Volume 67, Number 4 – January 2018

Articles

The War Against Chinese Restaurants
Gabriel J. Chin & John Ormonde
PDF

Chinese restaurants are a cultural fixture—as American as cherry pie. Startlingly, however, there was once a national movement to eliminate Chinese restaurants, using innovative legal methods to drive them out. Chinese restaurants were objectionable for two reasons. First, Chinese restaurants competed with “American” restaurants, thus threatening the livelihoods of white owners, cooks, and servers and motivating unions to fight them. Second, Chinese restaurants threatened white women, who were subject to seduction by Chinese men taking advantage of intrinsic female weakness and nefarious techniques such as opium addiction.

The efforts were creative. Chicago used anti-Chinese zoning, Los Angeles restricted restaurant jobs to citizens, Boston authorities denied Chinese restaurants licenses, and the New York Police Department simply ordered whites out of Chinatown. Perhaps the most interesting technique was a law, endorsed by the American Federation of Labor for adoption in all jurisdictions, prohibiting white women from working in Asian restaurants. Most measures failed or were struck down. The unions, of course, did not eliminate Chinese restaurants, but Asians still lost because unions achieved their more important goal by extending the federal immigration policy of excluding Chinese immigrants to all Asian immigrants. The campaign is of more than historical interest today. As current anti-immigration sentiments and efforts show, even now the idea that white Americans should have a privileged place in the economy, or that nonwhites are culturally incongruous, persists among some.

Characterizing Constitutional Inputs
Michael Coenen
PDF

Constitutional doctrine frequently employs tests that operate on abstract conceptual inputs rather than objectively identifiable facts. Consider some examples: substantive due process doctrine directs attention to whether a violated “right” qualifies as fundamental or nonfundamental; Commerce Clause doctrine directs attention to whether a regulated “activity” qualifies as economic or noneconomic; the strict scrutiny test directs attention to whether a relevant “government interest” qualifies as compelling or noncompelling; and so forth. These sorts of decision rules call for an evaluation of variables whose scope, content, and character are frequently up for debate, thereby requiring courts to characterize constitutional inputs as a precondition to reaching constitutional results. To determine whether the government has violated a “fundamental right,” courts must first characterize the relevant right whose fundamentality is at issue. To determine whether a congressional enactment regulates an “economic activity,” courts must first characterize the relevant activity whose economic nature must be scrutinized. To determine whether a challenged law pursues a “compelling government interest,” courts must first characterize the relevant government interest whose importance is to be assessed. Tests of this sort thus implicate not just the familiar judicial challenge of evaluating a given variable by reference to an established doctrinal criterion, but also the less familiar (and often unnoticed) challenge of extracting from a fact pattern an operative characterization of the variable to be evaluated.

This Article examines these input-characterization problems as a general challenge of constitutional decisionmaking. The Article makes three contributions. First, the Article demonstrates the widespread presence of characterization problems within constitutional law, highlighting both the broad range of contexts in which these problems arise and the limited amount of attention they have thus far generated. Second, the Article explores the possibility of avoiding input-characterization problems through the reformulation of constitutional decision rules, considering in particular the tradeoffs implicated by the replacement of “characterization-dependent” decision rules with “characterization-resistant” alternatives. Finally, the Article works through the various methods by which courts might confront characterization problems on their own terms, asking whether there exist reliable and predictable means of selecting an authoritative input characterization from the many possibilities that the facts might afford. In sum, this analysis reveals that input-characterization problems are neither easily avoidable nor easily solvable, thus raising critical questions regarding the determinacy and coherence of the doctrine writ large.

Notes

A Violent Birth: Reframing Coerced Procedures During Childbirth as Obstetric Violence
Maria T.R. Borges
PDF

In the United States, women are routinely forced to undergo cesarean sections, episiotomies, and the use of forceps, despite their desire to attempt natural vaginal delivery. Yet, the current American legal system does little to provide redress for women coerced to undergo certain medical procedures during childbirth. Courts and physicians alike are prepared to override a woman’s choice of childbirth procedure if they believe this choice poses risks to the fetus, and both give little value to the woman’s right to bodily autonomy. This Note proposes a solution for addressing the problem of coerced medical procedures during childbirth by importing a framework created in Venezuela and Argentina that characterizes this issue as “obstetric violence.” First, this Note contains an overview of the shortcomings of the existing American legal framework to address the problem. Second, it explains the advantages of the obstetric violence framework and argues that its adoption in the United States would address many of the failures of the existing system. And third, this Note introduces a few legislative and litigation strategies that can be used to implement this framework in the United States and briefly addresses some of the challenges these strategies may pose.

