Constitutional Hardball and Nationwide Preliminary Injunctions

Constitutional hardball—the breaking of norms while remaining technically within the bounds of the Constitution—has spread from the executive and legislative branches to the federal judiciary in the form of nationwide preliminary injunctions in politically sensitive cases. Preliminary injunctions evolved in the English judicial system to ensure that plaintiffs clearly in the right were not irrevocably harmed while waiting for torpid courts to rule on their case. Now, preliminary injunctions are a useful tool for delaying and disrupting the adoption of disfavored executive branch policies. While the general problem of nationwide preliminary injunctions is well recognized, it is difficult to find satisfactory solutions. Proposals for reform have largely focused on near-total elimination of nationwide preliminary injunctions by restraining the power of district judges. Opponents of those reforms rightfully argue that because actions by the executive branch have come to dominate the policy arena, the judiciary is the only branch that can meaningfully constrain partisan executive actions. More bluntly put: the executive policies of the last several years have been so bad as to warrant constitutional hardball. In this Article, I review the development of preliminary injunctions and judicial partisanship, dissecting exemplar preliminary injunctions from the past several years in politically sensitive cases. Careful review of the actual decisions in question reveals flaws in judicially created doctrines interpreting the four-prong preliminary injunction test that dates back to English courts of equity. These flaws have turned the preliminary injunction doctrine into a mini-trial with virtually no evidence instead of a pragmatic inquiry. Refining the preliminary injunction test is a promising, targeted reform that could preserve the value of preliminary injunctions while reducing their use as a political tool

Racial Diversity and Law Firm Economics

There is an eternal temptation to think that if one recognizes a moral problem and does something about it, then one is blameless even if the action taken does not solve the problem. We usually recognize that it is absurd to credit intent when the disconnect from results is vast—consider the rightfully mocked tendency of people to respond to tragedies by declaring that their “thoughts and prayers” are with the victims rather than taking any meaningful step to ameliorate their suffering. People still engage in such posturing because the behavior benefits them in several ways: (a) others see that the actor is doing something and think the actor is moral, and (b) the actor can assuage her own conscience by having done something. But declared good intent divorced from positive consequences is no virtue, and if it goes on long enough with the full knowledge of the actor, it turns into vice

Law and Sampling Theory

Law involves a fundamental tradeoff, a sampling problem. In science, sampling problems emerge when trying to understand something complicated by considering discrete, manageable subsets of it—samples. When doing that, scientists must compromise between accuracy and resource-expenditure. Perfect accuracy requires infinite resources, such as a perfect digital image with infinite file size. Perfection being unattainable, scientists must decide what level of accuracy is best for any given case. Every kind of law, from parking regulations to criminal to high constitutional theory, is subject to the same dynamic. Law’s sampling problem is the tradeoff between accurate representation of a community’s moral preferences and the resources needed to understand those preferences and create specific, enforceable rules based on them. To affect this tradeoff, legislators can create complicated standards based on a diverse set of samples of the community’s moral feelings on a particular issue. This approach is expensive in terms of resources but will more precisely conform to the community’s moral preferences with plenty of exceptions for difficult cases. Alternatively, legislators can create simple rules based on a more limited set of samples, risking unjust outcomes in exchange for comprehensibility and simplicity. Which approach is better depends on the circumstances of the problem. Viewed through this prism, there are several categories of law where the justice system seems to accord resources inefficiently, either by devoting tremendous resources to make small adjustments to outcomes or skimping on resources in order to make penny-wise, pound-foolish legal doctrines. When the justice system works inefficiently in this way, it is inevitably to the benefit of some, whether by happenstance or design, at the expense of the many. When too many resources are put into a particular task, the beneficiaries tend to be the businesses or organizations involved in the legal system. When too few resources are invested, the beneficiaries are entities who can manipulate the space between the approximation of justice and actual justice. Examples abound across the legal world where this paradigm is a useful way to identify injustice. This article examines several areas showing under- or over-investment of resources, discusses possible reforms, and posits theories for why sampling failure persists in certain fields. Areas of apparent over-investment include the rule against perpetuities and the Tarasoff rule. Under-investment is evident in doctrines like felony murder and recent Supreme Court caselaw involving the Free Exercise Clause

