Home Slideshow

Slaying “Leviathan” (Or Not): The Practical Impact (Or Lack Thereof) of a Return to a “Traditional” Non-Delegation Doctrine

Administrative agencies play an integral role in the everyday lives of all Americans. Although it would be impossible to point to a single cause of the administrative state’s growth since the New Deal era, the Supreme Court’s acquiescence in congressional delegation of legislative authority is certainly one part of the equation. Since the early twentieth century, the Supreme Court has employed the so-called “intelligible principle” test to determine when Congress unconstitutionally delegates authority. In the century since the inception of the “intelligible principle” test, however, the Court has stricken down only two statutes as such unconstitutional delegations of legislative authority. For better or worse, this lax approach to delegation has permitted administrative agencies to gain increasingly broad authority.

Some believe, however, that a dissent authored by Justice Neil Gorsuch in a recent Supreme Court case, Gundy v. United States, marked the beginning of the end for the “intelligible principle” test and, thereby, the modern administrative state. This Note takes on the latter concern. It argues that a return to the traditional view of the nondelegation doctrine advocated by Justice Gorsuch does not compel the unwinding of the modern administrative state. It does so by applying the traditional tests to two modern statutes, both of which have received sustained and recent constitutional doubt under even the permissive “intelligible principle” test. This Note demonstrates that both statutes likely would survive nondelegation scrutiny under the traditional tests. Taking these statutes as an apt—albeit imperfect—proxy for the administrative state, this Note thus demonstrates that a return to a traditional nondelegation doctrine would not result in the sea-change in administrative law that some have predicted.

Introduction

Administrative agencies are an integral part of the modern American legal landscape.1 1.See, e.g., J. Harvie Wilkinson III, Assessing the Administrative State, 32 J.L. & Pol. 239, 243 (2017) (describing the “American regulatory landscape” as a “diverse set of institutions . . . that, together, seem to sprawl over just about every facet of modern life”).Show More For better or worse, the so-called “administrative state” has continued to grow from its inception in the New Deal era forward into the twenty-first century.2 2.See id. at 242–44 (describing the growth of the administrative state from the New Deal era to modern day).Show More Today, administrative agencies oversee how we vote,3 3.52 U.S.C. § 30106 (Supp. II 2012) (Federal Election Commission).Show More how we retire,4 4.42 U.S.C. § 901 (2012) (Social Security Administration).Show More the food we eat,5 5.21 U.S.C. § 393 (2012) (Food and Drug Administration).Show More the shows we watch on television,6 6.47 U.S.C. § 151 (2012) (Federal Communications Commission).Show More and much more. While one would be hard-pressed to pin down any one entity responsible7 7.Indeed, Congress must legislate, the Executive must act pursuant to that legislation, and the courts must stay out of the way.Show More for the growth of this “fourth branch,” at least part of the credit lies with the judicial branch. Courts repeatedly have played a role in granting increased authority to this new “Leviathan,”8 8.This term is frequently used to refer to the administrative state. See e.g., Wilkinson, supra note 1, at 242 (referring to the administrative state as an “impersonal leviathan”); Nicholas R. Parrillo, Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890–1950, 123 Yale L.J. 266, 281 (2013) (“[W]e must appreciate the crucial role of the newly expanded federal administrative state—the leviathan—in providing legislative history to the Court.”); Jamison E. Colburn, “Democratic Experimentalism”: A Separation of Powers for Our Time?, 37 Suffolk U. L. Rev. 287, 287 (2004); Marek D. Steedman, Taming Leviathan, 52 Tulsa L. Rev. 621 (2017); David French, John Roberts Throws the Administrative State a Lifeline, Nat’l Rev. (June 26, 2019), https://www.nationalreview.com/2019/06/john-roberts-throws-the-administrative-state-a-lifeline/ [https://perma.cc/B4SX-4GZJ] (referring to the “federal administrative leviathan”).Show More tacitly approving of its continued expansion in case after case.

One way in which the judiciary has acquiesced in the administrative state’s growth is through the judiciary’s reluctance to invoke the nondelegation doctrine as one means by which to rein in the authority granted.9 9.Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231, 1240 (1994) (pointing out that it is “not . . . for lack of opportunity” that the Court “has not invalidated a congressional statute on nondelegation grounds since 1935”).Show More In 1928, the Supreme Court articulated what has become the modern standard for determining when Congress goes too far in its delegation of authority to administrative agencies—what is referred to as the “intelligible principle” test.10 10.J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).Show More On only two occasions since that time, both in 1935, has the Supreme Court stricken down a duly enacted statute on the grounds that the law was an unconstitutional delegation of legislative authority.11 11.Panama Refin. Co. v. Ryan, 293 U.S. 388, 430 (1935); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 551 (1935).Show More Since then, the Court has routinely upheld broad delegations of authority to administrative agencies, citing the “intelligible principle” test as a pro-forma step leading to the delegation’s inevitable approval.12 12.See infra note 43 (collecting cases in which the Court applied the “intelligible principle” test).Show More This has led many who are skeptical of the constitutionality of the increasingly large role agencies play in the government to mourn that the nondelegation doctrine is nothing more than a dead letter.13 13.See, e.g., Keith E. Whittington & Jason Iuliano, The Myth of the Nondelegation Doctrine, 165 U. Pa. L. Rev. 379, 404 (2017) (arguing that there is not “much basis for thinking that there was ever a seriously confining nondelegation doctrine as part of the effective constitutional order”); Lawson, supra note 9, at 1237–41 (“Thus, the demise of the nondelegation doctrine . . . has encountered no serious real-world legal or political challenges, and none are on the horizon.”).Show More

That hand-wringing aside, the tide is turning on the nondelegation doctrine. A recent dissent by Justice Gorsuch in Gundy v. United States served as a strong signal that the nondelegation doctrine may yet have life in it.14 14.See generally, Gundy v. United States, 139 S. Ct. 2116, 2131–48 (2019) (Gorsuch, J., dissenting) (arguing that the Court should be less deferential to delegations of legislative power).Show More In his dissent, Justice Gorsuch argues that the “intelligible principle” test is without doctrinal or constitutional mooring and should be put to rest.15 15.Id. at 2138–40.Show More His dissent also articulates three “traditional tests” that, in his view, represent the true underpinnings of what the nondelegation doctrine ought to be employed to do.16 16.Id. at 2135–37, 2139.Show More With the momentum of an ideologically shifting Court behind him, his dissent sparked hand-wringing of a different sort—over the practical implications of waking the nondelegation doctrine after its nearly century-long slumber.17 17.Id. at 2130 (plurality opinion) (“[I]f SORNA’s delegation is unconstitutional, then most of Government is unconstitutional.”); see also Jonathan Hall, Note, The Gorsuch Test: Gundy v. United States, Limiting the Administrative State, and the Future of Nondelegation, 70 Duke L.J. 175, 179 (2020) (arguing that adoption of “the Gorsuch test” would have “destabilizing effects”); Ian Millhiser, Brett Kavanaugh’s Latest Opinion Should Terrify Democrats, Vox (Nov. 26, 2019), https://www.vox.com/2019/11/26/20981758/brett-kavanaughs-terrify-democrats-supreme-court-gundy-paul [https://perma.cc/DAL6-Z3H4] (“[Justice] Gorsuch, in other words, would give the Republican-controlled Supreme Court a veto power over all federal regulations.”).Show More This Note addresses, among other things, those concerns.

To be sure, a single dissenting opinion ordinarily wouldn’t sound the death-knell of a doctrine that has been a staple of constitutional jurisprudence for nearly a century. Nonetheless, it is not difficult to count to five votes in support of Justice Gorsuch’s position in Gundy. Chief Justice Roberts and Justice Thomas both joined the dissent, obviously indicating that they endorse its reasoning.18 18.See Gundy, 139 S. Ct. at 2131–48 (Gorsuch, J., dissenting).Show More Justice Alito concurred in the judgment only.19 19.Id. at 2130–31 (Alito, J., concurring in the judgment).Show More But his vote to uphold the result in Gundy was driven by a desire not to “single out” the statute at issue in Gundy “for special treatment.”20 20.Id.Show More And if a majority of the Court were willing to engage in a wholesale revision of the nondelegation doctrine, Justice Alito “would support that effort.”21 21.Id.Show More Neither Justice Kavanaugh nor Justice Barrett participated in the Gundy decision, leaving their views less known. In the time since Gundy, however, Justice Kavanaugh has indicated that he agrees with Justice Gorsuch’s position.22 22.See Paul v. United States, 140 S. Ct. 342, 342 (2019) (statement of Kavanaugh, J., respecting the denial of certiorari).Show More In a statement respecting the denial of certiorari in a companion case to Gundy, Justice Kavanaugh wrote that “Justice Gorsuch’s thoughtful Gundy opinion raised important points that may warrant further consideration in future cases.”23 23.Id.Show More Thus, while Justice Gorsuch’s dissent was just that—a dissent—it seems likely that his opinion now carries the support of a majority of the current members on the Court.24 24.This Note does not—nor does it need to in light of the head-counting provided above—take a view on what Justice Barrett’s stance may be on this issue. Even assuming Justice Barrett disagrees with Justice Gorsuch, it seems as though there are now five votes to support his dissenting position.Show More That reality raises the stakes for what the opinion means for the administrative state, which is what this Note aims to address.

This Note analyzes the constitutional and pragmatic issues implicated by Justice Gorsuch’s opinion. Part I addresses the fundamental principle of separation of powers. That part provides a brief constitutional overview of how the delegation of legislative authority to non-legislative actors implicates that basic constitutional precept. Part II provides a brief overview of the Court’s decision and Justice Gorsuch’s dissent in Gundy. Part III explores the constitutional and doctrinal bases for the “traditional tests” Justice Gorsuch articulates in his Gundy dissent. That Part, by explaining the constitutional and precedential frameworks for those tests, defends the soundness of Justice Gorsuch’s premise. Part IV then applies the “traditional tests” to two specific statutes, which received nondelegation scrutiny beginning nearly a century ago, and continue to be scrutinized as recently as cases decided within the past year. In its application of the “traditional tests” to these constitutionally dubious statutes, this Note argues that Justice Gorsuch’s proposed “revolution” of nondelegation jurisprudence would not result in the sea-change that some have predicted. Rather, its analysis shows that the limits these “traditional tests” impose on delegation, while meaningful, are not impossible to satisfy. Indeed, the tests leave Congress ample flexibility to govern effectively without forsaking the boundaries imposed by the separation of powers. At bottom, it demonstrates, in contrast with the plurality’s fears articulated in Gundy, that Justice Gorsuch’s traditional nondelegation approach does not compel the alarmist conclusion that “most of Government is unconstitutional.”25 25.Gundy, 139 S. Ct. at 2130.Show More

  1. * University of Virginia School of Law, J.D. 2020. This paper has benefitted greatly from a host of folks, without whom it would not have been written in the first place, much less published. Specifically, thanks go to Ray Gans and Andrew Kintner for their helpful, encouraging, and thoughtful feedback from the earliest stages of putting pen to paper. Additionally, to the members of the Virginia Law Review for their thorough and insightful revisions throughout the editing process. All the credit is theirs—all the errors mine. ↑
  2. See, e.g., J. Harvie Wilkinson III, Assessing the Administrative State, 32 J.L. & Pol. 239, 243 (2017) (describing the “American regulatory landscape” as a “diverse set of institutions . . . that, together, seem to sprawl over just about every facet of modern life”). ↑
  3. See id. at 242–44 (describing the growth of the administrative state from the New Deal era to modern day). ↑
  4. 52 U.S.C. § 30106 (Supp. II 2012) (Federal Election Commission). ↑
  5. 42 U.S.C. § 901 (2012) (Social Security Administration). ↑
  6. 21 U.S.C. § 393 (2012) (Food and Drug Administration). ↑
  7. 47 U.S.C. § 151 (2012) (Federal Communications Commission). ↑
  8. Indeed, Congress must legislate, the Executive must act pursuant to that legislation, and the courts must stay out of the way. ↑
  9. This term is frequently used to refer to the administrative state. See e.g., Wilkinson, supra note 1, at 242 (referring to the administrative state as an “impersonal leviathan”); Nicholas R. Parrillo, Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890–1950, 123 Yale L.J. 266, 281 (2013) (“[W]e must appreciate the crucial role of the newly expanded federal administrative state—the leviathan—in providing legislative history to the Court.”); Jamison E. Colburn, “Democratic Experimentalism”: A Separation of Powers for Our Time?, 37 Suffolk U. L. Rev. 287, 287 (2004); Marek D. Steedman, Taming Leviathan, 52 Tulsa L. Rev. 621 (2017); David French, John Roberts Throws the Administrative State a Lifeline, Nat’l Rev. (June 26, 2019), https://www.nationalreview.com/2019/06/john-roberts-throws-the-administrative-state-a-lifeline/ [https://perma.cc/B4SX-4GZJ] (referring to the “federal administrative leviathan”). ↑
  10. Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231, 1240 (1994) (pointing out that it is “not . . . for lack of opportunity” that the Court “has not invalidated a congressional statute on nondelegation grounds since 1935”). ↑
  11. J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928). ↑
  12. Panama Refin. Co. v. Ryan, 293 U.S. 388, 430 (1935); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 551 (1935). ↑
  13. See infra note 43 (collecting cases in which the Court applied the “intelligible principle” test). ↑
  14. See, e.g., Keith E. Whittington & Jason Iuliano, The Myth of the Nondelegation Doctrine, 165 U. Pa. L. Rev. 379, 404 (2017) (arguing that there is not “much basis for thinking that there was ever a seriously confining nondelegation doctrine as part of the effective constitutional order”); Lawson, supra note 9, at 1237–41 (“Thus, the demise of the nondelegation doctrine . . . has encountered no serious real-world legal or political challenges, and none are on the horizon.”). ↑
  15. See generally, Gundy v. United States, 139 S. Ct. 2116, 2131–48 (2019) (Gorsuch, J., dissenting) (arguing that the Court should be less deferential to delegations of legislative power). ↑
  16. Id. at 2138–40. ↑
  17. Id. at 2135–37, 2139. ↑
  18. Id. at 2130 (plurality opinion) (“[I]f SORNA’s delegation is unconstitutional, then most of Government is unconstitutional.”); see also Jonathan Hall, Note, The Gorsuch Test: Gundy v. United States, Limiting the Administrative State, and the Future of Nondelegation, 70 Duke L.J. 175, 179 (2020) (arguing that adoption of “the Gorsuch test” would have “destabilizing effects”); Ian Millhiser, Brett Kavanaugh’s Latest Opinion Should Terrify Democrats, Vox (Nov. 26, 2019), https://www.vox.com/2019/11/26/20981758/brett-kavanaughs-terrify-democrats-supreme-court-gundy-paul [https://perma.cc/DAL6-Z3H4] (“[Justice] Gorsuch, in other words, would give the Republican-controlled Supreme Court a veto power over all federal regulations.”). ↑
  19. See Gundy, 139 S. Ct. at 2131–48 (Gorsuch, J., dissenting). ↑
  20. Id. at 2130–31 (Alito, J., concurring in the judgment). ↑
  21. Id. ↑
  22. Id. ↑
  23. See Paul v. United States, 140 S. Ct. 342, 342 (2019) (statement of Kavanaugh, J., respecting the denial of certiorari). ↑
  24. Id. ↑
  25. This Note does not—nor does it need to in light of the head-counting provided above—take a view on what Justice Barrett’s stance may be on this issue. Even assuming Justice Barrett disagrees with Justice Gorsuch, it seems as though there are now five votes to support his dissenting position. ↑
  26. Gundy, 139 S. Ct. at 2130. ↑
  27. Mistretta v. United States, 488 U.S. 361, 372 (1989). ↑
  28. Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42–43 (1825). ↑
  29. Yakus v. United States, 321 U.S. 414, 425 (1944) (alteration in original) (quoting Currin v. Wallace, 306 U.S. 1, 15 (1939)). ↑
  30. See The Federalist No. 47, at 301 (James Madison) (stating that, if the Constitution failed to protect against a breakdown in the separation of powers, “no further arguments would be necessary to inspire a universal reprobation of the system”). ↑
  31. Id. ↑
  32. The Federalist No. 37, at 228 (James Madison). ↑
  33. The Federalist No. 47, at 301 (James Madison). ↑
  34. See The Federalist No. 51, at 321–22 (James Madison) (“But the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. . . . Ambition must be made to counteract ambition.”). ↑
  35. The Federalist No. 47, at 301 (James Madison); see also Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42–43 (1825) (holding that Congress may not constitutionally delegate legislative powers); Peter B. McCutchen, Mistakes, Precedent, and the Rise of the Administrative State: Toward a Constitutional Theory of the Second Best, 80 Cornell L. Rev. 1, 8 (1994) (“[T]he abdication of power and its corresponding responsibilities is as serious a problem as aggrandizement.”). ↑
  36. U.S. Const. art. I, § 1 (emphasis added). ↑
  37. Wayman, 23 U.S. at 42–43. ↑
  38. Field v. Clark, 143 U.S. 649, 693–94 (1892) (quotation omitted). ↑
  39. Id. at 694 (quotation omitted). ↑
  40. Id. at 693–94 (quotation omitted). ↑
  41. Wayman, 23 U.S. at 42–43. ↑
  42. 276 U.S. 394 (1928). ↑
  43. Id. at 409. ↑
  44. See, e.g., Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 474 (2001) (“The scope of discretion § 109(b)(1) [of the Clean Air Act] allows is in fact well within the outer limits of our nondelegation precedents.”); Mistretta v. United States, 488 U.S. 361, 371–79 (1989) (holding that, “[a]lthough Congress ha[d] delegated significant discretion,” the Court had “no doubt” that the delegation in the sentencing guidelines to the Sentencing Commission was “sufficiently specific and detailed to meet constitutional requirements”); Loving v. United States, 517 U.S. 748, 751, 771–74 (1996) (finding “no fault” in the delegation to the President the authority to define aggravating factors that permit the death penalty in military capital cases); Touby v. United States, 500 U.S. 160, 162, 165–66 (1991) (discussing the intelligible-principle test and holding that “even if greater congressional specificity” were “required in the criminal context,” legislative delegation of authority to the Attorney General under § 201(h) of the Controlled Substances Act would still pass constitutional muster); Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 221 n.7 (1986) (rejecting the assertion that the discretionary authority granted by Multiemployer Pension Plan Amendments Act of 1980 did not constitute “a reasonable means of achieving congressional aims,” and that it provided an “intelligible principle” to guide the delegee); Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 559 (1976) (stating that 19 U.S.C. § 1862(b), or Section 232 of the Trade Expansion Act, “easily fulfills” the intelligible-principle test); Lichter v. United States, 334 U.S. 742, 774–87 (1948) (applying the intelligible-principle test and concluding the purpose and background of the Renegotiation Act established a “sufficient meaning” for the phrase “excessive profits” so as to make the Act “a constitutional definition of administrative authority and not an unconstitutional delegation of legislative power”). ↑
  45. Panama Refin. Co. v. Ryan, 293 U.S. 388, 431–33 (1935); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 541–42 (1935). ↑
  46. 293 U.S. 388 (1935). ↑
  47. 295 U.S. 495 (1935). ↑
  48. See generally Schechter Poultry, 295 U.S. at 519–51 (failing, in its 32-page opinion, to invoke the phrase “intelligible principle”). ↑
  49. See Panama Refin., 293 U.S. at 420–30 (providing the “intelligible principle” language from J.W. Hampton as just one of many examples in which “the Court has recognized that there are limits of delegation which there is no constitutional authority to transcend”). ↑
  50. See Gundy v. United States, 139 S. Ct. 2116, 2138–40 (2019) (Gorsuch, J., dissenting) (arguing that the “intelligible principle” phrase was used in J.W. Hampton as a way of “explain[ing] the operation of [other] traditional tests,” and describing it as a “passing comment” that has been “divorc[ed] . . . from its context,” and an “isolated phrase” that has been “treat[ed] . . . as if it were controlling”). ↑
  51. See supra note 43. ↑
  52. See Gundy, 139 S. Ct. at 2139–40 (Gorsuch, J., dissenting) (“This mutated version of the ‘intelligible principle’ remark has no basis in the original meaning of the Constitution, in history, or even in the decision from which it was plucked.”); id. at 2131 (Alito, J., concurring in the judgment) (“If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.”). ↑
  53. See supra notes 18–21 and accompanying text. ↑
  54. See supra notes 22–23 and accompanying text. ↑
  55. Gundy, 139 S. Ct. at 2121–22 (plurality opinion). ↑
  56. Id. at 2122. ↑
  57. 34 U.S.C. § 20913(d) (2012). ↑
  58. Gundy, 139 S. Ct. at 2132 (Gorsuch, J., dissenting) (“The breadth of the authority Congress granted to the Attorney General in these few words can only be described as vast.”). ↑
  59. Id. (providing examples of how the “pendulum swung” on retroactive application of SORNA depending on who happened to be serving as Attorney General at the time); but see id. at 2122 (plurality opinion) (“The final rule, issued in December 2010, reiterated that SORNA applies to all pre-Act offenders. That rule has remained the same to this day.”) (citation omitted). ↑
  60. Id. at 2123–24 (plurality opinion). ↑
  61. Id. (emphasis added). ↑
  62. Id. at 2125. ↑
  63. See id. at 2129 (reframing the constitutional question as such: “The question becomes: Did Congress make an impermissible delegation when it instructed the Attorney General to apply SORNA’s registration requirements to pre-Act offenders as soon as feasible?”). ↑
  64. Id. ↑
  65. Id. at 2124. ↑
  66. For the plurality’s proposition, see id. at 2129. For Justice Gorsuch’s disagreement, see id. at 2131–32 (Gorsuch, J., dissenting). ↑
  67. Id. at 2131–32 (Gorsuch, J., dissenting) (quoting Wayne A. Logan, The Adam Walsh Act and the Failed Promise of Administrative Federalism, 78 Geo. Wash. L. Rev. 993, 1000 (2010)). ↑
  68. Id. at 2132. ↑
  69. This exposes what was really at issue in Gundy—it was a case that turned on statutory interpretation. See e.g., Aditya Bamzai, Commentary, Delegation and Interpretive Discretion: Gundy, Kisor, and the Formation and Future of Administrative Law, 133 Harv. L. Rev. 164, 166 (2019) (stating that Gundy “turned largely on the plurality’s narrowing construction of a statutory scheme”). The plurality was content to impose a limiting construction to avoid the delegation question, while Justice Gorsuch was willing to take on the broader issue. See also Gundy, 139 S. Ct. at 2145 (Gorsuch, J., dissenting) (“Most everyone, the plurality included, concedes that if SORNA allows the Attorney General as much authority as we have outlined, it would present ‘a nondelegation question.’” (quoting id. at 2123–24 (plurality opinion))). ↑
  70. Gundy, 139 S. Ct. at 2135 (Gorsuch, J., dissenting). ↑
  71. Id. at 2135–39. ↑
  72. See id. at 2136–37 (citing both Wayman v. Southard, 23 U.S. (10 Wheat.) 31, 43 (1825) and The Cargo of the Brig Aurora v. United States, 11 U.S. (7 Cranch) 382, 388 (1813) as articulating these standards). To be sure, it does not seem as though the third category comes explicitly from any one case. See id. at 2137. Nonetheless, Justice Gorsuch asserts that both Wayman and Aurora could have appropriately been decided on these grounds. Id. Further, it seems obvious that separation of powers concerns are not implicated when Congress gives another branch discretion over matters properly within the scope of that branch’s powers. See, e.g., David Schoenbrod, The Delegation Doctrine: Could the Court Give It Substance?, 83 Mich. L. Rev. 1223, 1260 (1985) (“Legislation that leaves the Executive Branch with discretion does not delegate legislative power where the discretion is to be exercised over matters already within the scope of executive power.”). In other words, nondelegation is implicated only when Congress abdicates its own constitutionally assigned power, not when it empowers another branch to act within that branch’s proper sphere. ↑
  73. While the tests are interrelated, the satisfaction of any test is sufficient to insulate a statute from a nondelegation challenge. Which test applies depends on the unique circumstances presented by the delegation at issue in a particular case. See infra Part III. ↑
  74. Gundy, 139 S. Ct. at 2136 (Gorsuch, J., dissenting) (quoting Wayman, 23 U.S. at 43). ↑
  75. Id. ↑
  76. Id. at 2137. ↑
  77. See id. at 2137–38 (Gorsuch, J., dissenting). ↑
  78. Id. at 2139 (“There’s a good argument, as well, that the statute in J. W. Hampton passed muster under the traditional tests.”). ↑
  79. Id. at 2145 (“Nor would enforcing the Constitution’s demands spell doom for what some call the ‘administrative state.’ . . . Respecting the separation of powers forecloses no substantive outcomes.”). ↑
  80. See supra note 17. ↑
  81. Gundy, 139 S. Ct. at 2137–39 (Gorsuch, J., dissenting). ↑
  82. Id. at 2130 (plurality opinion) (“[I]f SORNA’s delegation is unconstitutional, then most of Government is unconstitutional.”). ↑
  83. Yakus v. United States, 321 U.S. 414, 425 (1944) (alterations in original) (quoting Currin v. Wallace, 306 U.S. 1, 15 (1939)). ↑
  84. See Bamzai, supra note 68, at 177 (describing Justice Gorsuch’s approach as “a set of formal rules to identify those cases that pose a nondelegation problem”). ↑
  85. Gundy, 139 S. Ct. at 2136 (Gorsuch, J., dissenting) (quoting Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825)). ↑
  86. By this, Chief Justice Marshall meant areas that did not implicate “powers which are strictly and exclusively legislative.” Wayman, 23 U.S. at 42–43. ↑
  87. Id. at 43. For another early example of the “fill up the details” test, see, e.g., Hannibal Bridge Co. v. United States, 221 U.S. 194, 205 (1911) (“All that the act did was to impose upon the Secretary the duty of attending to such details as were necessary in order to carry out the declared policy of the Government.”). ↑
  88. Panama Refin. Co. v. Ryan, 293 U.S. 388, 426 (1935) (citing Wayman, 23 U.S. at 43)). ↑
  89. See, e.g., Red “C” Oil Mfg. Co. v. Bd. of Agric. of N.C., 222 U.S. 380, 394 (1912) (citations omitted). ↑
  90. Buttfield v. Stranahan, 192 U.S. 470, 496 (1904). ↑
  91. Id. ↑
  92. Id. ↑
  93. Id. ↑
  94. Red “C” Oil Mfg. Co., 222 U.S. at 394. ↑
  95. Buttfield, 192 U.S. at 496; see also St. Louis, Iron Mountain & S. Ry. Co. v. Taylor, 210 U.S. 281, 286–87 (1908) (holding that permitting the American Railway Association to set “the standard height of draw bars for freight cars,” which was binding on all railways engaged in interstate commerce, was not an unconstitutional delegation under Buttfield, presumably due to the fact that this was a detail that was constrained by the greater purpose, or primary standard, of the legislation—safety). ↑
  96. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 530 (1935) (“Accordingly, we look to the statute to see . . . whether Congress in authorizing ‘codes of fair competition’ has itself established the standards of legal obligation . . . or, by the failure to enact such standards, has attempted to transfer that function to others.”); Panama Refin. Co. v. Ryan, 293 U.S. 388, 426 (1935) (“Moreover, the Congress . . . may establish primary standards, devolving upon others the duty to carry out the declared legislative policy”) (citing Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825)). ↑
  97. J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406 (1928) (citations omitted). ↑
  98. See Buttfield, 192 U.S. at 496. ↑
  99. See Wayman, 23 U.S. at 43. ↑
  100. See J.W. Hampton, 276 U.S. at 406; Buttfield, 192 U.S. at 496. To be sure, Congress’s requirement to provide “defined limits” for the Executive cannot be a high bar and remain consistent with the Court’s precedent. For example, in the statute at issue in Buttfield, Congress provided that the Secretary of the Treasury was to consider “purity, quality, and fitness for consumption” in making its determination. Id. at 494. Further, that statute required the Secretary to appoint a seven-member board of tea “expert[s]” who were to “prepare and submit to [the Secretary] standard samples of tea” and provide recommendations for the “standards of purity, quality, and fitness for consumption” of imported teas. An Act To Prevent the Importation of Impure and Unwholesome Tea, 29 Stat. 604, 605 (1897). Conversely, it is argued here that Congress could not have constitutionally stated a purpose of improving the quality of tea, and then empowered the Secretary to ban all tea of inferior quality, with no exposition as to how the Secretary was to make that determination. While the constraints provided in the Act at issue in Buttfield were admittedly not severe, they nonetheless confined the authority of the Secretary to some extent. ↑
  101. See Schechter Poultry, 295 U.S. at 530, 541–42 (stating that the relevant provision of the Act represents an unconstitutional delegation of authority in part because it “supplies no standards”). ↑
  102. See, e.g., Red “C” Oil Mfg. Co. v. Bd. of Agric. of N.C., 222 U.S. 380, 394 (1912); Buttfield, 192 U.S. at 496; St. Louis, Iron Mountain & S. Ry. Co., 210 U.S. 281, 287 (1908). ↑
  103. 11 U.S. (7 Cranch) 382 (1813). Many early cases employed the “conditional fact-finding” test. See, e.g., Miller v. Mayor of New York, 109 U.S. 385, 394 (1883) (“The efficiency of an act as a declaration of legislative will must, of course, come from Congress, but the ascertainment of the contingency upon which the act shall take effect may be left to such agencies as it may designate.” (citing South Carolina v. Georgia, 93 U.S. 4, 13 (1876)); Field v. Clark, 143 U.S. 649, 694 (1892) (“The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend.”) (quoting Locke’s Appeal, 72 Pa. 491, 498 (1873)). ↑
  104. See Aurora, 11 U.S. at 386 (argument of Joseph R. Ingersoll) (stating that making the revival of a law contingent on the President’s proclamation is the equivalent of giving “that proclamation the force of law”); see also Union Bridge Co. v. United States, 204 U.S. 364, 378 (1907) (describing both the statute at issue and the Court’s analysis in Aurora). ↑
  105. Aurora, 11 U.S. at 388. ↑
  106. See Field v. Clark, 143 U.S. 649, 682–83 (1892) (describing the statute at issue in Aurora). ↑
  107. 204 U.S. 364, 387 (1907); see also, J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 407 (1928) (“Congress may feel itself unable conveniently to determine exactly when its exercise of the legislative power should become effective, because dependent on future conditions, and it may leave the determination of such time to the decision of an Executive.”); Panama Refin. Co. v. Ryan, 293 U.S. 388, 426 (1935) (“[A]uthorizations given by Congress to selected instrumentalities for the purpose of ascertaining the existence of facts to which legislation is directed, have constantly been sustained.”); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 530 (1935) (“[T]he Constitution has never been regarded as denying to Congress the [ability to] . . . leav[e] to selected instrumentalities . . . the determination of facts to which the policy as declared by the legislature is to apply.”) (citing Panama Refin., 293 U.S. at 421). ↑
  108. Union Bridge Co., 204 U.S. at 387. ↑
  109. Id. at 366 (quoting An Act Making Appropriations for the Construction, Repair, and Preservation of Certain Public Works on Rivers and Harbors, and for Other Purposes, 30 Stat. 1121, 1153–54 (1899)). ↑
  110. Id. ↑
  111. Id. at 385. ↑
  112. Id. at 386–88. ↑
  113. See supra note 95 (citing to the Court’s discussion of conditional fact finding in both Schechter Poultry and Panama Refining). ↑
  114. Panama Refin. Co. v. Ryan, 293 U.S. 388, 415 (1935). ↑
  115. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 538 (1935) (describing the three “findings” that the President was required to make under the Recovery Act in order to exercise his discretion: (1) find that the proposed trade or industrial code did not inequitably restrict admission to membership in industrial associations; (2) that the proposed code did not promote monopolies; and (3) that the proposed code would “tend to effectuate the policy of” the Act (quoting National Industrial Recovery Act, Pub. L. No. 73-67 § 3, 48 Stat. 195, 196 (1933)). ↑
  116. Id. ↑
  117. Id. ↑
  118. Id. at 537–42. ↑
  119. See, e.g., Union Bridge Co. v. United States, 204 U.S. 364, 386–88 (1907). ↑
  120. See Panama Refin. Co. v. Ryan, 293 U.S. 388, 415 (1935). ↑
  121. See Schechter Poultry, 295 U.S. at 538. ↑
  122. For example, the statute at issue in Buttfield required only that the Secretary of Treasury act with the purpose of excluding the lowest quality of tea. While it could conceivably be argued that this finding of quality constituted a finding of fact, that is not how the Court approached the statute. Buttfield v. Stranahan, 192 U.S. 470, 496 (1904) (finding the statute to simply provide the Secretary of the Treasury with the necessary standard to “effectuate the legislative policy declared in the statute”). ↑
  123. Indeed, it is hard to imagine how Congress would condition an action upon the finding of fact if there were no declared policy. For example, in Union Bridge, what facts would have been relevant to the Secretary of War in determining which bridges must be removed or altered if the policy of promoting the free travel upon navigable waters was not clearly stated? See Union Bridge, 204 U.S. at 366. ↑
  124. This conclusion is bolstered by the fact that the Court in Union Bridge also determined that Congress had previously laid down a “general rule” that the administrator was acting within. See id. at 386. ↑
  125. Gundy v. United States, 139 S. Ct. 2116, 2137 (Gorsuch, J., dissenting). ↑
  126. See id. (citing no direct authority for this proposition). ↑
  127. See, e.g., Loving v. United States, 517 U.S. 748, 768 (1996) (“And it would be contrary to the respect owed the President as Commander in Chief to hold that he may not be given wide discretion and authority.”). ↑
  128. Gundy, 139 S. Ct. at 2137 (Gorsuch, J., dissenting); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring in the judgment) (“While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.”) . ↑
  129. 299 U.S. 304, 319–20 (1936); see also Youngstown, 343 U.S. at 635–37 (Jackson, J., concurring in the judgment) (explaining that, when the President acts within an area of executive discretion and in accordance with an express or implied congressional authorization, “his authority is at its maximum” and such an act in accordance with a congressional delegation would be afforded “the widest latitude of judicial interpretation”). ↑
  130. Curtiss-Wright, 299 U.S. at 319–22. ↑
  131. See Schoenbrod, supra note 71, at 1260. ↑
  132. Id. at 1260–61. ↑
  133. Field v. Clark, 143 U.S. 649 (1892). ↑
  134. Id. at 1262–63; Gundy, 139 S. Ct. at 2137 (Gorsuch, J., dissenting) (“Wayman itself might be explained by the same principle as applied to the judiciary: Even in the absence of any statute, courts have the power under Article III ‘to regulate their practice.’”) (citing Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825)). ↑
  135. The statute at issue in this case was about a trade embargo against the British. See The Cargo of the Brig Aurora v. United States, 11 U.S. (7 Cranch) 382, 382–83 (1813). ↑
  136. Clark, 143 U.S. 649, 691 (1892). ↑
  137. Wayman, 23 U.S. at 43 (1825). As Justice Gorsuch notes in his dissent, courts possess this power under Article III, regardless of statutory authorization. Gundy, 139 S. Ct. at 2137 (Gorsuch, J., dissenting). ↑
  138. See The Federalist No. 78, at 465 (Alexander Hamilton) (“The legislature . . . prescribes the rules by which the duties and rights of every citizen are to be regulated.”). ↑
  139. Gundy, 139 S. Ct. at 2137 (Gorsuch, J., dissenting). ↑
  140. See Schoenbrod, supra note 71, at 1260–61. ↑
  141. Id. at 1260. ↑
  142. Or, in other words, the point at which the “intelligible-principle” test got its legs. See supra note 43 (citing cases, beginning in 1948, when the Court began earnestly applying the “intelligible principle” test). ↑
  143. Gundy, 139 S. Ct. at 2130 (“[I]f SORNA’s delegation is unconstitutional, then most of Government is unconstitutional.”). ↑
  144. It bears mentioning that any selection of statutes would be an imperfect proxy for the administrative state as a whole (as would any individual field). The purpose of this Note is not to prove that every statute that delegates authority to an administrative agency would be upheld under the traditional tests. Rather, it is intended to show that even these broad delegations are likely constitutional under the traditional tests, indicating that much of the administrative state would fare similarly. While a statute-by-statute analysis might be productive, such an analysis is beyond the scope of this Note. Thus, the selected statutes are apt, if imperfect, vessels by which to gauge the impact of Justice Gorsuch’s dissent. ↑
  145. Big Time Vapes, Inc. v. FDA, 963 F.3d 436, 447 (5th Cir. 2020) (internal quotation marks and citation omitted), petition for cert. filed, (U.S. Dec. 28, 2020) (No. 20-850). ↑
  146. Am. Inst. for Int’l Steel v. United States, 376 F. Supp. 3d 1335, 1344 (Ct. Int’l Trade 2019) (stating that Section 232 “invite[s] the President to regulate commerce by way of means reserved for Congress”). ↑
  147. Id. at 1346–52 (Katzmann, J., concurring dubitante). ↑
  148. 21 U.S.C. § 387a–1 et seq. (2018); Pub. L. No. 111-31, 123 Stat. 1776, 1784 (2009). ↑
  149. 21 U.S.C. § 301, et seq. (2018); Pub. L. No. 75-717, 52 Stat. 1040 (1938); see Big Time Vapes, 963 F.3d at 438. ↑
  150. Big Time Vapes, 963 F.3d at 440. An “e-liquid” is a liquid mixture that is used in electronic vaping products. The liquid is aerosolized by the vaping device and inhaled by the user. See id. at 439 n.11. ↑
  151. Deeming Tobacco Products to Be Subject to the Federal Food, Drug, and Cosmetic Act, 81 Fed. Reg. 28,974, 28,974­–75 (May 10, 2016). ↑
  152. Big Time Vapes, 963 F.3d at 438–440. ↑
  153. Id. at 446. ↑
  154. The plurality opinion, plus Justice Alito’s concurrence. ↑
  155. Big Time Vapes, 963 F.3d. at 447. ↑
  156. Id. (cleaned up). ↑
  157. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 125–26 (2000). ↑
  158. 21 U.S.C. § 387 et seq. (2018). ↑
  159. Id. § 387a(b). ↑
  160. Id. (emphasis added). ↑
  161. Id. § 387(20). ↑
  162. Id. § 387d. ↑
  163. Id. § 387e(b), (g). ↑
  164. Id. § 387j(a)(1)–(2), (c)(1)(A). ↑
  165. Id. § 387f(d), (a), 387c(a)(8)(B)(i). ↑
  166. Id. § 321(rr)(1). ↑
  167. Deeming Tobacco Products to be Subject to the Federal Food, Drug, and Cosmetic Act, 81 Fed. Reg. 28,974, at 28,976 (May 10, 2016). ↑
  168. Id. ↑
  169. 21 U.S.C. § 387a(b) (2018). ↑
  170. Id. ↑
  171. Id. ↑
  172. Appellants’ Principal Brief at 45, Big Time Vapes, Inc. v. FDA, 963 F.3d 436 (5th Cir. 2020) (No. 19-60921), 2020 WL 957184 (emphasis added), petition for cert. filed, (U.S. Dec. 18, 2020) (No. 20-850). ↑
  173. Id. at 58. ↑
  174. Gundy v. United States, 139 S. Ct. 2116, 2130 (2019). ↑
  175. Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825). ↑
  176. See, e.g., Red “C” Oil Mfg. Co. v. Bd. of Agric. of N.C., 222 U.S. 380, 394 (1912) (citations omitted). ↑
  177. Buttfield v. Stranahan, 192 U.S. 470, 496 (1904). ↑
  178. Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, § 3, 123 Stat. 1776, 1781–82 (2009). While not codified at 21 U.S.C. § 387 et seq., the Fifth Circuit in Big Time Vapes nonetheless relied on it to discern a congressional purpose. As the court put it, “Section 3 is part of the positive law that ran the gauntlet of bicameralism and presentment. That’s a far cry from ‘the sort of unenacted legislative history that often is neither truly legislative nor truly historical.’” Big Time Vapes, 963 F.3d at 444 n.24 (cleaned up) (quoting BNSF Ry. Co. v. Loos, 139 S. Ct. 893, 906 (2019) (Gorsuch, J., dissenting)). The distinction between statutory and legislative history is beyond the scope of this Note. Suffice it to say, when Congress enacts a statute by bicameralism and presentment, the entirety of that statute is fair game. See Loos, 139 S. Ct. at 906 (Gorsuch, J. dissenting) (describing statutory history as “the record of enacted changes Congress made to the relevant statutory text over time, the sort of textual evidence everyone agrees can sometimes shed light on meaning”). ↑
  179. § 3(2), 123 Stat. at 1781. ↑
  180. § 3(5)–(9), 123 Stat. at 1782. ↑
  181. § 3(3), 123 Stat. at 1782. ↑
  182. Buttfield, 192 U.S. at 496. ↑
  183. Red “C” Oil Mfg. Co. v. Bd. of Agric. of N.C., 222 U.S. 380 (1912). ↑
  184. Id. at 394. ↑
  185. See J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406 (1928) (stating that it is “frequently necessary to use officers of the Executive Branch, within defined limits”) (emphasis added). To be sure, Congress could express a clear purpose but provide no guidance on how the delegee was to achieve that purpose. Such a delegation, while it may contain a “sufficient primary standard” would almost certainly be an unconstitutional delegation of legislative authority. For example, suppose Congress passed a law to combat homelessness. In that hypothetical law, there are three sections: The first section creates a “Homelessness Commission”; the second section instructs the Homelessness Commission to “by the year 2024, reduce homelessness in America by 98%, by whatever means the Commission deems appropriate”; and the third section defines “homelessness.” The purpose here is exceptionally clear, and yet it is uncontroversial that providing no guidance as to how to achieve that purpose would be constitutionally problematic. ↑
  186. Id. (emphasis added). ↑
  187. Tariff Act of 1922, ch. 356, § 315, 42 Stat. 858, 941–43 (1922). ↑
  188. See Hampton, Jr., & Co. v. United States, 14 Ct. Cust. App. 350, 361–67, T.D. 42030 (1927). ↑
  189. It is illustrative because Justice Gorsuch stated that the statute at issue in J.W. Hampton likely “passed muster under the traditional tests.” Gundy v. United States, 139 S. Ct. 2116, 2139 (2019) (Gorsuch, J., dissenting). ↑
  190. Hampton. Jr., & Co., 14 Ct. Cust. App. at 362. ↑
  191. Id. at 361–63. ↑
  192. Id. at 362. ↑
  193. Id. ↑
  194. Id at 361–62. ↑
  195. Id. at 362. ↑
  196. Id. ↑
  197. Big Time Vapes, Inc. v. FDA 963 F.3d 436, 445 (5th Cir. 2020) (citing 21 U.S.C. § 321(rr)(1)), petition for cert. filed, (U.S. Dec. 18, 2020) (No. 20-850). ↑
  198. 21 U.S.C. § 387a(b) (2018) (subjecting all cigarettes, cigarette tobacco, roll-your-own tobacco, and smokeless tobacco to TCA regulation). ↑
  199. Id. § 387d(a). ↑
  200. Id. § 387e(i)(1). ↑
  201. Id. § 387j(a)–(c). ↑
  202. Big Time Vapes, 963 F.3d at 446. ↑
  203. 21 U.S.C. § 387a(b). ↑
  204. 19 U.S.C. § 1862 (2018). ↑
  205. 376 F. Supp. 3d 1335, 1337, 1345 (Ct. Int’l Trade 2019), cert. denied, 141 S. Ct. 133 (June 22, 2020) (No. 19-1117). ↑
  206. Id. at 1346–47 (Katzmann, J., concurring dubitante) (“While acknowledging the binding force of [Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548 (1976)], with the benefit of the fullness of time and the clarifying understanding borne of recent actions, I have grave doubts.”). ↑
  207. This statute has been the focus of much criticism for the breadth of discretion it confers on the President. See, e.g., Paul Bettencourt, Note, “Essentially Limitless”: Restraining Administrative Overreach Under Section 232, 17 Geo. J.L. Pub. Pol’y 711, 726–27 (2019) (analyzing Section 232 under a nondelegation framework, using the AIIS case as an example, but claiming that challenging the statute on a nondelegation basis would be “unlikely to succeed” unless “the Court revisits its jurisprudence”). ↑
  208. 19 U.S.C. § 1862 (2018). ↑
  209. Id. § 1862(b)(1)(A). ↑
  210. Id. § 1862(b)(3)(A). ↑
  211. Id. ↑
  212. Id. § 1862(c)(1)(A). ↑
  213. Id. § 1862(c)(1)(A)(ii). ↑
  214. Id. § 1862(c)(1)(B), (c)(2). ↑
  215. Id. § 1862(d). ↑
  216. Id. ↑
  217. Id. This is significant because it empowers the President to effectively conflate “economy” with “security.” ↑
  218. Proclamation No. 9705, 83 Fed. Reg. 11,625, at 11,626 (Mar. 8, 2018). ↑
  219. Proclamation No. 9704, 83 Fed. Reg. 11,619, at 11,620 (Mar. 8, 2018). ↑
  220. Prior to the Trump administration, a President acted pursuant to Section 232 on six occasions, the last of which occurred in 1986. See Rachel F. Fefer et al., Cong. Rsch. Serv., Section 232 Investigations: Overview and Issues for Congress 4, App. B (2020). In contrast, under the Trump administration there were five investigations. Id. at app. B. Two of those investigations resulted in the imposition of tariffs, two are still in process, and one seemingly expired with no action due to a missed deadline. See id. at App. B. (providing a table of Section 232 investigations dating back to 1963); see also David Lawder, Trump Can No Longer Impose ‘Section 232’ Auto Tariffs After Missing Deadline: Experts, Reuters (Nov. 19, 2019), https://www.reuters.com/article/us-usa-trade-autos/trump-can-no-longer-impose-section-232-auto-tariffs-after-missing-deadline-experts-idUSKBN1XT0TK [https://perma.cc/D5QY-X7ZX] (stating that the statutory deadline for the Section 232 investigation being used to impose tariffs on foreign-made cars and auto parts passed with no action, forfeiting the administration’s opportunity to utilize such tariffs). ↑
  221. See Fefer, supra note 219, at 7 (noting that in his Memo on proposed Section 232 tariffs, Secretary of Defense James Mattis, while agreeing that “imports of foreign steel and aluminum based on unfair trading practices impair the national security,” ultimately disagreed with the President’s broad-brushed imposition of tariffs in this instance, as “U.S. military requirements for steel and aluminum each only represent about three percent of U.S. production”) (quoting Letter from James N. Mattis, Secretary of Defense, to Wilbur L. Ross Jr., Secretary of Commerce (2018), https://www.commerce.gov/sites/default/files/depart‌ment_of_defense_memo_response_to_steel_and_aluminum_policy_recommendations.pdf [https://perma.cc/M2FB-U63M]; see also Editorial Board, The National Security Tariff Ruse, Wall St. J. (Mar. 12, 2018), https://www.wsj.com/articles/the-national-security-tariff-ruse-1520897310 [https://perma.cc/V9UP-VYCY] (describing the Trump administration’s use of Section 232 to justify tariffs as “dubious,” because “[n]ot even the Pentagon buys” the notion “that steel and aluminum imports make the U.S. military vulnerable”); John Brinkley, Trump’s National Security Tariffs Have Nothing To Do with National Security, Forbes (Mar. 12, 2018) https://www.forbes.com/sites/johnbrinkley/2018/03/12/trumps-national-security-tariffs-have-nothing-to-do-with-national-security/?sh=197f0c6e706c [https://perma.cc/WZE3-AYNP] (arguing that “[t]he national security argument [on behalf of the tariffs] is a sham and everyone knows it,” as “[n]ot even Defense Secretary James Mattis bought it”). ↑
  222. See Brinkley, supra note 220 (“It’s obvious that [the President] used the national security argument as a pretense for something he wanted to do, but for which he had no other legal justification.”). ↑
  223. See Fefer, supra note 219, at 12 (quoting Requirements for Submissions Requesting Exclusions from the Remedies Instituted in Presidential Proclamations Adjusting Imports of Steel into the United States and Adjusting Imports of Aluminum into the United States, 83 Fed. Reg. 12,106 (Mar. 19, 2018)). ↑
  224. Andrea Shalal, U.S. Handling of Tariffs Raises Appearance of ‘Improper Influence’: Watchdog, Reuters (Oct. 30, 2019) (quotation omitted), https://www.reuters.com/article/us-usa-trade-steel/u-s-handling-of-tariffs-raises-appearance-of-improper-influence-watchdog-idUSKBN1X92KP?feedType=RSS&feedName=topNews [https://perma.cc/5XPA-33J6]. ↑
  225. Fefer, supra note 219, at 12–15; see also Shalal, supra note 223 (explaining that the Commerce Department’s inspector general found a lack of transparency surrounding the Trump Administration’s tariff policy). ↑
  226. 426 U.S. 548, 558–60 (1976). ↑
  227. Proclamation No. 4341, 40 Fed. Reg. 3965, 3966 (Jan. 27, 1975); see also Algonquin, 426 U.S. at 554–55 (observing that President Ford’s Proclamation targeted the importation of petroleum and derivative products on the basis of national security concerns). ↑
  228. Algonquin SNG, Inc. v. Fed. Energy Admin., 518 F.2d 1051, 1062 (D.C. Cir. 1975) (“[W]e do not say that Congress cannot constitutionally delegate, accompanied by an intelligible standard, such authority to the President; we merely find that they have not done so by this statute. We reach no conclusion on any delegation issue raised by the parties.”). ↑
  229. Id. ↑
  230. Id. ↑
  231. Algonquin, 426 U.S. at 570–71. ↑
  232. Id. at 559. ↑
  233. Id. at 558–60. ↑
  234. Id. at 559. ↑
  235. 19 U.S.C. § 1862(b) (2018) (preconditioning the President’s action on the determination of the Secretary of Commerce). ↑
  236. Id. § 1862(a). ↑
  237. Algonquin, 426 U.S. at 559. ↑
  238. Id. (quoting 19 U.S.C. § 1862(b)). ↑
  239. Id. ↑
  240. See 19 U.S.C. § 1862(d) (providing, among other factors, that the President should, “without excluding other relevant factors” consider factors such as “unemployment,” “effects resulting from the displacement of any domestic products by excessive imports,” and “the investment, exploration, and development necessary to assure” growth of domestic industries pertinent to national security). ↑
  241. See Algonquin, 426 U.S. at 559. ↑
  242. 376 F. Supp. 3d 1335 (Ct. Int’l Trade 2019). ↑
  243. Id. at 1344–45. ↑
  244. Id. at 1345 (citation omitted). ↑
  245. Not to be confused with Second Circuit Senior Judge Robert Katzmann. ↑
  246. Am. Inst. for Int’l Steel, 376 F. Supp. at 1347 (Katzmann, J., concurring dubitante). ↑
  247. Id. at 1346. Judge Katzmann previously concluded that the power at issue, imposing duties and tariffs, “is a core legislative function.” Id. ↑
  248. Id. at 1351–52. ↑
  249. Id. at 1352. ↑
  250. Id. ↑
  251. Certainly, those who would claim that Justice Gorsuch’s position makes “most of Government . . . unconstitutional” would seem to agree with this statement. See Gundy v. United States, 139 S. Ct. 2116, 2130 (2019) (plurality opinion). ↑
  252. See Am. Inst. for Int’l. Steel, 376 F. Supp. 3d at 1344–45 (majority opinion) (concluding that although, among other concerns, Section 232 “bestow[s] flexibility on the President and seem[s] to invite the President to regulate commerce by way of means reserved for Congress, leaving very few tools beyond his reach,” “such concerns are beyond this court’s power to address, given the Supreme Court’s decision in Algonquin”); see also id. at 1352 (Katzmann, J., concurring dubitante) (“[I]t is difficult to escape the conclusion that [Section 232] has permitted the transfer of power to the President in violation of the separation of powers.”). The conclusion that Section 232 presents a nondelegation “close call” is not undercut by the cursory analysis provided by the Court in Algonquin. To be sure, the Court there stated that Section 232 “easily fulfills” the intelligible-principle test. Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 559 (1976). That statement notwithstanding, as stated above, the Court did not meaningfully analyze the delegation claim in Algonquin. See supra Subsection IV.B.ii. ↑
  253. See supra Section III.B. ↑
  254. Cf. Am. Inst. for Int’l. Steel, 376 F. Supp. 3d at 1352 (Katzmann, J., concurring dubitante) (providing brief recognition of “the flexibility that can be allowed the President in the conduct of foreign affairs”). ↑
  255. Id. at 1346 (Katzmann, J., concurring dubitante). ↑
  256. 19 U.S.C. § 1862(a) (2018). ↑
  257. See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936). ↑
  258. See supra Section III.C. ↑
  259. 19 U.S.C. § 1862(c)(1)(A). Indeed, the Court in Algonquin stated as much. Fed. Energy Admin v. Algonquin SNG, Inc., 426 U.S. 548, 559 (1976) (“[Section 232] establishes clear preconditions to Presidential action.”). ↑
  260. Compare A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 538 (1935) (holding that the conditions precedent to presidential action in the Recovery Act were more appropriately described as “a statement of an opinion as to the general effect” that the proposed regulations would have) with The Cargo of the Brig Aurora v. United States, 11 U.S. (7 Cranch) 382, 382–83, 388–89 (1813) (holding that delegating the authority to the President to reinstate a law based on the factual determination of Great Britain’s ceasing to violate the neutral commerce of the United States was constitutionally permissible). ↑
  261. 19 U.S.C. § 1862(c)(1)(A). ↑
  262. See, e.g., Aurora, 11 U.S. at 382, 387–89 (reviewing the statutory scheme that “ma[d]e the revival of an act depend upon a future event”); Union Bridge Co. v. United States, 204 U.S. 364, 366–67 (1907) (requiring a finding of “an unreasonable obstruction to the free navigation” of navigable waters). ↑
  263. See supra note 114 (listing the precedent findings the President was required to make under the Recovery Act at issue in Schechter Poultry). ↑
  264. 19 U.S.C. § 1862(d). ↑
  265. Schechter Poultry, 295 U.S. at 538 (citations omitted). ↑
  266. Id. ↑
  267. See 19 U.S.C. § 1862(a), (b), (c). ↑
  268. Schechter Poultry, 295 U.S. at 538. ↑
  269. Meshal v. Higginbotham, 804 F.3d 417, 443 (D.C. Cir. 2015) (Pillard, J., dissenting). ↑
  270. See, e.g., Laura K. Donohue, The Limits of National Security, 48 Am. Crim. L. Rev. 1573, 1577–87 (2011) (providing an in-depth analysis of how to best define “national security”). ↑
  271. Id. at 1580. ↑
  272. 19 U.S.C. § 1862(a); see also, Bettencourt, supra note 206, at 715 (noting the “broad discretion” granted to the “executive branch’s interpretation of ‘national security’” under Section 232) (citation omitted). ↑
  273. See Schoenbrod, supra note 71, at 1260. ↑
  274. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319–20 (1936). ↑
  275. See, e.g., Abraham D. Sofaer, Presidential Power and National Security, 37 Presidential Stud. Q. 101, 120 (2007) (“The Constitution allocates powers over national security to all the branches that enable each to affect national policy.”); Schoenbrod, supra note 71, at 1260–61 (describing the confluence of executive and legislative power in the “war and foreign affairs” context). ↑
  276. Sofaer, supra note 274, at 120. For example, Congress holds the power to declare war, U.S. Const. art. I, § 8, while the President, as Commander in Chief, exercises simultaneous military and national security powers. U.S. Const. art. II, § 2. ↑
  277. Gundy v. United States, 139 S. Ct. 2116, 2137 (2019) (Gorsuch, J., dissenting); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring in the judgment) (“While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence.”). ↑
  278. To be sure, an analysis of executive powers is a topic of ongoing debate and is well beyond the scope of this Note. See, e.g., Sofaer, supra note 274, at 120–22 (explaining the debate over those powers which are exercised exclusively by the President and which powers are shared with other branches). ↑
  279. Id. at 120. ↑
  280. U.S. Const. art. I, § 8; see also Am. Inst. for Int’l Steel v. United States, 376 F. Supp. 3d 1335, 1346 (Ct. Int’l Trade 2019) (Katzmann, J., concurring dubitante) (“[T]he power to impose duties is a core legislative function.”). ↑
  281. Schoenbrod, supra note 71, at 1260. ↑
  282. This, clearly, does not require a finding that the administration’s actions under Section 232 discussed previously are permissible. Those actions remain subject to challenge on the grounds that the President has stepped beyond the bounds of Section 232 and is not acting in the interest of national security. That analysis encompasses an entirely different set of questions and is not addressed by this Note. ↑
  283. Gundy v. United States, 139 S. Ct. 2116, 2145 (2019) (Gorsuch, J., dissenting). ↑
  284. Id. at 2130 (plurality opinion). ↑