Choose Your Laws Carefully: Executive Authority to Unilaterally Withdraw the United States Outer Continental Shelf from Leasing Disposition
Payton A. Wells
PDF

Congress enacted the Outer Continental Shelf Lands Act (OCSLA) to both exert federal jurisdiction over the submerged lands of the U.S. Outer Continental Shelf and establish the legal framework for America’s offshore energy production regime. Section 12(a) of OCSLA is a short yet potent provision that grants a president the authority to withdraw unleased offshore lands from leasing disposition, effectively banning any form of energy exploration or production. In recent decades, presidents have embraced section 12(a) not only to ban offshore energy production, but also to protect the marine environment itself. Presidents have also utilized a different federal law, the Antiquities Act of 1906 (Antiquities Act), to create marine national monuments, providing general protection for areas of rich biodiversity, scientific interest, and cultural heritage. Interestingly, both OCSLA and the Antiquities Act achieve the same end results: offshore energy production is prohibited and the marine environment is protected. The crucial distinction between the two laws, though, is the ability to provide permanent protection. A close study of these laws reveals that only one indeed provides the intended lasting protection that presidents have sought: the Antiquities Act.

This Note probes the theory of executive authority to unilaterally remove America’s submerged lands from leasing disposition. Specifically, it centers on President Barack Obama’s twin December 2017 offshore withdrawals in the Atlantic and Arctic Oceans. President Obama utilized OCSLA to ban offshore energy production, but he framed the withdrawals as a way to permanently protect each area’s unique marine biodiversity, scientific value, and cultural significance to indigenous inhabitants. This Note concludes that a president seeking such lasting protection must use the Antiquities Act in lieu of OCSLA. The Note examines the relevant statutory histories, judicial inquiries, and precedential usage of these laws and argues that OCSLA’s protection falls incredibly short. This Note is particularly relevant given the Trump administration’s effort to roll back the Obama administration’s bans on offshore energy production. President Donald Trump’s recent executive actions will surely test the conclusions of this Note.

Volume 67, Number 4 – January 2018

Articles

The War Against Chinese Restaurants
Gabriel J. Chin & John Ormonde
PDF

Chinese restaurants are a cultural fixture—as American as cherry pie. Startlingly, however, there was once a national movement to eliminate Chinese restaurants, using innovative legal methods to drive them out. Chinese restaurants were objectionable for two reasons. First, Chinese restaurants competed with “American” restaurants, thus threatening the livelihoods of white owners, cooks, and servers and motivating unions to fight them. Second, Chinese restaurants threatened white women, who were subject to seduction by Chinese men taking advantage of intrinsic female weakness and nefarious techniques such as opium addiction.

The efforts were creative. Chicago used anti-Chinese zoning, Los Angeles restricted restaurant jobs to citizens, Boston authorities denied Chinese restaurants licenses, and the New York Police Department simply ordered whites out of Chinatown. Perhaps the most interesting technique was a law, endorsed by the American Federation of Labor for adoption in all jurisdictions, prohibiting white women from working in Asian restaurants. Most measures failed or were struck down. The unions, of course, did not eliminate Chinese restaurants, but Asians still lost because unions achieved their more important goal by extending the federal immigration policy of excluding Chinese immigrants to all Asian immigrants. The campaign is of more than historical interest today. As current anti-immigration sentiments and efforts show, even now the idea that white Americans should have a privileged place in the economy, or that nonwhites are culturally incongruous, persists among some.

Characterizing Constitutional Inputs
Michael Coenen
PDF

Constitutional doctrine frequently employs tests that operate on abstract conceptual inputs rather than objectively identifiable facts. Consider some examples: substantive due process doctrine directs attention to whether a violated “right” qualifies as fundamental or nonfundamental; Commerce Clause doctrine directs attention to whether a regulated “activity” qualifies as economic or noneconomic; the strict scrutiny test directs attention to whether a relevant “government interest” qualifies as compelling or noncompelling; and so forth. These sorts of decision rules call for an evaluation of variables whose scope, content, and character are frequently up for debate, thereby requiring courts to characterize constitutional inputs as a precondition to reaching constitutional results. To determine whether the government has violated a “fundamental right,” courts must first characterize the relevant right whose fundamentality is at issue. To determine whether a congressional enactment regulates an “economic activity,” courts must first characterize the relevant activity whose economic nature must be scrutinized. To determine whether a challenged law pursues a “compelling government interest,” courts must first characterize the relevant government interest whose importance is to be assessed. Tests of this sort thus implicate not just the familiar judicial challenge of evaluating a given variable by reference to an established doctrinal criterion, but also the less familiar (and often unnoticed) challenge of extracting from a fact pattern an operative characterization of the variable to be evaluated.

