voter Initiatives

The U.S. Supreme Court’s decision in Hollingsworth v. Perry—which held that the official proponents of California’s Proposition 8 did not have standing to appeal an adverse district court judgment—deals a heavy blow to voter-enacted legislation in the twenty-four states that make use of voter initiative processes. Challenges to voter-enacted legislation are increasingly being brought in federal courts, and federal courts are more likely to invalidate such legislation than a state’s own courts. In the wake of Hollingsworth, official proponents of state voter initiatives will be left with no legs to stand on whenever state government officials decline to appeal an adverse federal district court judgment. Since current Article III standing doctrine does not provide strong support for official proponents to successfully show standing in a future case, Hollingsworth should be overruled and replaced by a standard that is more charitable to state voter initiative processes. The purposes underlying standing doctrine support a new test for official proponent standing that is more accommodating to attempts by state legislatures to authorize official proponents to represent state interests in federal court.

A Preferable Way to Treat Preferential Treatment

This Comment advocates for a particular definition of “preferential treatment.” On April 22, 2014, the U.S. Supreme Court held that the State of Michigan’s constitutional amendment forbidding preferential treatment based on race or gender was consistent with the U.S. Constitution. The case was Schuette v. Coalition to Defend Affirmative Action. The amendment, known as Proposal 2, has effectively banned affirmative action in Michigan, policies that favor minority representation in higher education. While both sides passionately argued whether Proposal 2 is constitutional, no one offered a detailed explanation of what exactly preferential treatment means.

This Comment argues for an intrinsic/extrinsic test in the context of higher education. An intrinsic quality is one that is valuable in and of itself to a university (such as leadership, initiative, and eagerness to learn). Extrinsic qualities are all other qualities that contribute to or are evidence of intrinsically valuable qualities to universities. For example, being captain of the high school soccer team may not be inherently valuable to a university, but qualities displayed by being a captain, such as leadership, can have such value. Hence, being a captain is an extrinsic quality that provides evidence of leadership, which is the intrinsic quality. Under my definition, granting preferential treatment based on race means considering race as an intrinsic quality. Thus, under Proposal 2, universities can no longer consider race as a plus factor in and of itself but can consider race extrinsically if a candidate’s race contributed to activities that demonstrate other inherently valuable qualities. This definition is narrower than what the drafters of Proposal 2 intended, but a broader interpretation advocating complete race-blind admissions methods would be exceedingly impractical and potentially unconstitutional. This Comment argues that the Court in Schuette rightly upheld Proposal 2 as constitutional so long as preferential treatment is defined as narrowly as I have suggested. If preferential treatment is defined by the intrinsic/extrinsic test, universities can still consider an applicant’s race extrinsically, thereby providing a small victory for affirmative action advocates.

Bankruptcy Survival

Of the large, public companies that seek to remain in business through bankruptcy reorganization, only 70 percent succeed. The assets of the other 30 percent are absorbed into other businesses. Success is important both because it is efficient and because it preserves jobs, communities, supplier and customer relationships, and tax revenues. This Article reports the findings of the first comprehensive study of the variables that determine whether a business will succeed or fail. Eleven conditions best predict companies’ survival prospects. First, a company that even hints in the press release announcing its bankruptcy that it intends to sell its business is highly likely to fail. Second, reorganizations assigned to more experienced judges are more likely to succeed. Third, companies headquartered in isolated geographical areas are more likely to fail. Fourth, companies that report greater shareholder equity are more likely to fail. Fifth, companies with routinely appointed creditors’ committees are more likely to fail. Sixth, companies with debtor-in-possession (DIP) loans are more likely to succeed. Seventh, companies that prepackage or prenegotiate their plans are more likely to succeed. Eighth, companies that file in periods of low interest rates are more likely to succeed. Ninth, larger companies are more likely to succeed. Tenth, manufacturers are more likely to succeed. Eleventh, companies with positive pre-filing operating income are more likely to succeed. System participants may be able to improve survival rates by shifting cases to more experienced judges and perhaps also by paying greater attention to the decisions to appoint creditors’ committees, to prenegotiate plans, to obtain DIP loans, and to publicly seek alliances.

Interstitial Federalism

Spillover commons are common-pool resources that cross jurisdictional boundaries. Governing spillover commons poses unique and significant challenges. If jurisdictional boundaries are drawn too narrowly, jurisdictions can externalize costs to neighbors. If the jurisdictional boundaries are drawn too broadly, too many remote stakeholders unnecessarily increase transaction costs. The jurisdictional boundaries must be just right—the Goldilocks governance challenge. To meet this challenge, jurisdictional boundaries should, where possible, correspond to the geographic contours of spillover commons. By making jurisdiction consistent with geography, jurisdictions internalize the costs of managing spillover commons while lowering transaction costs. In the United States, this necessitates governance of the inevitable cracks between state and federal jurisdiction associated with spillover commons. This Article describes that level of governance between state and federal jurisdiction as interstitial federalism. Governance institutions that manage spillover commons at the interstitial federalism level are established through constitutionally prescribed interstate compacts. Relying primarily on two recent controversies involving interstate river compacts, this Article provides a critique of the current approach to interstitial federalism and proposes reforms to appropriately strengthen interstitial federalism institutions. This approach has the potential to translate into other areas of interstitial federalism—including public transportation, environmental protection, and energy sharing—in order to inform international transboundary governance.

National Security’s Broken Windows

This Article examines the federal government’s community engagement efforts with American Muslim communities as part of a larger infrastructure for policing radicalization and countering violent extremism (CVE). While the federal government presents community engagement as a softer alternative to policing, community engagement is integrated into a larger policing apparatus, making the reality far more coercive. Community engagement efforts are staged within the greater context of radicalization discourse, counterradicalization and CVE programs. Radicalization theory posits that increased religiosity and politicization in Muslims provokes an increased threat of terrorism. Government counterradicalization programs aim, therefore, to monitor and influence the political and religious cultures of Muslim communities so as to prevent radicalization, bringing tremendous scrutiny to bear on these communities.

The federal government situates its national security community engagement efforts within the history of community policing in the ordinary criminal context. Community engagement and community policing are celebrated as forms of policing that emphasize communication and collaboration with marginalized communities and serve ideals of inclusion and democratic participation. In both contexts, however, efforts at police-community communication and collaboration are warped by law enforcement’s commitments to preventive theories of crime control, narrowing the space for the inclusion of and democratic contestation by the subject communities. Broken windows theory and radicalization theory invest local social and cultural norms an outsized role in the origination of criminal activity, creating a rationale for the policing of everyday life. In linking noncriminal activity to the potential for crime, both theories reinforce a punitive lens through which police interact with communities, further marginalizing communities on the grounds of their difference. In putting community engagement in conversation with community policing, this Article’s central insight is as straightforward as it might be surprising: Community engagement in the national security context shares some of the problems of community policing in the ordinary criminal context.

Community engagement efforts increase the presence of law enforcement in already overpoliced communities, and exacerbate intracommunity inequalities. Rather than enhance participation, community engagement may simply provide opportunities for select members of Muslim communities to approve preexisting law enforcement commitments—and create an additional source of pressure on Muslim communities to perform their Americanness—without meaningful openings for Muslim communities to communicate, collaborate, and contest the relationship, its modalities, and its outputs.