  285. Yakus v. United States, 321 U.S. 414, 425 (1944) (alterations in original) (quoting Currin v. Wallace, 306 U.S. 1, 15 (1939)). ↑

Velvet Rope Discrimination

Public accommodations are private and public facilities that are held out to and used by the public. Public accommodations were significant battlegrounds for the Civil Rights Movement as protesters and litigators fought for equal access to swimming pools, movie theaters, and lunch counters. These sites were also important for the Women’s Rights Movement, which challenged sexist norms that prohibited their service in bars and restaurants if they were unaccompanied by men. Tragically, public accommodations receive less attention within the civil rights race and gender agenda today. This inattention exists despite media accounts, case law, and empirical data that demonstrate that discrimination based on race and sex thrives in these spaces. This Article focuses on two normalized practices that violate federal and state anti-discrimination laws yet have been undertheorized in the public accommodations context: dress codes and gender-based pricing in bars, restaurants, and nightclubs. It deploys legal history to illustrate how assumptions about race and sex have determined access to these public accommodations for more than a century. Statutory developments—mostly notably Title II of the Civil Rights Act of 1964 and similar state analogs—helped cabin racial and gender discrimination in public accommodations. Yet throughout the late 1960s, “velvet rope discrimination” evolved, which refers to the use of legally protected categories by public accommodations in their determinations of who is granted entry and in their provision of service. This Article examines public accommodations law through the lens of velvet rope discrimination and argues for the legal prohibition of dress codes and gender-based pricing. These policies traffic dangerous stereotypes about racial minorities, women, and the LGBTQ community and preclude their equal enjoyment of these facilities. By offering the first comprehensive account of two overlooked practices, this Article presents a new way of thinking about anti-discrimination law and democratic inclusion.

Introduction

The legal trouble for Gaslamp, a beleaguered Houston-based nightclub, began in 2015. In May of that year, some women of color attempted to gain access into the club but were refused entry. A sympathetic white woman, clearly miffed by the refusal, attempted to intervene to no avail. By chance, someone happened to be recording the incident. “That is so racist,” the white woman exclaimed.1 1.Joey Guerra, Video: Gaslamp Employee Says ‘Have a Good Night in the ‘Hood,’ Hous. Chron. (Sept. 28, 2016, 6:16 PM), https://www.chron.com/entertainment/restaurants-bars/article/Video-Gaslamp-employee-says-have-a-good-night-6522262.php [https://perma.cc/VP5K-9FSM].Show More Commenting on what appeared to be textbook discrimination, she added, “I’m white, and I got in for free. They were right behind me, and they charged them 20 bucks. They’re [B]lack.”2 2.Id.Show More One African-American woman added, “He didn’t even look at us. He didn’t even look at our IDs . . . He just said, ‘$20.’”3 3.Id.Show More The club’s gatekeepers made matters worse. After some laughs, waves, and blown kisses toward the camera, one of the doormen taunted, “How ‘bout this, Yelp it.”4 4.Id.Show More Another teased, “Have a good night in the ‘hood’ . . . Tell Tyrone I said hi.”5 5.Id.Show More In a world where legal remedies for civil rights violations are limited,6 6.See, e.g., Nancy Leong & Aaron Belzer, The New Public Accommodations: Race Discrimination in the Platform Economy, 105 Geo. L.J. 1271, 1275–76 (2017) (discussing the inadequacies of public accommodations anti-discrimination laws in the platform economy business model); Stephen B. Burbank & Sean Farhang, Rights and Retrenchment: The Counterrevolution Against Federal Litigation 3 (2017) (recounting a successful movement beginning in the 1980s to undermine the possibility of the enforcement of individual rights through private litigation); Kate Sablosky Elengold, Consumer Remedies for Civil Rights, 99 B.U. L. Rev. 587, 598–99 (2019) (describing the difficulties in applying anti-discrimination statutes).Show More the incident would seemingly fade away.

In another encounter, three Black men sought entry into Gaslamp but were presented with a $20 entry fee that they declined to pay.7 7.Phaedra Cook, Midtown Nightclub Accused of Discriminatory Practices, Hous. Press (Sept. 14, 2015, 6:00 AM), https://www.houstonpress.com/restaurants/midtown-nightclub-accused-of-discriminatory-practices-7762250 [https://perma.cc/3KCW-X9AX]; Grizzard, Houston Bar Discriminates Against Blacks, Lawyer Tim Sutherland Lies, Says Federal Law Doesn’t Apply, Daily Kos (Sept. 18, 2015, 1:38 PM), https://www.dailykos.com/­stories/2015/9/18/1422605/-Houston-Bar-Discriminates-Against-Blacks-Lawyer-Tim-Sutherland-Lies-Says-Federal-Law-Doesn-t-Apply [https://perma.cc/VL3C-JN3K].Show More When walking by a few minutes later, they saw white men entering Gaslamp without paying the entry fee, while African Americans, Asian Americans, and Latinx people were being asked to pay the entry fee.8 8.Grizzard, supra note 7.Show More Again, suspicions of racial discrimination grew. Interracial corroboration was noteworthy here too. After observing how the club implemented its cover fee, a white ally revealed, “They were letting all white guys in for free and charging minority men a cover fee . . . It never had anything to do with dress code . . . If a minority male showed up with a bunch of women, sometime [sic] they’d let them in.”9 9.Cook, supra note 7.Show More

After these allegations went public, Gaslamp’s lawyer explained that the cover charge was not about race, but about gender and sexuality. “Our club doesn’t allow multiple males with no females, so our policy is to charge a cover for that group,” he explained.10 10.Id.Show More He admitted that women’s payment of the cover charge was a discretionary decision made by bouncers and noted that “[s]ometimes the door guy thinks you’re a smokin’ hot babe, and you get in free.”11 11.Grizzard, supra note 7.Show More The attorney also acknowledged that there was no predetermined ideal ratio of men to women, and recommended, “[Y]ou’d want at least one [woman] for a group of three [men] and a one-to-one ratio is better.”12 12.Cook, supra note 7.Show More One of the bouncers who worked the door the night the men were excluded was less diplomatic. He described the three men in a subsequently deleted Facebook post as, “3 old, out of shape, with no girls dorks lol.”13 13.Id.Show More Those three men happened to be lawyers.14 14.Id.Show More They filed a lawsuit in federal court under Title II of the Civil Rights Act of 1964,15 15.Cara Smith, Houston Lawyers Sue Popular Midtown Bar, Support HERO, Hous. Bus. J. (Nov. 2, 2015, 9:28 AM), https://www.bizjournals.com/houston/morning_call/2015/11/‌houston-lawyers-sue-popular-midtown-bar-support.html [https://perma.cc/YBD7-YX22].Show More which prohibits racial discrimination in public accommodations.16 16.42 U.S.C. § 2000a.Show More President Obama’s Department of Justice intervened in 2016 and the agency settled with the club two years later under the Trump Administration.17 17.Settlement Agreement, United States v. Ayman Jarrah, No. 4:16-cv-02906 (S.D. Tex. Feb. 1, 2018), https://www.justice.gov/crt/case-document/file/1031751/download [https://perma.cc/L8DG-QET7] (requiring the defendant to cease discriminating, engage in training on the substantive provisions of Title II, publicize a non-discrimination policy in its entrance, and develop a program to monitor compliance with Title II).Show More

At the heart of the Gaslamp fiasco is a constellation of normalized social and legal practices that I refer to as “velvet rope discrimination.” I borrow and adapt this term from sociologist Reuben Buford May, who developed the term “velvet rope racism” to focus specifically on racial discrimination in nightlife.18 18.See Reuben A. Buford May, Velvet Rope Racism, Racial Paranoia, and Cultural Scripts: Alleged Dress Code Discrimination in Urban Nightlife, 2000–2014, 17 City & Cmty. 44, 45, 51–52 (2018).Show More The analysis here, which focuses specifically on bars, restaurants, and nightclubs expands the concept to focus on race as well as gender and sexuality. The practices that constitute velvet rope discrimination have gone relatively unnoticed by legal scholars despite ample litigation,19 19.See, e.g., supra note 15; infra notes 295–99, 301–02.Show More as well as varying treatments in social sciences, humanities, and journalism.20 20.See, e.g., Reuben A. Buford May, Urban Nightlife: Entertaining Race, Class, and Culture in Public Space 8–9 (2014); Philip R. Kavanaugh & Tammy L. Anderson, Managing Physical and Sexual Assault Risk in Urban Nightlife: Individual- and Environmental-Level Influences, 30 Deviant Behav. 680, 706 (2009); James G. Fox & James J. Sobol, Drinking Patterns, Social Interaction, and Barroom Behavior: A Routine Activities Approach, 21 Deviant Behav. 429, 440–41 (2000); Emily Heil, A Baltimore Restaurant Group Apologizes to a Black Woman and Son for Unequally Enforcing Its Dress Code, Wash. Post (June 23, 2020, 7:00 PM), https://www.washingtonpost.com/news/voraciously/wp/2020/06/23/a-baltimore-restaurant-group-apologizes-to-a-black-woman-and-son-for-unequally-enforcing-its-dress-code/ [https://perma.cc/F7UC-K8EF]; Emily Suzanne Lever, Man Suing NYC Bar for $50K Claiming They Discriminated Against Men by Hosting Ladies Night (Oct. 15, 2019, 3:41 PM), https://gothamist.com/news/man-sues-bar-ladies-night-discrimination [https://perma. ‌cc/H4KR-BXLB].Show More Far from an isolated set of incidents, the exclusion faced by the men and women at Gaslamp is part of a larger, jagged evolution of anti-discrimination law. Racial, gender, and sexual considerations thrive in public accommodations despite running afoul of a host of federal, state, and local anti-discrimination laws.21 21.See Wash. Rev. Code§ 49.60.215 (2020) (“It shall be an unfair practice for any person . . . to commit an act which directly or indirectly results in any . . . discrimination . . . or the refusing or withholding from any person the admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging in any place of public resort, accommodation, assemblage, or amusement . . . .”) (emphasis added); Or. Rev. Stat. § 659A.403 (2020) (“[A]ll persons within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age . . . .”) (emphasis added); Conn. Gen. Stat. § 46a-64 (2017) (“It shall be a discriminatory practice . . . [t]o deny any person within the jurisdiction of this state full and equal accommodations in any place of public accommodation, resort or amusement because of race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income, intellectual disability, mental disability, physical disability, including, but not limited to, blindness or deafness, or status as a veteran, of the applicant . . . .”) (emphasis added).Show More Notwithstanding Richard Epstein’s assertation a quarter century ago that “the law of public accommodations could be described as ‘ancient history,’”22 22.Richard A. Epstein, Forbidden Grounds: The Case Against Employment Discrimination Laws 128 (1995).Show More available descriptive and empirical accounts indicate that race and sex discrimination flourish in restaurants and nightlife.23 23.Lauren A. Rivera, Status Distinctions in Interaction: Social Selection and Exclusion at an Elite Nightclub, 33 Qualitative Socio. 229, 239 (2010); Reuben A. Buford May & Kenneth Sean Chaplin, Cracking the Code: Race, Class, and Access to Nightclubs in Urban America, 31 Qualitative Socio. 57, 58, 60 (2007) (examining racial discrimination in Athens, Georgia through participant observation); David Grazian, Urban Nightlife, Social Capital, and the Public Life of Cities, 24 Socio. F. 908, 915–16 (2009) (offering empirical data about racial and class barriers, the normalization of gender differences, and the lack of inclusiveness in nightlife to argue that nightlife can serve as a bonding mechanism).Show More

This Article fills a gaping hole in statutory anti-discrimination law scholarship. With the exception of Joseph Singer’s work and an important article by Elizabeth Sepper and Deborah Dinner, anti-discrimination law is heavily centered on the veritable problems of housing and employment, with less attention given to public accommodations.24 24.Most generally, Joseph Singer has shaped recent legal thinking on race and public accommodations, whereas Elizabeth Sepper and Deborah Dinner have recently written about sex discrimination in public accommodations. SeeJoseph William Singer, We Don’t Serve Your Kind Here: Public Accommodations and the Mark of Sodom, 95 B.U. L. Rev. 929, 930, 950 (2015); Joseph William Singer, No Right to Exclude: Public Accommodations and Private Property, 90 Nw. L. Rev. 1283, 1286, 1296 (1996); Elizabeth Sepper & Deborah Dinner, Sex in Public, 129 Yale L.J. 78, 83 (2019). This Article is indebted to their work and extends their analyses. There are also some helpful but dated accounts of discrimination in bars and nightclubs in a few student notes. These various insights are all helpful but fail to capture the robustness of contemporary public accommodations discrimination. See, e.g., Lisa Gabrielle Lerman & Annette K. Sanderson, Project, Discrimination in Access to Public Places: A Survey of State and Federal Public Accommodations Laws, 7 N.Y.U. Rev. L. & Soc. Change 215, 250 (1978); Alan J. Hoff, Note, A Proposed Analysis for Gender-Based Practices and State Public Accommodations Laws, 16 U. Mich. J.L. Reform 135, 137 (1982) (arguing that gender-preferential practices are acceptable when applied reasonably); Joyce L. McClements & Cheryl J. Thomas, Comment, Public Accommodations Statutes: Is Ladies’ Night Out?, 37 Mercer L. Rev. 1605, 1605 (1986) (discussing the use of public accommodations laws by men for sex discrimination claims in the 1980s); Heidi C. Paulson, Note, Ladies’ Night Discounts: Should We Bar Them or Promote Them?, 32 B.C. L. Rev. 487, 489 (1991) (exploring “ladies night” events and gender-based pricing in relation to public accommodations laws and sex discrimination between the 1980s and the beginning of the 1990s); Jessica E. Rank, Comment, Is Ladies’ Night Really Sex Discrimination?: Public Accommodation Laws, De Minimis Exceptions, and Stigmatic Injury, 36 Seton Hall L. Rev. 223, 225–28 (2005) (describing the variety of approaches to the issue of “ladies night” sex discrimination around the country). Some particularly instructive insights have been offered by scholars who have addressed these issues in a few pages of what are larger, book-length projects on anti-discrimination law. See Nancy Levit, The Gender Line: Men, Women, and the Law 102–04 (1998) (providing examples of “ladies night” discrimination and examining various state sex discrimination laws); Richard Thompson Ford, Rights Gone Wrong: How Law Corrupts the Struggle for Equality 85–92 (2011) (discussing specific cases of gender discrimination and distinguishing between harmless and harmful gender distinctions); Joanna L. Grossman, Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace 2–3 (2016) (analyzing a “ladies night” case in New Jersey in an exploration of sex discrimination). For helpful takes on housing discrimination, see Lee Anne Fennell, Searching for Fair Housing, 97 B.U. L. Rev. 349, 351–52 (2017) (exploring the underlying racial biases of home seekers as they relate to housing discrimination); Rachel D. Godsil, The Gentrification Trigger: Autonomy, Mobility, and Affirmatively Furthering Fair Housing, 78 Brook. L. Rev. 319, 324 (2013) (conducting a historical analysis of gentrification and offering alternative legal mechanisms for in-place residents facing gentrification); Olatunde Johnson, The Last Plank: Rethinking Public and Private Power to Advance Fair Housing, 13 U. Pa. J. Const. L. 1191, 1193, 1195–96 (2011) (examining the Fair Housing Act’s enforcement regime and its mandate to affirmatively further fair housing). For instructive treatments of employment discrimination, see Tristin K. Green, Racial Emotion in the Workplace, 86 S. Cal. L. Rev. 959, 969 (2013) (arguing that racial emotion is a source of discrimination in the workplace in order to advocate for more comprehensive laws that will better recognize and address this form of discrimination); Serena Mayeri, Intersectionality and Title VII: A Brief (Pre-)History, 95 B.U. L. Rev. 713, 715 (2015) (providing an analysis of the role of intersectionality in the development and execution of Title II of the Civil Rights Act of 1964); Brian Soucek, Perceived Homosexuals: Looking Gay Enough for Title VII, 63 Am. U. L. Rev. 715, 718 (2014) (analyzing cases on gender stereotyping and sexual orientation claims in the workplace).Show More Alternatively, attention is given to public spaces, but primarily through the lens of disability law or the longstanding public accommodations clash between religion and sexuality.25 25.For recent examinations of the interface of religion and sexual orientation in these sites, see Pamela S. Karlan, Just Desserts?: Public Accommodations, Religious Accommodations, Racial Equality, and Gay Rights, 2018 Sup. Ct. Rev. 145, 146; Melissa Murray, Inverting Animus: Masterpiece Cakeshop and the New Minorities, 2018 Sup. Ct. Rev. 257, 257–58 (2018); Elizabeth Sepper, The Role of Religion in State Public Accommodations Laws, 60 St. Louis U. L.J. 631, 636–37 (2016) (tracking religious exemptions in public accommodations law). The Americans with Disabilities Act goes further than Title II in that it requires an affirmative duty to remove physical barriers to access to ensure that people are not discriminated against on the basis of disability See 42 U.S.C. § 12181. Some of the most helpful takes on disability and public accommodations include: Samuel R. Bagenstos, The Unrelenting Libertarian Challenge to Public Accommodations Law, 66 Stan. L. Rev. 1205, 1208–09 (2014); Elizabeth F. Emens, Integrating Accommodation, 156 U. Pa. L. Rev. 839, 843 (2008) (identifying certain benefits created for third parties by the Americans with Disabilities Act); Colin Crawford, Cyberplace: Defining A Right to Internet Access Through Public Accommodation Law, 76 Temp. L. Rev. 225, 227–28 (2003) (exploring whether to impose a public accommodations law framework onto cyberspace); Robert L. Burgdorf, Jr., “Equal Members of the Community”: The Public Accommodations Provisions of the Americans with Disabilities Act, 64 Temp. L. Rev. 551, 554 (1991).Show More This Article deploys the gifts of legal history to supplement these lines of inquiry and make the case that discrimination in public accommodations matters in the context of racial, gender, and LGBTQ justice. Two intellectual moves are central to this endeavor.

First, the Article sketches out the terrain of velvet rope discrimination, which I define as the use of legally protected categories by public accommodations in their determinations of who is granted entry and in their provision of service. The legal categories I focus on are race and sex, and the public accommodations of interest in this Article are bars, restaurants, and nightclubs. I pay particular attention to gender-based pricing schemes, the use of dress codes as proxies for race, and the trafficking of stereotypes that come with these forms of vetting. This descriptive endeavor shows how law, in some ways, is well-suited to regulate velvet rope discrimination but in other ways is ill-equipped to satisfy the goal of equal access to public accommodations. Entry into these spaces is often granted or denied based on stereotypes that could be considered socially objectionable and legally impermissible if actually uttered. In ways that hark back to the 1970s critiques of romantic paternalism,26 26.Frontiero v. Richardson, 411 U.S. 677, 684 (1973) (“Traditionally, [sex] discrimination was rationalized by an attitude of ‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage.”).Show More women are considered ideal customers because their presence ostensibly increases alcohol purchases by men (as gifts, courtship, and/or status displays).27 27.Rivera, supra note 23, at 239.Show More Dress codes attempt to curate audiences by prohibiting styles associated with racial minorities or maintaining requirements that exclude gender non-conforming individuals. Most generally, the discretionary aspect of admission—which is lightly regulated as a legal matter28 28.Robert Bork foresaw the enforcement problems with Title II before it was passed.Of what value is a law which compels service to Negroes without close surveillance to make sure the service is on the same terms given to whites? It is not difficult to imagine many ways in which barbers, landlords, lunch counter operators, and the like can nominally comply with the law but effectively discourage Negro patrons. Must federal law enforcement agencies become in effect public utility commissions charged with the supervision of the nation’s business establishments or will the law become an unenforceable symbol of hypocritical righteousness?Robert Bork, Civil Rights – A Challenge, New Republic, Aug. 31, 1963, at 23.Show More—is rife with potential discrimination along a host of categories (e.g., race, gender, sexual orientation, color, national origin).

The second move is normative and unsettles taken-for-granted assumptions about law, public accommodations, and leisure. Here, I argue that in the context of public accommodations, the use of dress codes and gender-based pricing—core features of velvet rope discrimination—should be prohibited. This prescriptive position is rooted in a close analysis of public accommodations jurisprudence and growing statutory developments. Unlike Title VII, which covers employment discrimination and contains a business necessity clause that allows employers to discriminate based on legally protected categories,29 29.42 U.S.C. § 2000e-2(e).Show More Title II of the Civil Rights Act of 1964 does not contain a business necessity defense30 30.42 U.S.C. § 2000a.Show More and courts have routinely rejected such arguments in the public accommodations context.31 31.See sources cited infra notes 372–73 (discussing cases).Show More Moreover, jurisdictions are slowly adopting anti-discrimination provisions designed to combat velvet rope discrimination.32 32.See sources cited infra notes 351, 360–63, 366 (discussing recent legislation designed to curtail velvet rope discrimination).Show More The combination of settled jurisprudence and a budding statutory shift suggests that the Article’s normative position, which may seem initially jarring, actually has bases in settled law.

This Article proceeds in four parts. Part I outlines the development of federal and state statutes that prohibit discrimination in public accommodations. These laws surfaced after the Civil War and became most notable when Congress passed the Civil Rights Act of 1875,33 33.Pub. L. No. 43-114, 18 Stat. 335–37, invalidated by Civil Rights Cases, 109 U.S. 3 (1883).Show More which the Court struck down in the 1883 Civil Rights Cases.34 34.109 U.S. 3, 26 (1883).Show More That decision, along with Plessy v. Ferguson,35 35.163 U.S. 537, 550–51 (1896).Show More led more states to pass public accommodations statutes. None of these laws prohibited sex-based segregation. Such discrimination was normalized as a reasonable feature of human relations.36 36.SeeBarbara Y. Welke, When All the Women Were White, and All the Blacks Were Men: Gender, Class, Race, and the Road to Plessy, 1855–1914, 13 L. & Hist. Rev. 261, 271 (1995).Show More Nevertheless, in the first half of the twentieth century, when there was no federally recognized right to equal access to public accommodations, minority leisure-seekers used state laws to contest their exclusion from this realm of social life.37 37.See e.g., infra notes 83, 103, 111, 118.Show More These cases provided fodder for challenges to recreational segregation after the Court invalidated Jim Crow in Brown v. Board of Education38 38.347 U.S. 483, 495 (1954).Show More and presaged the passage of Title II of the Civil Rights Act of 1964, which prohibits discrimination in public accommodations based on race, color, religion, or national origin. Gender again would be left out of public accommodations laws’ purview. It would take approximately a decade for a majority of states to include sex in their anti-discrimination statutes.39 39.Sepper & Dinner, supra note 24, at 104, 111.Show More This federal and state framework buoyed existing local agencies that developed their own municipal prohibitions on public accommodations discrimination.40 40.See Charles S. Rhyne & Brice W. Rhyne, Civil Rights Ordinances 71–89 (1963); Joseph Parker Witherspoon, Administrative Implementation of Civil Rights 531–38 (1968).Show More

The accretion of laws prohibiting public accommodations discrimination should, in theory, regulate discrimination against protected groups in bars, restaurants, and nightclubs. However, Part II suggests otherwise and sketches the contours of velvet rope discrimination. I begin this Part by describing the myriad ways restaurants, bars, and nightclubs promote practices that, at first glance, contravene anti-discrimination laws and, in some instances, actually violate such laws based on determinations by courts and agencies. In the 1960s, some of these entities responded to the new civil rights landscape by mimicking other integration-resistant public accommodations. Some claimed private status or mandated the display of selectively furnished “membership cards.”41 41.See, e.g., United States v. Jordan, 302 F. Supp. 370, 374 (E.D. La. 1969); United States v. Nw. La. Rest. Club, 256 F. Supp. 151, 153 (W.D. La. 1966).Show More Other public accommodations rigorously enforced real and unstated dress codes; this emerged as the more economically and socially defensible practice. Dress codes—which were tied to sartorial practices that preceded anti-discrimination law42 42.Ruthann Robson, Dressing Constitutionally: Hierarchy, Sexuality, and Democracy from Our Hairstyles to Our Shoes, 8–27 (2013) (describing the historical development of laws regulating dress).Show More—became a salient screening mechanism for innocent profit-seekers and bigots alike. Sex integration in public accommodations was also contested as women fought for access to exclusionary bars and restaurants.43 43.See sources cited infra notes 204–11 (discussing early instances of discrimination in bars and restaurants in the mid-twentieth century).Show More But the socio-legal landscape evolved differently due to patriarchy’s simultaneous degradation and valorization of women. Sex-based anti-discrimination laws surfaced at the closing of the 1960s and the beginning of the 1970s, when the notion of wage-earning women normalized, ideas about adult consensual sex liberalized, and women publicly asserted their independence.44 44.Sepper & Dinner, supra note 24 at 83; see alsoJulia Kirk Blackwelder, Now Hiring: The Feminization of Work in the United States, 1900–1995, 176–204 (1997); Susan Frelich Appleton, The Forgotten Family Law of Eisenstadt v. Baird, 28 Yale J.L. & Feminism 3 (2017) (arguing that the Supreme Court’s 1972 declaration that laws criminalizing contraceptives are unconstitutional made family law “more inclusive, liberatory, sex-positive, and feminist”); Elana Levine, Wallowing in Sex: The New Sexual Culture of 1970s American Television 3 (2007) (explaining how television reflected shifting sexual mores in the 1970s); Daphne Spain, Constructive Feminism, Women’s Spaces and Women’s Rights in the American City 2 (2016) (describing the ways feminists challenged sex segregation in public institutions and thus changed the use of urban space).Show More Owners of public accommodations soon offered gender-based discounts that were in accord with this independence, but these deals would be challenged by men in the 1980s. At this point, state courts had a limited lexicon for gender discrimination and took different approaches to these schemes. Some states upheld gender-based pricing in public accommodations under the problematic logic that these arrangements were innocuous, while some courts invalidated these schemes in ways that troublingly validated men’s weaponization of civil rights laws against women.45 45.See Bethany M. Coston & Michael Kimmel, White Men as the New Victims: Reverse Discrimination Cases and the Men’s Rights Movement, 13 Nev. L.J. 368, 373–74 (2013).Show More Ultimately, Part II describes how the 1970s and 1980s produced a public accommodations regime that was poorly equipped to regulate velvet rope discrimination.

Part III conceptually maps out the contemporary operation of velvet rope discrimination by detailing specific examples. It also explicates public accommodations owners’ business justifications of gender-based pricing and dress codes. The most common explanations for gender-based pricing are profitability, establishments’ desire to attract women to entice men, and chivalry.46 46.See infranotes 368–71 and accompanying text (discussing different views).Show More In public accommodations law, courts have rejected business necessity-like arguments that use profit motives to justify discrimination. In addition to resting on heteronormative assumptions, chivalry-based defenses understand discrimination through the traditional and narrow lens of “hostile” sexism, yet ignore the “benevolent” versions of sexism that legal scholars, feminists, and social scientists have long described.47 47.See sources citedinfra notes 238, 376 (describing prominent accounts of “benevolent” sexism).Show More Meanwhile, dress codes are instituted because of owners’ desire to attract a particular clientele, keep out troublemakers, and/or create a certain ambiance. These are undeniably legitimate business goals, but the noteworthy cases involving alleged discrimination by way of dress codes lead to reasonable inferences that these policies are crafted specifically to exclude minorities. Although men of color attract much of the attention in the discourse on discriminatory dress codes, overly vague dress codes that prohibit “inappropriate attire” allow bouncers to deploy rules to exclude women of color and sexual minorities in ways that also run afoul of various anti-discrimination laws.48 48.See sources cited infra 328–38 and accompanying text (discussing the operation of dress codes at bars and nightclubs).Show More At the same time, considering the reality of recreational segregation, this Part complicates the story by pointing to the various intraracial implications of velvet rope discrimination and discusses the challenges that arise when minorities are excluded from bars and nightclubs that employ, are owned by, and/or predominantly service other minorities. Overall, this Part establishes how the economic and putatively rational logics used to defend dress codes often crumble upon deeper scrutiny yet thrive due to our inadequate anti-discrimination law regime. In this way, the Article joins a group of scholars who describe how entities evade anti-discrimination statutes and offers suggestions about how to think about these laws in the modern world.49 49.See Leong & Belzer,supra note 6, at 1275 (arguing that public accommodations laws must account for discrimination in the “platform economy”); David Brody & Sean Bickford, Discriminatory Denial of Service: Applying State Public Accommodations Laws to Online Commerce 1 (2020) (arguing the same for online commerce); Jonah Gelbach, Jonathan Klick & Lesley Wexler, Passive Discrimination: When Does It Make Sense To Pay Too Little?, 76 U. Chi. L. Rev. 797, 823–40 (2009); Angela Onwuachi-Willig, Volunteer Discrimination, 40 U.C. Davis L. Rev. 1895, 1901 (2007); Lior Jacob Strahilevitz, Exclusionary Amenities in Residential Communities, 92 Va. L. Rev. 437, 439–40 (2006); Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 Colum. L. Rev. 458, 460–61 (2001).Show More

The Conclusion offers some normative thoughts on velvet rope discrimination. It does not purport to solve the aforementioned problems but offers a variety of suggestions that might help reframe public accommodations law. The prescriptions attempt to offer meaningful ways in which federal, state, and local governments can honor the underlying principles of anti-discrimination law.