This Article examines these input-characterization problems as a general challenge of constitutional decisionmaking. The Article makes three contributions. First, the Article demonstrates the widespread presence of characterization problems within constitutional law, highlighting both the broad range of contexts in which these problems arise and the limited amount of attention they have thus far generated. Second, the Article explores the possibility of avoiding input-characterization problems through the reformulation of constitutional decision rules, considering in particular the tradeoffs implicated by the replacement of “characterization-dependent” decision rules with “characterization-resistant” alternatives. Finally, the Article works through the various methods by which courts might confront characterization problems on their own terms, asking whether there exist reliable and predictable means of selecting an authoritative input characterization from the many possibilities that the facts might afford. In sum, this analysis reveals that input-characterization problems are neither easily avoidable nor easily solvable, thus raising critical questions regarding the determinacy and coherence of the doctrine writ large.

Notes

A Violent Birth: Reframing Coerced Procedures During Childbirth as Obstetric Violence
Maria T.R. Borges
PDF

In the United States, women are routinely forced to undergo cesarean sections, episiotomies, and the use of forceps, despite their desire to attempt natural vaginal delivery. Yet, the current American legal system does little to provide redress for women coerced to undergo certain medical procedures during childbirth. Courts and physicians alike are prepared to override a woman’s choice of childbirth procedure if they believe this choice poses risks to the fetus, and both give little value to the woman’s right to bodily autonomy. This Note proposes a solution for addressing the problem of coerced medical procedures during childbirth by importing a framework created in Venezuela and Argentina that characterizes this issue as “obstetric violence.” First, this Note contains an overview of the shortcomings of the existing American legal framework to address the problem. Second, it explains the advantages of the obstetric violence framework and argues that its adoption in the United States would address many of the failures of the existing system. And third, this Note introduces a few legislative and litigation strategies that can be used to implement this framework in the United States and briefly addresses some of the challenges these strategies may pose.

Choose Your Laws Carefully: Executive Authority to Unilaterally Withdraw the United States Outer Continental Shelf from Leasing Disposition
Payton A. Wells
PDF

Congress enacted the Outer Continental Shelf Lands Act (OCSLA) to both exert federal jurisdiction over the submerged lands of the U.S. Outer Continental Shelf and establish the legal framework for America’s offshore energy production regime. Section 12(a) of OCSLA is a short yet potent provision that grants a president the authority to withdraw unleased offshore lands from leasing disposition, effectively banning any form of energy exploration or production. In recent decades, presidents have embraced section 12(a) not only to ban offshore energy production, but also to protect the marine environment itself. Presidents have also utilized a different federal law, the Antiquities Act of 1906 (Antiquities Act), to create marine national monuments, providing general protection for areas of rich biodiversity, scientific interest, and cultural heritage. Interestingly, both OCSLA and the Antiquities Act achieve the same end results: offshore energy production is prohibited and the marine environment is protected. The crucial distinction between the two laws, though, is the ability to provide permanent protection. A close study of these laws reveals that only one indeed provides the intended lasting protection that presidents have sought: the Antiquities Act.

This Note probes the theory of executive authority to unilaterally remove America’s submerged lands from leasing disposition. Specifically, it centers on President Barack Obama’s twin December 2017 offshore withdrawals in the Atlantic and Arctic Oceans. President Obama utilized OCSLA to ban offshore energy production, but he framed the withdrawals as a way to permanently protect each area’s unique marine biodiversity, scientific value, and cultural significance to indigenous inhabitants. This Note concludes that a president seeking such lasting protection must use the Antiquities Act in lieu of OCSLA. The Note examines the relevant statutory histories, judicial inquiries, and precedential usage of these laws and argues that OCSLA’s protection falls incredibly short. This Note is particularly relevant given the Trump administration’s effort to roll back the Obama administration’s bans on offshore energy production. President Donald Trump’s recent executive actions will surely test the conclusions of this Note.