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Foreword

On August 11 and 12, 2017, Charlottesville, Virginia—the home of the University of Virginia and this journal—played unwitting host to two days of white nationalist and neo-Nazi rallies and violence. For those of us in Charlottesville, those events were intensely personal and local. The white nationalists and neo-Nazis violated our physical space. They maimed and killed members of our community. They threatened the security and sense of belonging of our neighbors, colleagues, students, and friends. And they challenged the values of equality and tolerance we hold dear.

From the moment the events unfolded, it was clear that they resonated beyond Charlottesville itself. Such blatant forms of white supremacy came as a surprise to many. They preoccupied observers far flung from Charlottesville both for the violence and loss of life on display and for the stark evidence they provided of deep and enduring fault lines within our nation and our society. The intolerance and hate the white nationalists and neo-Nazis exhibited most directly and explicitly targeted Jews and African Americans, but their reach was far broader. Their intent to make vulnerable all those who do not conform to their image was potent and palpable. Moreover, the incident implicated numerous questions for the law, for politics, and for society itself. The discussions that followed engaged questions not only of race, religion, ethnicity, and nationality, but also of gender and sexuality, pluralism and tolerance, politics and civic engagement, social justice and economic opportunity, speech and violence, civility and protest and counter-protest, and more.

This symposium focuses on the racial implications and reverberations of August 11-12. The conference that produced these articles brought an annual national meeting of empirical critical race theorists to Charlottesville to train their considerable intellectual talents on the first anniversary of August 11-12. The resulting scholarship asks what we can learn from August 11-12 about the legal underpinnings of white supremacy in the United States, from the beginning of its history to the violence in 2017 and beyond. It investigates the surprise with which so many responded to August 11-12 and shows us why we should not be surprised.

Congressional Control of Agency Expertise

Congress relies on executive branch information to carry out its functions. When it creates a budget, the President’s budget request and individual agency testimony are critical to understanding the effect of proposed changes. When it considers new legislation, government officials are asked to testify and share their views. When Congress is seeking information on emerging issues, agency reports are often the first—and most trusted—source of information. When the executive branch provides this information, it often does so through a coordinated process, managed by the Office of Management and Budget within the Executive Office of the President. As a result, the President has a say in what Congress hears regarding agency expertise. This Note explores the instances where Congress has explicitly shut the President out of this process, and the consequences of that decision. The provisions of federal law that limit presidential control of information, referred to as “independent-reporting requirements,” are one of the many ways that Congress can ensure agency independence. This Note collects and describes these provisions, exploring both their policy implications and their constitutionality. In addition, this Note argues that a more widespread use of these statutory tools would solve a significant problem currently facing Congress, namely the information imbalance between the elected branches.

Automated Vehicles and Manufacturer Responsibility for Accidents: A New Legal Regime for a New Era

Over a century ago, industrialization and its accompanying increase in workplace injuries were placing substantial pressures on the tort system and its ability to compensate the victims of these injuries. Eventually, the interests of labor and management came together, giving rise to a new administrative compensation system. Unlike tort remedies, this new scheme imposed strict financial responsibility on employers for work-related injuries to their employees. This system of workers’ compensation is still the most far-reaching tort reform ever adopted—promoting safety and compensating for injuries more effectively than tort did both at the time and today. Workers’ compensation has its flaws, but there is no significant desire on anyone’s part to go back to tort.

We are on the verge of another new era, requiring yet another revision to the legal regime. This time, it is our system of transportation that will be revolutionized. Over time, manually driven cars are going to be replaced by automated vehicles. The new era of automated vehicles will eventually require a legal regime that properly fits the radically new world of auto accidents. The new regime should promote safety and provide compensation both more sensibly and more effectively than what could be done under existing tort doctrines governing driver liability for negligence and manufacturer liability for product defects. Like labor and management a century ago, auto manufacturers, consumers, and the public at large—often currently at odds about the tort system—will need to have their interests come together if the new era of automated transportation is to be governed by an adequate legal regime.

Any new approach will have to deal with the long and uneven transition to automated technology, impose substantial but appropriate financial responsibility for accidents on the manufacturers of highly automated vehicles, and provide satisfactory compensation to the victims of auto accidents in the new era. This Article develops and details our proposal for an approach that would accomplish these goals.

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