Two quick points are worth offering before proceeding—one about why dress codes and gender-based pricing should be analyzed in tandem and the other about the significance of velvet rope discrimination. At first blush, gender-based pricing and dress codes may appear to be distinct practices that merit separate analytical treatment. Since the potential harms that flow from these practices are qualitatively different, our normative ideas about regulation might lead to different conclusions. The perceived differences between the two are not negligible. At the most basic level, dress codes seem to be animated by keeping out a particular group of people—people who do not conform to some ideal style guide—whereas gender-based pricing is inspired by attracting a specific group of people—cisgender heterosexual women. This is just one way of looking at such discretion. One could easily understand both practices as good-faith attempts to curate a particular ambiance. They could also be considered crude forms of racial and gender balancing.50 50.Press Release, N.Y. State Off. Att’y Gen., Settlement with Manhattan Nightclub Ends Investigation of Discrimination Allegations (June 3, 2003), https://ag.ny.gov/press-release/2003/settlement-manhattan-nightclub-ends-investigation-discrimination-allegations [https://perma.cc/72JE-82K7] (announcing $10,0000 settlement with a club that refused to admit a group of South Asians, who the doorman told: “It’s my responsibility to blend this club. There has to be a balance, there has to be.”).Show More Herein lies one of the many points of convergence that demonstrate why these practices should not be understood in silos: both are screening mechanisms that determine who has access to what are, in theory, public spaces, which raises weighty legal questions about inclusion.51 51.SeeDon Mitchell, The Right to the City: Social Justice and the Fight for Public Space 5 (2003) (outlining the history of inclusion in and exclusion from public space in American cities).Show More These screening mechanisms are generally absent from other types of public accommodations (i.e., movie theaters, amusement parks, transportation services). The average reader would likely bristle at the idea of being subject to a dress code at a post office or gender-based pricing at a public park. These screening mechanisms differently promote the kinds of intimate discrimination that Elizabeth Emens has cautioned against; they can also limit romantic prospects and the possibility of relationship formation for socially marginalized groups such as racial minorities, women, people with disabilities, the LGBTQ community, and people at the intersections of some of these categories, to name a few.52 52.Elizabeth F. Emens, Intimate Discrimination: The State’s Role in the Accidents of Sex and Love, 122 Harv. L. Rev. 1307, 1374–75 (2009) (discussing how people with disabilities have limited opportunities to form intimate relations and how race and gender can “intersect to create . . . subgroups who are relatively excluded in their intimate prospects”); see also Jasmine E. Harris, The Aesthetics of Disability, 119 Colum. L. Rev. 895, 941 (2019) (noting how ideas about aesthetics and appearance can impact access to public accommodations for people with disabilities).Show More Gender-based pricing and dress codes also defy ideas about inclusion and equality that are at the heart of anti-discrimination law but might get lost if they are understood in atomistic terms.

In addition to raising questions about inclusion, dress codes and gender-based pricing contribute to the normalization of ideas about race, class, gender, sexuality, and the intersections of these categories. This normalization can impact the quality of life for marginalized people, as well as groups traditionally understood as privileged. For example, dress codes may be facially neutral, but nightclub litigation, along with a broader literature on fashion, appearance, and employment, demonstrate that such policies also smuggle pernicious ideas about whiteness that can be disadvantageous to racial minorities, as well as whites themselves.53 53.See Robson, supra note 42, at 119–20 (describing how proscriptions against saggy pants and gang-affiliated colors facilitated profiling against young males, despite their broad popularity in contemporary youth culture); Devon W. Carbado & Mitu Gulati, Acting White?: Rethinking Race in “Post-Racial” America 10–15 (2013) (explaining how President Obama navigated presenting his Black identity so as not to alienate white people uncomfortable with confronting racism and stereotyping); Deborah L. Rhode, The Beauty Bias: The Injustice of Appearance in Life and Law 6–7 (2010) (noting how a preference for white-European features has prompted exponential increases in spending on nonessential cosmetic procedures as well as psychological disorders in the United States).Show More The normalization that flows from dress codes is not just about men of color, who appear to be the subject of their implementation, but men more generally. For various reasons, some men do not conform to the standards that these dress codes demand—and sometimes their nonconformity manifests itself in disgruntlement or sexual violence.54 54.See Michael Kimmel, Angry White Men: American Masculinity at the End of an Era 25–26 (2013) (noting how perceptions of disenfranchisement have led white men to associate with misogynistic and white supremacist movements and militias).Show More Legally questionable dress codes in these public accommodations may also pathologize women’s fashion choices by imposing disturbing norms about how women should dress, act, and behave.55 55.Sahar F. Aziz, Coercing Assimilation: The Case of Muslim Women of Color, 18 J. Gender Race & Just. 389, 398 (2016); Angela Onwuachi-Willig, Another Hair Piece: Exploring New Strands of Analysis Under Title VII, 98 Geo. L.J. 1079, 1106–08 (2010); Jennifer L. Levi, Misapplying Equality Theories: Dress Codes at Work, 19 Yale J.L. & Feminism 353, 364–65 (2008); Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991 Duke L.J. 365, 390–93 (1991).Show More

Similar kinds of reification abound in the context of gender-based pricing. As Richard Ford observes, gender-based pricing might be charitably understood as akin to the type of courting practices that have long defined modern urban romance or could be read less generously as extensions of a crude heteronormative hunter-gatherer logic that imagines women as available and present primarily for men’s consumption.56 56.See Ford, supra note 24, at 85. For an instructive examination on the evolution of courting see Elizabeth Alice Clement, Love for Sale: Courting, Treating, and Prostitution in New York City, 1900–1945, at 22–43 (2006).Show More Either framework positions women—some of whom are disinterested in romantic pursuits and go to these spaces simply for platonic sociality and leisure—as sexually available. These assumptions and the larger project of patriarchy provide some explanatory power for the sexual violence that emanates from these spaces.57 57.See sources cited infra notes 384–87 and accompanying text (noting how gender-based pricing in bars and clubs perpetuates stereotypical versions of femininity while facilitating increased levels of sexual violence against their female patrons).Show More But men are straight-jacketed by gender-based pricing too, as this custom can make them unnecessarily competitive and compel them to perform crass versions of masculinity.58 58.See sources cited infra notes 389–92 and accompanying text.Show More Ultimately, assumptions about race, gender, and sexuality become more visible by examining dress codes and gender-based pricing together.

Finally, dress codes and gender-based pricing highlight critical gaps and live controversies within anti-discrimination law. Some of these issues, like dress codes, have been deeply interrogated by scholars of gender and employment and have relevance for public accommodations.59 59.SeeMary Anne Case, Legal Protections for the “Personal Best” of Each Employee: Title VII’s Prohibition on Sex Discrimination, the Legacy of Price Waterhouse v. Hopkins, and the Prospect of ENDA, 66 Stan. L. Rev. 1333, 1354–60 (2014) (exploring how federal courts have struggled to interpret different workplace grooming standards between men and women as a violation of Title VII’s sex stereotyping protections); William R. Corbett, Hotness Discrimination: Appearance Discrimination as a Mirror for Reflecting on the Body of Employment-Discrimination Law, 60 Cath. U. L. Rev. 615, 624–28 (2011) (explaining the inherent difficulty in establishing a legally viable appearance-based employment discrimination claim despite the pervasiveness of this discrimination in the United States); Deborah L. Rhode, The Injustice of Appearance, 61 Stan. L. Rev. 1033, 1067–69 (2009) (noting the popular pragmatic arguments against expanding Title VII protections to include appearance-based discrimination); Ann C. McGinley, Babes and Beefcake: Exclusive Hiring Arrangements and Sexy Dress Codes, 14 Duke J. Gender L. & Pol’y 257, 263 (2007) (exploring gendered hiring and expectations for cocktail servers in casinos); Gowri Ramachandran, Freedom of Dress: State and Private Regulation of Clothing, Hairstyle, Jewelry, Makeup, Tattoos, and Piercing, 66 Md. L. Rev. 11, 55–58 (2006) (arguing that the government should interfere to protect freedom of dress in private workplaces in order to take the power from employers, but remain hands-off in other private settings); David B. Cruz, Making Up Women: Casinos, Cosmetics, and Title VII, 5 Nev. L.J. 240, 243–48 (2004) (analyzing how courts have interpreted Title VII’s BFOQ provision to uphold sex-discriminatory dress and appearance requirements); Katharine T. Bartlett, Only Girls Wear Barrettes: Dress and Appearance Standards, Community Norms, and Workplace Equality, 92 Mich. L. Rev. 2541, 2556–59 (1994) (arguing that courts upholding gendered dress and appearance restrictions reinforces unexamined gender stereotypes and prejudices); Karl E. Klare, Power/Dressing: Regulation of Employee Appearance, 26 New Eng. L. Rev. 1395, 1418–21 (1992) (exploring permissible uses of gender discrimination in the context of gendered dress codes addressing hair length and pants).Show More Most basically, dress codes and gender-based pricing coincide with the kinds of appearance discrimination that are technically not covered by anti-discrimination law but often reliant on ideas about protected categories such as disability, race, gender, and sexual orientation. More specifically, these screening mechanisms highlight bias against transgender individuals.60 60.Heath Fogg Davis, Sex-Classification Policies as Transgender Discrimination: An Intersectional Critique, 12 Persps. on Pol. 45, 45 (2014).Show More This issue is connected to the themes discussed herein and appears where relevant but warrants more in-depth treatment than this Article can offer. Gender-based pricing and dress codes generate the kinds of “administrative violence” Dean Spade has thoroughly detailed.61 61.Dean Spade, Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law 9–10 (2015).Show More As Heath Fogg Davis similarly explains, “[S]ex-classification policies are unjust because they prompt and authorize administrative agents to use their own subjective gender judgments to target, inspect, and exclude transgender-appearing people from the public accommodations under their watch.”62 62.Davis, supra note 60.Show More But the sparsity of anti-discrimination laws protecting transgender individuals, along with law’s inability to grasp the velvet rope discrimination in this Article, render their treatment in these public accommodations invisible. Accordingly, this Article uses dress codes and gender-based pricing to provide alternative ways of thinking about enduring and new challenges in the anti-discrimination subfield of public accommodations law.

The political and social significance of discrimination is also worth emphasizing before proceeding. In a country where there is deep concern about the future of democracy, police violence toward unpopular groups, tenacious wage disparities, and a host of other maladies (including a pandemic), it is tempting to dismiss velvet rope discrimination as inconsequential. Put another way, it is easy to consider the issues described in this Article as a distraction from more dire issues facing marginalized groups. But this trivialization faces three problems.

As a sociological issue, this kind of diminishment ignores how discrimination in public accommodations can normalize ideas about race, gender, and sexuality for people who actively discriminate, as well as the individuals who are subject to unequal treatment. Throughout history, inequality has been able to thrive due to norms that are legally or socially sanctioned.63 63.Kate Manne, Down Girl: The Logic of Misogyny 13 (2017) (“Misogyny . . . visit[s] hostile or adverse social consequences on a certain (more or less circumscribed) class of girls or women to enforce and police social norms that are gendered either in theory (i.e., content) or in practice (i.e., norm enforcement mechanisms).”); Ruth Thompson-Miller, Joe R. Feagin & Leslie H. Picca, Jim Crow’s Legacy: The Lasting Impact of Segregation 157, 179 (2015) (noting how “[t]he racial norms of Jim Crow were firmly grounded in African Americans’ knowing ‘their place’ at the bottom of the racial hierarchy” and suggesting that the fragility of racial hierarchy “depends upon everyday individual acts to collectively uphold it”); Roberto Lovato, Juan Crow in Georgia, The Nation (May 8, 2008), https://www.thenation.com/‌article/juan-crow-georgia/ [https://perma.cc/38PH-Y3P9] (describing Juan Crow as “the matrix of laws, social customs, economic institutions and symbolic systems enabling the physical and psychic isolation needed to control and exploit undocumented immigrants”).Show More The velvet rope discrimination described in this Article is part of a doxa that, in many ways, endorses odious social distinctions.

Relatedly, derision toward this form of discrimination loosely resembles historical criticisms—from the left and the right—of mid-twentieth-century civil rights litigants who sought equal access to water fountains, pools, lunch counters, theaters, gyms, and recreational parks.64 64.Dismissals of the fight for public accommodations desegregation came from outside and inside of the Black community. Strom Thurmond famously claimed, “[T]here’s not enough troops in the [A]rmy to force the [S]outhern people to break down segregation and admit the Negro race into our theaters, into our swimming pools, into our homes, and into our churches.” Nadine Cohodas, Strom Thurmond and the Politics of Southern Change 177 (1993). See also Malcolm X Speaks: Selected Speeches and Statements 9 (George Breitman ed., 1965) (“The only revolution in which the goal is loving your enemy is the Negro revolution. It’s the only revolution in which the goal is a desegregated lunch counter, a desegregated theater, a desegregated park, and a desegregated public toilet; you can sit down next to white folks—on the toilet. That’s no revolution.”).Show More The National Association for the Advancement of Colored People (NAACP), which litigated many of the public accommodations disputes that went to the Supreme Court, managed these cases amidst a similar set of concerns around democracy, employment discrimination, police violence, criminal justice inequality, and a host of other issues.65 65.See generally Christopher W. Schmidt, The Sit-Ins: Protest and Legal Change in the Civil Rights Era 57–59 (2018) (describing the role of the NAACP in the sit-in movement).Show More The National Organization for Women (NOW) challenged men’s-only bars amidst concerns about reproductive rights, wage gaps, and sexual violence.66 66.See Sepper & Dinner, supra note 24, at 111–14; Georgina Hickey, Barred from the Barroom: Second Wave Feminists and Public Accommodations in U.S. Cities, 34 Feminist Stud. 382, 385–88 (2008).Show More Trivialization of velvet rope discrimination implies that these organizations mismanaged their priorities in the past or suggests that the concerns these organizations had about public accommodations discrimination are relics of the past. The benefits of historical hindsight suggest that these were not worthless endeavors, but important steps toward attempting to extirpate bias in American society that still exists.67 67.Ella J. Baker, Bigger than a Hamburger, S. Patriot, May 1960, at 4 (“The Student Leadership Conference made it crystal clear that current sit-ins and other demonstrations are concerned with something much bigger than a hamburger or even a giant-sized coke . . . [they] are seeking to rid America of the scourge of racial segregation and discrimination—not only at lunch counters, but in every aspect of life.”); Jack Williams, Lady Lawyer Fights for Women’s Rights, Ithaca J., Feb. 5, 1969, at 4 (“I don’t particularly care if I ever go into a bar—not that I don’t drink—but the issue is one of being treated the same way as a first-class citizen.”).Show More

Finally, as a legal and political issue, such dismissals fail to appreciate the democratic and dignity concerns at the heart of anti-discrimination law.68 68.3 Bruce Ackerman, We the People: The Civil Rights Revolution 127–53 (2014) (describing the anti-humiliation principle that has figured into constitutional law).Show More In his comments to Congress on proposed civil rights legislation, President Kennedy insisted that “no action is more contrary to the spirit of our democracy and Constitution—or more rightfully resented by a Negro citizen who seeks only equal treatment—than the barring of that citizen from restaurants, hotels, theatres, recreational areas and other public accommodations and facilities.”69 69.Daniel v. Paul, 395 U.S. 298, 306 (1969) (quoting Special Message to the Congress on Civil Rights and Job Opportunities, 248 Pub. Papers 483, 485 (June 19, 1963)).Show More When the Senate Commerce Committee discussed the Civil Rights Act of 1964, it noted that “[d]iscrimination is not simply dollars and cents, hamburgers and movies; it is the humiliation, frustration, and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public.”70 70.S. Rep. No. 88-872, at 16 (1964).Show More Echoing and building on Professor Regina Austin’s unheeded clarion call two decades ago for scholars to pay closer attention to leisure and the law as a civil rights matter,71 71.Regina Austin, “Not Just for the Fun of It!”: Governmental Restraints on Black Leisure, Social Inequality, and the Privatization of Public Space, 71 S. Cal. L. Rev. 667, 711–12 (1998).Show More this Article calls attention to the ways discrimination in public accommodations speaks to questions of democratic membership and inclusion.

 

  1. * Presidential Assistant Professor of Law, University of Pennsylvania Law School. This paper benefitted from feedback and conversations with Regina Austin, Monica Bell, Guy-Uriel Charles, Jessica Clarke, Charlton Copeland, Deborah Dinner, Brittney Farr, Jill Fisch, Thomas Frampton, Trevor Gardner, Jean Galbraith, Sally Gordon, Jasmine Harris, Tanya Hernandez, Dave Hoffman, Osamudia James, Jasmine Johnson, Olati Johnson, Jonathan Klick, Seth Kriemer, Benjamin Levin, Sophia Lee, Tim Lovelace, Reuben Buford May, Serena Mayeri, Jonathan Masur, Darrell Miller, Melissa Murray, Julian Nyarko, Elizabeth Pollman, Christopher Schmidt, Elizabeth Sepper, Fred Smith, Henry Bluestone Smith, Brian Soucek, Ted Ruger, Kendall Thomas, Andrea Wang, Tess Wilkinson-Ryan, Jamillah Bowman Williams, Tobias Barrington Wolff and members of the Department of African American Studies at UC Berkeley. A special thanks to Olivia Bethea and Fatoumata Waggeh for their research assistance as well as Hannah Pugh and Bridget Lavender for their editorial guidance. ↑

  2. Joey Guerra, Video: Gaslamp Employee Says ‘Have a Good Night in the ‘Hood,’ Hous. Chron. (Sept. 28, 2016, 6:16 PM), https://www.chron.com/entertainment/restaurants-bars/article/Video-Gaslamp-employee-says-have-a-good-night-6522262.php [https://perma.cc/VP5K-9FSM]. ↑

  3. Id. ↑

  4. Id. ↑

  5. Id. ↑

  6. Id. ↑

  7. See, e.g., Nancy Leong & Aaron Belzer, The New Public Accommodations: Race Discrimination in the Platform Economy, 105 Geo. L.J. 1271, 1275–76 (2017) (discussing the inadequacies of public accommodations anti-discrimination laws in the platform economy business model); Stephen B. Burbank & Sean Farhang, Rights and Retrenchment: The Counterrevolution Against Federal Litigation

    3

    (2017) (recounting a successful movement beginning in the 1980s to undermine the possibility of the enforcement of individual rights through private litigation); Kate Sablosky Elengold, Consumer Remedies for Civil Rights, 99 B.U. L. Rev. 587, 598–99 (2019) (describing the difficulties in applying anti-discrimination statutes). ↑

  8. Phaedra Cook, Midtown Nightclub Accused of Discriminatory Practices, Hous. Press (Sept. 14, 2015, 6:00 AM), https://www.houstonpress.com/restaurants/midtown-nightclub-accused-of-discriminatory-practices-7762250 [https://perma.cc/3KCW-X9AX]; Grizzard, Houston Bar Discriminates Against Blacks, Lawyer Tim Sutherland Lies, Says Federal Law Doesn’t Apply, Daily Kos (Sept. 18, 2015, 1:38 PM), https://www.dailykos.com/­stories/2015/9/18/1422605/-Houston-Bar-Discriminates-Against-Blacks-Lawyer-Tim-Sutherland-Lies-Says-Federal-Law-Doesn-t-Apply [https://perma.cc/VL3C-JN3K]. ↑

  9. Grizzard, supra note 7. ↑

  10. Cook, supra note 7. ↑

  11. Id. ↑

  12. Grizzard, supra note 7. ↑

  13. Cook, supra note 7. ↑

  14. Id. ↑

  15. Id. ↑

  16. Cara Smith, Houston Lawyers Sue Popular Midtown Bar, Support HERO, Hous. Bus. J. (Nov. 2, 2015, 9:28 AM), https://www.bizjournals.com/houston/morning_call/2015/11/‌houston-lawyers-sue-popular-midtown-bar-support.html [https://perma.cc/YBD7-YX22]. ↑

  17. 42 U.S.C. § 2000a. ↑

  18. Settlement Agreement, United States v. Ayman Jarrah, No. 4:16-cv-02906 (S.D. Tex. Feb. 1, 2018), https://www.justice.gov/crt/case-document/file/1031751/download [https://perma.cc/L8DG-QET7] (requiring the defendant to cease discriminating, engage in training on the substantive provisions of Title II, publicize a non-discrimination policy in its entrance, and develop a program to monitor compliance with Title II). ↑

  19. See Reuben A. Buford May, Velvet Rope Racism, Racial Paranoia, and Cultural Scripts: Alleged Dress Code Discrimination in Urban Nightlife, 2000–2014, 17 City & Cmty. 44, 45, 51–52 (2018). ↑

  20. See, e.g., supra note 15; infra notes 295–99, 301–02. ↑

  21. See, e.g., Reuben A. Buford May, Urban Nightlife: Entertaining Race, Class, and Culture in Public Space 8–9 (2014); Philip R. Kavanaugh & Tammy L. Anderson, Managing Physical and Sexual Assault Risk in Urban Nightlife: Individual- and Environmental-Level Influences, 30 Deviant Behav. 680, 706 (2009); James G. Fox & James J. Sobol, Drinking Patterns, Social Interaction, and Barroom Behavior: A Routine Activities Approach, 21 Deviant Behav. 429, 440–41 (2000); Emily Heil, A Baltimore Restaurant Group Apologizes to a Black Woman and Son for Unequally Enforcing Its Dress Code, Wash. Post (June 23, 2020, 7:00 PM), https://www.washingtonpost.com/news/voraciously/wp/2020/06/23/a-baltimore-restaurant-group-apologizes-to-a-black-woman-and-son-for-unequally-enforcing-its-dress-code/ [https://perma.cc/F7UC-K8EF]; Emily Suzanne Lever, Man Suing NYC Bar for $50K Claiming They Discriminated Against Men by Hosting Ladies Night (Oct. 15, 2019, 3:41 PM), https://gothamist.com/news/man-sues-bar-ladies-night-discrimination [https://perma. ‌cc/H4KR-BXLB]. ↑

  22. See Wash. Rev. Code

     

    § 49.60.215 (2020) (“It shall be an unfair practice for any person . . . to commit an act which directly or indirectly results in any . . . discrimination . . . or the refusing or withholding from any person the admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging in any place of public resort, accommodation, assemblage, or amusement . . . .”) (emphasis added); Or. Rev. Stat

    .

    § 659A.403 (2020) (“[A]ll persons within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age . . . .”) (emphasis added); Conn. Gen. Stat. § 46a-64 (2017) (“It shall be a discriminatory practice . . . [t]o deny any person within the jurisdiction of this state full and equal accommodations in any place of public accommodation, resort or amusement because of race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income, intellectual disability, mental disability, physical disability, including, but not limited to, blindness or deafness, or status as a veteran, of the applicant . . . .”) (emphasis added). ↑

  23. Richard A. Epstein, Forbidden Grounds: The Case Against Employment Discrimination Laws 128 (1995). ↑

  24. Lauren A. Rivera, Status Distinctions in Interaction: Social Selection and Exclusion at an Elite Nightclub, 33 Qualitative Socio. 229, 239 (2010); Reuben A. Buford May & Kenneth Sean Chaplin, Cracking the Code: Race, Class, and Access to Nightclubs in Urban America, 31 Qualitative Socio. 57, 58, 60 (2007) (examining racial discrimination in Athens, Georgia through participant observation); David Grazian, Urban Nightlife, Social Capital, and the Public Life of Cities

    ,

    24 Socio. F. 908, 915–16 (2009) (offering empirical data about racial and class barriers, the normalization of gender differences, and the lack of inclusiveness in nightlife to argue that nightlife can serve as a bonding mechanism). ↑

  25. Most generally, Joseph Singer has shaped recent legal thinking on race and public accommodations, whereas Elizabeth Sepper and Deborah Dinner have recently written about sex discrimination in public accommodations. See Joseph William Singer, We Don’t Serve Your Kind Here: Public Accommodations and the Mark of Sodom, 95 B.U. L. Rev. 929, 930, 950 (2015); Joseph William Singer, No Right to Exclude: Public Accommodations and Private Property, 90 Nw. L. Rev. 1283, 1286, 1296 (1996); Elizabeth Sepper & Deborah Dinner, Sex in Public, 129 Yale L.J. 78, 83 (2019). This Article is indebted to their work and extends their analyses. There are also some helpful but dated accounts of discrimination in bars and nightclubs in a few student notes. These various insights are all helpful but fail to capture the robustness of contemporary public accommodations discrimination. See, e.g., Lisa Gabrielle Lerman & Annette K. Sanderson, Project, Discrimination in Access to Public Places: A Survey of State and Federal Public Accommodations Laws, 7 N.Y.U. Rev. L. & Soc. Change 215, 250 (1978); Alan J. Hoff, Note, A Proposed Analysis for Gender-Based Practices and State Public Accommodations Laws, 16 U. Mich. J.L. Reform 135, 137 (1982) (arguing that gender-preferential practices are acceptable when applied reasonably); Joyce L. McClements & Cheryl J. Thomas, Comment, Public Accommodations Statutes: Is Ladies’ Night Out?, 37 Mercer L. Rev. 1605, 1605 (1986) (discussing the use of public accommodations laws by men for sex discrimination claims in the 1980s); Heidi C. Paulson, Note, Ladies’ Night Discounts: Should We Bar Them or Promote Them?, 32 B.C. L. Rev. 487, 489 (1991) (exploring “ladies night” events and gender-based pricing in relation to public accommodations laws and sex discrimination between the 1980s and the beginning of the 1990s); Jessica E. Rank, Comment, Is Ladies’ Night Really Sex Discrimination?: Public Accommodation Laws, De Minimis Exceptions, and Stigmatic Injury, 36 Seton Hall L. Rev. 223, 225–28 (2005) (describing the variety of approaches to the issue of “ladies night” sex discrimination around the country). Some particularly instructive insights have been offered by scholars who have addressed these issues in a few pages of what are larger, book-length projects on anti-discrimination law. See Nancy Levit, The Gender Line: Men, Women, and the Law 102–04 (1998) (providing examples of “ladies night” discrimination and examining various state sex discrimination laws); Richard Thompson Ford, Rights Gone Wrong: How Law Corrupts the Struggle for Equality 85–92 (2011) (discussing specific cases of gender discrimination and distinguishing between harmless and harmful gender distinctions); Joanna L. Grossman, Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace 2–3 (2016) (analyzing a “ladies night” case in New Jersey in an exploration of sex discrimination). For helpful takes on housing discrimination, see Lee Anne Fennell, Searching for Fair Housing, 97 B.U. L. Rev. 349, 351–52 (2017) (exploring the underlying racial biases of home seekers as they relate to housing discrimination); Rachel D. Godsil, The Gentrification Trigger: Autonomy, Mobility, and Affirmatively Furthering Fair Housing, 78 Brook. L. Rev. 319, 324 (2013) (conducting a historical analysis of gentrification and offering alternative legal mechanisms for in-place residents facing gentrification); Olatunde Johnson, The Last Plank: Rethinking Public and Private Power to Advance Fair Housing, 13 U. Pa. J. Const. L. 1191, 1193, 1195–96 (2011) (examining the Fair Housing Act’s enforcement regime and its mandate to affirmatively further fair housing). For instructive treatments of employment discrimination, see Tristin K. Green, Racial Emotion in the Workplace, 86

    S.

    Cal. L. Rev. 959, 969 (2013) (arguing that racial emotion is a source of discrimination in the workplace in order to advocate for more comprehensive laws that will better recognize and address this form of discrimination); Serena Mayeri, Intersectionality and Title VII: A Brief (Pre-)History, 95 B.U. L. Rev. 713, 715 (2015) (providing an analysis of the role of intersectionality in the development and execution of Title II of the Civil Rights Act of 1964); Brian Soucek, Perceived Homosexuals: Looking Gay Enough for Title VII, 63 Am. U. L. Rev. 715, 718 (2014) (analyzing cases on gender stereotyping and sexual orientation claims in the workplace). ↑

  26. For recent examinations of the interface of religion and sexual orientation in these sites, see Pamela S. Karlan, Just Desserts?: Public Accommodations, Religious Accommodations, Racial Equality, and Gay Rights, 2018 Sup. Ct. Rev. 145, 146; Melissa Murray, Inverting Animus: Masterpiece Cakeshop and the New Minorities, 2018 Sup. Ct. Rev. 257, 257–58 (2018); Elizabeth Sepper, The Role of Religion in State Public Accommodations Laws, 60 St. Louis U. L.J. 631, 636–37 (2016) (tracking religious exemptions in public accommodations law). The Americans with Disabilities Act goes further than Title II in that it requires an affirmative duty to remove physical barriers to access to ensure that people are not discriminated against on the basis of disability See 42 U.S.C. § 12181. Some of the most helpful takes on disability and public accommodations include: Samuel R. Bagenstos, The Unrelenting Libertarian Challenge to Public Accommodations Law, 66 Stan. L. Rev. 1205, 1208–09 (2014); Elizabeth F. Emens, Integrating Accommodation, 156 U. Pa. L. Rev. 839, 843 (2008) (identifying certain benefits created for third parties by the Americans with Disabilities Act); Colin Crawford, Cyberplace: Defining A Right to Internet Access Through Public Accommodation Law, 76 Temp. L. Rev. 225, 227–28 (2003) (exploring whether to impose a public accommodations law framework onto cyberspace); Robert L. Burgdorf, Jr., “Equal Members of the Community”: The Public Accommodations Provisions of the Americans with Disabilities Act, 64 Temp. L. Rev. 551, 554 (1991). ↑

  27. Frontiero v. Richardson, 411 U.S. 677, 684 (1973) (“Traditionally, [sex] discrimination was rationalized by an attitude of ‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage.”). ↑

  28. Rivera, supra note 23, at 239. ↑

  29. Robert Bork foresaw the enforcement problems with Title II before it was passed.

    Of what value is a law which compels service to Negroes without close surveillance to make sure the service is on the same terms given to whites? It is not difficult to imagine many ways in which barbers, landlords, lunch counter operators, and the like can nominally comply with the law but effectively discourage Negro patrons. Must federal law enforcement agencies become in effect public utility commissions charged with the supervision of the nation’s business establishments or will the law become an unenforceable symbol of hypocritical righteousness?

    Robert Bork, Civil Rights – A Challenge, New Republic, Aug. 31, 1963, at 23. ↑

  30. 42 U.S.C. § 2000e-2(e). ↑

  31. 42 U.S.C. § 2000a. ↑

  32. See sources cited infra notes 372–73 (discussing cases). ↑

  33. See sources cited infra notes 351, 360–63, 366 (discussing recent legislation designed to curtail velvet rope discrimination). ↑

  34. Pub. L. No. 43-114, 18 Stat. 335–37, invalidated by Civil Rights Cases, 109 U.S. 3 (1883). ↑

  35. 109 U.S. 3, 26 (1883). ↑

  36. 163 U.S. 537, 550–51 (1896). ↑

  37. See Barbara Y. Welke, When All the Women Were White, and All the Blacks Were Men: Gender, Class, Race, and the Road to Plessy, 1855–1914, 13 L. & Hist. Rev. 261, 271 (1995). ↑

  38. See e.g., infra notes 83, 103, 111, 118. ↑

  39. 347 U.S. 483, 495 (1954). ↑

  40. Sepper & Dinner, supra note 24, at 104, 111. ↑

  41. See Charles S. Rhyne & Brice W. Rhyne, Civil Rights Ordinances 71–89 (1963); Joseph Parker Witherspoon, Administrative Implementation of Civil Rights 531–38 (1968). ↑

  42. See, e.g., United States v. Jordan, 302 F. Supp. 370, 374 (E.D. La. 1969); United States v. Nw. La. Rest. Club, 256 F. Supp. 151, 153 (W.D. La. 1966). ↑

  43. Ruthann Robson, Dressing Constitutionally: Hierarchy, Sexuality, and Democracy from Our Hairstyles to Our Shoes, 8–27 (2013) (describing the historical development of laws regulating dress). ↑

  44. See sources cited infra notes 204–11 (discussing early instances of discrimination in bars and restaurants in the mid-twentieth century). ↑

  45. Sepper & Dinner, supra note 24 at 83; see also Julia Kirk Blackwelder, Now Hiring: The Feminization of Work in the United States

    , 1900–1995

    , 176–204 (1997); Susan Frelich Appleton, The Forgotten Family Law of Eisenstadt v. Baird, 28 Yale J.L. & Feminism 3 (2017) (arguing that the Supreme Court’s 1972 declaration that laws criminalizing contraceptives are unconstitutional made family law “more inclusive, liberatory, sex-positive, and feminist”); Elana Levine, Wallowing in Sex: The New Sexual Culture of 1970s American Television 3 (2007) (explaining how television reflected shifting sexual mores in the 1970s); Daphne Spain, Constructive Feminism, Women’s Spaces and Women’s Rights in the American City 2 (2016) (describing the ways feminists challenged sex segregation in public institutions and thus changed the use of urban space). ↑

  46. See Bethany M. Coston & Michael Kimmel, White Men as the New Victims: Reverse Discrimination Cases and the Men’s Rights Movement, 13 Nev. L.J

    . 368, 373

    –

    74

    (2013). ↑

  47. See infra notes 368–71 and accompanying text (discussing different views). ↑

  48. See sources cited infra notes 238, 376 (describing prominent accounts of “benevolent” sexism). ↑

  49. See sources cited infra 328–38 and accompanying text (discussing the operation of dress codes at bars and nightclubs). ↑

  50. See Leong & Belzer, supra note 6, at 1275 (arguing that public accommodations laws must account for discrimination in the “platform economy”); David Brody & Sean Bickford, Discriminatory Denial of Service: Applying State Public Accommodations Laws to Online Commerce 1 (2020) (arguing the same for online commerce); Jonah Gelbach, Jonathan Klick & Lesley Wexler, Passive Discrimination: When Does It Make Sense To Pay Too Little?, 76 U. Chi. L. Rev. 797, 823–40 (2009); Angela Onwuachi-Willig, Volunteer Discrimination, 40 U.C. Davis L. Rev. 1895, 1901 (2007); Lior Jacob Strahilevitz, Exclusionary Amenities in Residential Communities, 92 Va. L. Rev. 437, 439–40 (2006); Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 Colum. L. Rev. 458, 460–61 (2001). ↑

  51. Press Release, N.Y. State Off. Att’y Gen., Settlement with Manhattan Nightclub Ends Investigation of Discrimination Allegations(June 3, 2003), https://ag.ny.gov/press-release/2003/settlement-manhattan-nightclub-ends-investigation-discrimination-allegations [https://perma.cc/72JE-82K7] (announcing $10,0000 settlement with a club that refused to admit a group of South Asians, who the doorman told: “It’s my responsibility to blend this club. There has to be a balance, there has to be.”). ↑

  52. See

     

    Don Mitchell, The Right to the City: Social Justice and the Fight for Public Space 5 (2003) (outlining the history of inclusion in and exclusion from public space in American cities). ↑

  53. Elizabeth F. Emens, Intimate Discrimination: The State’s Role in the Accidents of Sex and Love, 122 Harv. L. Rev. 1307, 1374–75 (2009) (discussing how people with disabilities have limited opportunities to form intimate relations and how race and gender can “intersect to create . . . subgroups who are relatively excluded in their intimate prospects”); see also Jasmine E. Harris, The Aesthetics of Disability, 119 Colum. L. Rev. 895, 941 (2019) (noting how ideas about aesthetics and appearance can impact access to public accommodations for people with disabilities). ↑

  54. See Robson, supra note 42, at 119–20 (describing how proscriptions against saggy pants and gang-affiliated colors facilitated profiling against young males, despite their broad popularity in contemporary youth culture); Devon W. Carbado & Mitu Gulati, Acting White?: Rethinking Race in “Post-Racial” America 10–15 (2013) (explaining how President Obama navigated presenting his Black identity so as not to alienate white people uncomfortable with confronting racism and stereotyping)

    ;

    Deborah L. Rhode, The Beauty Bias: The Injustice of Appearance in Life and Law 6–7 (2010) (noting how a preference for white-European features has prompted exponential increases in spending on nonessential cosmetic procedures as well as psychological disorders in the United States)

    .

    ↑

  55. See Michael Kimmel, Angry White Men: American Masculinity at the End of an Era 25–26 (2013) (noting how perceptions of disenfranchisement have led white men to associate with misogynistic and white supremacist movements and militias). ↑

  56. Sahar F. Aziz, Coercing Assimilation: The Case of Muslim Women of Color, 18

    J.

    Gender Race & Just. 389, 398 (2016); Angela Onwuachi-Willig, Another Hair Piece: Exploring New Strands of Analysis Under Title VII, 98 Geo. L.J. 1079, 1106–08 (2010); Jennifer L. Levi, Misapplying Equality Theories: Dress Codes at Work, 19 Yale J.L. & Feminism 353, 364–65 (2008); Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991 Duke L.J. 365, 390–93 (1991). ↑

  57. See Ford, supra note 24, at 85. For an instructive examination on the evolution of courting see Elizabeth Alice Clement, Love for Sale: Courting, Treating, and Prostitution in New York City

    , 1900–1945,

    at 22–43 (2006). ↑

  58. See sources cited infra notes 384–87 and accompanying text (noting how gender-based pricing in bars and clubs perpetuates stereotypical versions of femininity while facilitating increased levels of sexual violence against their female patrons). ↑

  59. See sources cited infra notes 389–92 and accompanying text. ↑

  60. See Mary Anne Case, Legal Protections for the “Personal Best” of Each Employee: Title VII’s Prohibition on Sex Discrimination, the Legacy of Price Waterhouse v. Hopkins, and the Prospect of ENDA, 66 Stan. L. Rev. 1333, 1354–60 (2014) (exploring how federal courts have struggled to interpret different workplace grooming standards between men and women as a violation of Title VII’s sex stereotyping protections); William R. Corbett, Hotness Discrimination: Appearance Discrimination as a Mirror for Reflecting on the Body of Employment-Discrimination Law, 60 Cath. U. L. Rev. 615, 624–28 (2011) (explaining the inherent difficulty in establishing a legally viable appearance-based employment discrimination claim despite the pervasiveness of this discrimination in the United States); Deborah L. Rhode, The Injustice of Appearance, 61 Stan. L. Rev. 1033, 1067–69 (2009) (noting the popular pragmatic arguments against expanding Title VII protections to include appearance-based discrimination); Ann C. McGinley, Babes and Beefcake: Exclusive Hiring Arrangements and Sexy Dress Codes, 14 Duke J. Gender L. & Pol’y 257, 263 (2007) (exploring gendered hiring and expectations for cocktail servers in casinos); Gowri Ramachandran, Freedom of Dress: State and Private Regulation of Clothing, Hairstyle, Jewelry, Makeup, Tattoos, and Piercing, 66 Md. L. Rev. 11, 55–58 (2006) (arguing that the government should interfere to protect freedom of dress in private workplaces in order to take the power from employers, but remain hands-off in other private settings); David B. Cruz, Making Up Women: Casinos, Cosmetics, and Title VII, 5 Nev. L.J. 240, 243–48 (2004) (analyzing how courts have interpreted Title VII’s BFOQ provision to uphold sex-discriminatory dress and appearance requirements); Katharine T. Bartlett, Only Girls Wear Barrettes: Dress and Appearance Standards, Community Norms, and Workplace Equality, 92 Mich. L. Rev. 2541, 2556–59 (1994) (arguing that courts upholding gendered dress and appearance restrictions reinforces unexamined gender stereotypes and prejudices); Karl E. Klare, Power/Dressing: Regulation of Employee Appearance, 26 New Eng. L. Rev. 1395, 1418–21 (1992) (exploring permissible uses of gender discrimination in the context of gendered dress codes addressing hair length and pants). ↑

  61. Heath Fogg Davis, Sex-Classification Policies as Transgender Discrimination: An Intersectional Critique, 12 Persps. on Pol. 45, 45 (2014). ↑

  62. Dean Spade, Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law

    9–10 (2015).

