Dec 14, 2023 Fred O. Smith, Jr.Courts Law
Federal judges, when deciding on separation-of-powers issues, are not neutral referees in our three-part federal system; they are participants in it. This key observation forms the foundation of Payvand Ahdout’s article. Expanding on this insight, Ahdout argues that in resolving disputes, federal judges frequently refrain from forcing high-ranking federal officials to perform specific actions. She terms this “separation-of-powers avoidance,” a strategy evident in various legal situations, including executive privilege and congressional power to issue subpoenas and file lawsuits. She identifies three categories of separation-of-powers avoidance: embedded avoidance, process avoidance, and fortified avoidance.
In the “embedded model,” courts approach and interpret legal doctrines with an emphasis on circumventing separation-of-powers conflicts. This approach is exemplified by the Supreme Court’s handling of a discovery dispute in Cheney v. U.S. District Court. An organization called Judicial Watch sued the Vice President Dick Cheney under the Federal Advisory Committee Act, seeking information about the newly formed National Energy Policy Development Group. The district court issued discovery orders requiring the Vice President and other high-ranking executive branch officials to disclose information about the group. But Cheney resisted. Without explicitly invoking executive privilege, he petitioned the D.C. Circuit for a writ of mandamus to stop the district court from requiring the disclosure. The D.C. Circuit ruled against Cheney, reasoning that the executive branch must assert executive privilege explicitly to protect itself from discovery. But the Supreme Court reversed, urging against needless constitutional confrontations between the branches. In so doing, it interpreted discovery requirements through the lens of separation-of-powers. Continue reading "Balancing Act: The Federal Judiciary as Both Arbiter and Participant Constitutional Structure"
Dec 13, 2023 Ann E. TweedyEquality
Jessica A. Shoemaker,
Re-Placing Property, 94
Univ. Chi. L. Rev. __ (forthcoming, 2024), available at
SSRN (Aug. 31, 2023).
In Re-Placing Property, Jessica A. Shoemaker demonstrates the extent to which our legal rules about property have allowed real property ownership to become, in many cases, paradoxically completely divorced from place attachment. Drawing from disciplines such as geography and sociology, Shoemaker defines “place attachment” as “a ‘sense of belonging, loyalty, or affection that a person feels for one or more places.’” (P. 15, quoting A Dictionary of Human Geography (Oxford 2013)). With real property increasingly owned by people who have little or no connection to the land itself, including absentee heirs and distant investors who often simply own shares of property through an investment fund, local communities bear the costs of these absentee owners’ choices. Consequently, early American ideals that, at least in theory, favored egalitarian access to ownership and that “reward[ed] productive improvement and agrarian stewardship,” (P. 4), are now being trampled to accommodate elitist ownership patterns that in some ways mirror feudalism. (Pp. 20, 60.)
Professor Shoemaker avoids romanticizing the past by highlighting the fact that “we tend to erase” Indigenous histories of land possession “in favor of a simplified story of American expansion . . . .” (P. 4.) Thus, Shoemaker is not using the past as it actually played out as a model so much as demonstrating that our traditional ideals of access to property ownership, however unevenly and unfairly applied in the past, are undermined by the modern reality that land is becoming increasingly commodified by the rich to the detriment of working-class and middle-class families and individuals, many of whom can no longer afford to buy homes or own farms because prices are being driven up—in some cases by distant investors, many of whom are foreign, and in other cases, particularly with respect to farms, because land is tied up in “hereditary family dynasties.” (P. 60.) Continue reading "Reorienting American Real Property to its Egalitarian Goals"
Dec 12, 2023 Caroline BradleyCorporate Law
Quinn Curtis, Mark C. Weidemaier, & Mitu Gulati,
Green Bonds, Empty Promises (February 6, 2023). Virginia Public Law and Legal Theory Research Paper No. 2023-14, Virginia Law and Economics Research Paper No. 2023-05, UNC Legal Studies Research Paper No. 4350209. Available at
SSRN.
Climate change adaptation (moving towards net zero by shifting to renewable energy and changing behaviors so that we produce fewer greenhouse gas emissions) and mitigation (building resilience in the face of the impacts of climate change) are expensive, and must be paid for somehow. Policy-makers accept that climate change mitigation and adaptation require co-operation between public authorities and private business, and a combination of public and private finance. Green bonds promise to be a component of addressing this need for financing, as well as the interests of investors who want to invest in sustainability. But do they really do this? The urgency of the need to address climate change, together with our reliance on private finance as an important part of the proposed solution, means that this is a really important question. In order to address climate change, green bonds should finance green or sustainable activities, and, preferably, activities that would not otherwise be funded.
