Issue 8

Securing Sovereign State Standing

States can premise standing to sue as plaintiffs in federal court upon three main categories of interests—proprietary, sovereign, and quasi-sovereign interests. Proprietary and sovereign interests, this Note contends, are held independently by states qua states, whereas quasi-sovereign interests are derivative of citizens’ collective welfare concerns. This Note attempts to correct the pervasive confusion clouding the boundary between sovereign and quasi-sovereign interests, arguing that they are meaningfully distinct and should be treated differently.

This argument is especially important in the context of the jurisdictional bar instituted by the Supreme Court in Massachusetts v. Mellon, which prohibits states from pursuing “parens patriae” suits to shield their citizens from federal law. Parens patriae is a special type of representative standing through which states can vindicate generalized citizen interests. This Note argues that states act as parens patriae in the relevant context when they assert quasi-sovereign standing only—and thus not when they seek to defend their sovereign interests. The Mellon bar, therefore, should disallow only certain quasi-sovereign suits; it should be wholly inapplicable to sovereignty-vindicating claims.

Finally, a look at Virginia’s current attack on the constitutionality of recent federal healthcare reform, Virginia ex rel. Cuccinelli v. Sebelius, sharpens and contextualizes these issues. Virginia has asserted purely sovereign interests, but the federal government defendant has argued—incorrectly—that the Mellon bar should nevertheless apply.

This discussion is both timely, given the immediacy and prominence of the standing issues underlying the Virginia healthcare challenge, and significant, given its importance for fundamental and enduring issues of American federalism.

Reclaiming the Legal Fiction of Congressional Delegation

The framework for judicial review of agency statutory interpretations is based on a legal fiction – namely, that Congress intends to delegate interpretive authority to agencies. Critics argue that the fiction is false because Congress is unlikely to think about the delegation of interpretive authority at all, or in the way that the Court imagines. They also contend that the fiction is fraudulent because the Court does actually care about whether Congress intends to delegate interpretive authority in any particular instance, but applies a presumption triggered by statutory ambiguity or a particularized analysis involving factors unrelated to congressional delegation. In this Essay, I argue that critics have misjudged the fiction. First, there is direct evidence that Congress attends to the delegation of interpretive authority and is likely to view the delegation of regulatory authority as sufficient to convey a delegation of interpretive authority. Second, there is indirect evidence that the Court’s framework tracks how Congress decides to delegate. The Court is employing a fiction in the sense that it is not looking for actual legislative intent but is imputing legislative intent. But that fiction is no different in kind than the one that the Court employs in other contexts. By viewing the fiction of congressional delegation as worse than it is, critics have had license to disregard it in evaluating how to allocate interpretive authority between courts and agencies. My argument would bring that issue back to how Congress designs statutes.

The Myth of Efficient Breach: New Defenses of the Expectation Interest

We defend contract law’s preference to protect the expectation with a liability rule against prominent doctrinal and moral critics who argue that a promisee should have a right to specific performance or to a restitutionary remedy. These critics argue that liability rule protection limited to contractual expectations unjustifiably favors promisors, by allowing a promisor to capture the entire gain from unilaterally exiting a contract as long as she compensates her promisee for the profit he would have realized had he received the goods or services the contract described. The critics prefer to vindicate contractual expectations with a property rule or restitution.

We show that a promisee’s gross payoff under the typical contract is invariant to the remedy the law accords him. Current defenders and critics focus on gross payoffs. In this analytic universe, no remedy can be shown to be superior to any other remedy. We argue below that the promisee’s net payoff, for transaction cost reasons, is higher under a contract that protects his expectation with a liability rule. This claim supports the dual performance hypothesis, which holds that promisees typically give their promisors discretion either to trade the goods or services at issue or to make a transfer to the promisee in lieu of trade. A promisor who transfers rather than trades therefore does not breach; rather, she breaches only when she rejects both trade and transfer. On this view of the law, a promisee’s suit to recover his expectation is a specific performance action to enforce the contract’s transfer term. We further explain that this approach renders contract law coherent; it is consistent with the law’s immanent normativity; and it is consistent also with the morality of promising.

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