    ↑

  63. Davis, supra note 60. ↑

  64. Kate Manne, Down Girl: The Logic of Misogyny 13 (2017) (“Misogyny . . . visit[s] hostile or adverse social consequences on a certain (more or less circumscribed) class of girls or women to enforce and police social norms that are gendered either in theory (i.e., content) or in practice (i.e., norm enforcement mechanisms).”); Ruth Thompson-Miller, Joe R. Feagin & Leslie H. Picca, Jim Crow’s Legacy: The Lasting Impact of Segregation 157, 179 (2015) (noting how “[t]he racial norms of Jim Crow were firmly grounded in African Americans’ knowing ‘their place’ at the bottom of the racial hierarchy” and suggesting that the fragility of racial hierarchy “depends upon everyday individual acts to collectively uphold it”); Roberto Lovato, Juan Crow in Georgia, The Nation (May 8, 2008), https://www.thenation.com/‌article/juan-crow-georgia/ [https://perma.cc/38PH-Y3P9] (describing Juan Crow as “the matrix of laws, social customs, economic institutions and symbolic systems enabling the physical and psychic isolation needed to control and exploit undocumented immigrants”). ↑

  65. Dismissals of the fight for public accommodations desegregation came from outside and inside of the Black community. Strom Thurmond famously claimed, “[T]here’s not enough troops in the [A]rmy to force the [S]outhern people to break down segregation and admit the Negro race into our theaters, into our swimming pools, into our homes, and into our churches.” Nadine Cohodas, Strom Thurmond and the Politics of Southern Change 177 (1993). See also Malcolm X Speaks: Selected Speeches and Statements 9 (George Breitman ed., 1965) (“The only revolution in which the goal is loving your enemy is the Negro revolution. It’s the only revolution in which the goal is a desegregated lunch counter, a desegregated theater, a desegregated park, and a desegregated public toilet; you can sit down next to white folks—on the toilet. That’s no revolution.”). ↑

  66. See generally Christopher W. Schmidt, The Sit-Ins: Protest and Legal Change in the Civil Rights Era 57–59 (2018) (describing the role of the NAACP in the sit-in movement). ↑

  67. See Sepper & Dinner, supra note 24, at 111–14; Georgina Hickey, Barred from the Barroom: Second Wave Feminists and Public Accommodations in U.S. Cities, 34 Feminist Stud. 382, 385–88 (2008). ↑

  68. Ella J. Baker, Bigger than a Hamburger, S. Patriot, May 1960, at 4 (“The Student Leadership Conference made it crystal clear that current sit-ins and other demonstrations are concerned with something much bigger than a hamburger or even a giant-sized coke . . . [they] are seeking to rid America of the scourge of racial segregation and discrimination—not only at lunch counters, but in every aspect of life.”); Jack Williams, Lady Lawyer Fights for Women’s Rights, Ithaca J., Feb. 5, 1969, at 4 (“I don’t particularly care if I ever go into a bar—not that I don’t drink—but the issue is one of being treated the same way as a first-class citizen.”). ↑

  69. 3 Bruce Ackerman, We the People: The Civil Rights Revolution 127–53 (2014) (describing the anti-humiliation principle that has figured into constitutional law). ↑

  70. Daniel v. Paul, 395 U.S. 298, 306 (1969) (quoting Special Message to the Congress on Civil Rights and Job Opportunities, 248 Pub. Papers 483, 485 (June 19, 1963)). ↑

  71. S. Rep. No. 88-872, at 16 (1964). ↑

  72. Regina Austin, “Not Just for the Fun of It!”: Governmental Restraints on Black Leisure, Social Inequality, and the Privatization of Public Space, 71 S. Cal. L. Rev. 667, 711–12 (1998). ↑

  73. Act of May 16, 1865, ch. 277, § 1, 1865 Mass. Acts 650, reprinted in Milton R. Konvitz, A Century of Civil Rights 156 (1961); Wallace F. Caldwell, State Public Accommodations Laws, Fundamental Liberties and Enforcement Programs, 40 Wash. L. Rev. 841, 843 (1965); Kazuteru Omori, Race-Neutral Individualism and Resurgence of the Color Line: Massachusetts Civil Rights Legislation, 1855–1895, 22 J. Am. Ethnic Hist. 32, 37 (2002). ↑

  74. See Act of Feb. 25, 1873, No. 12, § 3, 1873 Ark. Acts 15, 15–19 (prohibiting discrimination in public accommodations, dating back to 1873); Act of Feb. 27, 1874, ch. 49, § 1, 1874 Kan. Sess. Laws 82, 82–83, noted in Konvitz, supra note 72, at 156; Act of Apr. 9, 1873, ch. 186, § 1, 1873 N.Y. Laws 583–84 (1873), noted in Konvitz, supra note 72, at 156. For more on the history of state public accommodations statutes, see Lerman & Sanderson, supra note 24, at 238–40 (1978). ↑

  75. Act of Mar. 1, 1875, ch. 114, 18 Stat. 335 (1875). ↑

  76. Id. See also Sauvinet v. Walker, 27 La. Ann. 14, 15 (1875), aff’d, 92 U.S. 90, 90–93 (1876) (describing a $1000 judgment against defendant as a “penalty wholly disproportionate to the offense”). ↑

  77. Act of Mar. 1, 1875, ch. 114, 18 Stat. 335 (1875). ↑

  78. 109 U.S. 3, 26 (1883). The Civil Rights Act of 1866 and the Fourteenth Amendment provided for equal protection under the law and supplied a basis for public accommodations claims, but nonenforcement and obstruction set the stage for the stronger legislative intervention that came with the 1875 Act. See A.K. Sandoval-Strausz, Travelers, Strangers, and Jim Crow: Law, Public Accommodations, and Civil Rights in America, 23 Law & Hist. Rev. 53, 58–59 (2005). ↑

  79. 109 U.S. 3, 4, 25 (1883). ↑

  80. 163 U.S. 537, 550–51 (1896). ↑

  81. Robert B. McKay, Segregation and Public Recreation, 40 Va. L. Rev. 697, 697–707 (1954). ↑

  82. Charles S. Mangum, Jr., The Legal Status of the Negro 28–36 (1940); see Pauli Murray, States’ Laws on Race and Color

    7–9

    (1950). ↑

  83. See Act of Feb. 27, 1874, ch. 49, § 1, 1874 Kan. Sess. Laws 82, 82–83; Mangum, supra note 81, at 50–51 (discussing states that did not cover restaurants). ↑

  84. 10 F. 4, 6 (S.D.N.Y. 1882). ↑

  85. Id. ↑

  86. Id. at 6–7. ↑

  87. Evan Friss, Blacks, Jews, and Civil Rights Law in New York, 1895–1913, 24 J. Am. Ethnic Hist. 87, 87 (2005). ↑

  88. Friss, supra note 86, at 89–91; see also M. Alison Kibler, Censoring Racial Ridicule: Irish, Jewish, and African American Struggles over Race and Representation

    , 1890–1930

    , at 117–20 (2015) (describing the relationship between African Americans and Jews, and their views on the New York public accommodations law). ↑

  89. Peter Adams, Politics, Faith, and the Making of American Judaism 5 (2014) (“Jews were subject to discreet—and not so discreet—discrimination in employment and public accommodations.”); Friss, supra note 86, at 83 (“But for Jews, more likely to frequent upstate resorts, advertisements such as ‘No Dogs or Jews Allowed’ and ‘We do not cater to Hebrews or invalids’ had successfully offended Jewish travelers for years.”); John Higham, Social Discrimination Against Jews in America, 1830–1930, 47 Publ’ns Am. Jewish Hist. 1, 12–14 (1957) (describing how, beginning in the late nineteenth century, anti-Semitism “was more acute at resorts than elsewhere, for no other institution combined such indiscriminate social mingling with such ardent social aspirations,” and how discrimination in those establishments, along with “clubs and private schools increased during the years before the First World War”); Chanelle N. Rose, Tourism and the Hispanicization of Race in Jim Crow Miami, 1945–1965, 45 J. Soc. Hist. 735, 745 (2012) (“[D]uring the 1930s and 1940s, racial discrimination was not solely limited to [B]lacks since a number of Miami Beach hotels read: ‘Gentile Only’ or ‘No Jews, No Dogs.’”). ↑

  90. Jeffrey Gurock, The 1913 New York State Civil Rights Act, 1 Ass’n Jewish Stud. Rev. 93, 95 (1976). The anti-discrimination norms of public accommodations law would remain elusive:

    Enterprising hotelkeepers, capitalizing on the strict-constructionist attitude of the courts, circumvented the law by inventing several new ‘code words’ for exclusion. Such terms as ‘restricted clientele,’ ‘churches nearby,’ and ‘buses to church’ were added to the advertiser’s vocabulary. These euphemisms, which soon became intelligible to Jew and Gentile alike, stymied public officials and frustrated Jewish leaders in their attempts to have the law enforced.

    Id. at 111. ↑

  91. Higham, supra note 88, at 16. ↑

  92. Gurock, supra note 89, at 97. ↑

  93. Kalyn Oyer, ‘It’s Too Dark in Here’: Black Nightclub DJs in Charleston Speak Up About Discrimination, Post & Courier (June 17, 2020), https://www.postandcourier.com/‌charleston_scene/its-too-dark-in-here-black-nightclub-djs-in-charleston-speak-up-about-discrimination/article_5dfa8cf4-acd8-11ea-a85e-db71746cc171.html [https://perma.cc/HQN6-T96K] (describing the experience of a DJ who contended that that club owners attempt to limit the number of Black people in their venues). ↑

  94. Babb v. Elsinger, 147 N.Y.S. 98, 98–99 (N.Y. App. Div. 1914); Court Holds It Unlawful to Draw Color Line in Saloons, N.Y. Age, Apr. 23, 1914, at 1. ↑

  95. Johnson v. Auburn & Syracuse Elec. R.R. Co., 222 N.Y. 443, 446–47, (N.Y. 1918); Springer v. McDermott, 173 N.Y.S. 413, 413–14 (N.Y. App. Div. 1919); see also Baer v. Wash. Heights Café, 168 N.Y.S. 567, 567–68 (N.Y. Mun. Ct. 1917) (holding that the rear of a saloon where food and liquor were served was a place of public accommodation). ↑

  96. Matthews v. Hotz, 173 N.Y.S. 234, 235 (N.Y. App. Div. 1918). ↑

  97. Id. ↑

  98. Cohn v. Goldgraben, 170 N.Y.S. 407, 407–08 (N.Y. App. Div. 1918). ↑

  99. Ian Haney López, White by Law: The Legal Construction of Race

    151

    (10th ed. 2006). See generally, Karen Brodkin, How Jews Became White Folks and What That Says About Race in America

    26–30 (1998)

    (describing the United States’ history of anti-Semitism at the turn of the twentieth century); Eric L. Goldstein, The Price of Whiteness: Jews, Race, and American Identity 1–2 (2006) (explaining the complicated relationship between Jewishness and whiteness and its development during the twentieth century). ↑

  100. Cohn, 170 N.Y.S. at 407. ↑

  101. Paul Chevigny, Gigs: Jazz and the Cabaret Laws in New York City 33 (1991); see also Burton W. Peretti, Nightclub City: Politics and Amusement in Manhattan 18 (2007) (describing anti-Semitic understandings of nightlife in New York City). ↑

  102. Gibbs v. Arras Bros., Inc., 222 N.Y. 332, 332 (N.Y. 1918). ↑

  103. Equal Rights in Places of Public Accommodation, Resort or Amusement, ch. 14, § 40, 1918 N.Y. Laws 61, 61–62 (adding saloons to Civil Rights Law § 40). ↑

  104. 74 Minn. 200, 200 (1898); William D. Green, Degrees of Freedom: The Origins of Civil Rights in Minnesota, 1865–1912, at 244 (2015). ↑

  105. Green, supra note 103, at 246–47. ↑

  106. Id. at 247. ↑

  107. Rhone, 74 Minn. at 204–05. ↑

  108. Green, supra note 103, at 223, 246. ↑

  109. Id. at 245. ↑

  110. Id. at 246. ↑

  111. Act of Mar. 6, 1899, ch. 41, §1, 1899 Minn. Laws 38, 38–39. ↑

  112. Kellar v. Koerber, 61 Ohio St. 388, 389 (1899). ↑

  113. Id. at 391. ↑

  114. Youngstown Park & Falls St. Ry. Co. v. Tokus, 4 Ohio App. 276, 277 (Ohio Ct. App. 1915). ↑

  115. Id. at 276–82. ↑

  116. Anderson v. State, 30 Ohio C.C. 510, 511 (Ohio Ct. App. 1918). ↑

  117. Id. at 512; see also Leonard Dinnerstein, Antisemitism in America 58 (1994) (“Indeed, the racial components of antisemitic thought in America, always inherent yet mostly hidden, became obvious in the period known as the Progressive era.”). ↑

  118. See infra Section I.D. (discussing Title II of the Civil Rights Act of 1964). ↑

  119. 27 La. Ann. 14, 14–15 (1875), aff’d, 92 U.S. 90, 90–93 (1876). ↑

  120. Justin A. Nystrom, New Orleans After the Civil War: Race, Politics, and a New Birth of Freedom 96–98 (2010). ↑

  121. Sauvinet, 27 La. Ann. at 14. ↑

  122. Id. ↑

  123. Id. at 14–15. ↑

  124. Id. at 15 (Wyly, J., dissenting). ↑

  125. Id. ↑

  126. Walker v. Sauvinet, 92 U.S. 90, 92–93 (1876). ↑

  127. Ferguson v. Gies, 46 N.W. 718, 718 (Mich. 1890). ↑

  128. Id. ↑

  129. See Rayford M. Logan, The Negro in American Life and Thought: The Nadir, 1877–1901, at 52 (1954). ↑

  130. Ferguson, 46 N.W. at 719. ↑

  131. Id. at 721. ↑

  132. Bryan v. Adler, 72 N.W. 368, 368 (Wis. 1897). ↑

  133. Id. at 369. ↑

  134. Id. ↑

  135. Id. ↑

  136. Id. ↑

  137. Id. at 369–70. ↑

  138. See, e.g., Traci Parker, Department Stores and the Black Freedom Movement: Workers, Consumers, and Civil Rights from the 1930s to the 1980s, at 57–71

    (2019)

    (discussing the “Don’t Buy Where You Can’t Work” movement)

    ;

    Wayne A. Wiegand & Shirley A. Wiegand, The Desegregation of Public Libraries in the Jim Crow South: Civil Rights and Local Activism 8

    (2018) (

    explaining that Brown v. Board of Education “functioned as an open invitation to southern [B]lacks to serve as plaintiffs in a series of lawsuits to desegregate public facilities across the South”)

    ;

    David E. Goldberg, The Retreats of Reconstruction: Race, Leisure, and the Politics of Segregation at the New Jersey Shore

    , 1865–1920,

    at 18–21

    (2017) (

    describing how Black protestors successfully integrated recreational venues at the Jersey shore through consumer protests)

    ;

    Victoria W. Wolcott, Race, Riots, and Roller Coasters: The Struggle over Segregated Recreation in America

    88–89 (2012) (

    describing how, after Brown v. Board of Education, “activists became more emboldened to challenge recreational segregation nationally”)

    ;

    Jeff Wiltse, Contested Waters: A Social History of Swimming Pools in America

    157–59 (2007) (

    describing efforts to desegregate pools in the North)

    ;

    George B. Kirsch, Municipal Golf and Civil Rights in the United States, 1910–1965, 92 J. Afr. Am. Hist. 371, 383–86 (2007) (explaining how the Brown v. Board of Education and Dawson v. Mayor & City Council of Baltimore City “decisions opened the door for a series of federal judicial rulings that outlawed racial discrimination on municipal golf courses in several southern cities”). ↑

  139. Fuller v. McDermott, 87 N.Y.S. 536, 537 (N.Y. App. Term 1904). But see Hubert v. Jose, 132 N.Y.S. 811, 812 (N.Y. App. Div. 1912) (asserting in dicta that a showing of citizenship is not necessary for protection by the civil rights law without addressing its previous ruling on the issue). ↑

  140. Grace v. Moseley, 112 Ill. App. 100, 102 (Ill. App. Ct. 1904). ↑

  141. Id. ↑

  142. State ex rel. Tax Collector v. Falkenheiner, 49 So. 214, 215 (La. 1909). ↑

  143. Kan. Gen. Stat. § 3791 (1915) (repealed 1969). ↑

  144. State v. Brown, 212 P. 663, 664 (Kan. 1923). ↑

  145. Nance v. Mayflower Tavern, 150 P.2d 773, 774–75 (Utah 1944). ↑

  146. Crosswaith v. Bergin, 35 P.2d 848, 848 (Colo. 1934). ↑

  147. Ross v. Schade, 7 Conn. Supp. 443, 444–45 (Super. Ct. 1939). ↑

  148. 39 N.E.2d 167, 169 (Ohio Ct. App. 1941). ↑

  149. Id. at 171. ↑

  150. Evans v. Fong Poy, 108 P.2d 942, 942–43 (Cal. Dist. Ct. App. 1941); State Appeals Court Upholds Negro Rights, S.F. Exam’r, Jan. 8, 1941, at B. ↑

  151. Suits Ask $80,000 Under Civil Rights, Democrat & Chron. (Rochester), Feb. 18, 1949, at 12. ↑

  152. Powell v. Utz, 87 F. Supp. 811, 812–13, 816 (E.D. Wash. 1949). ↑

  153. Suit Defendants Ask Bankruptcy, Spokane Daily Chron., Aug. 9, 1950, at 3. ↑

  154. Sepper & Dinner, supra note 24, at 83. ↑

  155. Ex parte Smith, 38 Cal. 702, 709–12 (1869) (upholding an ordinance prohibiting the presence of women in public drinking saloons after midnight as constitutional). ↑

  156. 192 U.S. 108 (1904). ↑

  157. Id. at 113. ↑

  158. Id. at 114–15. ↑

  159. See, e.g., Wilson v. Razzetti, 150 N.Y.S. 145, 145 (N.Y. App. Term 1914) (holding that restaurant owners who refused to serve a Black woman violated the New York Civil Rights Law and that the owners’ defense—that the reason they did not serve the plaintiff was that they were out of food—was “absurd and frivolous”); Amos v. Prom, Inc., 117 F. Supp. 615, 618–19, 630 (N.D. Iowa 1954) (holding that a dance hall, which had refused to admit a Black woman, was a place of amusement under the Iowa Civil Rights Act); Slack v. Atl. White Tower Sys., Inc., 284 F.2d 746, 746 (4th Cir. 1960) (holding that the Interstate Commerce Act did not prohibit a privately owned restaurant from refusing to serve a Black woman). ↑

  160. Gastenau v. Commonwealth, 56 S.W. 705, 705 (Ky. 1900). ↑

  161. Id. ↑

  162. Id. ↑

  163. Id. at 705–06. ↑

  164. State v. Nelson, 79 P. 79, 82 (Idaho 1905) (emphasis added). ↑

  165. Laughlin v. Tillamook City, 147 P. 547, 547 (Or. 1915) (quoting State v. Baker, 92 P. 1076, 1078 (Or. 1907)). ↑

  166. Commonwealth v. Price, 94 S.W. 32, 33 (Ky. 1906). ↑

  167. Goesaert v. Cleary, 335 U.S. 464, 465–66 (1948) (validating a state law that only allowed men to be bartenders and stating, “The fact that women may now have achieved the virtues that men have long claimed as their prerogatives and now indulge in vices that men have long practiced, does not preclude the States from drawing a sharp line between the sexes, certainly in such matters as the regulation of the liquor traffic”); City of De Ridder v. Mangano, 171 So. 826, 827–28 (La. 1936) (upholding law prohibiting women’s employment in bars); State v. Mayor of Hoboken, 53 A. 693, 693 (N.J. 1902) (upholding a statute that prohibited women’s employment in saloons and stating, “It is difficult to imagine a course of conducting a liquor saloon more deserving of reprobation than the permitting the assembling there of women for the purpose of enticing customers”); Ex parte Felchin, 31 P. 224, 224 (Cal. 1892) (requiring a higher licensing fee for bars and saloons that employed women). ↑

  168. In re Farley, 111 N.E. 479, 481 (N.Y. 1916). ↑

  169. Sharp v. Bussey, 187 So. 779, 780 (Fla. 1939). ↑

  170. Stoumen v. Reilly, 234 P.2d 969, 970 (Cal. 1951). ↑

  171. Tom Murray, Preachers, Faggots, Perverts & Palaces, S.F. Sentinel, Mar. 6, 1987, at 4. See generally Nan Alamilla Boyd, Wide-Open Town: A History of Queer San Francisco to 1965 (2003) (discussing the hostile policing of bars and taverns, including harassment and intimidation by local police). ↑

  172. Murray, supra note 170. ↑

  173. Stoumen, 234 P.2d at 970. ↑

  174. Id. at 971. ↑

  175. Tynes v. Gogos, 144 A.2d 412, 413–15 (D.C. 1958). ↑

  176. 347 U.S. 483, 488, 495 (1954). ↑

  177. Cybelle Fox & Thomas A. Guglielmo, Defining America’s Racial Boundaries: Blacks, Mexicans, and European Immigrants, 1890–1945, 118 Am. J. Socio. 327, 358 (2012). ↑

  178. Randall Kennedy, The Civil Rights Act’s Unsung Victory and How It Changed the South, Harper’s Mag. (June 2014), https://harpers.org/archive/2014/06/the-civil-rights-acts-unsung-victory/ [https://perma.cc/M6EV-HM48]. ↑

  179. Id. ↑

  180. Lynne Olson, Freedom’s Daughters: The Unsung Heroines of the Civil Rights Movement from 1830 to 1970, at 19–20 (2001); Flora Bryant Brown, NAACP Sponsored Sit-ins by Howard University Students in Washington, D.C., 1943–1944, 85 J. Negro Hist. 274, 278 (2000). ↑

  181. Olson, supra note 179, at 78–79. ↑

  182. See, e.g., Bell v. Maryland, 378 U.S. 226 (1964); Barr v. City of Columbia, 378 U.S. 146 (1964), Robinson v. Florida, 378 U.S. 153 (1964); Bouie v. City of Columbia, 378 U.S. 347 (1964). ↑

  183. Christopher W. Schmidt, The Sit-Ins: Protest and Legal Change in the Civil Rights Era 182 (2018). ↑

  184. Glenn T. Eskew, But for Birmingham: The Local and National Movements in the Civil Rights Struggle 312 (1997). ↑

  185. 42 U.S.C. § 2000a. ↑

  186. Id. § 2000a(a). ↑

  187. See id. § 2000a; discussion infra Section II.A. (describing the work of activists in response to the non-coverage of sex discrimination in the Act). ↑

  188. 42 U.S.C. § 2000a(b). ↑

  189. See sources cited infra note 195 (detailing the various cases in which the categorization of various bars, taverns, and establishments was disputed). ↑

  190. Harry T. Quick, Note, Public Accommodations: A Justification of Title II of the Civil Rights Act of 1964, 16 Case W. Rsrv. L. Rev. 660, 683 (1965). ↑

  191. 42 U.S.C. § 2000a(c); Katzenbach v. McClung, 379 U.S. 294, 298, 305 (1964); Heart of Atl. Motel, Inc. v. United States, 379 U.S. 241, 243, 247–48, 261–62 (1964). ↑

  192. 42 U.S.C. § 2000a(c). ↑

  193. See sources cited infra note 197 (discussing which establishments were deemed to be a place of public accommodation by various courts). ↑

  194. 42 U.S.C. § 2000a(e). ↑

  195. Senator Magnuson, a key shepherd of the bill, noted:

    As a general rule, establishments of this kind will not come within the scope of the title. But a bar or nightclub physically located in a covered hotel will be covered, if it is open to patrons of the hotel. A nightclub might also be covered . . . if it customarily offers entertainment which moves in interstate commerce.

    110 Cong. Rec. 7,407 (1964). ↑

  196. Cuevas v. Sdrales 344 F.2d 1019, 1020, 1023 (10th Cir. 1965), cert. denied, 382 U.S. 1014 (1966); see also Robertson v. Johnston, 249 F. Supp. 618, 620–21 (E.D. La. 1966) (holding that a bar or nightclub that served only drinks was not a “restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises” within the public accommodations provisions of the Civil Rights Act of 1964), rev’d on other grounds, 376 F.2d 43 (5th Cir. 1967); Selden v. Topaz 1-2-3 Lounge, Inc., 447 F.2d 165, 165 (5th Cir. 1971) (holding that a lounge that did not serve food or offer entertainment did not fall under the Civil Rights Act of 1964). But see United States v. DeRosier, 473 F.2d 749, 750–52 (5th Cir. 1973) (ruling that a neighborhood bar-tavern that derived a small portion of its total business from mechanical amusement devices that had moved in interstate commerce was a “place of entertainment” within the meaning of the Civil Rights Act of 1964). ↑

  197. See discussion supra Section I.A (discussing the conflicting approaches and disputes regarding interpretation between different courts and jurisdictions). ↑

  198. DeRosier, 473 F.2d at 750–52; United States v. Vizena, 342 F. Supp. 553, 554 (W.D. La. 1972) (holding that a bar that provided a juke box and pool table for amusement of its patrons was a “place of entertainment” within the Civil Rights Act); United States v. Deetjen, 356 F. Supp. 688, 689–90 (S.D. Fla. 1973) (finding that a Florida bar was a public accommodation under Title II because the alcoholic beverages, television, piano, and juke box were manufactured out of state and affected commerce); United States v. Purkey, 347 F. Supp. 1286, 1287 (E.D. Tenn. 1971) (concluding that the Civil Rights Act extended to a neighborhood tavern that practiced racial discrimination and contained a “juke box, records, pinball machine and bowling machine which were manufactured out-of-state”); Nanez v. Ritger, 304 F. Supp. 354, 356 (E.D. Wis. 1969) (ruling that a tavern-restaurant is likely a “place of public accommodation” under a civil rights statute); United States by Clark v. Fraley, 282 F. Supp. 948, 952, 954 (M.D.N.C. 1968) (holding that a bar was covered under Title II because it had the characteristics of a restaurant and held itself out as one); Fazzio Real Estate Co. v. Adams, 396 F.2d 146, 149, 150 (5th Cir. 1968) (holding that although bars, per se, are not covered by the Civil Rights Act of 1964, they may be covered where beer is served in conjunction with food). ↑

  199. Daniel v. Paul, 395 U.S. 298, 306 (1969). ↑

  200. See Paulson, supra note 24, at 491 (citing Barbara Allen Babcock, Ann E. Freedman, Eleanor Holmes Norton & Susan C. Ross, Sex Discrimination and the Law: Causes and Remedies 1037 (1975)) (“One author explained that this omission was due to the low consciousness level of sex bias, and because at the time the Act was passed, most of the exclusions from public accommodations were based on race.”). Other speculative guesses point to civil rights leaders’ privileging of race, the existing state-based frameworks that focused on race, the uncertainty around whether the bill would pass, and fear about what including sex might mean for its passage. See generally Janet Dewart Bell, Lighting the Fires of Freedom: African American Women in the Civil Rights Movement (2018) (discussing the role of Black women in civil rights activism and the interplay between sex and race discrimination); Clay Risen, The Bill of the Century: The Epic Battle for the Civil Rights Act (2014) (explicating issues with the bill that stoked worries and uncertainty about its passing). ↑

  201. Serena Mayeri, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution 106–43 (2011). ↑

  202. Sepper & Dinner, supra note 24, at 101; Maryann Barakso, Governing NOW: Grassroots Activism in the National Organization for Women 12, 45 (2004). ↑

  203. Faith A. Seidenberg, The Wave of the Future — NOW, 21 Cornell L. F

    .

    2, 2 (1969); see also Grossman, supra note 24, at 3 (“[N]o court would countenance a bar’s offering of ‘whites’ night’ as a legitimate means to entice white customers, nor would any court think that the offering of ‘[B]lacks’ night’ on another day of the week would cure its discriminatory impact. Yet courts have entertained both these possibilities for sex-specific discounts.”). ↑

  204. DeCrow v. Hotel Syracuse Corp., 288 F. Supp. 530, 532 (N.D.N.Y. 1968). ↑

  205. Seidenberg v. McSorleys’ Old Ale House, 317 F. Supp. 593, 594 (S.D.N.Y. 1970). ↑

  206. Id. at 599. ↑

  207. Id. at 605. ↑

  208. Id. at 606 (footnote omitted). ↑

  209. Johnson v. Heinemann Candy Co., 402 F. Supp. 714, 718 (E.D. Wis. 1975); Women’s Liberation Union of Rhode Island v. Israel, 512 F.2d 106, 108–09 (1st Cir. 1975). ↑

  210. Bennett v. Dyer’s Chop House, 350 F. Supp. 153, 154–55 (N.D. Ohio 1972) (citing Seidenberg, 317 F. Supp. at 603); see also Sepper & Dinner, supra note 24, at 105–14. ↑

  211. Craig v. Boren, 429 U.S. 190, 208 (1976) (citing Seidenberg, 317 F. Supp. 593). ↑

  212. White v. Fleming, 522 F.2d 730, 731, 733, 736–37 (7th Cir. 1975) (ruling that a city ordinance that prohibited female employees from sitting with male patrons or standing behind a bar was unconstitutional); Daugherty v. Daley, 370 F. Supp. 338, 340–41 (N.D. Ill. 1974) (striking down an Illinois statute that prohibited female employees from soliciting the purchases of drinks and prohibited anyone from serving female employees drinks purchased by male patrons); Sail’er Inn v. Kirby, 485 P.2d 529, 542–43 (Cal. 1971) (citing Seidenberg, 308 F. Supp. at 1260); Commonwealth, Alcoholic Beverage Control Bd. v. Burke, 481 S.W.2d 52, 54 (Ky. 1972); Paterson Tavern & Grill Owners Ass’n v. Borough of Hawthorne, 270 A.2d 628, 630–31 (N.J. 1970) (citing Seidenberg, 308 F. Supp. at 1260). ↑

  213. Sepper & Dinner, supra note 24, at 104; Lerman & Sanderson, supra note 24, at 264–65. ↑

  214. See Melissa Murray, Griswold’s Criminal Law, 47 Conn. L. Rev. 1045, 1072 (2015) (noting that the 1965 decision Griswold v. Connecticut is “credited with helping to transform society from one in which the state demanded compliance with majoritarian sexual norms to one in which the state respected some degree of sexual autonomy”); see also Daphne Spain, Constructive Feminism: Women’s Spaces and Women’s Rights in the American City 12–16 (2016) (describing the 1970s development of feminists’ “free spaces” such as bookstores, clinics, and women’s centers, which reinforced feminists’ independence and self-determination); Susan Frelich Appleton, The Forgotten Family Law of Eisenstadt v. Baird, 28 Yale J.L. & Feminism 1, 12–16 (2016) (arguing that the 1972 case Eisenstadt v. Baird challenged ideas about illegitimacy, family planning, and marriage). ↑

  215. Julia Kirk Blackwelder, Now Hiring: The Feminization of Work in the United States, 1900–1995, at 177–204 (1997) (describing women’s participation in the workforce in the 1970s). ↑

  216. Alice Kessler-Harris, Women Have Always Worked: A Concise History 1–16

    (

    2d ed.

    2018

    ); Vicki L. Ruiz, From Out of the Shadows: Mexican Women in Twentieth-Century America 72–98

    (2008);

    Evelyn Nakano Glenn, Unequal Freedom: How Race and Gender Shaped American Citizenship and Labor 1–3

     

    (

    2002

    ); Tera

     

    W. Hunter, To ’Joy My Freedom: Southern Black Women’s Lives and Labors After the Civil War 44–73

    (1998).

    ↑

  217. Sepper & Dinner, supra note 24, at 115 (2019) (noting that “[s]ex equality in public accommodations required independence from attachment to men” and describing how women who protested discrimination in these spaces “demanded legal recognition as individuals without sexual attachment to a man as a physical companion or economic proxy”). ↑

  218. Reginald G. Smart, The Happy Hour Experiment in North America, 23 Contemp. Drug Probs. 291, 292–93 (1996) (discussing how in the early 1970s, many bars, taverns, and restaurants “initiated a variety of sales programs to attract more customers and increase profits” and how some these included “[r]eductions in prices or free beverages for a particular type of patron, usually for women” and concluding how “[s]uch reductions may possibly have been based upon the assumption that many women would not go to bars without special inducements”). ↑

  219. See sources cited supra notes 10–12 (highlighting the discretion placed with bouncers to charge or not charge women cover to enter a club). ↑

  220. Julia Bauer, Despite Law, Bars Still Offer Women Free Booze, Herald, Mar. 8. 1974, at 4 (offering comments from a female patron who observed, “The men probably drink enough to make up for the girls’ free drinks”); Robert Schwartzman, Ladies’ Night Unfair—He Says, Fla. Today, Dec. 16, 1974, at 10C (male employee discussing the subsidization); David Green, Chivalry Lost: All Dinners May Be Created Equal-Cafe Official, Ithaca J., Feb. 7, 1976, at 3. ↑

  221. William T. Kong, ‘Ladies Night’ Illegal, Rights Unit Rules, Des Moines Trib., Feb. 18, 1971, at 1. ↑

  222. Elaine Viets, He Won’t Drink to Ladies Night, St. Louis Post-Dispatch, Feb. 3, 1980, at 1–121 (emphasis added). ↑

  223. Nancy Webb Hatton, Ladies’ Night—No Hassle, Hustle, Mia. Herald, May 13, 1978, at 2D. ↑

  224. Id. ↑

  225. Bar ‘Ladies Nights’ Illegal, Official Says, Star Trib. (Minn.), Dec. 9, 1972, at 5 (quoting the Deputy Director of the Minneapolis Civil Rights Department claiming that the agency had “many, many, many more important priorities” than to devote much time to ladies specials, but would respond to discrimination as it is called to the agency’s attention); ‘Ladies Night’ Soon May Not Be a Familiar Cry in Idaho’s Bars, Times-News (Twin Falls), Jan. 28, 1980, at 14 (discussing how the Idaho Commission on Rights would use informal means to persuade businesses to eliminate discriminatory practices and how the commission had failed to pursue cases because of “limited staff and funds” and because the damages were lower than other discriminatory activity brought to its attention). ↑

  226. Regents Univ. Cal. v. Bakke, 438 U.S. 265, 320 (1978) (holding that since the medical school could not “carry its burden of proving that, but for the existence of its unlawful special admissions program” the white applicant would not have been admitted, the applicant was entitled to admission). ↑

  227. Magid v. Oak Park Racquet Club Assocs., 269 N.W.2d 661, 622, 663–64 (Mich. Ct. App. 1978). ↑

  228. Tucich v. Dearborn Indoor Racquet Club, 309 N.W.2d 615, 617 (Mich. Ct. App. 1981). ↑

  229. Civil Rights in Licensed Premises; Distributor Sales to Non-Licensees, 235 Ill. Comp. Stat. 5/6-17 (1990). ↑

  230. Dock Club v. Ill. Liquor Control Comm’n, 428 N.E.2d 735, 738 (Ill. App. Ct. 1981). ↑

  231. Id. ↑

  232. Id. ↑

  233. Id. ↑

  234. Id. ↑

  235. MacLean v. First Nw. Indus. of Am., Inc., 635 P.2d 683, 686 (Wash. 1981). ↑

  236. Id. at 684. ↑

  237. Id. at 687. ↑

  238. See Dave Zirin, What’s My Name, Fool?: Sports and Resistance in the United States 12 (2005) (noting that Billie Jean King “became a giant protesting the exclusion and second-class citizenship of female athletes”); Susan K. Cahn, Coming on Strong: Gender and Sexuality in Twentieth-Century Women’s Sport 2–3 (1994) (describing the constraints that women athletes and women’s sports have faced in modern American history). ↑

  239. Peter Glick & Susan T. Fiske, The Ambivalent Sexism Inventory: Differentiating Hostile and Benevolent Sexism, 70 J. Personality & Soc. Psych. 491, 491 (1996); see also Katharine T. Bartlett, Making Good on Good Intentions: The Critical Role of Motivation in Reducing Implicit Workplace Discrimination, 95 Va. L. Rev. 1893, 1917 (2009) (suggesting that benevolent sexism satisfies “people’s need to think of themselves as egalitarian, while at the same time helping them to rationalize or obscure their more negative or patronizing views”); Matthew D. Hammond, Chris G. Sibley & Nickola C. Overall, The Allure of Sexism: Psychological Entitlement Fosters Women’s Endorsement of Benevolent Sexism over Time, 5 Soc. Psych. & Personality Sci

    .

    422, 423–24 (2013) (arguing that the benefits of benevolent sexism lead women to endorse it). ↑

  240. See Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown, 117 Harv. L. Rev. 1470, 1534 (2004). ↑

  241. Id. at 1472–73. ↑

  242. See Murray supra note 25, at 294–96; Bradley A. Areheart, The Anticlassification Turn in Employment Discrimination Law, 63 Ala. L. Rev. 955, 957–58 (2012); Jessica A. Clarke, Protected Class Gatekeeping, 92 N.Y.U. L. Rev. 101, 141–42 (2017); Cary Franklin, The Anti-Stereotyping Principle in Constitutional Sex Discrimination Law, 85 N.Y.U. L. Rev. 83, 128 (2010). ↑

  243. Pa. Liquor Control Bd. v. Dobrinoff, 471 A.2d 941, 943–44 (Pa. Commw. Ct. 1984). ↑

  244. Id. at 943. ↑

  245. Id. ↑

  246. Id. ↑

  247. Id. ↑

  248. 707 P.2d 195 (Cal. 1985). ↑

  249. Id. at 195–96. ↑

  250. Steven Emmons & David Reyes, He Stood Up Like a Man—and Won, L.A. Times, Oct. 18, 1985, at 34. ↑

  251. Koire, 707 P.2d at 202. ↑

  252. Id. at 198 (“Most often, the nature of the business enterprise or the facilities provided has been asserted as a basis for upholding a discriminatory practice only when there is a strong public policy in favor of such treatment. . . . For example, it is permissible to exclude children from bars or adult bookstores because it is illegal to serve alcoholic beverages or to distribute ‘harmful matter’ to minors.” (citations omitted)). ↑

  253. Id. at 199–200 (“However, the ‘social’ policy on which [the nightclub] relies—encouraging men and women to socialize in a bar—is a far cry from the social policies which have justified other exceptions to the [anti-discrimination statute]. For example, the compelling societal interest in ensuring adequate housing for the elderly which justifies differential treatment based on age cannot be compared to the goal of attracting young women to a bar. . . . The need to promote the ‘social policy’ asserted by [the nightclub] is not sufficiently compelling to warrant an exception to the [statute’s] prohibition on sex discrimination by business establishments.”). ↑

  254. Id. at 199 (“[T]his court [has] held that the fact that a business enterprise was ‘proceed[ing] from a motive of rational self-interest’ [does] not justify discrimination. . . . It would be no less a violation of the Act for an entrepreneur to charge all homosexuals, or all nonhomosexuals, reduced rates in his or her restaurant or hotel in order to encourage one group’s patronage and, thereby, increase profits. The same reasoning is applicable here, where reduced rates were offered to women and not men.” (second alteration in original)). ↑

  255. Id. at 204. ↑

  256. Peppin v. Woodside Delicatessen, 506 A.2d 263, 267–68 (Md. Ct. Spec. App. 1986). ↑

  257. Id. at 264. ↑

  258. Id. at 265. ↑

  259. Id. at 264–65. ↑

  260. Id.; see also Trends: Skirting the Law, Phila. Inquirer, Apr. 13, 1986, at 3A (reporting on the case outcome and noting that some men showed up wearing skirts when the restaurant initiated its “skirts and gowns” discount). ↑

  261. Murray, supra note 25 at 293. ↑

  262. See supra note 197. ↑

  263. See, e.g., Everett v. Harron, 110 A.2d 383, 385 (Pa. 1955) (noting that the defendant “frankly admit[ed] that a crude attempt to give the enterprise the character of a private club in order to justify a selective admission of applicants was but a device to keep Negroes from the swimming pool”); Commonwealth v. Moore, 32 Pa. D. & C. 630, 635 (1938) (rejecting the argument that the defendant-hotel was a place of public accommodation “which [is] in [its] nature ‘distinctly private’”); Gilmore v. Paris Inn, 51 P.2d 1103, 1103 (Cal. Dist. Ct. App. 1935) (affirming judgment for defendant who argued café was a private club); Norman v. City Island Beach Co., 126 Misc. 335, 336 (N.Y. App. Term 1926) (rejecting defendant’s assertion that pool was private and not subject to state civil rights statute); Bowlin v. Lyon, 25 N.W. 766, 768 (Iowa 1885) (ruling that a skating rink that denied admission to Black person was essentially a private business). ↑

  264. United States v. Nw. La. Rest. Club, 256 F. Supp. 151, 152 (W.D. La. 1966); North Louisiana Assn.—Restaurant Club Outlawed, Shreveport J., July 15, 1966, at 2C. ↑

  265. “Segregation academies,” which were private schools designed to avoid desegregation, are a prominent example. See Anthony M. Champagne, The Segregation Academy and the Law, 42 J. Negro Educ., 58, 58 (1973). See generally Mary Thornton, A Legacy of Legal Segregation Returns to Haunt a Small Town, Wash. Post, Apr. 21, 1983, at A2 (“In community after community, white officials during the 1960s transferred public property to private organizations as integration loomed. Schools, swimming pools, athletic playing fields, even school books, were given to private owners.”). ↑

  266. Nw. La. Rest. Club, 256 F. Supp. at 153. ↑

  267. Id. ↑

  268. United States v. Jordan, 302 F. Supp. 370, 374, 377 (E.D. La. 1969). ↑

  269. Id. at 379–80. ↑

  270. 395 U.S. 298, 298, 307–08 (1969). ↑

  271. Art Peters, LCB Card: A Way to Discriminate?, Phila. Inquirer, Sept. 6, 1972, at 31. ↑

  272. Id. ↑

  273. Id. ↑

  274. Robert A. Jordan, Cafe Bias Spotlight Spurs Progress, Bos. Globe, Oct. 21, 1976, at 31. ↑

  275. Id. ↑

  276. Courtland Milloy, Some Doors Closed to Black Faces: Integration and ‘Chic’ in D.C. Clubs, Wash. Post, May 31, 1979, at A1, A13 (quoting a nightclub owner as saying “clubs try to restrict their [B]lack clientele to about 10 to 25 percent”). ↑

  277. Id. at A13. ↑

  278. Interracial Group Finds Discrimination by Tavern, Balt. Sun, Mar. 28, 1968, at C7; Suit Attacks Discrimination Hearing, Courier-J., June 24, 1967, at 7. ↑

  279. Patrick Boyle, Human Relations Report Hails State’s ’67 Gains, Pitt. Press, July 25, 1968 (“Typical of illegal acts stopped by the commission in the area of public accommodations was the case of a Negro charged 95 cents for a pitcher of beer in a Pennsylvania tavern while white patrons paid only 75 cents.”); $25 Fine for a $1 Beer, Ariz. Rep., Jan. 17, 1968, at 55 (noting how a tavern owner was sentenced to pay a $25 fine or spend eight days in a city jail for conviction under the Phoenix public accommodations ordinance for charging a Black person $1 for a 35-cent beer). ↑

  280. Cops Who Dance the Night Away, S.F. Exam’r, June 23, 1980, at B9; Dallas Revises Law to Restrict Club Dress Codes, Tyler Courier-Times, Dec. 23, 1979, at 5. ↑

  281. Jack Kadden, Results Due in Month in Probe of Nightclub, Hartford Courant, June 9, 1978, at E24; Disco Faces Bias Hearing, Hartford Courant, Jan. 18, 1980, at 42. ↑

  282. ABCC Invites Discrimination Complaints, Bos. Globe, Sept. 23, 1976, at 67. ↑

  283. Walter V. Robinson, Back Bay Disco Accused of Barring Blacks, Bos. Globe, Sept. 22, 1976, at A1; Walter V. Robinson, Whimseys Closing 4 Days as Discrimination Penalty, Bos. Globe, Jan. 5, 1977, at 3. ↑