Racial Diversity and Law Firm Economics

There is an eternal temptation to think that if one recognizes a moral problem and does something about it, then one is blameless even if the action taken does not solve the problem. We usually recognize that it is absurd to credit intent when the disconnect from results is vast—consider the rightfully mocked tendency of people to respond to tragedies by declaring that their “thoughts and prayers” are with the victims rather than taking any meaningful step to ameliorate their suffering. People still engage in such posturing because the behavior benefits them in several ways: (a) others see that the actor is doing something and think the actor is moral, and (b) the actor can assuage her own conscience by having done something. But declared good intent divorced from positive consequences is no virtue, and if it goes on long enough with the full knowledge of the actor, it turns into vice

Regulation of cell-to-cell communication mediated by astrocytic ATP in the CNS

It has become apparent that glial cells, especially astrocytes, not merely supportive but are integrative, being able to receive inputs, assimilate information and send instructive chemical signals to other neighboring cells including neurons. At first, the excitatory neurotransmitter glutamate was found to be a major extracellular messenger that mediates these communications because it can be released from astrocytes in a Ca2+-dependent manner, diffused, and can stimulate extra-synaptic glutamate receptors in adjacent neurons, leading to a dynamic modification of synaptic transmission. However, recently extracellular ATP has come into the limelight as an important extracellular messenger for these communications. Astrocytes express various neurotransmitter receptors including P2 receptors, release ATP in response to various stimuli and respond to extracellular ATP to cause various physiological responses. The intercellular communication “Ca2+ wave” in astrocytes was found to be mainly mediated by the release of ATP and the activation of P2 receptors, suggesting that ATP is a dominant “gliotransmitter” between astrocytes. Because neurons also express various P2 receptors and synapses are surrounded by astrocytes, astrocytic ATP could affect neuronal activities and even dynamically regulate synaptic transmission in adjacent neurons as if forming a “tripartite synapse” In this review, we summarize the role of astrocytic ATP, as compared with glutamate, in gliotransmission and synaptic transmission in neighboring cells, mainly focusing on the hippocampus. Dynamic communication between astrocytes and neurons mediated by ATP would be a key event in the processing or integration of information in the CNS

A commendation from J. Thorlin, Major General and Commander of the White Sands Missile Range to Crispulo Diaz.

A commendation from J. Thorlin, Major General and Commander of the White Sands Missile Range to Crispulo Diaz

Constitutional Hardball and Nationwide Preliminary Injunctions

Constitutional hardball—the breaking of norms while remaining technically within the bounds of the Constitution—has spread from the executive and legislative branches to the federal judiciary in the form of nationwide preliminary injunctions in politically sensitive cases. Preliminary injunctions evolved in the English judicial system to ensure that plaintiffs clearly in the right were not irrevocably harmed while waiting for torpid courts to rule on their case. Now, preliminary injunctions are a useful tool for delaying and disrupting the adoption of disfavored executive branch policies. While the general problem of nationwide preliminary injunctions is well recognized, it is difficult to find satisfactory solutions. Proposals for reform have largely focused on near-total elimination of nationwide preliminary injunctions by restraining the power of district judges. Opponents of those reforms rightfully argue that because actions by the executive branch have come to dominate the policy arena, the judiciary is the only branch that can meaningfully constrain partisan executive actions. More bluntly put: the executive policies of the last several years have been so bad as to warrant constitutional hardball. In this Article, I review the development of preliminary injunctions and judicial partisanship, dissecting exemplar preliminary injunctions from the past several years in politically sensitive cases. Careful review of the actual decisions in question reveals flaws in judicially created doctrines interpreting the four-prong preliminary injunction test that dates back to English courts of equity. These flaws have turned the preliminary injunction doctrine into a mini-trial with virtually no evidence instead of a pragmatic inquiry. Refining the preliminary injunction test is a promising, targeted reform that could preserve the value of preliminary injunctions while reducing their use as a political tool