Monthly Archives: April 2020

Refining Administrative Law’s Lessons for Police

Maria Ponomarenko, Rethinking Police Rulemaking, 114 N.W. U. L. Rev. 1 (2019).

The field of Administrative Law typically focuses on federal agencies, but there are tens of thousands of state and local agencies that administer the law on matters of tremendous consequence. As Nestor Davidson recently put it, the field’s “myopic federal focus obscures a massive, submerged, and surprisingly vibrant domain of administration that exists at the local-government level.” Thinking about these other levels of administration can both illuminate the actual workings of important policy areas and prompt fruitful reflection on recurring administrative-law questions.

Maria Ponomarenko’s thought-provoking new article, Rethinking Police Rulemaking, accomplishes both of these worthy goals. One significant species of local administration, she reminds us, is policing. There are close to 18,000 law enforcement agencies across the country, and they make a range of policy choices of great consequence, including regarding the use of force, stop and frisk, enforcement priorities, and “the persistent creep of the surveillance state.” In Rethinking, Ponomarenko brings fresh perspective to debates over how to oversee police agencies. In particular, she challenges a longstanding idea that an administrative-law mainstay, notice-and-comment rulemaking, is the most promising solution for holding police more accountable. Continue reading "Refining Administrative Law’s Lessons for Police"

Failing to Protect Democracy by Failing to Protect Government Employee Whistleblower Speech

Ronald J. Krotoszynski, Jr., Whistleblowing Speech and the First Amendment, 93 Ind. L.J. 267 (2018).

In Professor Ronald J. Krotoszynski, Jr.’s article, Whistleblowing Speech and the First Amendment, he considers how the First Amendment fails to protect the whistleblower speech of government employees and argues the insufficient protection may weaken our democracy. He claims the Supreme Court’s inadequate protection of government employee speech discourages the disclosure of important information that could help voters hold government and its officials accountable. The paucity of speech protection leads to a lack of information which leaves the public underinformed and unable to make intelligent electoral decisions about matters of public importance.

The article is worth the read for its analysis of First Amendment doctrine regarding the speech of government employees, but its focus on the harm to our democracy that flows from that doctrine makes the article particularly fresh and vital. Prof. Krotoszynski’s insights are doubly important in the wake of the whistleblowing allegations that have fueled Congress’ impeachment inquiry regarding President Trump. For all of those reasons, Prof. Krotoszynski’s article is a Thing I Like Lots. Continue reading "Failing to Protect Democracy by Failing to Protect Government Employee Whistleblower Speech"

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