  284. Viola Osgood, Black Doorman To Be Hired: Whimsey’s Settles Bias Dispute, Bos. Globe, June 11, 1977, at 3. ↑

  285. McDaniel v. Cory, 631 P.2d 82, 83 n.5 (Alaska 1981). ↑

  286. Id. ↑

  287. Id. ↑

  288. Andrew Means, Sophisticated Discrimination, Ariz. Republic, Dec. 4, 1983, at H1. ↑

  289. Dave Gosch, Club Metro Now Offering Free Memberships to All, Gazette, Aug. 1, 1986, at 5A. ↑

  290. Red Onion OKs Discrimination Settlement, Desert Sun, July 30, 1986, at 1; A. Dahleen Glanton, Red Onion Agrees To Pay $390,000 in Racism Suit, L.A. Times, Sept. 3, 1988, at 3. ↑

  291. Glanton, supra note 289. ↑

  292. Red Onion OKs Discrimination Settlement, supra note 289, at 1. ↑

  293. Ray Perez & Heidi Evans, Red Onion Promises to Prevent Discrimination, L.A. Times, May 16, 1986, at Part II. ↑

  294. Glanton, supra note 289. ↑

  295. Id. ↑

  296. United States v. Glass Menagerie, 702 F. Supp. 139, 140 (E.D. Ky. 1988). ↑

  297. Id. ↑

  298. Russo v. Corbin, No. C.A. 01A-07-001, 2002 WL 88948, at *2–*3 (Del. Super. Ct. Jan. 8, 2002) (finding substantial evidence unlawful denial of service at a restaurant to racial minorities in violation of state law). ↑

  299. Consent Decree, United States v. Walker, No. 7:01-0008 (M.D. Ga. June 26, 2001) (Dep’t of Just., Hous. & Civ. Enf’t Cases), https://www.justice.gov/crt/housing-and-civil-enforcement-cases-documents-591 [https://perma.cc/D5JE-VS97] (resolving allegations of racial overcharging in violation of Title II). ↑

  300. Consent Decree, United States v. Freeway Club (N.D. Ala. May 13, 2002) (Dep’t of Just., Hous. & Civ. Enf’t Cases), https://www.justice.gov/crt/housing-and-civil-enforcement-cases-documents-421 [https://perma.cc/B93H-S5FG] (resolving allegations that a nightclub discriminated against Black patrons by demanding more forms of ID than from other patrons); Consent Order, United States v. Black Wolf, Inc. (N.D. W.Va. Nov. 20, 2003) (Dep’t of Just., Hous. & Civ. Enf’t Cases), https://www.justice.gov/crt/housing-and-civil-enforcement-cases-documents-303 [https://perma.cc/Q6VY-Y5TQ] (resolving allegations of racial discrimination by bar-restaurant that required Black patrons to show a membership card before being served while not requiring the same from others). ↑

  301. See source cited supra note 50 (resolving a nightclub’s admission policies turning away certain patrons to achieve racial “balance”). ↑

  302. U.S. Dep’t of Just., News Release, West Virginia Nightclub Agrees Not To Turn Away African American Patrons, Under Agreement with Justice Department (Jan. 27, 1998), https://www.justice.gov/archive/opa/pr/1998/January/028.htm [https://perma.cc/G2ZG-GM47] (resolving claims that club denied entry to Black patrons by telling them there was a private event). ↑

  303. Consent Decree, United States v. Candy II, No. 05-C-1358 (E.D. Wis. Mar. 1, 2007) (Dep’t of Just., Hous. & Civ. Enf’t Cases), https://www.justice.gov/crt/housing-and-civil-enforcement-cases-documents-75 [https://perma.cc/JK7M-JWPJ] (decree resolving allegations that club discriminatorily applied dress code); Consent Order, United States v. Badeen (D. Kan. Mar. 8, 2002) (Dep’t of Just., Hous. & Civ. Enf’t Cases), https://www.justice.gov/crt/housing-and-civil-enforcement-cases-documents-321 [https://perma.cc/RAH3-AD9D] (resolving allegations of club’s discriminatory enforcement of dress code against Blacks and Latinx persons); N.Y. State Off. Att’y Gen., A.G. Schneiderman Announces Agreement with Midtown Nightclub Ensuring Equal Access for All Patrons (June 27, 2013), https://ag.ny.gov/press-release/2013/ag-schneiderman-announces-agreement-midtown-nightclub-ensuring-equal-access-all [https://perma.cc/MH89-JCEZ] (addressing $20,000 settlement to state and $500 of restitution to each patron for club’s discriminatory use of dress codes, along with other methods of exclusion); People v. Peter & John’s Pump House, Inc., 914 F. Supp. 809, 809, 811, 814 (N.D.N.Y. 1996) (finding that New York’s allegation that a nightclub imposed a discriminatory dress code gave the state parens patriae standing); Stephen Labaton, Denny’s Restaurants To Pay $54 Million in Race Bias Suits, N.Y. Times, May 25, 1994, at A1 (describing the $54 million settlement involving Denny’s, which was accused of engaging in racial segregation in their restaurants, discriminatorily requiring Black patrons pre-pay, rude treatments toward them, and long waits for service). ↑

  304. Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 Colum. L. Rev. 458, 460–61 (2001). ↑

  305. See sources cited supra note 137 (demonstrating examples of discrimination at swimming pools, movie theaters, cafes, and amusement parks). ↑

  306. Smith v. Bradley Pizza, Inc., 314 F. Supp. 3d 1017, 1020 (D. Minn. 2018) (finding standing for a plaintiff with a disability in a claim of lack of access to restaurant arising from architectural barriers); Whitaker v. Firman, No. 2:12-cv-224, 2013 WL 4498979, at *2, *6, *9, *11 (W.D. Pa. Aug. 20, 2013) (rejecting, on standing grounds, a Title III claim brought by a plaintiff who suffered from a rare joint disease that made it difficult to stand, and alleged that the defendant-nightclub did not allow her to sit on a stool on the dancefloor or sit in the VIP area); Wilson v. Superclub Ibiza, LLC, 931 F. Supp. 2d 61, 62–63 (D.D.C. 2013) (evaluating the admissibility of evidence brought by a patron who alleged a nightclub operator denied her entry in violation of the ADA); Sharp v. Capitol City Brewing Co., LLC, 680 F. Supp. 2d 51, 58–61 (D.D.C. 2010) (rejecting various claims brought by a restaurant patron alleging violations of Title III of the ADA); MacDougal v. Catalyst Nightclub, 58 F. Supp. 2d 1101, 1102, 1103 (N.D. Cal. 1999) (deciding attorney’s fees for plaintiffs who brought two lawsuits against defendant nightclub for failure to provide access to disabled patrons and food service in violation of the ADA); Pinnock v. Int’l House of Pancakes Franchisee, 844 F. Supp. 574, 578 (S.D. Cal. 1993); see also Beth Winegarner, How Some Local Nightclubs Fail Their Disabled Patrons, S.F. Weekly (Oct. 22, 2018, 6:53 AM), https://www.sfweekly.com/music/how-some-local-nightclubs-fail-their-disabled-patrons/ [https://perma.cc/45VB-JLHR]; David Perry, Restaurants Haven’t Lived Up to the Promise of the Americans with Disabilities Act, Eater (May 31, 2017, 9:28 AM), https://www.eater.com/2017/5/31/15701042/american-disabilities-act-restaurants-compliance [https://perma.cc/3QP8-GTPU]. ↑

  307. Jessica A. Clarke, Explicit Bias, 113 Nw. U. L. Rev. 505, 510 (2018). ↑

  308. Onwuachi-Willig, supra note 49, at 1895 (2007). ↑

  309. Id. ↑

  310. DeWayne Wickham, Commentary, Dress Codes Restore Pride in Appearance, Ithaca J., July 6, 2004, at 7A. ↑

  311. Onwuachi-Willig, supra note 49, at 1898–99. ↑

  312. Kenji Yoshino, Covering: The Hidden Assault on Our Civil Rights, at ix, 23–24 (2006). ↑

  313. Id. at 21. ↑

  314. See sources cited supra notes 55, 59 (describing various situations in which identity performance takes place in the workplace and other social situations); see also Gowri Ramachandran, Intersectionality as “Catch 22”: Why Identity Performance Demands Are Neither Harmless Nor Reasonable, 69 Alb. L. Rev. 299, 300 (2006). ↑

  315. Lior Jacob Strahilevitz, Exclusionary Amenities in Residential Communities, 92 Va. L. Rev. 437, 477–78 (2006). ↑

  316. Id. (describing amenities strategies of Ave Maria Township, which was described as “America’s first gated Catholic community”). ↑

  317. Gelbach, Klick & Wexler, supra note 49, at 818. ↑

  318. Id. (citing Peggy D. Dwyer, James H. Gilkeson & John A. List, Gender Differences in Revealed Risk Taking: Evidence from Mutual Fund Investors, 76 Econ. Letters 151, 156 (2002)). ↑

  319. David Martin, Kansas City Officials Had Plenty of Warning that the Cordish Co. Would Impose a Discriminatory Dress Code, Pitch (July 3, 2008), https://www.thepitchkc.com/kansas-city-officials-had-plenty-of-warning-that-the-cordish-co-would-impose-a-discriminatory-dress-code/ [https://perma.cc/26N7-63LH] (describing the decade-long accusations of racial discrimination against a real estate company that maintains bars and restaurants and arguing that “what looks like bad publicity on the surface might, in [the company’s] dark way of doing business, be an inexpensive means of letting white suburbanites know that the Power & Light District is sensitive to their fears. Not a fan of hip-hop style? Neither are we. So come on down and take a ride on our mechanical bull.”). ↑

  320. See sources cited supra notes 24–25 (outlining the literature on discrimination in public accommodations). ↑

  321. In one incident, a nightclub disavowed the comments of a promoter who it claimed did not work for the company. In a captured text conversation with a Latinx patron who wanted entry into the club with an entourage, the promoter told him, “‘If you [have] any of their [Instagram] or pics send cuz they’re strict [at] the door.’ He then added: ‘Gotta be 8/10 no hood [B]lack or fat.’” Mona Holmes, Hollywood Club Promoter Called Out for Racist, Sexist Door Policies, Eater LA (May 3, 2018), https://la.eater.com/2018/5/3/17315890/hollywood-club-promoter-discrimination-the-argyle [https://perma.cc/7FDW-N285]. ↑

  322. Marlon Bishop, East Village Bar Accused of Racist Door Policy, WNYC (Jan. 31, 2011), https://www.wnyc.org/story/112317-east-village-bar-accused-racist-door-policy/ [https://perma.cc/4V58-D95E] (describing a complaint leveled by a Black woman who was denied entry into a nightclub by a Black security guard while white women were allowed entry, to which the guard replied, “This is what the owner wants. Do you think I like denying my own people?”); Caroline M. McKay, Boston Club Will Pay Discrimination Fine, Harv. Crimson (May 13, 2011), https://www.thecrimson.com/ article/2011/5/13/club-black-against-cure/ [https://perma.cc/N52T-2FLW] (discussing how a Boston club was forced to pay approximately $28,000 after it discriminated against Black Harvard and Yale graduate students and alumni, Sherif Hashem, the head of security, a person of color, told them there was a concern about “weed smoking brothers from the other side of Massachusetts Avenue who will want to come in if they see beautiful [B]lack women in line, and it will be a problem if we try to turn them away”). This is not new. See Juan Williams, The Discriminating Club, Wash. Post, Nov. 9, 1979, at A21 (describing a Black club in Washington D.C. that tried to “create a discriminating mix”). ↑

  323. Tanya Katerí Hernandez, Multiracials and Civil Rights: Mixed-Race Stories of Discrimination 67–74 (2018) (describing the paucity of legally recognized claims involving multiracial discrimination in public accommodations); Kimberly Jade Norwood, “If You Is White, You’s Alright. . . .” Stories About Colorism in America, 14 Wash. U. Global Stud. L. Rev. 585, 605 (2015) (discussing light-skin parties and “battle of the complexions” contests in Black nightclubs across America); Desiree Cooper, Still, Blacks Struggle to Accept Selves, Detroit Free Press, Nov 1. 2007, at 1 (discussing a Detroit promoter’s plan to have a “Light Skin Libra Birthday Bash,” which was intended to let “light skin” Black women into a downtown club for free). ↑

  324. The Philadelphia Commission on Human Relations, the local agency responsible for regulating anti-discrimination in the city, found that businesses in Philadelphia’s Gayborhood—a geographical area consisting of bars and nightclubs for the LGBTQ community—“create preferable environments for white, cisgender male patrons” and discriminate against women, racial minorities, and transgender individuals. This discrimination included “ad hoc, inconsistent, and arbitrary treatment of customers related to dress codes, ID policies, bar service, and treatment by staff [that] create[d] a climate of ‘unwelcomeness,’ exclusivity, and hostility” toward these groups. One lesbian commented, “[M]y partner and I, and our friends, have experienced feeling invisible in bars . . . and have watched on multiple occasions men who came up to the bar after us, get served before us.” Philadelphia Commission on Human Relations, Inform, Monitor, Enforce: Addressing Racism and Discrimination in Philadelphia’s LGBTQ Community 8, 10 (2017); see also Patrick Saunders, Atlanta Gay Bar Blake’s Taking Heat over Dress Code Sign, Georgia Voice (July 10, 2015, 11:36 AM), https://thegavoice.com/news/georgia/atlanta-gay-bar-blakes-taking-heat-over-dress-code-sign/ [https://perma.cc/AF5B-EPYG]; Naomi Waxman, Boystown Bar Called Racist for Banning Rap, Eater Chicago (May 30, 2019, 2:55 PM), https://chicago.eater.com/2019/5/30/18645763/progress-bar-boystown-gay-rap-ban-leaked-email-social-media [https://perma.cc/4F97-2JC4]. ↑

  325. Combs v. Cordish Companies, 862 F.3d 671, 681 (8th Cir. 2017). ↑

  326. Id. ↑

  327. Id. at 682. ↑

  328. Others include:

    Questioning African American patrons at the entrances to clubs and/or the district in general for the purpose of eliciting “annoyance” or some other response to be identified as “aggression,” all for the purpose of creating a rule violation which would serve as a basis for turning the individual away from the club or district or having him ejected from same;

    Ignoring/failing to serve African Americans at tables, bars and other areas, all for the purpose of giving them an “unwelcome” message;

    Keeping a head count on numbers of African Americans present in any one club or area of the District, so that when the “target” or limit number is reached, additional African Americans will be turned away or caused to leave by virtue of a change in the music genre or some other strategy;

    Telling African Americans who call to reserve tables in a club that the reservations are all sold out for a particular night, when in fact same is not true;

    Telling African Americans who have arrived at a club for their already-booked reservation that there is nothing on the books in their names, or that the computer must have messed up, or tables are double-booked and everyone else has already arrived.

    Original Class Action Complaint at 2–3, Combs v. Lounge KC, L.L.C., No. 4:14-cv-00227, 2014 WL 939699 (W.D. Mo. Mar. 10, 2014). ↑

  329. Erin Donnelly, Is this Restaurant’s Ban on Stilettos, Low-Hanging Pants, and Plain White T-Shirts Racist?, Yahoo! (May 17, 2018), https://www.yahoo.com/lifestyle/restaurants-ban-stilettos-low-hanging-pants-plain-white-t-shirts-racist-155438657.html [https://perma.cc/RWZ8-X9BF]. ↑

  330. Deepa Lakshmin, 11 Times Hulk Hogan Broke His Own Restaurant’s Dress Code, MTV (Sept. 25, 2014), www.mtv.com/news/1942900/hulk-hogan-broke-dress-code/ [https://perma.cc/YRL8-AN4C]. ↑

  331. Id.; Stephen Romano, Long Island Bar Turns Away Man for Wearing Turban, Port Jefferson, NY Patch (May 16, 2019), https://patch.com/new-york/portjefferson/long-island-bar-turns-away-man-wearing-turban [https://perma.cc/KMD7-XM2P]. ↑

  332. Emily Heil, Critics Say a New Baltimore Crab House is Targeting Minorities with Its Strict Dress Code, Wash. Post (Sept. 17, 2019), https://www.washingtonpost.com/­news/food/wp/2019/09/17/critics-say-a-new-baltimore-crab-house-is-targeting-minorities-with-its-strict-dress-code/ [https://perma.cc/QY6B-TJTX]. ↑

  333. Aimee Green, Black Man Told He Couldn’t Enter Portland Bar Because of His Jewelry; Real Reason Was Racism, Lawsuit Says, Oregonian (Aug. 21, 2019), https://www.oregonlive.com/news/2019/08/black-man-told-he-couldnt-enter-portland-bar-because-of-his-jewelry-real-reason-was-racism-lawsuit-says.html [https://perma.cc/4B53-AC62]; Theresa Braine, New Jersey Restaurant Nixes Uber-Specific Dress Code Sign After Being Accused of Racism, N.Y. Daily News (Jan. 16, 2019), https://www.nydailynews.com­/news/ny-news-ashford-jersey-city-restaurant-dress-code-racist-20190115-story.html [https://perma.cc/637U-B9DQ]. ↑

  334. Gene Demby, Dress Codes Are Open to Interpretation — And a Lot of Contention, NPR (July 10, 2014), https://www.npr.org/sections/codeswitch/2014/07/10/330422908/dress-codes-are-open-to-interpretation-and-a-lot-of-contention [https://perma.cc/64SZ-MR5G]. ↑

  335. Jelisa Castrodale, Pizzeria Accused of Racism over Ridiculously Restrictive Dress Code, Vice (June 3, 2017), https://www.vice.com/en_us/article/vbgm53/pizzeria-accused-of-racism-over-ridiculously-restrictive-dress-code [https://perma.cc/GXM6-CS7Z]; River North Bar Releases Lengthy Dress Code, CBS Chi. (May 30, 2017), https://chicago.cbslocal.com­/2017/05/30/dress-code-bottled-blonde/ [https://perma.cc/M8JG-7PG5]. ↑

  336. Hope Schreiber, Sacramento Bar Under Fire for New Dress Code Which Critics Call a Modern-Day ‘WHITES ONLY’ Sign, Yahoo! (Sept. 4, 2019), https://www.yahoo.com­/lifestyle/sacramento-bar-under-fire-for-new-dress-code-which-critics-call-a-modern-day-whites-only-sign-165735079.html [https://perma.cc/G4N7-WGFK]. ↑

  337. Alex Zielinski, Discriminatory Club Policies Are Pushing African Americans Out of Portland’s Nightlife, Portland Mercury (July 4, 2019), https://www.portlandmercury.com­/news/2019/07/04/26745491/discriminatory-club-policies-are-pushing-african-americans-out-of-portlands-nightlife [https://perma.cc/ZK9Q-2ZDH]. ↑

  338. See Heil, supra note 331 (discussing Baltimore restaurant’s ban on “inappropriate attire”). ↑

  339. Jerod MacDonald-Evoy, Bar with Eyes on Tempe Accused of Racial Discrimination at Texas Location, Ariz. Republic (May 4, 2018), https://www.azcentral.com/story/­news/local/tempe/2018/05/04/bar-coming-tempe-accused-using-dress-code-discriminate-texas/546368002/ [https://perma.cc/BYR4-QJBR]. ↑

  340. 42 U.S.C. §§ 2000e-2(k)(1)(A)-(B). ↑

  341. See Settlement Agreement, United States v. Ayman Jarrah, supra note 17, at 1–3 (resolving allegations of a bar’s discriminatory use of a cover charge to limit the number of minorities admitted); Consent Decree, United States v. Candy II, supra note 302, at 1 (resolving allegations that club discriminatorily applied dress code); Consent Order, United States v. Badeen, supra note 302, at 1 (resolving allegations of club’s discriminatory enforcement of dress code against Blacks and Latinx persons); see also Williams v. Thant Co., No. 02-1214, 2004 WL 1397554, at *1 (D. Or. June 22, 2004) (denying defendant’s motion for summary judgment arising out of plaintiffs’ allegation that nightclub selectively enforced dress code against them because of their race); Consent Decree at 2, United States v. Routh Guys, L.L.C., No. 3:15-cv-02191 (N.D. Tex. June 30, 2015), https://www.justice.gov/sites/default/files/crt/legacy/2015/07/06/–kungfusettle.pdf [https://perma.cc/C4YH-7XP2] (settling with bar and restaurant that denied African American and American patrons because of discriminatory enforcement of dress code). ↑

  342. See May, supra note 18, at 51–53 (discussing how dress codes in nightclubs often prohibit the type of dress typically worn by African Americans); see also, May & Chaplin, supra note 23, at 60 (noting how, in hip-hop culture, “[A]thletic jerseys, baggy jeans, oversized plain white T-shirts, sweat-bands, do-rags (polyester head wraps), ‘wife beaters,’ (‘tank tops’) and thick gold chains are worn as a means of representing one’s identification with that culture. These clothing styles are typically adopted by young, [B]lack males in urban areas”); Tricia Rose, “Fear of a Black Planet”: Rap Music and Black Cultural Politics in the 1990s, 60 J. Negro Educ. 276, 277 (1991) (“Black teenage males sporting sneakers and other Hip Hop gear are perceived as criminal equivalents.”); Marc Gunther, Faith and Fortune: How Compassionate Capitalism Is Transforming American Business 149 (2004) (noting the popularity of Timberland boots in the African American community); Russell K. Robinson, Uncovering Covering, 101 Nw. U. L. Rev. 1809, 1825 (2007) (describing the association of doo-rags with “ghetto culture” and its association with African American men); Pancho McFarland & Leslie Baker Kimmons, Style, in 3 Encyclopedia of Race, Ethnicity, and Society 1125 (Richard T. Schaefer, ed., 2008) (describing how 1990s hip-hop style entailed hooded sweatshirts and Timberlands whereas the turn of the twenty-first century popularized large platinum chains, diamond studs, and doo-rags); D. Wendy Greene, Title VII: What’s Hair (And Other Race-Based Characteristics) Got to Do with It?, 79

    U.

    Colo. L. Rev. 1355, 1383–94 (2008) (noting how doo-rags are “indicative of Blackness in the lay community”); Brian Josephs, Who Criminalized the Durag? GQ (Mar. 2, 2017), https://www.gq.com/story/who-criminalized-the-durag [https://perma.cc/D3DM-2ZAL] (discussing the relationship between doo-rags and Blackness, the NFL’s and NBA’s respective bans in 2001 and 2005, and suggesting that the stigma of this article of clothing is tied to the criminalization of Black expression); Emily Chertoff, The Racial Divide on . . . Sneakers, Atlantic (Aug. 20, 2012), https://www.theatlantic.com/national/archive­/2012/08/the-racial-divide-on-sneakers/261256/ [https://perma.cc/LBA9-WV4C] (“Jordans and Chucks come from the same originary sneaker, a canvas plimsoll from the mid-19th century. . . . How did the first become associated with [B]lack street culture and the second with white-dominated hipsterism?”). ↑

  343. See Robert Wilonsky, Yet Again, Allegations Arise that in Some Uptown Bars, ‘Dress Code’ Means No Minorities, Dallas Morning News (June 29, 2017), https://www.dallasnews.com/opinion/commentary/2017/06/29/yet-again-allegations-arise-that-in-some-uptown-bars-dress-code-means-no-minorities/ [https://perma.cc/B47Z-K5MT] (discussing incident where Black women were denied entry into bar for being out of dress code); Morgan Gstalter, Man Wearing Makeup Denied Entry to Texas Nightclub, The Hill (May 12, 2018), https://thehill.com/blogs/blog-briefing-room/news/387438-man-wearing-makeup-denied-entry-to-texas-nightclub [https://perma.cc/557L-55A2] (detailing incident wherein man wearing makeup was denied entry to Texas nightclub); Hollywood Club Accused of Discrimination After Promoter Allegedly Instructs: ‘No Hood Black or Fat’, Fox L.A. (May, 2, 2018), https://www.foxla.com/news/hollywood-club-accused-of-discrimination-after-promoter-allegedly-instructs-no-hood-black-or-fat [https://perma.cc/7HCC-F8RX] (describing Hollywood club accused of denying entry to anyone described as “hood [B]lack”). ↑

  344. Complaint at 3, United States v. Davis, No. 2:07cv430 (E.D. Va. Sep. 20, 2007), https://www.justice.gov/sites/default/files/crt/legacy/2010/12/15/kokocomp.pdf [https://perma.cc/4MKL-63CK]. ↑

  345. Consent Decree at 1–2, United States v. Davis, No. 2:07cv430 (E.D. Va. Mar. 10, 2008); Duane Bourne, Kokoamos Owner To Apologize for Barring Entry to Two Who Sued, Virginian-Pilot (Mar. 12, 2008), https://www.pilotonline.com/news/article_1b7467ce-39f5-51ff-af29-47aefa87e36c.html [https://perma.cc/FGP2-6WSM]. ↑

  346. See Gstalter, supra note 342. ↑

  347. Id. ↑

  348. Id. ↑

  349. Elise Solé, ‘You’re a Man in Women’s Clothing’: 22-Year-Old Says He Was Dress Coded for Wearing Makeup and High Heels, Yahoo! (Mar. 27, 2019), https://finance.yahoo.com­/news/nightclub-denies-banning-gay-customer-wearing-stiletto-heels-makeup-000454296.html [https://perma.cc/2D3B-YC3W]. ↑

  350. Id. ↑

  351. See May, supra note 18, at 57–58 (discussing how owners of nightclubs often justify dress codes as a means of “maintaining a specific kind of atmosphere and clientele”). ↑

  352. See Aimee Green, Lawsuit Claiming Portland Nightclubs Turned Away Black Customers Ends in Settlement, Oregonian (June 19, 2019), https://www.oregonlive.com­/news/2019/06/lawsuit-claiming-portland-nightclubs-turned-away-black-customers-ends-in-settlement.html [https://perma.cc/VA9H-MYKU] (recounting incident involving Portland nightclub that turned away Black patron for violating dress code that prohibited “excessive matching”); see also Jennifer Daley, Bandana, in Ethnic Dress in the United States: A Cultural Encyclopedia 17, 19 (Anette Lynch & Mitchell D. Strauss, eds., 2014) (discussing how gang members often wear the same color bandana that corresponds with their gang’s colors as a means of identification). ↑

  353. See Kan. City, Mo., Mun. Code §§ 38-113(b), 38-1(a)(26) (2020), https://library.municode.com/mo/kansas_city/codes/code_of_ordinances?nodeId=PTIICOOR_CH38HURE [https://perma.cc/XX5G-V486] (making it an unlawful accommodation practice to use a prohibited dress code to deny anyone accommodations). ↑

  354. Id. ↑

  355. See Andrea K. Walker, Dress Code Makeover at Cordish Venue in Ky., Balt. Sun (July 2, 2004), https://www.baltimoresun.com/news/bs-xpm-2004-07-02-0407020158-story.html [https://perma.cc/U2JG-URNT] (describing a dress code implemented by Cordish Co. that the ACLU and other local activists say unfairly discriminated against minorities and urban youth). ↑

  356. Id. ↑

  357. Joseph Gerth, Activists Call 4th Street Live Dress Code Discriminatory, Courier-J., June 26, 2004, at B1. ↑

  358. Id. ↑

  359. See Cary v. Cordish Co., 731 F. App’x 401, 402–03 (6th Cir. 2018) (lawsuit filed by several African-American men who claim they were denied entry to Cordish-owned 4th Street Live because of their race); Patrick T. Sullivan, Men Allege Race Discrimination at 4th Street Live, Courier-Journal (June 4, 2014), https://www.courier-journal.com/story/news /crime/2014/06/04/men-allege-race-discrimination-th-street-live/9977255/ [https://perma.cc/WCD7-GRP8] (detailing litigation against Cordish Co. related to discriminatory accommodation practices); The Cordish Company Should Address Racial Discrimination Claims Immediately,

    ACLU

    (Jan. 21, 2013), https://www.aclu.org/press-releases/cordish-company-should-address-racial-discrimination-claims-immediately?redirect=racial-justice/cordish-company-should-address-racial-discrimination-claims-immediately [https://perma.cc/38NL-FVHJ]; Amber Duke, Coalition Concerned About Cordish Issues Points of Emphasis for Moving Community Forward,

    ACLU KY

    (Dec. 1, 2015), https://www.aclu-ky.org/en/news/coalition-concerned-about-cordish-issues-points-emphasis-moving-community-forward [https://perma.cc/6VQT-W5E8]. ↑

  360. Lynn Horsley, Despite Large Power & Light District Crowds, Taxpayers Are Still on the Hook, K.C. Star (Feb. 7, 2015), https://www.kansascity.com/news/politics-government/article9530081.html [https://perma.cc/3V63-926E]. ↑

  361. Sylvia Maria Gross, Nightlife Area’s Dress Code Seen as Discriminatory, NPR (June 25, 2009), https://www.npr.org/templates/story/story.php?storyId=105890577 [https://perma.cc/­RTZ4-RWHL]. ↑

  362. Kan. City, Mo., Mun. Code

     

    § 38-113(a) (2020), https://library.municode.com–/mo/kansas_city/codes/code_of_ordinances?nodeId=PTIICOOR_CH38HURE_ARTIIIDIPR [https://perma.cc/2ZW8-W9K4]. ↑

  363. Kan. City, Mo., Mun. Code § 38-1(a)(26) (2020), https://library.municode.com/–mo/kansas_city/codes/code_of_ordinances?nodeId=PTIICOOR_CH38HURE_ARTIIIDIPR [https://perma.cc/2ZW8-W9K4] reads:

    Prohibited dress code means a set of rules governing, prohibiting or limiting access to a place or business, or portion thereof, defined herein as a “public accommodation” because of any of the following:

    (a) The wearing of jewelry, the manner in which jewelry is worn or the combination of items of jewelry worn,

    (b) The wearing of a garment or headdress which is generally associated with specific religions, national origins or ancestry,

    (c) The length of the sleeve of a shirt or the leg of a pair of pants or shorts is too long, except that nothing herein shall be construed to prohibit a dress code that requires the wearing of a shirt,

    (d) The style, cut or length of a hair style,

    (e) The colors of the garments,

    (f) In conjunction with a major Kansas City sporting event, the wearing of athletic apparel which displays either a number, a professional or college team name or the name of a player;

    (g) The wearing of tee-shirts, except that nothing herein shall be construed to prohibit a dress code that requires such tee-shirts to have sleeves, or to prohibit a dress code that does not allow undershirts, undergarments, or tee-shirts of an inappropriate length. Designer tee-shirts, which are fitted and neat, cannot be banned. ↑

  364. Kan. City, Mo., Mun. Code § 38-113(b)(2) (2020), https://library.municode.com­/mo/kansas_city/codes/code_of_ordinances?nodeId=PTIICOOR_CH38HURE_ARTIIIDIPR [https://perma.cc/2ZW8-W9K4] states it does not prohibit:

    Any owner, agent, operator or employee of a business or facility within a redevelopment area from affirmatively requiring the wearing of specified articles of clothing, which may include collared shirts and ties, sports jackets, business suits, business casual, formal clothing or smart casual clothing in keeping with the ambiance and quality of the particular business or facility and formal footwear, so long as the requirements are enforced with regard to each and every patron, regardless of race, religion, color, ancestry, national origin, sex, marital status, familial status, disability, sexual orientation or gender identity. ↑

  365. See sources cited supra notes 328–38. ↑

  366. In fact, the history described in this paper suggests that some owners of public accommodations will be determined to find ways to evade anti-discrimination law. Still, one might argue that affirmative dress requirements impose a certain kind of uniformity that makes compliance easier for patrons whereas the status quo—loosely worded prohibitions—allow for more discretionary and arbitrary enforcement. ↑

  367. Mariel Padilla, New Jersey Is Third State To Ban Discrimination Based on Hair, N.Y. Times (Dec. 20, 2019), https://www.nytimes.com/2019/12/20/us/nj-hair-discrimination.html [https://perma.cc/M6WE-E5UV]; Aris Folley, New York Bans Discrimination Against Natural Hair, Hill (July 13, 2019), https://thehill.com/homenews/state-watch/452959-new-york-bans-discrimination-against-natural-hair [https://perma.cc/4HNW-E4KP]; Phil Willon & Alexa Díaz, California Becomes First State to Ban Discrimination Based on One’s Natural Hair, L.A. Times (July 3, 2019), https://www.latimes.com/local/lanow/la-pol-ca-natural-hair-discrimination-bill-20190703-story.html [https://perma.cc/664D-FM5B]. ↑

  368. See Erynn Masi de Casanova, Buttoned Up: Clothing, Conformity, and White-Collar Masculinity 144–46 (2015). ↑

  369. Chris Dixon, The “Ladies’ Night” Strategy, Bus. Insider (Oct. 16, 2010), https://www.businessinsider.com/the-ladies-night-strategy-2011-1 [https://perma.cc/V8NM-S8SQ]. ↑

  370. See Koire v. Metro Car Wash, 707 P.2d 195, 199 (Cal. 1985) (recounting argument by defendant that a “Ladies Night” promotion encouraged more women to attend the bar, thus promoting more interaction between men and women); City of Clearwater v. Studebaker’s Dance Club, 516 So. 2d 1106, 1108 (Fla. Dist. Ct. App. 1987) (same). ↑

  371. Novak v. Madison Motel Assocs., 525 N.W.2d 123, 124, 127 (Wis. Ct. App. 1994) (rejecting the defendant-bar’s argument that its “ladies drink free” special was designed to increase patronage by all groups and indicating that “intent is not relevant . . . promotions may not involve price differentials or other differential treatment based on the categories covered by the statute, whatever the intent”). ↑

  372. Commonwealth Liquor Control Bd. v. Dobrinoff, 471 A.2d 941, 943 (Pa. Commw. Ct. 1984) (highlighting how the trial court identified “chivalry and courtesy to the fair sex” as a purpose for some women’s exemption from a bar’s cover charge). ↑

  373. See, e.g., Easebe Enters., Inc. v. Rice, 190 Cal. Rptr. 678, 681 (Ct. App. 1983) (“An entrepreneur’s discriminatory practice based upon ostensible rational economic self-interest still violates public policy.”); Koire, 707 P.2d at 199 (rejecting the defendants’ arguments that gender-based discounts were permissible because they were profitable). ↑

  374. Ladd v. Iowa W. Racing Ass’n, 438 N.W.2d 600, 602 (Iowa 1989) (rejecting the defendant’s claim that its ladies’ night promotion was animated by a desire to “stimulate business”). ↑

  375. See sources cited supra note 238 and infra note 376 and accompanying text (describing “benevolent sexism” and its documentation in the literature). ↑

  376. Hoff, supra note 24, at 141. ↑

  377. Kristin J. Anderson, Modern Misogyny: Anti-Feminism in a Post-Feminist Era

     
    108

    (2015). ↑

  378. Cf. Tammy L. Anderson, Better to Complicate, Rather than Homogenize, Urban Nightlife: A Response to Grazian, 24 Soc. F. 918, 923 (2009). ↑

  379. Id. ↑

  380. Id. ↑

  381. Id. (“I have seen the harassment of women and their risk for sexual assault increase where clubbing ethos and norms center on hooking up or being on the pull. Women are regularly exploited when clubs use sexual props and gimmicks to sell alcohol or provide entertainment.”). ↑

  382. See Anderson, supra note 377, at 923; David Grazian, Urban Nightlife, Social Capital, and the Public Life of Cities, 24 Socio. F. 908, 913 (2009). ↑

  383. Grazian, supra note 381, at 913 (“[Y]oung female nightlife patrons are similarly expected to perform hegemonic femininity by adhering to constraining gender norms that include wearing snug designer jeans, low-cut blouses, and stiletto heels.”). ↑

  384. Philip R. Kavanaugh, The Continuum of Sexual Violence: Women’s Accounts of Victimization in Urban Nightlife, 8 Feminist Criminology 20, 22 (2013) (canvassing the research in this area). ↑

  385. Id. at 21. ↑

  386. Id. at 22. ↑

  387. See generally Laura Beth Nielsen, License to Harass: Law, Hierarchy, and Offensive Public Speech

    (2004

    ) (cataloguing misogynistic, harassing speech in public spaces)

    ;

    Peggy Reeves Sanday, Fraternity Gang Rape: Sex, Brotherhood, and Privilege on Campus

    (

    2d ed. 2007

    )

    (discussing sexual assault at college fraternity parties)

    ;

    Catharine A. MacKinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination

    (1979)

    (theorizing sexual harassment as sex discrimination and arguing that it is prohibited by Title VII). ↑

  388. David Grazian, On the Make: The Hustle of Urban Nightlife 263 n.1 (2008). ↑

  389. Philip R. Kavanaugh & Tammy L. Anderson, Managing Physical and Sexual Assault Risk in Urban Nightlife: Individual- and Environmental-level Influences, 30 Deviant Behav. 680, 706 (2009). ↑

  390. See sources cited supra note 386 (discussing men’s verbal and physical abuse of women on the street, in the university, and in the workplace). ↑

  391. Jennifer S. Hirsch & Shamus Khan, Sexual Citizens: A Landmark Study of Sex, Power, and Assault on Campus 81 (2020) (“The mystery here is not the persistence of drunk sex among students; rather, it is the persistent exoticization, among adults, of students’ recreational drinking and sex, especially considering their own well-accepted practice of drinking to have sex.”). ↑

  392. Grazian, supra note 381, at 913 (“Nightclubs, restaurants, and cocktail lounges rely on the physical attractiveness and sexual magnetism of female service staff and the promise of eroticized interaction to recruit customers. Female workers in nightlife settings are often expected to ‘do gender’ by attempting an exaggerated performance of sexualized femininity that includes wearing tight and revealing clothing, and handling obnoxious and suggestive comments from groups of male customers with flirty come-ons and gracious humor.”) (citations omitted). ↑

  393. For a different take on how bars and nightclubs shape romantic marketplaces and inform stereotypes about gay men and lesbians, see Russell K. Robinson, Structural Dimensions of Romantic Preferences, 76 Fordham L. Rev. 2787, 2800–02 (2008). ↑

  394. See Murray, supra note 25, at 288–92. ↑

  395. Id; Matt Pearce, That Time Donald Trump Got Sued by a California Men’s Rights Activist, L.A. Times (Nov. 1. 2016), https://www.latimes.com/politics/la-na-pol-trump-mens-rights-20161027-story.html [https://perma.cc/U6GW-M52A] (discussing a lawsuit brought by a men’s right activist against Trump National Golf Club for a promotion it offered in recognition of breast cancer awareness month). ↑

  396. David Harsanyi, Man’s Goal: Lights Out on Ladies Night, Denver Post (Sept. 18, 2006, 5:07 PM), https://www.denverpost.com/2006/09/18/mans-goal-lights-out-on-ladies-night/ [https://perma.cc/RE23-HSHA]. ↑

  397. Jessica A. Clarke, Protected Class Gatekeeping, 92 N.Y.U. L. Rev. 101, 105 (2017). As Suzanne Goldberg put it in a recent controversy involving a women’s workspace in New York City, “Anti-discrimination laws don’t only protect groups that have experienced histories of discrimination . . . . These laws protect everyone from discrimination based on specified aspects of their identity.” Karen Matthews, Can a Club for Women Legally Exclude Men? NYC Launches Probe, AP News (Mar. 29, 2018), https://apnews.com/article­/90b8bbab98a24a15a44aef9814210c2c [https://perma.cc/CH2T-59PS] (internal quotation marks omitted). In this same controversy, Katherine Franke added, “We can’t say it’s illegal for the men to keep women out of their clubs and say it’s legal for the women to keep the men out of their clubs.” See Maura Barrett & Jo Ling Kent, Despite Success, Women’s Work Sanctuaries May Break the Law, NBC News (May 21, 2018, 10:12 AM), https://www.nbcnews.com/business/business-news/despite-success-women-s-work-sanctuaries-may-break-law-n875551 [https://perma.cc/GW8Q-F6W2]. ↑

  398. Jack M. Balkin & Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination?, 58 U. Miami L. Rev. 9, 14–15 (2003) (“[T]he question whether a practice violates an antisubordination principle depends heavily on factual and historical contexts, and, in particular, on the laws and social mores that prevail in a given society at a given moment in history . . . . Few would characterize the anticlassification principle as similarly flexible.”). ↑

  399. See discussion supra Section II.B; Cops Who Dance the Night Away, supra note 279, at B9; Dallas Revises Law to Restrict Club Dress Codes, Tyler Courier-Times, Dec. 23, 1979, at 5. ↑

  400. The most noteworthy exception to this point is the New York City Commission on Human Rights, which has been recently active in this area, uniquely organized, and has “one of the broadest and most protective anti-discrimination laws” at its disposal: the New York City Human Rights Law. Gurjot Kaur & Dana Sussman, Unlocking the Power and Possibility of Local Enforcement of Human and Civil Rights: Lessons Learned from the NYC Commission on Human Rights, 51 Colum. Hum. Rts. L. Rev. 582, 598 (2020). For a general discussion on the role of these agencies, see Columbia Law Sch. Human Rights Inst., Columbia Law Sch. & Int’l Ass’n of Official Human Rights Agencies, State and Local Human Rights Agencies: Recommendations for Advancing Opportunity and Equality Through an International Human Rights Framework (2010). ↑

  401. Devon W. Carbado, Predatory Policing, 85 UMKC L. Rev. 545, 556–58 (2017) (describing fines and citations as sources of revenue that use police officers as their front-line agents). ↑

  402. Bernadette Atuahene & Christopher Berry, Taxed Out: Illegal Property Tax Assessments and the Epidemic of Tax Foreclosures in Detroit, 9 U.C. Irvine L. Rev. 847, 849, 851 (2019) (providing empirical evidence of a systemic and unconstitutional pattern of over-assessment of home values in Detroit, leading to inflated property taxes). ↑

  403. Adam Crepelle, Probable Cause to Plunder: Civil Asset Forfeiture and the Problems It Creates, 7 Wake Forest J.L. & Pol’y 315, 315–16 (2017) (describing the poor incentive effects of law enforcement revenue generation from civil asset forfeiture). ↑

  404. See generally Alexes Harris, A Pound of Flesh: Monetary Sanctions as Punishment for the Poor (2016) (theorizing court sanctions as a form of social control of the poor). ↑

  405. See Nightlife Industry Overview, Am. Nightlife Ass’n, https://www.nightlifeassociation.org/market-overview/ [https://perma.cc/9XPM-PFQ2] (last visited Jan. 18, 2021) (noting that the larger nightlife industry, of which bars and nightclubs are a part of, brings in in roughly $26 billion annually in revenue). ↑

  406. See Michael Hunter Schwarz & Jeremiah A. Ho, Curriculum Reforms at Washburn University School of Law, in Reforming Legal Education: Law Schools at the Crossroads 41, 42–43 (David M. Moss & Debra Moss Curtis eds., 2012). ↑

  407. For voting rights see Samuel Issacharoff, Pamela S. Karlan & Richard H. Pildes, The Law of Democracy: Legal Structure of the Political Process

    (

    4th ed.

    2012)

    ;

     

    James A. Gardner & ‎Guy-Uriel Charles, Election Law in the American Political System (2d ed. 2018)

    .

    For employment law and discrimination see

     

    Mark Rothstein & Lance Liebman, Employment Law (6th ed. 2007)

    .

    For education law see Michael J. Kaufman & Sherelyn R. Kaufman, Education Law, Policy, and Practice: Cases and Materials (4th ed. 2018); Charles J. Russo, Reutter’s The Law of Public Education (6th ed. 2006). Housing falls within property and/or land use law and casebooks. See Stewart E. Sterk, Eduardo M. Peñalver & Sara C. Bronin, Land Use Regulation (2d ed. 2016); Joseph William Singer, Bethany R. Berger, Nestor M. Davidson & Eduardo Moisés Peñalver, Property Law: Rules, Policies, and Practices (6th ed. 2014). For book-length treatments on housing and discrimination by legal scholars see Richard R. W. Brooks & Carol M. Rose, Saving the Neighborhood: Racially Restrictive Covenants, Law, and Social Norms (2013); Richard Rothstein, The Color of Law: A Forgotten History of How Our Government Segregated America (2017). The criminal procedure story is well-told. See Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (2004). ↑

  408. Austin, supra note 71, at 667. ↑

  409. Id. at 670. ↑

  410. Id. at 668. See generally John Wilson, Politics and Leisure (1988) (discussing how leisure is treated by differently-structured political states)

    ;

    A Handbook of Leisure Studies (Chris Rojek, Susan M. Shaw & A.J. Veal eds., 2006) (collecting a variety of essays on the origins, nature, and analysis of leisure)

    ;

    Robert A. Stebbins, Serious Leisure, Society, May 2001, at 53 (comparing a light-hearted, simple, and unsatisfying “casual leisure” with a more substantial “serious leisure” which requires time and effort to master and generates more lasting rewards)

    ;

    Sociology of Leisure: A Reader (C. Critcher, P. Bramham & A. Tomlinson eds., 1995). ↑

  411. A Handbook of Leisure Studies, supra note 409, at 1–2. ↑

  412. See sources cited supra note 137 (describing movements to desegregate American public accommodations); Ricard Gil & Justin Marion, Residential Segregation, Discrimination, and African-American Theater Entry During Jim Crow, 108 J. Urb. Econ. 18, 18–19 (2018). ↑

  413. See sources cited supra note 25 (noting recent scholarship on sexual orientation, religion, and disability in the context of public accommodations law). ↑

The Law of Legislative Representation

Law has much to say about the practice of legislative representation. Legal rules from different substantive domains collectively determine the landscape in which legislators act. Most obviously, the law of democracy—the law regulating elections, redistricting, and money in politics—shapes the incentives that legislators face and the sorts of representation that they provide once in office. But so too does the law that governs legislative organization and procedure. Congress and other legislatures are governed by rich bodies of internal rules, many of which receive little attention from either the public or legal scholars. These internal rules can empower or constrain legislators. By the same token, they can empower or constrain those that seek to influence how legislators behave, such as party leaders and interest groups.

This Article examines how law shapes representation. It takes a legislator’s point of view of public law, looking to how law shapes legislators’ choices and incentives. In taking this approach, the Article makes three principal contributions. First, it shows how the law of legislative representation is pluralist. Rather than unequivocally pointing legislators toward one type of representation or another, the law enables and encourages legislative responsiveness to each of three groups: constituents, interest groups, and party leaders. The law gives each of these groups distinct tools for exerting influence over legislative behavior, but it does not institutionalize the primacy of any one of them. Second, fully understanding representation requires focusing on internal legislative organization and procedure. Those topics can be just as consequential for American democracy as more familiar constitutional law and law of democracy topics. Centering legislative organization and procedure reveals powerful possible levers of congressional reform. Such creative approaches are especially important given the constitutional and political hurdles that stand in the way of many reforms to the law of democracy. Third, a detailed descriptive account of political institutions and legal rules should be part of our normative theorizing about representation. Because representation is a construct of law, understanding how it operates—and how it should operate—requires close attention to legal rules.

Introduction

Legislators face many choices. Should they do what is best for their constituents or the nation as a whole? When should they be responsive to pressure from interest groups? When should they be loyal to their political parties? How should they mediate between the conflicting demands that they face?

It might seem that law has little to say about these dilemmas. Constitutional law focuses on the structure and power of Congress as a whole, but not on individual legislators.1 1.See U.S. Const. art. I; see also Daniel A. Farber, William N. Eskridge, Jr., Philip P. Frickey & Jane S. Schacter, Cases and Materials on Constitutional Law 865–1078 (6th ed. 2019).Show More The statutes and cameral rules that dictate how legislative chambers operate set out procedures for lawmaking, but they do not expressly instruct members how to act.2 2.See generally Barbara Sinclair, Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress (5th ed. 2017); Walter J. Oleszek, Mark J. Oleszek, Elizabeth Rybicki & Bill Heniff, Jr., Congressional Procedures and the Policy Process (10th ed. 2016).Show More And political science research on legislative behavior typically focuses on the goals that legislators pursue—most notably reelection, but also other goals3 3.The canonical account “conjure[s] up a vision of United States congressmen as single-minded seekers of reelection” and argues that such a vision “fits political reality rather well.” David R. Mayhew, Congress: The Electoral Connection 5, 6 (1974). See also Richard F. Fenno, Jr., Congressmen in Committees 1 (1973) (describing House members’ goals as “re-election, influence within the House, and good public policy”).Show More—in a way that is not directly tied to law.

But legislators, like all of us, act in the shadow of the law.4 4.Cf. Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 Yale L.J. 950 (1979).Show More Legal rules, doctrines, and institutional structures establish the landscape in which legislators act.5 5.This Article uses the term “rules” broadly to include legal rules from sources as diverse as constitutional provisions, statutes, cameral rules, judicial doctrines, and parliamentary precedents.Show More Law determines what courses of action are permitted and forbidden to legislators. It dictates which approaches to representation will be easier and which will be more difficult in practice. A focus on legislators’ goals alone therefore only tells part of the story of legislative behavior. A fuller understanding of legislative representation requires observing how law creates the environment in which legislators pursue their goals. To put the point simply, law shapes representation.

Scholars of the law of democracy know this well. Election law, redistricting law, and campaign finance law matter precisely because law shapes representation. Legislators need to be responsive to their primary constituencies, which can pull them away from advocating for the preferences or interests of their electorate’s median voter.6 6.See infra Subsection II.A.3.Show More Legal rules dictate the size, shape, and demographic composition of districts, which in turn affect the representation that legislators provide.7 7.See infra Subsection II.A.4.Show More Legislators receiving campaign contributions from outside their districts might at times be more responsive to non-constituent donors than to their constituents.8 8.See infra Section II.B.Show More And so forth.

But another, much less examined body of law matters as well: the law governing how legislatures organize themselves, how the legislative process is structured, and how members may or may not behave while in office. The law of democracy literature has not traditionally encompassed these topics.9 9.The leading law of democracy casebook does not cover internal legislative dynamics. See Samuel Issacharoff, Pamela S. Karlan, Richard H. Pildes & Nathaniel Persily, The Law of Democracy: Legal Structure of the Political Process (5th ed. 2016).Show More To better understand legislative decision making, however, the law governing how legislatures operate is necessarily a part of the story. Consider the following examples:

  • A senator wishes to vote contrary to her party’s position on a high-profile issue because the party line runs counter to the preferences and interests of her constituents. The senator votes with her party, however, because party leaders threaten to strip her of a powerful committee chairmanship if she defects.10 10.See infra Section III.C.Show More
  • A House member committed to representing his constituency must vote on a foreign aid bill with no obvious effect on his constituents and about which his constituents do not have a clear preference. He attempts to introduce an amendment to give the bill local relevance, but the amendment is barred as not germane under House rules.11 11.See infra Subsection III.A.1.Show More
  • A senator wishes to achieve a policy outcome favored by her constituents or by a key interest group within her state, but which an overwhelming majority of the Senate opposes. Despite being outnumbered, the senator places a “hold” on legislation that is a priority for her party and refuses to drop the hold until her demands are met.12 12.See infra Subsection III.A.2.Show More
  • A state legislator is trying to decide how to vote on a highly technical bill, which requires economic and scientific expertise in order to be fully understood. The legislator serves in a chamber with little staffing capacity, however, and the only information that he can find about the bill’s likely impacts comes from an industry source with a strong financial interest in the bill.13 13.See infra Subsection III.B.3.Show More As a result, the legislator must cast his vote based on incomplete or biased information.

These examples show that whoever legislators are trying to represent, they do so within a rich institutional context. Some rules, like House germaneness requirements, constrain what rank-and-file legislators may do. Others, like Senate holds, empower legislators. Still others, like rules enabling party leaders to strip committee chairmanships, shape the various pressures legislators face. Even rules which expand or diminish legislative capacity shape responsiveness, though in more subtle ways. In each case, legislative organization helps determine how legislators behave.

This Article examines how law shapes representation. It takes a legislator’s point of view of public law, looking to how law shapes legislators’ choices and incentives. In so doing, it devotes equal time to familiar law of democracy topics and to less familiar issues of legislative organization. It considers a sampling of the many different sorts of legal rules that create the environment in which legislators act. Some of the rules that the Article discusses are formally part of constitutional law, grounded in constitutional text and precedent. Most are part of the small-“c” constitution: the “set of rules and norms and institutions that guide the process of government.”14 14.Richard Primus, Unbundling Constitutionality, 80 U. Chi. L. Rev. 1079, 1127 (2013); see also A.V. Dicey, The Law of the Constitution 20 (J.W.F. Allison ed., 2013) (“[Constitutional law] includes (among other things) all rules which define the members of the sovereign power, all rules which regulate the relation of such members to each other, or which determine the mode in which the sovereign power, or the members thereof, exercise their authority.”).Show More

In taking this approach, this Article makes three principal contributions. It shows how the law of legislative representation is pluralist, pulling legislators in competing directions. It centers the role of legislative organization, arguing that reforms to a legislature’s internal operations can at times serve as alternate means of achieving the same goals sought by proponents of electoral reforms. And it contends that theorists of representation cannot fully understand that concept without attending to the ways in which it is constructed by law.

First, this Article’s analysis shows that both the law of democracy and legislative organization are pluralist about representation. Elements of each area of law pull legislators in competing directions. Rather than pointing legislators toward one type of representation or another, the law enables and encourages legislative responsiveness to each of three groups: constituents, interest groups, and party leaders.15 15.The groups are conceptually distinct, so this Article largely considers them separately. But they can overlap in practice: many constituents are also loyal partisans, many constituents are also active members of interest groups (either centered within or outside of the constituency), and interest groups play a key role in constituting and supporting political parties.Show More These groups each have the ability to reward or punish legislators. Knowing this, legislators have incentives to attend to the preferences and interests of each. On any given issue, understanding why a legislator behaves as they do often requires looking to their constituents, to relevant interest groups, and to party leaders. Pluralist approaches to legislative representation have long existed in political theory; this Article argues that U.S. law likewise takes a pluralist approach to representation.16 16.See infra Section I.C.Show More

This pluralism is not only a theoretical way of understanding representation; it also provides insight on possible reforms. Consider the frequent criticism that Congress and state legislatures are overly responsive to corporate interests or the wealthy.17 17.See infra note 25 and accompanying text.Show More The most obvious way to reduce the power of these interests is to do so directly, hence well-known proposals for campaign finance reform.18 18.See, e.g., Richard L. Hasen, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections (2016); Lawrence Lessig, Republic, Lost: How Money Corrupts Congress—and a Plan to Stop It (2011).Show More This Article’s analysis suggests an additional possible approach: seeking to reduce corporate power indirectly, through better empowering constituents or party leaders. The theory behind this approach is that, because different groups compete for the limited attention of legislators, empowering some groups (such as constituents or party leaders) can reduce the influence of others (here, certain interest groups). The choice between direct and indirect approaches to reducing corporate power will turn on many factors—some legal, some political, some practical. But attending to law’s pluralism can reveal levers of reform that may not be evident at first glance.19 19.See infra Section IV.B.Show More

Second, the Article shows how fully understanding representation requires focusing on internal legislative organization and procedure. Those topics can be just as consequential for American democracy as more familiar constitutional law and law of democracy topics. Moreover, the same analytic tools that have long been applied in the law of democracy context can be applied to analyze how legislative organization and procedure matter for representation. Rules internal to how legislative bodies operate can either strengthen or attenuate legislators’ responsiveness to their constituents, to interest groups, and to party leaders. As such, legislative organization and procedure should be studied alongside the law of democracy.

A key implication of this insight is that changes to legislative organization and procedure can sometimes be a substitute for changes in traditional law of democracy areas. Reformers have long sought to change how representation operates through changes to voting, redistricting, or campaign finance rules. In some cases, similar shifts in responsiveness could be achieved by making changes to legislative organization and procedure instead. To be sure, changes in internal legislative operations are not a perfect substitute for reform to the law of democracy, which is often (and rightly) viewed as required by principles of political equality. But reform to legislative procedure holds significant promise as a vehicle for achieving some of the ends sought by law of democracy reformers.

Consider again the example of corporate power. The most widely known proposals to restrict corporate power involve changes to campaign finance laws. Even if reform to campaign finance law would reduce legislators’ responsiveness to corporate interests, changes in that area of law require the passage of new legislation and would have to withstand judicial review by a Supreme Court that has consistently struck down such regulation.20 20.See infra note 319 and accompanying text.Show More But, even absent campaign finance reform, each chamber of Congress has tools that it could deploy to seek to reduce corporate power. Even modest changes to lobbying regulations, transparency rules, revolving door rules, or congressional capacity could advance some of the goals sought by campaign finance reformers. Such internal changes might reasonably be viewed as second-best solutions, relative to directly reforming campaign finance law. But the difficulty of changing the law in that area warrants allocating more reformist attention to organizational and procedural reforms.21 21.See infra Section IV.B.Show More

Third, this Article argues that a detailed descriptive account of political institutions and legal rules should be part of our normative theorizing about representation. Political theorists have developed rich accounts of legislative representation and legislators’ duties.22 22.See, e.g., Hanna Fenichel Pitkin, The Concept of Representation (1967); Bernard Manin, The Principles of Representative Government (1997); Andrew Sabl, Ruling Passions: Political Offices and Democratic Ethics (2002); Nadia Urbinati, Representative Democracy: Principles and Genealogy (2006); Suzanne Dovi, The Good Representative (2007); Jane Mansbridge, Rethinking Representation, 97 Am. Pol. Sci. Rev. 515 (2003); Andrew Rehfeld, Representation Rethought: On Trustees, Delegates, and Gyroscopes in the Study of Political Representation and Democracy, 103 Am. Pol. Sci. Rev. 214 (2009); Jane Mansbridge, Clarifying the Concept of Representation, 105 Am. Pol. Sci. Rev. 621 (2011); Andrew Rehfeld, The Concepts of Representation, 105 Am. Pol. Sci. Rev. 631 (2011).Show More Legal scholars have likewise considered legislators’ duties, with recent work arguing that legislators have obligations to act in accordance with the Constitution, to promote good governance, to abide by principles of justice, and to advance the national interest.23 23.See, e.g., Paul Brest, The Conscientious Legislator’s Guide to Constitutional Interpretation, 27 Stan. L. Rev. 585 (1975); Vicki C. Jackson, Pro-Constitutional Representation: Comparing the Role Obligations of Judges and Elected Representatives in Constitutional Democracy, 57 Wm. & Mary L. Rev. 1717 (2016); Neil S. Siegel, After the Trump Era: A Constitutional Role Morality for Presidents and Members of Congress, 107 Geo. L.J. 109 (2018).Show More The arguments for the existence and importance of these duties are often persuasive. This Article seeks to supplement existing work by emphasizing the importance of rules in structuring how legislators behave, and thus whether and how they fulfill whatever duties they have. In particular, its focus on constituents, interest groups, and parties trains our attention on the actors who can plausibly induce legislators to fulfill—or violate—their duties. Most generally, this Article seeks to heed political theorists’ calls for greater sensitivity to institutional arrangements as a part of normative theorizing.24 24.See infra notes 321–22 and accompanying text.Show More

My discussion of pluralism should not be taken as an endorsement of how Congress or any other legislature operates in practice. Even if a pluralist account of legislative representation is sound as a matter of theory, and even if the law instantiates that pluralist approach at a high level of generality, the devil is in the details. And there is significant evidence that the practice of representation today is vastly unequal. Political scientists have documented significant capture of the federal and state legislative processes by corporate interests and the wealthy.25 25.There is voluminous literature on the degree and mechanisms of these groups’ influence. See, e.g., Larry M. Bartels, Unequal Democracy: The Political Economy of the New Gilded Age (2016); Martin Gilens, Affluence and Influence: Economic Inequality and Political Power in America (2012); Jacob S. Hacker & Paul Pierson, Winner-Take-All Politics: How Washington Made the Rich Richer—and Turned Its Back on the Middle Class (2010); Alexander Hertel-Fernandez, State Capture: How Conservative Activists, Big Businesses, and Wealthy Donors Reshaped the American States—and the Nation (2019); Kay Lehman Schlozman, Sidney Verba & Henry E. Brady, The Unheavenly Chorus: Unequal Political Voice and the Broken Promise of American Democracy (2012); Benjamin I. Page, Jason Seawright & Matthew J. Lacombe, Billionaires and Stealth Politics (2018).For dissenting views of some of this literature, see. e.g., Peter K. Enns, Relative Policy Support and Coincidental Representation, 13 Persps. on Pol. 1053, 1054 (2015) (“I show theoretically and empirically that even on those issues where the preferences of the wealthy and the median diverge . . . policy can (and does) end up about where we would expect if policymakers followed the economic median and ignored the affluent.”); Jeffrey R. Lax, Justin H. Phillips & Adam Zelizer, The Party or the Purse? Unequal Representation in the U.S. Senate, 113 Am. Pol. Sci. Rev. 917, 917 (2019) (“We find that affluent influence is overstated and itself contingent on partisanship . . . . The poor get what they want more often from Democrats. The rich get what they want more often from Republicans, but only if Republican constituents side with the rich. Thus, partisanship induces, shapes, and constrains affluent influence.”).Show More Congress is beset with other challenges as well, including high levels of partisan polarization,26 26.See, e.g., Sarah Binder, The Dysfunctional Congress, 18 Ann. Rev. Pol. Sci. 85 (2015); Cynthia R. Farina, Congressional Polarization: Terminal Constitutional Dysfunction?, 115 Colum. L. Rev. 1689 (2015).Show More broad public disapproval,27 27.Congress and the Public, Gallup News, https://news.gallup.com/poll/1600/congress-public.aspx [https://perma.cc/C7KV-QRPB] (last visited Jan. 20, 2021) (showing congressional approval ratings not greater than 40%, and frequently less than 20%, over the past fifteen years).Show More and a significant democratic deficit, most notably on account of the apportionment of the Senate and the existence of the filibuster.28 28.See, e.g., Robert A. Dahl, How Democratic Is the American Constitution? 46–54 (2d ed. 2003) (criticizing unequal representation in the Senate); Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It) 52 (2006) (noting that “the Senate can exercise a veto power on majoritarian legislation passed by the House that is deemed too costly to the interests of small states, which are overrepresented in the Senate” (emphasis omitted)); Adam Jentleson, Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy 5 (2021) (arguing that “from its inception to today, the filibuster has mainly served to empower a minority of predominately white conservatives to override our democratic system”); Frances E. Lee & Bruce I. Oppenheimer, Sizing Up the Senate: The Unequal Consequences of Equal Representation 158–222 (1999) (documenting the policy and financial advantages that accrue to small states on account of Senate representation).Show More For these and other reasons, leading observers have decried Congress as the U.S. government’s “broken branch.”29 29.See, e.g., Thomas E. Mann & Norman J. Ornstein, The Broken Branch: How Congress Is Failing America and How to Get It Back on Track (2006).Show More To characterize the law of legislative representation as pluralist is not to defend Congress. To the contrary, one of the virtues of a pluralist picture is that it points toward new avenues for reform.

A brief disclaimer is in order before proceeding. In taking a legislator’s point of view, this Article treats the identity of the legislator as fixed. Holding our hypothetical legislator’s identity constant allows us to better see how manipulating any given legal rule would change the environment in which they operate. This clarity comes at the cost of not engaging with important questions about the role of law in shaping who gets elected in the first instance.30 30.Thus, I do not discuss descriptive representation, the idea legislators should share demographic or other characteristics with their constituents. See, e.g., Pitkin, supra note 22, at 60–91 (situating descriptive representation within a broader taxonomy of representation); Jane Mansbridge, Should Blacks Represent Blacks and Women Represent Women? A Contingent “Yes,” 61 J. Pol. 628 (1999) (describing benefits of descriptive representation for disadvantaged groups). Nor do I engage in the debate among social scientists about the relationship between the number of minority representatives and the substantive representation of minority interests in legislative bodies. Compare, e.g., David Lublin, The Paradox of Representation: Racial Gerrymandering and Minority Interests in Congress (1997) (arguing that, under certain circumstances, creating majority-minority legislative districts makes the House less likely to adopt legislation favored by African Americans), with Ebonya Washington, Do Majority-Black Districts Limit Blacks’ Representation? The Case of the 1990 Redistricting, 55 J.L. & Econ. 251 (2012) (finding no evidence for the view that majority-minority districts decrease substantive minority representation in Congress).Show More Further, a focus on the choices and incentives facing individual legislators leads to relatively little engagement with some vital system-level design features, including the legislative process’s many veto points,31 31.See infra note 214 and accompanying text.Show More possible partisan biases in that process,32 32.See, e.g., Jonathan S. Gould & David E. Pozen, Structural Biases in Structural Constitutional Law, 97 N.Y.U. L. Rev. (forthcoming 2022) (manuscript at 24–29) (on file with author).Show More and unequal representation in the U.S. Senate.33 33.See sources cited supra note 28.Show More Critical as these features are to understanding and evaluating Congress, this Article’s focus is instead on how law constructs the day-to-day choices and incentives facing rank-and-file legislators. Even with these limitations, however, a close look at the legal mechanisms bearing on representation can illuminate why legislators act as they do and how they might be incentivized to act differently.34 34.In addition, space constraints preclude a full treatment of every type of law that shapes representation. The discussion that follows shows how different mechanisms—some from the law of democracy, some from legislative organization—can ratchet up or down different sorts of responsiveness. But this treatment is illustrative rather than exhaustive. Many other legal rules shape responsiveness, sometimes directly (such as rules concerning access to the franchise) and sometimes indirectly (such as rules regulating the media, which in turn shape the information ecosystem in which legislators operate). More fundamentally, representation is also constituted by foundational institutional design choices, such as the choice of a presidential rather than a parliamentary system, which are beyond my scope here.Show More

The remainder of the Article proceeds as follows. Part I makes the case for a pluralist approach to representation. It argues that legislators have normative reasons to be responsive to their constituents, interest groups, and party leaders, and further argues against categorically placing any one duty or group above all others. The next two Parts show how specific legal rules roughly instantiate a pluralist approach to representation by pulling legislators in competing directions. Part II examines the law of democracy. It notes that the reelection incentive encourages legislative responsiveness to constituents, but it also highlights how several areas of law weaken the links between legislators and their constituents and enable interest groups and party leaders to exercise considerable influence. Part III conducts a similar inquiry for internal legislative organization. It shows how legislative organization can either enhance or constrain the ability of legislators to represent their constituents, the degree of interest group power, and the amount of influence that party leaders have over their rank-and-file members. Part IV turns to implications, both for the scholarly literature and for those seeking to reform a contemporary Congress widely perceived to be broken.

  1. * Assistant Professor of Law, University of California, Berkeley. © 2021 Jonathan S. Gould. For helpful conversations and feedback, I am grateful to Jacob Abolafia, Abhay Aneja, Eric Beerbohm, Gregory Elinson, Dan Farber, Rebecca Goldstein, Vicki Jackson, Olatunde Johnson, Jacob Lipton, Jane Mansbridge, Martha Minow, David Pozen, Bertrall Ross, Nicholas Stephanopoulos, Matthew Stephenson, and commenters at Columbia Law School and Harvard’s Edmund J. Safra Center for Ethics. Thanks to Perry Abdulkadir, Derek Ha, Roger Huddle, Molly Lao, Oscar Sarabia Roman, Oliver Rosenbloom, and Daniel Twomey for excellent research assistance. ↑
  2. See U.S. Const. art. I; see also Daniel A. Farber, William N. Eskridge, Jr., Philip P. Frickey & Jane S. Schacter, Cases and Materials on Constitutional Law 865–1078 (6th ed. 2019). ↑
  3. See generally Barbara Sinclair, Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress (5th ed. 2017); Walter J. Oleszek, Mark J. Oleszek, Elizabeth Rybicki & Bill Heniff, Jr., Congressional Procedures and the Policy Process (10th ed. 2016). ↑
  4. The canonical account “conjure[s] up a vision of United States congressmen as single-minded seekers of reelection” and argues that such a vision “fits political reality rather well.” David R. Mayhew, Congress: The Electoral Connection 5, 6 (1974). See also Richard F. Fenno, Jr., Congressmen in Committees 1 (1973) (describing House members’ goals as “re-election, influence within the House, and good public policy”). ↑
  5. Cf. Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 Yale L.J. 950 (1979). ↑
  6. This Article uses the term “rules” broadly to include legal rules from sources as diverse as constitutional provisions, statutes, cameral rules, judicial doctrines, and parliamentary precedents. ↑
  7. See infra Subsection II.A.3. ↑
  8. See infra Subsection II.A.4. ↑
  9. See infra Section II.B. ↑
  10. The leading law of democracy casebook does not cover internal legislative dynamics. See Samuel Issacharoff, Pamela S. Karlan, Richard H. Pildes & Nathaniel Persily, The Law of Democracy: Legal Structure of the Political Process (5th ed. 2016). ↑
  11. See infra Section III.C. ↑
  12. See infra Subsection III.A.1. ↑
  13. See infra Subsection III.A.2. ↑
  14. See infra Subsection III.B.3. ↑
  15. Richard Primus, Unbundling Constitutionality, 80 U. Chi. L. Rev. 1079, 1127 (2013); see also A.V. Dicey, The Law of the Constitution 20 (J.W.F. Allison ed., 2013) (“[Constitutional law] includes (among other things) all rules which define the members of the sovereign power, all rules which regulate the relation of such members to each other, or which determine the mode in which the sovereign power, or the members thereof, exercise their authority.”). ↑
  16. The groups are conceptually distinct, so this Article largely considers them separately. But they can overlap in practice: many constituents are also loyal partisans, many constituents are also active members of interest groups (either centered within or outside of the constituency), and interest groups play a key role in constituting and supporting political parties. ↑
  17. See infra Section I.C. ↑
  18. See infra note 25 and accompanying text. ↑
  19. See, e.g., Richard L. Hasen, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections (2016); Lawrence Lessig, Republic, Lost: How Money Corrupts Congress—and a Plan to Stop It (2011). ↑
  20. See infra Section IV.B. ↑
  21. See infra note 319 and accompanying text. ↑
  22. See infra Section IV.B. ↑
  23. See, e.g., Hanna Fenichel Pitkin, The Concept of Representation (1967); Bernard Manin, The Principles of Representative Government (1997); Andrew Sabl, Ruling Passions: Political Offices and Democratic Ethics (2002); Nadia Urbinati, Representative Democracy: Principles and Genealogy (2006); Suzanne Dovi, The Good Representative (2007); Jane Mansbridge, Rethinking Representation, 97 Am. Pol. Sci. Rev. 515 (2003); Andrew Rehfeld, Representation Rethought: On Trustees, Delegates, and Gyroscopes in the Study of Political Representation and Democracy, 103 Am. Pol. Sci. Rev. 214 (2009); Jane Mansbridge, Clarifying the Concept of Representation, 105 Am. Pol. Sci. Rev. 621 (2011); Andrew Rehfeld, The Concepts of Representation, 105 Am. Pol. Sci. Rev. 631 (2011). ↑
  24. See, e.g., Paul Brest, The Conscientious Legislator’s Guide to Constitutional Interpretation, 27 Stan. L. Rev. 585 (1975); Vicki C. Jackson, Pro-Constitutional Representation: Comparing the Role Obligations of Judges and Elected Representatives in Constitutional Democracy, 57 Wm. & Mary L. Rev. 1717 (2016); Neil S. Siegel, After the Trump Era: A Constitutional Role Morality for Presidents and Members of Congress, 107 Geo. L.J. 109 (2018). ↑
  25. See infra notes 321–22 and accompanying text. ↑
  26. There is voluminous literature on the degree and mechanisms of these groups’ influence. See, e.g., Larry M. Bartels, Unequal Democracy: The Political Economy of the New Gilded Age (2016); Martin Gilens, Affluence and Influence: Economic Inequality and Political Power in America (2012); Jacob S. Hacker & Paul Pierson, Winner-Take-All Politics: How Washington Made the Rich Richer—and Turned Its Back on the Middle Class (2010); Alexander Hertel-Fernandez, State Capture: How Conservative Activists, Big Businesses, and Wealthy Donors Reshaped the American States—and the Nation (2019); Kay Lehman Schlozman, Sidney Verba & Henry E. Brady, The Unheavenly Chorus: Unequal Political Voice and the Broken Promise of American Democracy (2012); Benjamin I. Page, Jason Seawright & Matthew J. Lacombe, Billionaires and Stealth Politics (2018).

    For dissenting views of some of this literature, see. e.g., Peter K. Enns, Relative Policy Support and Coincidental Representation, 13 Persps. on Pol. 1053, 1054 (2015) (“I show theoretically and empirically that even on those issues where the preferences of the wealthy and the median diverge . . . policy can (and does) end up about where we would expect if policymakers followed the economic median and ignored the affluent.”); Jeffrey R. Lax, Justin H. Phillips & Adam Zelizer, The Party or the Purse? Unequal Representation in the U.S. Senate, 113 Am. Pol. Sci. Rev. 917, 917 (2019) (“We find that affluent influence is overstated and itself contingent on partisanship . . . . The poor get what they want more often from Democrats. The rich get what they want more often from Republicans, but only if Republican constituents side with the rich. Thus, partisanship induces, shapes, and constrains affluent influence.”). ↑

  27. See, e.g., Sarah Binder, The Dysfunctional Congress, 18 Ann. Rev. Pol. Sci. 85 (2015); Cynthia R. Farina, Congressional Polarization: Terminal Constitutional Dysfunction?, 115 Colum. L. Rev. 1689 (2015). ↑
  28. Congress and the Public, Gallup News, https://news.gallup.com/poll/1600/congress-public.aspx [https://perma.cc/C7KV-QRPB] (last visited Jan. 20, 2021) (showing congressional approval ratings not greater than 40%, and frequently less than 20%, over the past fifteen years). ↑
  29. See, e.g., Robert A. Dahl, How Democratic Is the American Constitution? 46–54 (2d ed. 2003) (criticizing unequal representation in the Senate); Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It) 52 (2006) (noting that “the Senate can exercise a veto power on majoritarian legislation passed by the House that is deemed too costly to the interests of small states, which are overrepresented in the Senate” (emphasis omitted)); Adam Jentleson, Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy 5 (2021) (arguing that “from its inception to today, the filibuster has mainly served to empower a minority of predominately white conservatives to override our democratic system”); Frances E. Lee & Bruce I. Oppenheimer, Sizing Up the Senate: The Unequal Consequences of Equal Representation 158–222 (1999) (documenting the policy and financial advantages that accrue to small states on account of Senate representation). ↑
  30. See, e.g., Thomas E. Mann & Norman J. Ornstein, The Broken Branch: How Congress Is Failing America and How to Get It Back on Track (2006). ↑
  31. Thus, I do not discuss descriptive representation, the idea legislators should share demographic or other characteristics with their constituents. See, e.g., Pitkin, supra note 22, at 60–91 (situating descriptive representation within a broader taxonomy of representation); Jane Mansbridge, Should Blacks Represent Blacks and Women Represent Women? A Contingent “Yes,” 61 J. Pol. 628 (1999) (describing benefits of descriptive representation for disadvantaged groups). Nor do I engage in the debate among social scientists about the relationship between the number of minority representatives and the substantive representation of minority interests in legislative bodies. Compare, e.g., David Lublin, The Paradox of Representation: Racial Gerrymandering and Minority Interests in Congress (1997) (arguing that, under certain circumstances, creating majority-minority legislative districts makes the House less likely to adopt legislation favored by African Americans), with Ebonya Washington, Do Majority-Black Districts Limit Blacks’ Representation? The Case of the 1990 Redistricting, 55 J.L. & Econ. 251 (2012) (finding no evidence for the view that majority-minority districts decrease substantive minority representation in Congress). ↑
  32. See infra note 214 and accompanying text. ↑
  33. See, e.g., Jonathan S. Gould & David E. Pozen, Structural Biases in Structural Constitutional Law, 97 N.Y.U. L. Rev. (forthcoming 2022) (manuscript at 24–29) (on file with author). ↑
  34. See sources cited supra note 28. ↑
  35. In addition, space constraints preclude a full treatment of every type of law that shapes representation. The discussion that follows shows how different mechanisms—some from the law of democracy, some from legislative organization—can ratchet up or down different sorts of responsiveness. But this treatment is illustrative rather than exhaustive. Many other legal rules shape responsiveness, sometimes directly (such as rules concerning access to the franchise) and sometimes indirectly (such as rules regulating the media, which in turn shape the information ecosystem in which legislators operate). More fundamentally, representation is also constituted by foundational institutional design choices, such as the choice of a presidential rather than a parliamentary system, which are beyond my scope here. ↑
  36. See, e.g., Philip Pettit, Representation, Responsive and Indicative, 17 Constellations 426, 426 (2010) (“[T]heorists have focused mainly on the responsive variety of representation.”); Pitkin, supra note 22, at 209–10 (defining political representation as “acting in the interest of the represented, in a manner responsive to them,” but recognizing conditions under which representatives may follow the interests, rather than preferences, of the represented); see also Heinz Eulau & Paul D. Karps, The Puzzle of Representation: Specifying Components of Responsiveness, 2 Legis. Stud. Q. 233, 233 (1977) (defining representation in terms of responsiveness). ↑
  37. This Article uses the term “constituents” in its conventional sense of residents of the geographic area (district or state) that elects a legislator. Some have used the term more broadly. See, e.g., Amy Gutmann & Dennis Thompson, Democracy and Disagreement 147 (1996) (distinguishing “electoral” and “moral” constituents). ↑
  38. 107 Cong. Rec. 15,292 (2001) (statement of Sen. Patty Murray (D-WA)). ↑
  39. 113 Cong. Rec. 359 (2014) (statement of Sen. Johnny Isakson (R-GA)). ↑
  40. 113 Cong. Rec. 15,620 (2013) (statement of Rep. Ronald Barber (D-AZ)). ↑
  41. 112 Cong. Rec. 15,360 (2011) (statement of Sen. Mary Landrieu (D-LA)). But see Scott Shafer, Showhorses vs. Workhorses: What Makes an Effective US Senator?, S. Cal. Pub. Radio (Oct. 5, 2016), https://scpr.org/news/2016/10/05/65366/showhorses-vs-workhorses-what-makes-an-effective-u/ [https://perma.cc/NR7M-UE6M] (quoting the view of Sen. Patrick Leahy (D-VT) that senators should “[w]ork first for the country”). ↑
  42. Many relationships that legislators have, such as their relationships with interest groups, are informal in character. Nonelectoral mechanisms for the citizenry to engage with legislators do not create formal links between a single legislator and a discrete group of people. Under the once-common practice of formally petitioning Congress, for example, petitions were directed to Congress as a whole, not to specific legislators. See Maggie McKinley, Lobbying and the Petition Clause, 68 Stan. L. Rev. 1131, 1136 (2016) (describing petitioning as having “more closely resembled the formal process afforded in courts” than contemporary lobbying).

    Normative arguments based on the relationship between a legislator and voters in that legislator’s constituency cannot explain why the legislator owes duties to non-voter constituents such as children, noncitizens, disenfranchised persons, or those who have voluntarily not registered to vote. But it is widely accepted in the United States that legislators should represent all constituents: “As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote.” See Evenwel v. Abbott, 136 S. Ct. 1120, 1132 (2016). ↑

  43. Exceptions include the few localized issues that garner national attention, but even in those instances legislators representing the affected area typically take the lead. See, e.g., Todd Spangler, Congress Approves at Least $120M for Flint Water Fix, Detroit Free Press (Dec. 10, 2016), https://www.freep.com/story/news/local/michigan/flint-water-crisis/2016/12/10/‌congress-flint-water-funding/95243816/ [https://perma.cc/CB45-E39T]. ↑
  44. See Stephen Ansolabehere, William Leblanc & James M. Snyder Jr., When Parties Are Not Teams: Party Positions in Single-Member District and Proportional Representation Systems, 49 Econ. Theory 521, 535 (2012) (“In the list system, the parties offer a list of candidates running under their label, and the entire national electorate votes for one of the two parties. Parties win shares of seats equal to their shares of the vote. The number of seats won by the party equals the number of seats times the share of seats it deserves.”). ↑
  45. See 2 U.S.C. § 2(c) (requiring single-member districts in the U.S. House); Am. Acad. Arts & Scis., Our Common Purpose: Reinventing American Democracy for the 21st Century 26, 71 (2020), https://amacad.org/sites/default/files/publication/downloads/2020-Democratic-Citizenship_‌Our-Common-Purpose_0.pdf [https://perma.cc/9PFR-3EAP] (noting that only ten states, nearly all of them sparsely populated, use multimember districts to elect state legislators). ↑
  46. See, e.g., John Stuart Mill, Considerations on Representative Government, in On Liberty and Other Essays 303 (John Gray ed., Oxford Univ. Press 1991) (1859) (arguing that without proportional representation, there is necessarily “not equal government, but a government of inequality and privilege”). For an extended analysis of the inequality created by single-member districts, consider Jonathan Rodden’s findings that across western democracies, single-member districts have a consistent and significant pro-rural (and anti-urban) bias. See generally Jonathan Rodden, Why Cities Lose: The Deep Roots of the Urban-Rural Political Divide (2019). ↑
  47. See Robert Richie & Steven Hill, The Case for Proportional Representation, Bos. Rev. (Mar. 1, 1998), http://bostonreview.net/politics/robert-richie-steven-hill-case-proportional-representation [https://perma.cc/9DRG-EKLR]; see also Issacharoff et al., supra note 9, at 609–980 (materials on U.S. jurisprudence illustrating the challenges of fairly achieving minority representation in a system of single-member districts). ↑
  48. Wasted votes have been defined as votes for a losing candidate or votes for a winning candidate in excess of what is needed to prevail. See Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831, 834 (2015). For a critical perspective on the normative case for proportional representation, see Charles R. Beitz, Political Equality: An Essay in Democratic Theory 123–40 (1989). ↑
  49. Single-member districts have at least one non-geographic benefit as well: they provide an avenue for voters to assess the quality of candidates rather than leaving that work to party leaders. ↑
  50. Cf. Karen Orren & Stephen Skowronek, The Policy State: An American Predicament 6 (1st ed. 2017) (“[W]e argue that policy has expanded its role in American government and society by eroding the boundaries and dissolving the distinctions that once constrained policy’s reach.”). ↑
  51. Mansbridge, Rethinking Representation, supra note 22, at 523 (“Legislators deeply allied with a particular ideological perspective often feel a responsibility to nondistrict constituents from that perspective or group,” especially when “the surrogate representative shares experiences with surrogate constituents in a way that a majority of the legislature does not.”); see also Orren & Skowronek, supra note 49, at 6. ↑
  52. See About the CBC, Congressional Black Caucus, https://cbc.house.gov/about/ [https://perma.cc/J8Q3-AV74] (last visited Jan. 18, 2021). ↑
  53. See Mansbridge, Rethinking Representation, supra note 22, at 523. ↑
  54. Judicial review is often seen as the default means of serving such groups, see, e.g., United States v. Carolene Prods. Co., 304 U.S. 144, 152–53 n.4 (1938); see also John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 135–180 (1980). But mechanisms promoting legislative responsiveness to interest groups can accomplish similar results. See, e.g., Daryl J. Levinson, Rights and Votes, 121 Yale L.J. 1286, 1292 (2012) (arguing that legal rules can “allocate decisionmaking power or structure decisionmaking processes in such a way as to stack the deck in favor of desirable outcomes or against undesirable ones”). ↑
  55. See Alexis de Tocqueville, Democracy in America 180–86 (Harvey C. Mansfield & Delba Winthrop eds. & trans., Univ. of Chi. Press 2000) (1835). ↑
  56. See generally, e.g., Robert A. Dahl, Who Governs?: Democracy and Power in an American City (1961); Robert A. Dahl, Pluralist Democracy in the United States: Conflict and Consent (1967). ↑
  57. Robert A. Dahl, Dilemmas of Pluralist Democracy: Autonomy vs. Control 1 (1982). Dahl does warn that interest groups at times use their power “to foster the narrow egoism of their members at the expense of concerns for a broader public good.” Id. ↑
  58. See supra note 25 (citing sources). ↑
  59. See John G. Bullock, Elite Influence on Public Opinion in an Informed Electorate, 105 Am. Pol. Sci. Rev. 496, 497–98 (2011) (reviewing literature on voters’ use of “party cues”). ↑
  60. This account of party loyalty would not require adherence to every party position, but it would require general fidelity to the party’s core priorities or, put in negative terms, that legislators not switch parties between elections or otherwise actively impede their party’s agenda. ↑
  61. E.E. Schattschneider, Party Government 1 (1942); see also Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311, 2385 (2006) (“From nearly the start of the American republic . . . [t]he enduring institutional form of democratic political competition has turned out to be not branches but political parties.”). ↑
  62. Further, many of the most important interest groups in American politics derive their power from serving as key parts of one or the other party’s coalition. ↑
  63. See, e.g., Edmund Burke, Speech to the Electors of Bristol, on His Being Declared by the Sheriffs Duly Elected One of the Representatives in Parliament for that City (1774), reprinted in 2 The Works of the Right Honourable Edmund Burke 96 (John C. Nimmo ed., 1887) (“Parliament is not a congress of ambassadors from different and hostile interests . . . Parliament is a deliberative assembly of one nation, with one interest, that of the whole—where not local purposes, not local prejudices, ought to guide, but the general good, resulting from the general reason of the whole. You choose a member, indeed; but when you have chosen him, he is not a member of Bristol, but he is a member of Parliament.”); see also Documents Relating to New-England Federalism, 1800–1815 at 195 (Henry Adams ed., 1877) (“The Senate of the United States is a branch of the legislature; and each Senator is a representative, not of a single State, but of the whole Union. His vote is not the vote of his State, but his own individually; and his constituents have not even the power of recalling him, nor of controlling his constitutional action by their instructions.” (quoting John Adams)); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 837–38 (1995) (“Members of Congress are chosen by separate constituencies . . . they become, when elected, servants of the people of the United States. They are not merely delegates appointed by separate, sovereign States; they occupy offices that are integral and essential components of a single National Government.”). ↑
  64. See, e.g., Gary W. Cox & Mathew D. McCubbins, Setting the Agenda: Responsible Party Government in the U.S. House of Representatives 218 (2005) (“When a party successfully influences one of its members’ votes this typically means that the member will cast a vote at odds with her constituents’ opinions.”); Jamie L. Carson, Gregory Koger, Matthew J. Lebo & Everett Young, The Electoral Costs of Party Loyalty in Congress, 54 Am. J. Pol. Sci. 598, 601 (2010) (“If [legislators] vote with the party on controversial or highly salient issues, they risk alienating their political base in the next election. But, if they repeatedly vote in line with their district and against the party, then they may lose favor with the party leadership and risk sanctions.” (internal citation omitted)). ↑
  65. See Carson et al., supra note 63, at 601; see also id. at 598 (discussing findings suggesting that party loyalty on divisive votes can be a political liability for incumbent House members). In addition to party leaders and general election electorates, legislators must also be mindful of their primary electorates, which are often more extreme than either party leaders or their constituencies as a whole. See infra Subsections II.A.3, II.C.2. ↑
  66. Senator John McCain’s (R-AZ) vote against repealing the Affordable Care Act in 2017 is illustrative. Repeal was a top policy priority of Republican Party leaders in both the legislative and executive branches, but it would have cost Arizona’s Medicaid program $7.1 billion over nine years. This was front of mind for McCain, who crassly stated his fear that “Arizona was about to get screwed” by repeal. Paige Winfield Cunningham, The Health 202: Here’s Why John McCain Voted ‘No’ on Health Care, Wash. Post (Aug. 4, 2017), https://www.washingtonpost.com/news/powerpost/paloma/the-health-202/2017/08/04/the-health-202-here-s-why-john-mccain-voted-no-on-health-care/59837b3d30fb045fdaef10f6 [https://perma.cc/5M9M-F4RU]. ↑
  67. The relationship between responsiveness to parties and interest groups is more complex, given some political scientists’ views of the parties themselves as merely collections of interest groups. See, e.g., Kathleen Bawn et. al., A Theory of Political Parties: Groups, Policy Demands and Nominations in American Politics, 10 Persps. on Pol. 571, 571 (2012) (“We propose a theory of political parties in which interest groups and activists are the key actors, and coalitions of groups develop common agendas and screen candidates for party nominations based on loyalty to their agendas. This theoretical stance contrasts with currently dominant theories, which view parties as controlled by election-minded politicians.”). Regardless of the ultimate foundation of the political parties, however, this Article’s discussion of legislative responsiveness to parties focuses on responsiveness to party leaders, rather than the interest groups that help make up the parties. ↑
  68. Dennis F. Thompson, Political Ethics and Public Office 99 (1987); see also Amy Gutmann & Dennis Thompson, The Theory of Legislative Ethics, in Representation and Responsibility: Exploring Legislative Ethics 171 (Bruce Jennings & Daniel Callahan eds., 1985) (“Even if we were able to spell out all the possible roles a legislator might legitimately adopt, we would not yet have a theory of representation, because we would not have indicated which role a representative ought to adopt. Such a theory, however, is probably not possible in [the] face of the manifold conditions that affect the choice of roles. General principles instructing legislators on which role to adopt usually prove inadequate.”). These ideas have a long lineage in both democratic theory, see, e.g., Mill, supra note 45, at 373–83 (arguing against legislative instruction), and in political science, see, e.g., Warren E. Miller & Donald E. Stokes, Constituency Influence in Congress, 57 Am. Pol. Sci. Rev. 45, 56 (1963) (arguing that “no single tradition of representation fully accords with the realities of American legislative politics” and describing instead “a mixture, to which the Burkean, instructed-delegate, and responsible-party models all can be said to have contributed elements”). ↑
  69. More formally, under a pluralist approach to legislative representation, the concept implicates multiple values that are not reducible either to each other or to any single supervalue. Cf. Elinor Mason, Value Pluralism, in Stanford Encyclopedia of Philosophy (Edward N. Zalta ed., 2018), https://plato.stanford.edu/entries/value-pluralism/ [https://perma.cc/7YNG-J3NX]. This understanding of pluralism, drawn from moral philosophy, is distinct from the term’s use by political scientists to describe the work of Robert Dahl and his followers. See supra notes 55–56 and accompanying text. ↑
  70. See, e.g., Burke, supra note 62, at 96; Mill, supra note 45, at 354; Pitkin, supra note 22, at 146, 209. ↑
  71. See Mansbridge, Clarifying the Concept of Representation, supra note 22, at 624–28; Rehfeld, Representation Rethought, supra note 22, at 221–25. ↑
  72. On these and other modalities of interpretation, see Philip Bobbitt, Constitutional Fate: Theory of the Constitution 3–119 (1982); Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 Harv. L. Rev. 1189, 1192–1209 (1987). ↑
  73. See, e.g., Ethan J. Leib, The Perpetual Anxiety of Living Constitutionalism, 24 Const. Comment. 353, 358 n.15 (2007) (noting “the relative weight originalists give certain modalities as compared to the living constitutionalists”). ↑
  74. See, e.g., Philip Bobbitt, Constitutional Interpretation 155–62 (1991) (arguing that when multiple modalities are in tension the conscience of the judge should control, rather than a fixed hierarchy of modalities); Fallon, supra note 71, at 1243–46 (setting out a hierarchy of modalities, but characterizing the hierarchy as tentative and noting that it will not definitively resolve all cases). ↑
  75. Arguments based on partisan advantage, religious dogma, or crude cost-benefit analysis are widely regarded as out of bounds. See Bobbitt, supra note 71, at 6; David E. Pozen & Adam M. Samaha, Anti-Modalities, 119 Mich. L. Rev. 729, 746–68 (2021). ↑
  76. See 1 Annals of Cong. 761–73 (1789) (deliberations in House of Representatives over inclusion of a right to instruct in a draft of the First Amendment); see also Cook v. Gralike, 531 U.S. 510, 521 (2001) (“[T]he First Congress rejected a proposal to insert a right of the people ‘to instruct their representatives’ into what would become the First Amendment.” (internal citation omitted)). ↑
  77. Gordon S. Wood, The Creation of the American Republic: 1776–1787, at 189 (1969). ↑
  78. See, e.g., Richard A. Primus, The American Language of Rights 96 (1999) (describing “the strength of support for a right to instruct during the Founding” and noting that “the idea was often popular, codified into more than one state constitution, and required serious debate in Congress”). ↑
  79. This is not to say that politics would have been excised from legislative representation. To the contrary, constituents, interest groups, and parties would have clashed in the process of writing instructions. But a right to instruct would have made representation simpler for the legislator, who would have merely been tasked with following the instructions that they were given. ↑
  80. See, e.g., G.C. Malhotra, Anti-Defection Law in India and the Commonwealth (2005); Csaba Nikolenyi, The Adoption of Anti-Defection Laws in Parliamentary Democracies, 15 Election L.J. 96 (2016); Csaba Nikolenyi & Shaul R. Shenhav, The Constitutionalisation of Party Unity: The Origins of Anti-Defection Laws in India and Israel, 21 J. Legis. Stud. 390 (2015); Kenneth Janda, Laws Against Party Switching, Defecting, or Floor Crossing in National Parliaments (Legis. Reg. of Pol. Parties, Working Paper No. 2, 2009), http://www.partylaw.leidenuniv.nl/uploads/wp0209.pdf [https://perma.cc/K8D3-582G]. ↑
  81. This Article focuses only on legislators’ lawmaking activities and brackets the many non-legislative activities that they regularly engage in. See, e.g., Mayhew, supra note 3, at 49–73 (discussing ways in which legislators seek to improve their public reputations); Joshua Bone, Stop Ignoring Pork and Potholes: Election Law and Constituent Service, 123 Yale L.J. 1406 (2014) (discussing provision of constituent services). ↑
  82. This is a claim about the incentives that law creates. As a general matter, while law shapes incentives, it does not determine legislators’ normative duties or alter whatever background duties they have. But legislators do have a general “fundamental natural duty . . . to support and to comply with just institutions,” John Rawls, A Theory of Justice 115 (1971), and the requirements imposed by that duty will differ depending on the content of legislative organization and procedure. Moreover, law might affect how legislators perceive their normative duties, even when it does not affect the content of those duties. Cf. Bert I. Huang, Law and Moral Dilemmas, 130 Harv. L. Rev. 659, 688–95 (2016) (reviewing The Trolley Problem Mysteries (2015)) (showing that liability rules influence experimental subjects’ intuitions about moral duties). ↑
  83. See, e.g., Nicholas O. Stephanopoulos, Aligning Campaign Finance Law, 101 Va. L. Rev. 1425, 1428 (2015) (arguing that campaign finance bears on the “interest [in] the promotion of alignment between voters’ policy preferences and their government’s policy”); Deborah Hellman, Defining Corruption and Constitutionalizing Democracy, 111 Mich. L. Rev. 1385, 1391 (2013) (arguing that law of democracy doctrines “impl[y] a commitment to a particular, contested theory of representation”); Bruce E. Cain, Moralism and Realism in Campaign Finance Reform, 1995 U. Chi. Legal F. 111, 134 (noting an “emerging consensus that current practices in campaign finance are undermining the one person, one vote logic of representation in the single-member voting system”). ↑
  84. See supra note 44 and accompanying text. Intuitive as single-member districts are in the United States, democratic representation does not require geographic districting. See, e.g., Basic Law: the Knesset § 4, translated in Israel’s Written Constitution 27 (5th ed. 2006) (providing that Israel’s parliament be elected in a nationwide, proportional election). Nor, in earlier periods, did all view representation as requiring elections at all. See, e.g., Quentin Skinner, Hobbes on Representation, 13 Eur. J. Phil. 155, 175 (2005) (discussing Thomas Hobbes’s account of a king representing the people); Alexander A. Guerrero, Against Elections: The Lottocratic Alternative, 42 Phil. & Pub. Affs. 135, 154–55 (2014) (noting the selection of public officials by lottery in ancient Athens and in late-medieval and early-renaissance Italy). ↑
  85. Frances E. Lee, Geographic Representation and the U.S. Congress, 67 Md. L. Rev. 51, 53 (2007). While most Americans take geographic constituencies for granted, Lee contrasts U.S. House elections with elections in nearly all other democracies, which have “implicitly acknowledged that political parties are more important as expressions of voters’ values and interests than their local concerns, and hence have adopted some form of [proportional representation].” Id. ↑
  86. See Mayhew, supra note 3, at 16–17 (“Reelection underlies everything else, as indeed it should if we are to expect that the relation between politicians and the public will be one of accountability.”). ↑
  87. Most activities other than voting (such as lobbying or making campaign contributions) are not limited to constituents alone. See supra Section II.B, Subsections III.B.1–2. But at least one other area of law likewise treats the legislator-constituent relationship as distinct: the franking privilege allows members of Congress to send postage-free mailings to constituents but not to non-constituents. 39 U.S.C. § 3210(a)(7) (2018); see also Benjamin Ginsberg & Kathryn Wagner Hill, Congress: The First Branch 83 (2019) (discussing franking). ↑
  88. See, e.g., Stephen Ansolabehere & Shiro Kuriwaki, Congressional Representation: Accountability from the Constituent’s Perspective, Am. J. Pol. Sci. (forthcoming) (manuscript at 29–30), https://osf.io/preprints/socarxiv/zuskq [https://perma.cc/SN5U-M79X] (arguing that “constituents hold their representatives accountable for their votes on key legislative decisions,” and providing evidence showing that “voters can punish representatives with whom they disagree on legislative decisions, even if the representative is a copartisan”). Evidence also suggests that legislators want to be responsive to constituent opinions, at least in some circumstances. See, e.g., Daniel M. Butler & David W. Nickerson, Can Learning Constituency Opinion Affect How Legislators Vote? Results from a Field Experiment, 6 Q.J. Pol. Sci. 55 (2011) (providing a randomly selected group of state legislators with public opinion data from their constituents and finding that legislators who received the public opinion data were considerably more likely to vote in line with constituent opinion than those who did not). ↑
  89. See Eulau & Karps, supra note 35, at 235 (“[R]epresentatives are influenced in their conduct by many forces or pressures or linkages other than those arising out of the electoral connection and . . . restricting the study of representation to the electoral connection produces a very limited vision of the representational process.”). ↑
  90. See Benjamin G. Bishin, Tyranny of the Minority: The Subconstituency Politics Theory of Representation 10 (2009) (developing a theory of “subconstituency” representation, defined as occurring “when politicians advocate the preferences of groups of intense citizens over those of the majority in a district”). ↑
  91. Mechanisms that loosen constituent control reduce only the likelihood of a delegate approach to representation; one might still think that room remains for legislators to act as trustees. Cf. supra notes 69–70 and accompanying text (discussing the delegate-trustee distinction). But legislators who are not incentivized to act as delegates for the preferences of their constituents are not likely to turn to trustee-style representation. Instead, they are likely to opt for responsiveness to groups other than their constituents, such as interest groups from outside their districts or their political parties. See infra notes 116–17 and accompanying text (elaborating on this dynamic).

    Design choices that weaken responsiveness to constituents are not necessarily unjustified, as there are often other reasons to support such designs. Longer terms, for example, allow legislators to accumulate expertise and incentivize legislators to invest energy in the policymaking process. See, e.g., The Federalist No. 64, at 392 (John Jay) (“The duration [of Senate terms] prescribed is such as will give them an opportunity of greatly extending their political informations, and of rendering their accumulating experience more and more beneficial to their country.”); Rocío Titiunik, Drawing Your Senator From a Jar: Term Length and Legislative Behavior, 4 Pol. Sci. Res. & Methods 293, 293 (2016) (using random assignment of term length in three state senates to show that senators serving shorter terms abstain more often and introduce fewer bills than those serving longer terms). Similar arguments could be made in support of other mechanisms that temper electoral accountability to constituents. ↑

  92. U.S. Const. art. I, § 2, cl. 1 (House terms of two years); id. art. I, § 3, cl. 1 (Senate terms of six years); see Nat’l Conf. of State Legislatures, Number of Legislators and Length of Terms in Years (Aug. 9, 2019), https://www.ncsl.org/research/about-state-legislatures/‌number-of-legislators-and-length-of-terms.aspx [https://perma.cc/T4FQ-QQ4G] (state legislative terms of two or four years). ↑
  93. Institutional designers also use term length to shape the extent of accountability in non-legislative contexts. See, e.g., U.S. Const. art. III, § 1 (life tenure during good behavior for federal judges); 28 U.S.C. § 532 note (ten-year term for FBI directors), 12 U.S.C. § 241 (fourteen-year terms for members of the Federal Reserve Board of Governors). ↑
  94. See Recall of State Officials, Nat’l Conf. of State Legislatures (July 8, 2019), https://www.ncsl.org/research/elections-and-campaigns/recall-of-state-officials.aspx [https://perma.cc/C68U-KZNG]. ↑
  95. See, e.g., Mont. Code Ann. § 2-16-603 (2019) (requiring, for recall, “[p]hysical or mental lack of fitness, incompetence, violation of the oath of office, official misconduct, or conviction of [certain enumerated] felony offense[s]”); R.I. Const. art. IV, § 1 (requiring, for recall, a “general officer who has been indicted or informed against for a felony, convicted of a misdemeanor, or against whom a finding of probable cause of violation of the code of ethics has been made by the ethics commission”). ↑
  96. Heather Asiyanbi, Review: Road to Recall for State Sen. Van Wanggaard, Patch (Jan 16, 2012, 2:04 AM), https://patch.com/wisconsin/mountpleasant/review-road-to-recall-for-state-sen-van-wanggaard [https://perma.cc/XK8J-QD3E]. ↑
  97. Lynn Bartels, Kurtis Lee & Joey Bunch, Colorado Senate President John Morse, State Sen. Angela Giron Ousted, Denver Post (Apr. 28, 2016, 9:44 AM), https://www.denverpost.com/2013/09/10/colorado-senate-president-john-morse-state-sen-angela-giron-ousted/ [https://perma.cc/EH66-5DHF]. ↑
  98. The Term-Limited States, Nat’l Conf. of State Legislatures (Nov. 12, 2020), https://www.ncsl.org/research/about-state-legislatures/chart-of-term-limits-states.aspx [https://perma.cc/76KV-7HE3]. ↑
  99. See Alan Greenblatt, Term Limits Could Hurt Republicans in 2018, Governing (Aug. 16, 2017), https://www.governing.com/archive/gov-term-limits-state-legislative-republicans-2018. html [https://perma.cc/94AY-M5YB]. ↑
  100. See, e.g., Institutional Change in American Politics: The Case of Term Limits (Karl T. Kurtz, Bruce Cain & Richard G. Niemi eds., 2007); John M. Carey, Richard G. Niemi & Lynda W. Powell, Term Limits in State Legislatures (2000). ↑
  101. See Carey et al., supra note 99, at 41–64 (providing evidence of term limits’ effects on legislative behavior). ↑
  102. See, e.g., Justin Grimmer, Appropriators Not Position Takers: The Distorting Effects of Electoral Incentives on Congressional Representation, 57 Am. J. Pol. Sci. 624 (2013) (showing that senators in safer seats more frequently take positions on national issues than senators from more competitive seats). ↑
  103. Legislators from seats that are safe in the general election may nonetheless face competition in party primaries. See infra Subsection II.A.3. ↑
  104. Bush v. Vera, 517 U.S. 952, 964 (1996) (citing cases). ↑
  105. Samuel Issacharoff, Gerrymandering and Political Cartels, 116 Harv. L. Rev. 593, 597 (2002). ↑
  106. See, e.g., Samuel Issacharoff & Richard H. Pildes, Politics as Markets: Partisan Lockups of the Democratic Process, 50 Stan. L. Rev. 643, 644 (1998) (“This article explores the ways in which dominant parties manage to lock up political institutions to forestall competition, with a principal focus on the failure of the institution best positioned to destabilize these lockups, the United States Supreme Court, to develop a theoretical framework that would enable effective judicial performance of this role.”). ↑
  107. See Issacharoff, supra note 104, at 615 (describing competition as “critical to the ability of voters to ensure the responsiveness of elected officials to the voters’ interests through the after-the-fact capacity to vote those officials out of office”). ↑
  108. Mayhew, supra note 3, at 45. ↑
  109. See Shigeo Hirano & James M. Snyder, Jr., Primary Elections in the United States 1–2 (2019) (providing examples). ↑
  110. See David W. Brady, Hahrie Han & Jeremy C. Pope, Primary Elections and Candidate Ideology: Out of Step with the Primary Electorate?, 32 Legis. Stud. Q. 79 (2007) (empirically showing that congressional candidates position themselves closer to primary electorates than to median district preferences). ↑
  111. See, e.g., Joseph Bafumi & Michael C. Herron, Leapfrog Representation and Extremism: A Study of American Voters and Their Members in Congress, 104 Am. Pol. Sci. Rev. 519, 519 (2010) (using roll-call and public opinion data to show that “members of Congress are more extreme than their constituents” and that “when a congressional legislator is replaced by a new member of the opposite party, one relative extremist is replaced by an opposing extremist”). ↑
  112. Bishin, supra note 89, at 120 (quoting Sen. Rick Santorum (R-PA), as reported by Dennis Roddy, How Santorum Advanced the Gay-Rights Debate in the Wrong Way, Pitt. Post-Gazette, Apr. 27, 2003 at B1). ↑
  113. Preferences and interests are conceptually distinct from demographic characteristics such as race, ethnicity, class, and so forth, but they are often highly correlated. The importance of demographics to politics both explains and justifies the fact that empirical work measuring the extent of a district’s homogeneity or heterogeneity often does so by reference to demographic variables. ↑
  114. See, e.g., Matthew S. Levendusky & Jeremy C. Pope, Measuring Aggregate‐Level Ideological Heterogeneity, 35 Legis. Stud. Q. 259, 260–61 (2010) (“If more constituents fundamentally disagree about an issue, then more constituents will always be unhappy with any decision the legislator makes and may therefore be receptive to a potential challenger. When representing a heterogeneous district, a legislator must solve a more complex decision-making calculus, not only for roll-call votes, but for time and resource allocation.”). ↑
  115. Nicholas O. Stephanopoulos, Redistricting and the Territorial Community, 160 U. Pa. L. Rev. 1379, 1393 (2012) (“[H]eterogeneous districts should pose a greater representational challenge since they make it trickier both to discern districts’ needs and to satisfy them effectively.”); see also Prosser v. Elections Bd., 793 F. Supp. 859, 863 (W.D. Wis. 1992) (per curiam) (“[R]epresentative democracy cannot be achieved merely by assuring population equality across districts. To be an effective representative, a legislator must represent a district that has a reasonable homogeneity of needs and interests; otherwise the policies he supports will not represent the preferences of most of his constituents.”). ↑
  116. Ginsberg & Hill, supra note 86, at 84–85 (discussing Sen. Jeff Bingaman (D-NM)). ↑
  117. See generally Bishin, supra note 89 (furnishing a “subconstituency theory” of representation). ↑
  118. Nicholas O. Stephanopoulos, Spatial Diversity, 125 Harv. L. Rev. 1903, 1907 (2012); see also id. at 1945–46 (“A district’s underlying partisan orientation was thus a far better predictor of its member’s voting record if the district was highly heterogeneous. If the district was highly homogeneous, then partisan slant was a much less significant factor, and, to reiterate, residents’ actual characteristics were much more influential. . . . Elected officials from spatially diverse districts are indeed more sensitive to partisan pressures than to the evident interests of their constituents.” (footnotes omitted)); Elisabeth R. Gerber & Jeffrey B. Lewis, Beyond the Median: Voter Preferences, District Heterogeneity, and Political Representation, 112 J. Pol. Econ. 1364 (2004) (finding that legislators in more homogenous districts are more constrained by median voter preferences); Michael Bailey & David W. Brady, Heterogeneity and Representation: The Senate and Free Trade, 42 Am. J. Pol. Sci. 524 (1998) (finding that on trade-related issues, state-specific characteristics were predictive of senators’ votes in more homogeneous states, while ideology and party were more predictive of votes by senators from more heterogeneous states). ↑
  119. See Nat’l Conf. of State Legislatures, 2010 Constituents Per State Legislative District Table (last visited Jan. 22, 2021), https://www.ncsl.org/research/about-state-legislatures/‌2010-constituents-per-state-legislative-district.aspx [https://perma.cc/365Q-VNR8]. ↑
  120. See id. ↑
  121. See Josh Whitehead, A Look at City Council Size Around the Country, Smart City Memphis (May 3, 2010), https://www.smartcitymemphis.com/2010/05/a-look-at-city-councils-around-the-country/ [https://perma.cc/X853-X8HA]. ↑
  122. Drew DeSilver, U.S. Population Keeps Growing, but House of Representatives is Same Size as in Taft Era, Pew Rsch. Ctr. (May 31, 2018), https://www.pewresearch.org/fact-tank/2018/05/31/u-s-population-keeps-growing-but-house-of-representatives-is-same-size-as-in-taft-era/ [https://perma.cc/2J9A-76PU] (“[T]he representation ratio has more than tripled—from one representative for every 209,447 people in 1910 to one for every 747,184 as of last year [2017].”). ↑
  123. See id. ↑
  124. The state constitution sets the size of the House of Representatives at 150 members, Tex. Const. art. III, § 2, while the state’s population rose from slightly over 11 million in 1970 to slightly over 28 million in 2017, Tex. State Libr. & Archives Comm’n, United States and Texas Populations 1850–2017, https://www.tsl.texas.gov/ref/abouttx/census.html [https://perma.cc/8AGW-DWMW]. ↑
  125. See 52 U.S.C. § 10301(a) (barring practices which “result[] in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color”); see also Thornburg v. Gingles, 478 U.S. 30, 50–51 (1986) (enumerating factors for evaluating vote-dilution claims). ↑
  126. Majority-minority districts “are usually heterogeneous with respect to both race and other politically salient factors.” Nicholas O. Stephanopoulos, Our Electoral Exceptionalism, 80 U. Chi. L. Rev. 769, 817 (2013). Because otherwise disparate communities often have to be brought together to form majority-African American districts, those districts are often “more diverse than their peers with respect to crucial factors other than African American background, such as socioeconomic status, urban versus suburban location, and Hispanic ethnicity.” Id. at 818 & n.223. ↑
  127. In holding that certain majority-minority districts violate the Equal Protection Clause, the Supreme Court lamented in Shaw v. Reno that districts included individuals who were “widely separated by geographical and political boundaries.” 509 U.S. 630, 647 (1993). This was exemplified, for the Court, by a North Carolina district that moved “in snakelike fashion through tobacco country, financial centers, and manufacturing areas.” Id. at 635. ↑
  128. Stephanopoulos, supra note 125, at 816 fig.3 (cataloguing these and other districting criteria with respect to whether they are diversifying or homogenizing); see also Nat’l Conf. of State Legislatures, Redistricting Criteria, (Apr. 23, 2019), https://www.ncsl.org/research/‌redistricting/redistricting-criteria.aspx [https://perma.cc/WQ8T-AQKG] (providing an overview of districting criteria used in each state).

    Before leaving the topic of district composition, note a tension between district homogeneity and district competitiveness. Greater homogeneity and greater competitiveness each promote legislative responsiveness to constituents, but those two features of districts can be at cross-purposes with one another: a district in which residents’ political preferences are more homogenous will be less competitive, and a district that is more competitive will necessarily contain a degree of preference diversity. This tension points toward two distinct ways of promoting an electoral connection between legislators and constituents. Competitiveness can promote legislators’ attending to their districts, given the constant risk that they lose reelection, but the diversity that necessarily accompanies competitive districts means that legislators will at times have no choice but to prioritize some constituents above others. Homogeneity can make it easier for legislators to represent all of their constituents, but sufficient homogeneity to enable that sort of representation can give rise to safe seats in which legislators are at no risk of losing general elections, which can also undermine legislators’ connections with their constituencies. It is not clear what sort of district—and what precise blend of competitiveness and homogeneity—best enables legislators’ responsiveness to their constituencies. But it is clear that district composition matters for how legislators go about representing their constituents. ↑

  129. Compare, e.g., Thomas Stratmann, Can Special Interests Buy Congressional Votes? Evidence from Financial Services Legislation, 45 J.L. & Econ. 345, 345 (2002) (“I find evidence that changes in contribution levels determine changes in roll call voting behavior.”), with, e.g., Stephen Ansolabehere, John M. de Figueiredo & James M. Synder Jr., Why Is There so Little Money in U.S. Politics?, 17 J. Econ. Persps. 105, 125 (2003) (“It doesn’t seem accurate to view campaign contributions as a way of investing in political outcomes.”). See also Lynda W. Powell, The Influence of Campaign Contributions on the Legislative Process, 9 Duke J. Const. L. & Pub. Pol’y 75 (2014) (reviewing relevant literature). ↑
  130. The convergence between donor interests and public policy has several possible causes: the time that legislators spend meeting with donors, legislators receiving self-serving information from donors, or legislators receiving positive or negative feedback from donors about their performance. See, e.g., Martin Gilens & Benjamin I. Page, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens, 12 Persps. on Pol. 564, 567 (2014). ↑
  131. See Richard Briffault, Of Constituents and Contributors, 2015 U. Chi. Legal F. 29, 55–60 (discussing VanNatta v. Keisling, 151 F.3d 1215 (9th Cir. 1998), which struck down an Oregon ban on state candidates accepting any contributions from outside of the districts in which they are running, and Landell v. Sorrell, 382 F.3d 91 (2d Cir. 2004), rev’d on other issues sub nom. Randall v. Sorrell, 548 U.S. 230 (2006), which struck down a Vermont law imposing a 25% cap on what percentage of funds state candidates, political parties, and PACs could accept from outside the state); George J. Somi, The Death of Non-Resident Contribution Limit Bans and the Birth of the New Small, Swing State, 28 Wm. & Mary Bill Rts. J. 995, 1002–11 (2020) (discussing VanNatta, Landell, and other litigation on the topic); see also, e.g., Thompson v. Hebdon, 909 F.3d 1027, 1031, 1041–43 (9th Cir. 2018) (striking down an Alaska law that limited state candidates from accepting more than $3,000 per year from out-of-state contributors by concluding that a state interest in combatting undue influence of donations by non-constituents “is no longer sound after Citizens United and McCutcheon”). ↑
  132. 572 U.S. 185 (2014). ↑
  133. Id. at 227 (plurality opinion). ↑
  134. See Verified Complaint at 5, 11–12, McCutcheon v. FEC, 893 F. Supp. 2d 133 (D.D.C. 2012) (No. 1:12-cv-01034-JEB). ↑
  135. See Briffault, supra note 130, at 62. ↑
  136. See id. at 39–43. For state-level elections, rules allowing campaign contributions to cross state lines “allow[] individuals who feel alienated from their own state government to affiliate with another state government.” Jessica Bulman-Pozen, Partisan Federalism, 127 Harv. L. Rev. 1077, 1140 (2014). ↑
  137. See, e.g., Lucia Geng, From South Carolina to Maine, Out-of-State Donors Give Big in Senate Races, Ctr. for Responsive Pol. (Oct. 22, 2020, 11:57 AM), https://www.opensecrets.org/news/2020/10/senate-races-outstate-donors [https://perma.cc/‌Q2UQ-WZV6]; Bill Allison & Aaron Kessler, Georgia Senate Runoffs Fueled Mostly by Out-of-State Donors, Bloomberg (Dec. 16, 2020, 4:52 PM), https://www.bloomberg.com/‌news/articles/2020-12-16/georgia-senate-runoffs-fueled-mostly-by-out-of-state-donors [https://perma.cc/G7C3-2XHZ]. ↑
  138. See In-District vs. Out-of-District, Ctr. For Responsive Pol., https://www.opensecrets.org/elections-overview/in-district-vs-out-of-district?cycle=2018‌&display=T [https://perma.cc/8GME-RUFQ] (showing that nearly half of legislators raises more than three-quarters of their campaign funds from non-constituent contributions); see also James G. Gimpel, Frances E. Lee & Shanna Pearson-Merkowitz, The Check Is in the Mail: Interdistrict Funding Flows in Congressional Elections, 52 Am. J. Pol. Sci. 373, 373 (2008) (showing that “nonresident contributions are primarily partisan and strategic in nature, rather than access-oriented or expressive/identity-based,” and that “[f]unds are efficiently redistributed from a small number of highly educated, wealthy congressional districts to competitive districts anywhere in the country”). ↑
  139. See, e.g., Joe Light, Bill Allison & Rachael Dottle, Wall Street Put Its Money on the 2020 Election’s Winners, Bloomberg (Dec. 10, 2020), https://www.bloomberg.com/‌graphics/2020-wall-street-election-winners/ [https://perma.cc/L4GN-P9AM]; Factbox: U.S. Democrats on House Antitrust Panel Scored Biggest Big Tech Donations, Reuters (July 29, 2020, 6:16 AM), https://www.reuters.com/article/us-usa-tech-congress-lobbying-factbox/‌factbox-u-s-democrats-on-house-antitrust-panel-scored-biggest-big-tech-donations-idUSKCN24U1H4 [https://perma.cc/V29K-98JF]. ↑
  140. Shoshana Zuboff, The Coup We Are Not Talking About, N.Y. Times (Jan. 29, 2021), https://www.nytimes.com/2021/01/29/opinion/sunday/facebook-surveillance-society-technology.html [https://perma.cc/85BT-K9H3]. ↑
  141. See, e.g., Our Candidates, LGBTQ Victory Fund, https://victoryfund.org/our-candidates/ [https://perma.cc/DWR2-P2ZR] (last visited Jan. 21, 2021) (soliciting donations to “build long-term LGBTQ political power by helping elect LGBTQ leaders at every level of government”). ↑
  142. Danielle M. Thomsen & Michele L. Swers, Which Women Can Run? Gender, Partisanship, and Candidate Donor Networks, 70 Pol. Rsch. Q. 449, 449–50 (2017); see also id. at 450 (noting that candidate gender is “largely irrelevant” to Republican donors). ↑
  143. See generally Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution (Christina Duffy Burnett & Burke Marshall eds., 2001) (discussing Puerto Rico’s legal status). ↑
  144. “I represent two districts,” Rep. José Serrano (D-NY) has said, “one in the Bronx and one that’s Puerto Rico.” See Rick Rojas, Anguish Turns to Fury for Leaders with Ties to Ailing Puerto Rico, N.Y. Times, Oct. 10, 2017, at A14. By allowing citizens to influence legislators for whom they cannot vote, campaign finance law provides a channel for legislators to be responsive to non-constituents. In one recent election cycle, a mainland legislator raised one-fifth of her campaign funds from the San Juan metropolitan area and was later among Congress’s strongest proponents of federal funds to rebuild Puerto Rico in the aftermath of major hurricanes. See Rep. Nydia M. Velázquez—New York District 07, Ctr. For Responsive Pol., https://www.opensecrets.org/members-of-congress/geography?cid=N00001102&‌cycle=2016 [https://perma.cc/QP73-7M2L]. ↑
  145. Jacob M. Grumbach & Alexander Sahn, Race and Representation in Campaign Finance, 114 Am. Pol. Sci. Rev. 206, 206 (2020). ↑
  146. David Fontana, The Geography of Campaign Finance Law, 90 S. Cal. L. Rev. 1247, 1273 (2017). ↑
  147. Anne E. Baker, Getting Short-Changed? The Impact of Outside Money on District Representation, 97 Soc. Sci. Q. 1096, 1104 (2016). Within-district contributions do not, Baker finds, meaningfully counteract the influence of outside contributions. See id. at 1106. ↑
  148. Id. (internal citation omitted). ↑
  149. Stephanopoulos, Aligning Campaign Finance Law, supra note 82, at 1431. ↑
  150. See supra notes 130–34 and accompanying text. ↑
  151. See 52 U.S.C. § 30121(a). ↑
  152. See Bluman v. FEC, 800 F. Supp. 2d 281, 288 (D.D.C. 2011) (three-judge panel), aff’d, 565 U.S. 1104 (2012) (mem.). ↑
  153. Id. An earlier line of cases likewise allows the exclusion of noncitizens from various aspects of the political process. See Cabell v. Chavez-Salido, 454 U.S. 432 (1982); Foley v. Connelie, 435 U.S. 291 (1978); Sugarman v. Dougall, 413 U.S. 634 (1973). ↑
  154. See Bluman, 800 F. Supp. 2d at 290 (expressly distinguishing foreign nationals from “citizens of other states and municipalities,” noting that only the latter are “members of the American political community,” and concluding that “[t]he compelling interest that justifies Congress in restraining foreign nationals’ participation in American elections—namely, preventing foreign influence over the U.S. government—does not apply equally to . . . citizens of other states and municipalities”). ↑
  155. Kathryn Pearson, Party Discipline in the U.S. House of Representatives 146 (2015); see also id. at 146–60 (providing evidence of how party leaders distribute campaign funds to promote party loyalty). ↑
  156. See C. Lawrence Evans, The Whips: Building Party Coalitions in Congress 54–55 (2018) (describing the Republican Party’s financial and other campaign support for a legislator who cast a difficult vote in favor of the party’s position on a trade issue). ↑
  157. See Lou Dubose & Jan Reid, The Hammer: Tom DeLay, God, Money, and the Rise of the Republican Congress 100, 149 (2004). ↑
  158. See Marian Currinder, Money in the House: Campaign Funds and Congressional Party Politics 36–39 (2008). ↑
  159. Richard H. Pildes, Romanticizing Democracy, Political Fragmentation, and the Decline of American Government, 124 Yale L.J. 804, 826 (2014). ↑
  160. Pub. L. No. 107-155, 116 Stat. 81 (codified in scattered sections of 2, 8, 18, 28, 36, and 47 U.S.C.). ↑
  161. Pub. L. No. 107-155, tit. 1, § 323, 116 Stat. 81, 82–86 (2002) (codified at 2 U.S.C. § 441(i) (2018)). ↑
  162. See Raymond J. La Raja, Why Super PACs: How the American Party System Outgrew the Campaign Finance System, 10 Forum 91, 101 (2012) (showing how “starting in 2004 (after BCRA),” the role of parties in financing elections “has been challenged by non-party groups”). ↑
  163. Pildes, supra note 158, at 826 (noting that individual donors’ share of contributions to congressional campaigns increased from 25% to 61% between 1990 and 2014). ↑
  164. See id. at 830 (describing this as a consequence of the “fragmentation reflected in the explosion of Super PACs, 527s, and 501(c) organizations”). For a competing interpretation, see Thomas E. Mann & Anthony Corrado, Party Polarization and Campaign Finance, Brookings Ctr. Effective Pub. Mgmt., 7–9 (July 2014), https://www.brookings.edu/wp-content/uploads/2016/06/Mann-and-Corrad_Party-Polarization-and-Campaign-Finance.pdf [https://perma.cc/RE2C-QLJQ] (arguing that the national parties found other ways to increase their roles after BRCA, even if those ways were not reflected in party financial statements). ↑
  165. John Phillips, Washington Power Brokers Lose Their Carrots and Sticks, Orange County Reg. (Apr. 6, 2017, 11:11 PM), https://www.ocregister.com/2017/04/06/washington-power-brokers-lose-their-carrots-and-sticks/ [https://perma.cc/RRT6-NL8C] (quoting Rep. Trey Radel (R-FL)). ↑
  166. 572 U.S. 185 (2014). ↑
  167. See id. at 192–93. ↑
  168. The process is somewhat circuitous—donors contribute to so-called joint fundraising committees, which give money to state parties, which transfer money to their national affiliates—but the effect is a windfall for the national and state parties alike. See Carrie Levine, Soft Money is Back—And Both Parties Are Cashing In, Politico (Aug. 4, 2017), https://www.politico.com/magazine/story/2017/08/04/soft-money-is-backand-both-parties-are-cashing-in-215456/ [https://perma.cc/TF8S-YRVC]. ↑
  169. See supra Subsection II.A.3. ↑
  170.  See Matt Grossmann & David A. Hopkins, Asymmetric Politics: Ideological Republicans and Group Interest Democrats 234–35 (2016) (providing examples); see also id. at 235–38 (comparing the parties and explaining why similar dynamics do not exist on the Democratic side); Ruth Bloch Rubin, Building the Bloc Intraparty Organization in the U.S. Congress 261–94 (2017) (discussing “conservative revolutionaries” in Congress in the late twentieth and early twenty-first centuries). ↑
  171. Former Speaker John Boehner (R-OH) has argued that far-right members of the Republican Party dissented from the party line during his tenure in part out of fear of primary challenges. See Grossmann & Hopkins, supra note 169, at 297–98. One empirical analysis of roll-call data identifies Republican legislators whose voting patterns moved rightward in anticipation of and in response to primary challenges. See Elaine C. Kamarck & James Wallner, Anticipating Trouble: Congressional Primaries and Incumbent Behavior 7–8, Brookings (Oct. 2018), https://www.brookings.edu/wp-content/uploads/2018/10/GS_1029‌2018_Primaries-and-Incumbent-Behavior.pdf [https://perma.cc/XRP3-AZNM]. Another study finds an absence of strong evidence that legislators change voting behavior in response to primary challenges but argues that the threat of primaries likely affects legislative behavior, given that legislators are constantly anticipating possible electoral challenges and behave in ways that seek to fend off such challenges. See Robert G. Boatright, Getting Primaried: The Changing Politics of Congressional Primary Challenges 139–74 (2013). ↑
  172. See, e.g., Molly K. Hooper, Fearing Primaries, Republican Members Opted to Shun Boehner’s “Plan B,” The Hill (Dec. 22, 2012, 11:00 AM), https://thehill.com/‌homenews/house/274407-fearing-primaries-gop-members-opted-to-shun-boehners-plan-b [https://perma.cc/UC93-JDMK] (reporting that “[m]any House Republicans refused to vote for [leadership’s tax] bill because they were ‘gun shy’ about drawing primary challengers”). ↑
  173. See Hirano & Snyder, supra note 108, at 18–21. ↑
  174. Id. at 21–23. ↑
  175. See Stephen Ansolabehere, Shigeo Hirano & James M. Snyder, Jr., What Did the Direct Primary Do to Party Loyalty in Congress?, in 2 Party, Process, and Political Change in Congress: Further New Perspectives on the History of Congress 35–36 (David W. Brady & Matthew D. McCubbins eds., 2007). ↑
  176. U.S. Const. art. I, § 4, cl. 1 (“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”). The Supreme Court’s understanding of the First Amendment associational rights of political parties serves as a constraint on how legislatures may structure primary elections. In California Democratic Party v. Jones, 530 U.S. 567 (2000), the Court concluded that California’s blanket primary infringed on parties’ associational rights by forcing them to “adulterate their candidate-selection process . . . by opening it up to persons wholly unaffiliated with the party.” Id. at 581. The Court dismissed concerns about representation, characterizing those concerns as “simply circumlocution for producing nominees and nominee positions other than those the parties would choose if left to their own devices.” Id. at 582. Later cases stepped back from California Democratic Party somewhat, but likewise eschewed a focus on representation in favor of a framework focused on associational rights. See Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 444 (2008) (upholding Washington’s top-two primary); Clingman v. Beaver, 544 U.S. 581, 593 (2005) (upholding Oklahoma’s semi-closed primary); Democratic Party of Haw. v. Nago, 833 F.3d 1119, 1125 (9th Cir. 2016) (upholding Hawaii’s open primary). ↑
  177. See State Primary Election Types, Nat’l Conf. of State Legislatures (Jan. 26, 2021, 7:43 PM), https://www.ncsl.org/research/elections-and-campaigns/primary-types.aspx [https://perma.cc/4NMM-FLSR] (cataloguing different types of primaries across the fifty states). ↑
  178. See Ofer Kenig, William Cross, Scott Pruysers & Gideon Rahat, Party Primaries: Towards a Definition and Typology, 51 Representation 147, 153 tbl.1 (2015). ↑
  179. Love v. Foster, 147 F.3d 383, 385–86 (5th Cir. 1998) (describing blanket primaries in Louisiana); see also Nat’l Conf. of State Legislatures, supra note 176 (noting the use of blanket primaries in three other states as well). ↑
  180. Kenig et al., supra note 177, at 153–54 (describing the use of these systems in Taiwan and Italy, respectively). ↑
  181. See, e.g., Elisabeth R. Gerber & Rebecca B. Morton, Primary Election Systems and Representation, 14 J.L. Econ. & Org. 304, 304 (1998) (finding that House members “from states with closed primaries take policy positions that are furthest from their district’s estimated median [voter]” as compared to those from states with other sorts of primaries); Christian R. Grose, Reducing Legislative Polarization: Top-Two and Open Primaries Are Associated with More Moderate Legislators, 1 J. Pol. Inst. & Pol. Econ. 1, 13 (2020) (finding that “[l]egislators elected in open primary systems are 4 percentage points less extreme than legislators elected in closed primary systems”). ↑
  182. See, e.g., Hirano & Snyder, supra note 108, at 296 (summarizing authors’ findings that their “analyses provide no evidence that open primaries are associated with the election of ideological moderates”); Jon C. Rogowski & Stephanie Langella, Primary Systems and Candidate Ideology: Evidence from Federal and State Legislative Elections, 43 Am. Pol. Rsch. 846, 846 (2015) (finding “no evidence that the restrictiveness of primary participation rules is systematically associated with candidate ideology” in a study of congressional and state legislative elections). ↑
  183. See, e.g., Will Bullock & Joshua D. Clinton, More a Molehill than a Mountain: The Effects of the Blanket Primary on Elected Officials’ Behavior from California, 73 J. Pol. 1 (2011) (showing that California’s shift to a blanket primary appeared to cause incumbent legislators (both federal and state) to take more moderate positions, but noting that the effect was absent in the most partisan districts); Grose, supra note 180, at 12–13 (showing that “the top-two primary is associated with legislators who are 7 percentage points more moderate than those legislators from closed systems”). ↑
  184. Adrian Vermeule, The Constitutional Law of Congressional Procedure, 71 U. Chi. L. Rev. 361, 361 (2004) (noting constitutional “rules for assembling the legislature, selecting its officers, and disciplining its members; voting and quorum rules; rules governing the transparency of deliberation and voting . . . the Origination Clause, special quorum rules for supermajority voting, and the procedures for overriding a presidential veto” (footnotes omitted) (citing U.S. Const. art. I, §§ 4, 5, 7; id. art. II, § 1)). ↑
  185. See, e.g., Legislative Reorganization Act of 1946, Pub. L. No. 79-601, 60 Stat. 812 (codified as amended in scattered sections of 2 U.S.C.); Legislative Reorganization Act of 1970, Pub. L. No. 91-510, 84 Stat. 1140 (codified as amended in scattered sections of 2 U.S.C.). ↑
  186. See Congressional Budget and Impoundment Control Act of 1974, Pub. L. No. 93-344, 88 Stat. 297 (codified as amended at 2 U.S.C. §§ 601–55 (2012)); see also Elizabeth Garrett, The Purposes of Framework Legislation, 14 J. Contemp. Legal Issues 717 (2005) (discussing statutes that structure congressional procedure). ↑
  187. See Rules of the House of Representatives, reprinted in H.R. Doc. No. 112-161 (2013) [hereinafter House Rules]; Standing Rules of the Senate, reprinted in S. Doc. No. 113-18 (2013) [hereinafter Senate Rules]. These rules are promulgated based on the constitutional power of each chamber to “determine the Rules of its Proceedings.” U.S. Const. art. I, § 5, cl. 2. See also Josh Chafetz, Congress’s Constitution: Legislative Authority and the Separation of Powers 267–301 (2017) (discussing cameral rules). ↑
  188. See generally Jonathan S. Gould, Law Within Congress, 129 Yale L.J. 1946 (2020) (discussing this body of law). ↑
  189. See infra Section III.C (discussing several such rules). ↑
  190. See infra Subsection III.B.1. ↑
  191. See infra Subsection III.B.2. ↑
  192. See, e.g., Ganesh Sitaraman, The Origins of Legislation, 91 Notre Dame L. Rev. 79, 103–06 (2015) (providing examples of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and the reauthorization of the Prescription Drug User Fee Act in 2012). ↑
  193. Examples of legislation developed in this way include the post-9/11 Authorization for the Use of Military Force, the Troubled Asserts Relief Program passed in 2008, and the two COVID-19 relief bills passed in 2020. See David Abramowitz, The President, the Congress, and Use of Force: Legal and Political Considerations in Authorizing Use of Force Against International Terrorism, 43 Harv. Int’l L.J. 71 (2002); David M. Herszenhorn, Administration Is Seeking $700 Billion for Wall Street, N.Y. Times (Sep. 20, 2008), https://www.nytimes. ‌com/2008/09/21/business/21cong.html [https://perma.cc/6G9F-GL66]; John Bresnahan, Marianne Levine & Andrew Desiderio, How the $2 Trillion Deal Came Together—and Nearly Fell Apart, Politico (Mar 26, 2020, 1:14 AM), https://www.politico.com/news/2020/‌03/26/inside-the-10-days-to-rescue-the-economy-149718 [https://perma.cc/K6LC-YXTN]. ↑
  194. See, e.g., Lawrence R. Jacobs & Theda Skocpol, Health Care Reform and American Politics: What Everyone Needs to Know 50–100 (3d ed. 2016) (describing the enactment of the Affordable Care Act). ↑
  195. See Ginsberg & Hill, supra note 86, at 181. ↑
  196. Id. ↑
  197. Pub. L. No. 95–339, 92 Stat. 460 (1978). ↑
  198. Pub. L. No. 103–318, 108 Stat. 1781 (1994). ↑
  199. Except, perhaps, at a very high level of generality: constituents might hold a position on government spending or economic development as a general matter. ↑
  200. Sinclair, supra note 2, at 28. ↑
  201. See id.; Michael Doran, The Closed Rule, 59 Emory L.J. 1363, 1366 (2010). ↑
  202. Doran, supra note 200, at 1366. ↑
  203. On other effects of the rise of closed rules, see id. at 1398–1401. ↑
  204. Id. at 1429. To the extent that closed rules channel more activity into committees, it is possible that legislators can achieve constituency-centered objectives in committees. But most members are not on most committees, so even with this proviso it is fair to conclude that closed rules shut off one possible channel for constituency-centered representation, even if others may remain. ↑
  205. House Rules, supra note 186, r. XVI(7); see also Charles W. Johnson, John V. Sullivan & Thomas J. Wickham, Jr., House Practice: A Guide to the Rules, Precedents, and Procedures of the House 544 (2017) (noting the long history of House germaneness requirements). ↑
  206. See Johnson et al., supra note 204, at 549. ↑
  207. 124 Cong. Rec. 13,499 (1978). ↑
  208. See Valerie Heitshusen, Cong. Rsch. Serv., 96-548, The Legislative Process on the Senate Floor: An Introduction 6–7 (last updated July 22, 2019), https://fas.org/sgp/crs/‌misc/96-548.pdf [https://perma.cc/5PXJ-PZJ9]. ↑
  209. See, e.g., id. at 11 (describing how the Senate majority leader can fill the so-called “amendment tree” to prevent additional amendments). ↑
  210. See William N. Eskridge, Jr., Philip P. Frickey & Elizabeth Garrett, Legislation and Statutory Interpretation 176–81 (2d ed. 2006) (discussing single-subject requirements); Michael D. Gilbert, Single Subject Rules and the Legislative Process, 67 U. Pitt. L. Rev. 803 (2006). ↑
  211. See Eskridge et al., supra note 209, at 176. ↑
  212. One might respond to this Section’s focus on amendment rules by noting that such rules should not matter, since all legislators have the formal power to introduce new bills on any topic, including on topics with particular or even exclusive relevance to their constituencies. But party leaders control the agenda in both the House and Senate, and the overwhelming majority of bills introduced never see the light of day, much less become law. See Statistics and Historical Comparison, GovTrack (last visited Sept. 1, 2020), https://www.govtrack.us/‌congress/bills/statistics [https://perma.cc/B7JF-YA49]. By far the most promising avenue for a rank-and-file legislator to advance their preferred policy is to attach it to another bill that seems likely to pass. ↑
  213. Logrolling can allow legislators to engage in dealmaking that, under the proper circumstances, enables them to take a constituency-centered approach and still garner majority support, if a sufficiently large number of constituency-centered provisions are grouped together in a single bill. But logrolling can be challenging in practice, given the planning, coordination, and trust between members that it requires.

    A small subset of legislators might be able to exercise power even without building a broad coalition, by virtue of serving as a committee chair or through the good luck of happening to be a swing voter, but most legislators do not hold such positions. See, e.g., Ginsberg & Hill, supra note 86, at 158–59 (discussing the power of committee chairs); Jonathan S. Gould, Rethinking Swing Voters, 74 Vand. L. Rev. 85, 102–04, 107–09 (2021) (discussing the power of legislative swing voters). ↑

  214. John C. Roberts, Gridlock and Senate Rules, 88 Notre Dame L. Rev. 2189, 2191 (2013). ↑
  215. See Jentleson, supra note 28, at 9 (describing the modern Senate as “a kill switch that cuts off broad-based solutions and shuts down our democratic process”); see also William N. Eskridge, Jr., Vetogates and American Public Law, 31 J.L. Econ. & Org. 756, 757–60 (2012) (describing nine “vetogates” in the U.S. legislative process); Alfred Stepan & Juan J. Linz, Comparative Perspectives on Inequality and the Quality of Democracy in the United States, 9 Persps. on Pol. 841, 844 (2011) (noting that the United States has more veto points than other established democracies). ↑
  216. See Sinclair, supra note 2, at 66–72. ↑
  217. Steven S. Smith, Call to Order: Floor Politics in the House and Senate 110 (1989). ↑
  218. Sinclair, supra note 2, at 64. The senator lifted the holds after significant public criticism. Id. ↑
  219. Id. at 64. ↑
  220. The failure of a bill to reform the American foster care system illustrates this dynamic. See Family First Prevention Services Act of 2016, H.R. 5456, 114th Congress (2016). This bill unanimously passed the House in 2016. In the Senate, the reform was initially included as part of another proposed bill, but Senator Richard Burr (R-NC) insisted upon its removal from that other bill and also objected to its attachment to a continuing resolution then under consideration. The reason for Burr’s objection was pressure from the Baptist Children’s Homes of North Carolina, which would have lost substantial revenue if reforms to keep families together—instead of putting children in foster care—had gone into effect. The Baptist Children’s Homes was able to convince Burr to oppose the bill, and Burr’s opposition, in turn, prevented the bill from becoming law. See Ryan Grim, Jason Cherkis & Laura Barrón-López, A Sweeping Reform of the Foster Care System Is Within Reach but Hanging by a Thread, Huffington Post (Dec. 2, 2016, 11:16 AM), https://www.huffpost.com/entry/a-sweeping-reform-of-the-foster-care-system-is-hanging-by-a-thread_n_5840f925e4b0c68e04802b7c [https://perma.cc/2G5J-V2LM]; Ryan Grim, A Single Senator Is Blocking Reform of the Foster Care System, Huffington Post (Dec. 6, 2016, 11:31 PM), https://www.huffpost.com/entry/senator-blocks-foster-care-reform_n_584783d3e‌4b0b9feb0da3920 [https://perma.cc/3WFT-JEP9]. ↑
  221. See Mark J. Oleszek, Cong. Rsch. Serv., R43563, “Holds” in the Senate 1 (2017), https://fas.org/sgp/crs/misc/R43563.pdf [https://perma.cc/Q656-PGMY]. ↑
  222. See Oleszek, supra note 220, at 2; Walter J. Oleszek, Cong. Rsch. Serv., RL31685, Proposals to Reform “Holds” in the Senate (2011), https://fas.org/sgp/crs/misc/RL31685.pdf [https://perma.cc/R2H9-PE3L]. ↑
  223. See Ginsberg & Hill, supra note 86, at 85. ↑
  224. There is no single definition of an earmark, but the term has been defined as encompassing “funds set aside within an account for a specified program, project, activity, institution, or location,” or, more narrowly, as “specified funds for projects, activities, or institutions not requested by the executive, or add-ons to requested funds which Congress directs for specific activities.” See Memorandum from the Cong. Rsch. Serv. Appropriations Team on Earmarks in Appropriations Acts 2–3 (Jan. 26, 2006), https://fas.org/sgp/‌crs/misc/m012606.pdf [https://perma.cc/W9K6-7U43]. ↑
  225. See Megan S. Lynch, Cong. Rsch. Serv., R45429, Lifting the Earmark Moratorium: Frequently Asked Questions 1–3 (last updated Dec. 3, 2020), https://crsreports.congress.gov/‌product/pdf/R/R45429 [https://perma.cc/7UK9-NS68] (noting that though the earmark bans are not part of either chamber’s cameral rules, they have been part of party rules and committee protocols since 2011). See also Mariano-Florentino Cuéllar, Earmarking Earmarking, 49 Harv. J. on Legis. 249 (2012). ↑
  226. Jennifer Shutt, House Appropriators Officially Bring Back Earmarks, Ending Ban, Roll Call (Feb. 26, 2021, 6:30 PM), https://rollcall.com/2021/02/26/house-appropriators-to-cap-earmarks-at-1-percent-of-topline/ [https://perma.cc/33QJ-9Z8R]. ↑
  227. See, e.g., Chris Good, The Future of Earmarks Depends on Senate Republicans, The Atlantic (Nov. 9, 2010), https://www.theatlantic.com/politics/archive/2010/11/the-future-of-earmarks-depends-on-senate-republicans/66314/ [https://perma.cc/LDQ4-JCTD] (noting that earmarks comprise less than one percent of the federal budget); Steven C. LaTourette, The Congressional Earmark Ban: The Real Bridge to Nowhere, Roll Call (July 30, 2014, 1:59 PM), https://www.rollcall.com/2014/07/30/the-congressional-earmark-ban-the-real-bridge-to-nowhere-commentary/ [https://perma.cc/PYL4-NVK2] (contending that in the absence of earmarks federal agencies spend the same funds without congressional direction). ↑
  228. See, e.g., Diana Evans, Greasing the Wheels: Using Pork Barrel Projects to Build Majority Coalitions in Congress 25 (2004) (arguing that “the judicious distribution of pork barrel benefits is an important technique for forming majority coalitions for general interest legislation” and providing empirical support for that theory). ↑
  229. See Ginsberg & Hill, supra note 86, at 171 (describing this practice, known as “zombie earmarking”). ↑
  230. See id. at 172 (describing this practice, known as “letter marking”). ↑
  231. See 2 U.S.C. § 1613 (prohibiting registered lobbyists from giving a legislative branch official any gift prohibited by the rules of the House or Senate). ↑
  232. At the federal level, this legal regime is set out in the Lobbying Disclosure Act of 1995, Pub. L. No. 104-65, 109 Stat. 691 (codified at 2 U.S.C. § 1601 et seq.); and the Honest Leadership and Open Government Act of 2007, Pub. L. No. 110-81, 121 Stat. 735 (codified as amended in scattered titles of U.S.C.). ↑
  233. See 18 U.S.C. § 207(e) (imposing such requirements on former executive branch officials, members of Congress, and legislative staff). ↑
  234. See Richard Briffault, The Anxiety of Influence: The Evolving Regulation of Lobbying, 13 Election L.J. 160, 180–82 (2014) (discussing state bans on lobbyists accepting contingency fees).

    A wide range of lobbying regulations are constitutional, though the First Amendment likely places outer bounds on such regulation. See, e.g., id. at 163 (“Lobbying is an aspect of the freedoms of speech, press, association, and petition protected by the constitution.”); Richard L. Hasen, Lobbying, Rent-Seeking, and the Constitution, 64 Stan. L. Rev. 191, 196 (2012) (“The activity of lobbying . . . squarely implicates both the Free Speech and Petition Clauses of the First Amendment.”). But see Zephyr Teachout, The Forgotten Law of Lobbying, 13 Election L.J. 4, 6 (2014) (noting that “[t]he modern Supreme Court has not directly addressed whether there is a right to hire a lobbyist, or be hired as a lobbyist, and if so, the source of that right, or the scope of that right” and providing historical evidence that “[t]he First Amendment was not even implicated in lobbying discussions, for over 150 years”). ↑

  235. Pub. L. No. 75-583, ch. 327, 52 Stat. 631 (codified as amended at 22 U.S.C. §§ 611–621 (2018)). ↑
  236. See U.S. Dep’t of Just., Crim. Res. Manual § 2062, https://www.justice.gov/‌archives/usam/criminal-resource-manual-2062-foreign-agents-registration-act-enforcement [https://perma.cc/F4CC-HBVH] (last updated Dec. 7, 2018). ↑
  237. See David Laufman, Paul Manafort Guilty Plea Highlights Increased Enforcement of Foreign Agents Registration Act, Lawfare (Sept. 14, 2018, 1:58 PM), https://www.lawfare‌blog.com/paul-manafort-guilty-plea-highlights-increased-enforcement-foreign-agents-registration-act [https://perma.cc/FW6B-7GN9]. ↑
  238. See id. ↑
  239. This concern has deep roots. Alexander Hamilton warned that “[o]ne of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.” The Federalist No. 22, at 149 (Alexander Hamilton). For this reason, the Constitution included strict limits on how federal officials were permitted to interact with foreign actors. See U.S. Const. art. I, § 9, cl. 8 (barring public officials from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State”). ↑
  240. See, e.g., 18 U.S.C. § 201(b) (2018) (federal bribery statute); id. § 201(c) (federal gratuities statute). ↑
  241. See Ctr. for the Advancement of Pub. Integrity, A Guide to Commonly Used Federal Statutes in Public Corruption Cases: A Practitioner Toolkit (2017), https://web.law.columbia.edu/sites/default/files/microsites/public-integrity/a_guide_to_‌commonly_used_federal_statutes_in_public_corruption_cases.pdf [https://perma.cc/E4ZD-MUD6] (providing an overview of federal public corruption statutes). ↑
  242. 18 U.S.C. § 201(b)(1)(A). ↑
  243. Id. § 201(b)(2)(A). ↑
  244. 136 S. Ct. 2355 (2016). ↑
  245. Id. at 2372. ↑
  246. Id. at 2361. ↑
  247. United States v. Menendez, 831 F.3d 155, 159 (3d Cir. 2016). ↑
  248. See Nick Corasaniti, Justice Department Dismisses Corruption Case Against Menendez, N.Y. Times (Jan. 31, 2018), https://www.nytimes.com/2018/01/31/nyregion/justice-department-moves-to-dismiss-corruption-case-against-menendez.html [https://perma.cc/4TF‌Y-4FEB]. When prosecutors dropped all charges against Menendez in 2018, many attributed their decision to the difficulty of prosecuting public corruption after McDonnell. See id. ↑
  249. See United States v. Menendez, 137 F. Supp. 3d 688 (D.N.J. 2015); United States v. Menendez, 132 F. Supp. 3d 610 (D.N.J. 2015), aff’d, 831 F.3d 155 (3d Cir. 2016). ↑
  250. See Lee Drutman, The Business of America Is Lobbying: How Corporations Became Politicized and Politics Became More Corporate 33–42 (2015) (presenting evidence and citing sources); Hertel-Fernandez, supra note 25, at 78–111 (2019) (detailing dynamics at the state legislative level). ↑
  251. See Hertel-Fernandez, supra note 25, 78–111. ↑
  252. Richard L. Hall & Alan V. Deardorff, Lobbying as Legislative Subsidy, 100 Am. Pol. Sci. Rev. 69, 69 (2006). ↑
  253. See, e.g., Drutman, supra note 249, at 40; Hertel-Fernandez, supra note 25, at 78–111. ↑
  254. Cf. Jeffrey R. Lax & Justin H. Phillips, The Democratic Deficit in the States, 56 Am. J. Pol. Sci. 148, 161 (2012) (finding, in a study of state legislatures, that legislatures with higher staffing capacity were more responsive to the public, and theorizing that increasing capacity made legislatures better able to take actions preferred by voters). ↑
  255. Pub. L. No. 79-601, 60 Stat. 812 (1946) (codified as amended in scattered sections of 2 U.S.C.). ↑
  256. See 1 Robert C. Byrd, The Senate 1789–1989: Addresses on the History of the United States Senate 537–50 (1989); Michael J. Malbin, Unelected Representatives: Congressional Staff and the Future of Representative Government (1980); George B. Galloway, The Operation of the Legislative Reorganization Act of 1946, 45 Am. Pol. Sci. Rev. 41 (1951). ↑
  257. See, e.g., Eric Schickler, Disjointed Pluralism: Institutional Innovation and the Development of the U.S. Congress 217–20 (2001) (describing expansions in Senate staffing in the 1970s). ↑
  258. The CBO “produce[s] independent analyses of budgetary and economic issues,” “does not make policy recommendations,” “is strictly nonpartisan,” and hires employees “solely on the basis of professional competence.” Introduction to CBO, Cong. Budget Off., https://www.cbo.gov/about/overview [https://perma.cc/DN3J-Q97G]; see also Philip Joyce, The Congressional Budget Office at Middle Age 5–8 (Hutchings Ctr. on Fiscal & Monetary Pol’y at Brookings, Working Paper No. 9, 2015), https://www.brookings.edu/wp-content/uploads/2016/06/PJ_WorkingPaper9_Feb11_Final.pdf [https://perma.cc/5X66-873A] (detailing how the CBO seeks to maintain nonpartisan objectivity). The CRS conducts research to help legislators “form sound policies and reach decisions on a host of difficult issues.” See About CRS, Cong. Rsch. Serv., https://loc.gov/crsinfo/about/ [https://perma.cc/‌D6L8-XFAK]. The mid-century Congress took other steps to enhance its expertise as well. See, e.g., Bruce Bimber, The Politics of Expertise in Congress: The Rise and Fall of the Office of Technology Assessment 25–49 (1996) (discussing the 1972 founding of the Office of Technology Assessment). ↑
  259. See Ginsberg & Hill, supra note 86, at 75 (noting that “[p]rior to the creation of the CBO, Congress was dependent upon the reports and estimates of the OMB” and that “the 1970 Legislative Reform Act . . . expanded committee staffing, provided computers for members’ offices, introduced electronic voting machines to the House floor, created the Congressional Research Service (formerly the Legislative Reference Service), and otherwise strengthened Congress’s operational capabilities”); see also id. at 144–49 (describing internal congressional capacity). A parallel infrastructure exists in subnational legislatures, though it is typically less robust. See State Legislative Research Service Bureaus, Ballotpedia, https://ballotpedia.org‌/State_legislative_research_service_bureaus [https://perma.cc/PV7F-9K7V] (last visited Jan. 16, 2021). ↑
  260. See Drutman, supra note 249, at 34. ↑
  261. See id. at 33–34. ↑
  262. Curtlyn Kramer, Vital Stats: Congress Has a Staffing Problem, Too, Brookings (May 24, 2017), https://www.brookings.edu/blog/fixgov/2017/05/24/vital-stats-congress-has-a-staffing‌-problem-too/ [https://perma.cc/4YXP-RSY8]. ↑
  263. See Bruce Bartlett, Gingrich and the Destruction of Congressional Expertise, N.Y. Times: Economix (Nov. 29, 2011), https://economix.blogs.nytimes.com/2011/11/29/gingrich-and-the-destruction-of-congressional-expertise [https://perma.cc/37WA-A4TQ] (providing staffing statistics and noting that Gingrich “did everything in his power to dismantle Congressional institutions”); Bimber, supra note 257, at 69–77 (describing the 1995 closing of the Office of Technology Assessment). ↑
  264. See Nathaniel Weixel, Senate GOP May Not Use CBO to Score Cruz Amendment, Hill (July 13, 2017, 2:15 PM), https://thehill.com/policy/healthcare/341904-senate-gop-may-not-use-cbo-to-score-cruz-amendment [https://perma.cc/U7EX-FGYR]; see also Michelle Cottle, The Congressional War on Expertise, Atlantic (July 9, 2017), https://www.the‌atlantic.com/politics/archive/2017/07/why-lawmakers-need-the-congressional-budget-office/532929/ [https://perma.cc/2KCK-2CTZ]. ↑
  265. See Craig Volden & Alan E. Wiseman, Legislative Effectiveness and Problem Solving in the U.S. House of Representatives, in Congress Reconsidered 248, 255 (Lawrence C. Dodd & Bruce I. Oppenheimer eds., 11th ed. 2017) (creating a quantitative measure of legislators’ effectiveness and finding that “the average Legislative Effectiveness Scores of committee and subcommittee chairs are increasing over their tenure in the House”); see also Craig Volden & Alan Wiseman, How Term Limits for Committee Chairs Make Congress Less Effective, Wash. Post. (Jan. 4, 2017), https://www.washingtonpost.com/news/monkey-cage/wp/2017/‌01/04/how-term-limits-for-committee-chairs-make-congress-less-effective [https://perma.cc/5TJ2-JCMH]. ↑
  266. Molly E. Reynolds, Retirement from Congress May Be Driven by Term Limits on Committee Chairs, Brookings (Nov. 30, 2017), https://www.brookings.edu/blog/fixgov/2017/‌11/30/committee-chair-term-limits-and-retirements/ [https://perma.cc/XPV6-LM3X]. ↑
  267. See, e.g., Casey Burgat, Five Reasons to Oppose Congressional Term Limits, Brookings (Jan. 18, 2018), https://www.brookings.edu/blog/fixgov/2018/01/18/five-reasons-to-oppose-congressional-term-limits/ [https://perma.cc/54VQ-N2ZH]. ↑
  268. The few scholarly treatments of fundraising time include Lynda W. Powell, The Influence of Campaign Contributions in State Legislatures: The Effects of Institutions and Politics 78–105 (2012), and Ciara Torres-Spelliscy, Time Suck: How the Fundraising Treadmill Diminishes Effective Governance, 42 Seton Hall Legis. J. 271 (2018). For journalistic accounts, see e.g., Ryan Grim & Sabrina Siddiqui, Call Time for Congress Shows How Fundraising Dominates Bleak Work Life, Huffington Post (Dec. 6, 2017), https://www.huffpost.com/entry/call-time-congressional-fundraising_n_2427291 [https://perma.cc/E9W9-VHP4]; Steve Israel, Confessions of a Congressman, N.Y. Times (Jan. 9, 2016) https://www.nytimes.com/2016/01/09/opinion/steve-israel-confessions-of-a-congressman.html [https://perma.cc/ZA8J-XGBL]; Tim Roemer, Why Do Congressmen Spend Only Half Their Time Serving Us?, Newsweek (July 29, 2015, 11:38 AM), https://www.newsweek.com/why-do-congressmen-spend-only-half-their-time-serving-us-357995 [https://perma.cc/6PXM-RAQA]. ↑
  269. Time spent on fundraising could be reduced not only by wholesale campaign finance reform but also by considerably more modest changes in law. A recent bipartisan proposal to ban legislators from personally soliciting campaign contributions, for example, would reduce time spent fundraising even while leaving the system of private campaign finance in place. See Stop Act of 2016, H.R. 4443, 114th Cong. (2016); see also Editorial, This Would Be a Nice First Step on Campaign Finance Reform, Wash. Post (June 10, 2016), https://www.washingtonpost.com/opinions/this-would-be-a-nice-first-step-on-campaign-finance-reform/2016/06/10/745de05a-2e69-11e6-b5db-e9bc84a2c8e4_story.html [https://perma.cc/7ES4-K7YD]. ↑
  270. See generally Congress Overwhelmed: The Decline in Congressional Capacity and Prospects for Reform (Kevin R. Kosar, Lee Drutman & Timothy M. LaPira eds., 2020) (collecting essays on the topic). ↑
  271.  See, e.g., Matthew Motta, The Dynamics and Political Implications of Anti-Intellectualism in the United States, 46 Am. Pol. Rsch. 465 (2017); Gordon Gauchata, Politicization of Science in the Public Sphere: A Study of Public Trust in the United States, 1974 to 2010, 77 Am. Socio. Rev. 167 (2012). ↑
  272. See, e.g., James Fallows, The Republican Promise, N.Y. Rev. Books (Jan. 12, 1995) (discussing the term limits proposal in Republicans’ 1994 “Contract with America”). ↑
  273. 156 Cong. Rec. S11,503 (2010) (statement of Sen. Chuck Grassley (R-IA)). ↑
  274. See, e.g., R. Douglas Arnold, The Logic of Congressional Action 131 (1990) (“Open markup sessions often give organized interests a powerful advantage over inattentive citizens, for they can monitor exactly who is doing what to benefit and to hurt them.”); David E. Pozen, Transparency’s Ideological Drift, 128 Yale L.J. 100, 130–33 (2018) (discussing how increased transparency in the legislative process has empowered interest groups). Scholars of Congress have also noted other effects of transparency reforms besides their empowering interest groups. See, e.g., Sarah A. Binder & Frances E. Lee, Making Deals in Congress, in Political Negotiation: A Handbook 105 (Jane Mansbridge & Cathie Jo Martin eds., 2016) (arguing that increased transparency can undermine legislative negotiation and dealmaking); Julian E. Zelizer, Taxing America: Wilbur D. Mills, Congress, and the State, 1945–1975 at 356 (2000) (arguing that pro-transparency reforms empowered party leaders to better monitor and oversee committee proceedings); Justin Fox, Government Transparency and Policymaking, 131 Pub. Choice 23, 26 (2007) (arguing that “unbiased politicians, who always select the policy that maximizes the public’s welfare when policy is determined behind closed doors, no longer do so when policy is made in the open”). ↑
  275. Morris P. Fiorina & Samuel J. Abrams, Disconnect: The Breakdown of Representation in American Politics 83 (2009). ↑
  276. For overviews, see Paul Rundquist, Secrecy in Congress, in 4 The Encyclopedia of the United States Congress 1774–75 (Donald C. Bacon, Roger H. Davidson, & Morton Keller eds., 1995); Walter J. Oleszek, Cong. Rsch. Serv., R42108, Congressional Lawmaking: A Perspective on Secrecy and Transparency (2011), https://fas.org/sgp/crs/secrecy/R42108.pdf [https://perma.cc/MGE8-D4HE]. ↑
  277. David W. Rohde, Parties and Leaders in the Postreform House 21 (1991). ↑
  278. Id. at 154, 195. Whether votes are recorded is largely the domain of cameral rules and practices, though the Constitution does require that votes be recorded if one-fifth of members present so request. See U.S. Const. art. I, § 5, cl. 3. ↑
  279. 157 Cong. Rec. H13 (2011). ↑
  280. The Sunlight Foundation uses these and other metrics to construct its “Open Legislative Data Report Card” for state legislatures. See Open States, Open Legislative Data Report Card, http://openstates.org/reportcard [https://perma.cc/XFJ7-Q3XX] (last visited Jan. 26, 2021). ↑
  281. See Pozen, supra note 273, at 115–23 (describing motivations for transparency-enhancing reforms in the 1960s and 1970s). ↑
  282. See supra notes 273–74 (collecting sources). ↑
  283. See generally Evans, supra note 155 (examining the role of whips in Congress). ↑
  284. See Jon R. Bond & Richard Fleisher, The President in the Legislative Arena (1990); Jeffrey E. Cohen, The President’s Legislative Policy Agenda, 1789–2002 (2012); Mark A. Peterson, Legislating Together: The White House and Capitol Hill from Eisenhower to Reagan (1990); Andrew Rudalevige, Managing the President’s Program: Presidential Leadership and Legislative Policy Formulation (2002). ↑
  285. See, e.g., Cox & McCubbins, supra note 63, at 217 (“[P]arties do significantly affect the voting behavior of their members.”); Steven Ansolabehere, James M. Snyder, Jr. & Charles Stewart III, The Effects of Party and Preferences on Congressional Roll-Call Voting, 26 Legis. Stud. Q. 533, 558 (2001) (“The American parties in Congress . . . have an overwhelming influence on the rules of debate and amendment . . . . To a lesser—but still significant—extent, the parties influence votes on amendments and final passage.”). But see, e.g., Mayhew, supra note 3, at 100 (“Party ‘pressure’ to vote one way or another is minimal. Party ‘whipping’ hardly deserves the name. Leaders in both houses have a habit of counseling members to ‘vote their constituencies.’”); David R. Mayhew, Observations on Congress: The Electoral Connection a Quarter Century After Writing It, 34 Pol. Sci. & Pol. 251, 252 (2001) (“I have not seen any evidence that today’s congressional party leaders ‘whip’ or ‘pressure’ their members more often or effectively than did their predecessors 30 years ago. Instead, today’s pattern of high roll-call loyalty seems to owe to a post-1960s increase in each party’s ‘natural’ ideological homogeneity . . . .”). ↑
  286. Kenneth A. Shepsle, The Changing Textbook Congress, in Can the Government Govern? 238 (John E. Chubb & Paul E. Peterson eds., 1989). ↑
  287. Id. at 254–56 (shifting power to Speaker and Democratic caucus). Other reforms shifted power “downward” to subcommittees and to rank-and-file legislators. Id. at 252–53 (shifting power to subcommittees); id. at 253–54 (shifting power to members). ↑
  288. Rohde, supra note 276, at 2. “Our textbook picture must change,” Rohde concludes, “to include stronger and more influential party leaders.” Id. at 171. Rohde’s theory of conditional party government contends that party leaders are stronger when party caucuses are more ideologically homogeneous because members of a more ideologically homogeneous caucus are more willing to transfer power to party leaders. Id. at 31. ↑
  289. Other reforms strengthened party control by other means, such as by consolidating control in party leaders over the path of proposed legislation through the House. See id. at 25. Still others focused on weakening committee chairs and shifting power to subcommittees or to the caucus as a whole. See id. at 20–23. For a detailed account of the congressional reforms of the 1970s, see Schickler, supra note 256, at 189–248. ↑
  290. For accounts of the seniority system as it operated during the textbook Congress, see Barbara Hinckley, The Seniority System in Congress (1971); Nelson W. Polsby, Miriam Gallaher & Barry Spencer Rundquist, The Growth of the Seniority System in the U.S. House of Representatives, 63 Am. Pol. Sci. Rev. 787 (1969); George Goodwin, Jr., The Seniority System in Congress, 53 Am. Pol. Sci. Rev. 412 (1959). ↑
  291. See Shepsle, supra note 285, at 254–55. ↑
  292. Rohde, supra note 276, at 25. Party leadership also had a strong voice on a new House Democratic Steering and Policy Committee, half of the members of which were party leaders or their designees. See id. at 24. Rule changes also established minimum ratios of majority to minority members on committees and subcommittees, making it more difficult for committee chairs to ally with minority members in defeating proposals favored by the majority party. See id at 25. The effects of the 1970s reforms reverberated for decades. See Jay Newton-Small, Getting Her Way: Pelosi’s Powers of Persuasion, Time (Mar. 20, 2010), http://content.time.com/time/politics/article/0,8599,1973868,00.html [https://perma.cc/EFY4‌-Y7RR] (quoting a House member’s comment that the speaker “controls the steering and policy committees . . . [e]veryone knows that what the speaker wants, the speaker gets”). ↑
  293. See Shepsle, supra note 285, at 255. ↑
  294. Cox & McCubbins, supra note 63, at 217; see also Gary W. Cox & Mathew D. McCubbins, Legislative Leviathan: Party Government in the House 163–87 (1993) (analyzing committee assignments and concluding that “party loyalty seems to be a criterion in making assignment decisions to most House committees” because “those whose roll call votes demonstrate loyalty to the leadership are rewarded with committee transfers,” id. at 182); Nicole Asmussen & Adam Ramey, When Loyalty Is Tested: Do Party Leaders Use Committee Assignments as Rewards?, 45 Congress & Presidency 41, 41 (2018) (showing empirically that “majority party members who support their party on the subset of votes for which party leaders have taken positions in floor speeches are more likely to be rewarded with plum committee assignments”). ↑
  295. Pearson, supra note 154, at 2. ↑
  296. Ginsberg & Hill, supra note 86, at 38 (describing actions taken by Speaker John Boehner (R-OH) in summer 2015). ↑
  297. See Barack Obama, A Promised Land 415–16 (2020) (noting that Republican Leader Mitch McConnell (R-KY) threatened to strip Senator Olympia Snowe (R-ME) of her seniority on the Senate’s Small Business Committee if she voted for the Affordable Care Act). ↑
  298. Sara Brandes Crook & John R. Hibbing, Congressional Reform and Party Discipline: The Effects of Changes in the Seniority System on Party Loyalty in the US House of Representatives, 15 Brit. J. Pol. Sci. 225 (1985). ↑
  299. Id. at 225. ↑
  300. See Schickler, supra note 256, at 228 (“Much of the impetus for empowering Democratic leaders came from liberals who wanted to promote progressive legislation.”). ↑
  301. See generally id. at 4 (describing how “legislative organization develops through the accumulation of innovations, each sought by a different coalition promoting a different interest”); see also, e.g., supra notes 288–99 and accompanying text (discussing how reforms in the House of Representations in the 1970s arose from ideological conflict between factions of a divided Democratic caucus). ↑
  302. Schickler, supra note 256, at 15. ↑
  303. Compare House Rules, supra note 186 (not containing a statement of purpose), and Senate Rules, supra note 186 (same), with Fed. R. Civ. P. 1 (“[The rules] should be construed, administered, and employed . . . to secure the just, speedy, and inexpensive determination of every action and proceeding.”); and Fed. R. Crim. P. 2 (“[The rules] are to be interpreted to provide for the just determination of every criminal proceeding, to secure simplicity in procedure and fairness in administration, and to eliminate unjustifiable expense and delay.”). ↑
  304. Richard H. Pildes, The Supreme Court, 2003 Term—Foreword: The Constitutionalization of Democratic Politics, 118 Harv. L. Rev. 29, 59 (2004). ↑
  305. Michael C. Dorf, Spandrel or Frankenstein’s Monster? The Vices and Virtues of Retrofitting in American Law, 54 Wm. & Mary L. Rev. 339, 341 (2012). Cf. also S.J. Gould & R.C. Lewontin, The Spandrels of San Marco and the Panglossian Paradigm: A Critique of the Adaptationist Programme, 205 Proc. Royal Soc’y London B 581, 587, 593 (1979) (arguing that “[o]ne must not confuse the fact that a structure is used in some way . . . with the primary evolutionary reason for its existence” and that “[t]he immediate utility of an organic structure often says nothing at all about the reason for its being”). ↑
  306. See, e.g., Joran Fabian, Obama Healthcare Plan Nixes Ben Nelson’s “Cornhusker Kickback” Deal, The Hill (Feb. 22, 2010, 3:00 PM), https://thehill.com/blogs/blog-briefing-room/news/82621-obama-healthcare-plan-nixes-ben-nelsons-cornhusker-kickback-deal [https://perma.cc/8NJ2-Z8TM] (describing negotiations over state-specific Medicaid funding during attempts to secure the support of a senator from Nebraska for the Affordable Care Act); see also supra note 219 (describing the failure of national foster care reform on account of its impact on one North Carolina interest group). ↑
  307. See supra note 25 (collecting sources on unequal representation). ↑
  308. See Bartels, supra note 25, at 241–42. ↑
  309. See generally Hertel-Fernandez, supra note 25. ↑
  310. See supra Section II.B, Subsections III.B.1–2. ↑
  311. E.E. Schattschneider, The Semi-Sovereign People: A Realist’s View of Democracy in America 35 (1960). ↑
  312. See Hacker & Pierson, supra note 25, at 6 (quoting Senator John Breaux (D-LA)). ↑
  313. See supra Subsection II.A.2. ↑
  314. Lax, et al., supra note 25, at 918. ↑
  315. Id. (reaching this conclusion based on analysis of public opinion and roll call votes in the Senate). ↑
  316. In this vein, Richard Pildes has proposed reforms that would give the parties a greater role in campaign finance. See Pildes, supra note 158, at 836–45. ↑
  317. See Congress Overwhelmed: The Decline in Congressional Capacity and Prospects for Reform, supra note 269. ↑
  318. See, e.g., Elizabeth Warren, Strengthening Congressional Independence from Corporate Lobbyists, Medium (Sept. 27, 2019), https://medium.com/@teamwarren/strengthening-congressional-independence-from-corporate-lobbyists-bb953bb466c [https://perma.cc/X6N‌U-RWR8]. ↑
  319. See, e.g., Levinson, supra note 53, at 1288 (“One way of protecting a minority is to create and enforce rights against majoritarian exploitation. Another is to structure the political process so that minorities are empowered to protect themselves.”). ↑
  320. See, e.g., McCutcheon v. FEC, 572 U.S. 185 (2014); Ariz. Free Enter. Club v. Bennett, 564 U.S. 721 (2011); Citizens United v. FEC, 558 U.S. 310 (2010); FEC v. Wisc. Right to Life, Inc., 551 U.S. 449 (2007). ↑
  321. See, e.g., Shelby Cnty. v. Holder, 570 U.S. 529, 540–57 (2013) (striking down the Voting Rights Act’s coverage formula as contrary to a principle of equal sovereignty among the states). ↑
  322. Dennis F. Thompson, Just Elections: Creating a Fair Electoral Process in the United States, at viii (2002). ↑
  323. See generally Jeremy Waldron, Political Political Theory: Essays on Institutions 6 (2016) (calling for political theorists to engage with “the way our political institutions house and frame our disagreements”). ↑
  324. Edward L. Rubin, Statutory Design as Policy Analysis, 55 Harv. J. on Legis. 143, 144 (2018). When legal scholars do consider legislative procedure and operations, they most often do so in the context of debates over statutory interpretation. See, e.g., Robert A. Katzmann, Judging Statutes (2016); Victoria Nourse, Misreading Law, Misreading Democracy (2016); Abbe R. Gluck, Congress, Statutory Interpretation, and the Failure of Formalism: The CBO Canon and Other Ways That Courts Can Improve on What They Are Already Trying to Do, 84 U. Chi. L. Rev. 177 (2017). ↑
  325. See generally Chafetz, supra note 186. ↑
  326. See, e.g., Legislatures: Comparative Perspectives on Representative Assemblies (Gerhard Loewenberg, Peverill Squire & D. Roderick Kiewiet eds., 2002); David M. Olson, Democratic Legislative Institutions: A Comparative View (1994). ↑
  327. Vermeule, supra note 183, at 364. ↑
  328. See generally The Dynamism of Civil Procedure: Global Trends and Developments (Colin B. Picker & Guy I. Seidman eds., 2015) (collecting essays on comparative civil procedure). ↑

  329. See generally Comparative Administrative Law (Susan Rose-Ackerman & Peter L. Lindseth eds., 2011) (collecting essays on comparative administrative law, including administrative procedure). ↑

©Virginia Law Review Association. All rights reserved.