In Green Bonds, Empty Promises, Quinn Curtis, Mark C. Weidemaier, and Mitu Gulati present the results of their study of a dataset of green bonds issued between 2012 and 2022 and of interviews with market participants. The authors say that in credible green bonds they would expect to see mechanisms to increase the cost of non-compliance, but, instead, they find “a concerning lack of enforceable promises” (P. 56.) They find some language of commitment in more than half of the bonds in the dataset, although they state that, for varying reasons, they are likely to be overstating the extent to which issuers make firm green commitments (e.g. pp. 17,19). But even where green promises are made, they are not backed up by the usual enforcement mechanisms: none of the bonds in the sample “expressly makes it an event of default for the issuer to fail to live up to its green promises.”(P. 24.) In addition, the authors find that green bonds are evolving away from enforceability over time, now including disclaimers excluding a failure to comply with green promises from the application of a catch-all events of default provision and disclaimers of any duty to pursue green objectives. Continue reading "Unpacking Green Bonds"
Dec 11, 2023 Mae KuykendallConstitutional Law
In African Founders: How Enslaved People Expanded American Ideals, David Hackett Fischer provides a comprehensive survey of African contributions to Americanism at its most aspirational. Fischer gives particulars of knowledge and skills advanced by Africans in the United States and prized by white people in various regional economies. His primary argument, though, is that Africans in bondage, and their descendants, as a result of their unique American experience, formed “a very powerful idea of equity for all, cast in a distinctive moral calculus that rose from the experience of human bondage.” He summarizes: “Africans both slave and free have long reflected on a deep moral paradox in America, between the continuing horror of race slavery and persistence of racial injustice on the one hand, and the hope of expanding ideals of human rights, social Justice, the rule of law, and dreams of liberty and freedom.”
Professor Fischer’s quest to name the African founding of America adopts a deeply empirical commitment that resists white ignorance and can inspire a broad critique of the American jurisprudential and popular attachment to lazy thinking, especially when race is the topic. The book provides a deep refutation of the reasoning process that has produced today’s climate of white resentment of Black visibility (ban on race studies), public role (attacks on prosecutors and judges), and access to all of American life (threats to corporations on hiring and resistance to housing integration). Continue reading "African Founders and Zero-Sum Games in American Culture and the Supreme Court’s Capitalist (White) Imagination"
Dec 8, 2023 Jessica Lind MantelHealth Law
Erin C. Fuse Brown & Mark A. Hall,
Private Equity and the Corporatization of Health Care, 76
Stan. L. Rev. __ (forthcoming, 2024); GSU L. Studies Rsch. Paper, available at
SSRN.
The corporatization of medicine is not new. As Paul Starr masterfully documented in his historical account of American medicine, throughout the 20th Century various private organizations pursued bureaucratic control over the delivery of healthcare. Initially, the medical profession was largely successful in resisting efforts to corporatize healthcare. Several decades of mergers, acquisitions and corporate alliances, however, have firmly entrenched corporate ownership in American healthcare. In their article Private Equity and the Corporatization of Health Care, Erin Fuse Brown and Mark Hall explore the latest chapter of this trend—the acquisition of physician practices by private equity (PE) firms.
An aging population, advancements in medical technology and drug therapies, and other factors have fueled tremendous growth in the health care sector, which today comprises one-sixth of the U.S. economy. As the healthcare sector has expanded, private equity (PE) investors have recognized health care organizations as potential sources for profit-making. In Part I of their article, Fuse Brown and Hall explain that this PE incursion into health care is a particularly aggressive form of corporate investment. When PE firms target physician practices, they assume control over practices’ business strategies and downgrade physician ownership to minority status. This leaves acquired physician practices no longer governed by health professionals with ethical obligations that put patients’ medical needs before profits. Moreover, PE’s goal of boosting profitability leads to a focus on quick fixes and practices designed to maximize revenue rather than long-term operational changes that would enhance the quality and efficiency of care. Continue reading "Safeguarding the Healthcare System from Private Equity’s Potential Abuses"
Dec 7, 2023 Ayelet Blecher-PrigatFamily Law
On the surface, Jennifer Hendricks’s Essentially a Mother is a book about the law of pregnancy and parenthood. On a deeper level, however, it is an especially timely tour de force, which reestablishes the importance of relational feminism as a critical theory that offers valuable insights and lessons for today’s scholars and activists.
Hendricks takes readers on a comprehensive yet concise academic journey across the legal debate over sex equality and accommodations of pregnancy in the workplace; changes in the status of unwed genetic fathers as legal parents under various circumstances; the Constitutional rights of parents over their children; the laws that govern and regulate surrogacy; and finally, abortion. Along the way, Hendricks provides a theoretical overview of the schools of thought that shaped feminist jurisprudence. Continue reading "Why Relational Feminists were Right"
Dec 6, 2023 Jessica M. EaglinCriminal Law
As mass incarceration and criminalization impact more Americans, efforts to address the impact of a criminal record on an individual have become more popular. We’ve come a long way from simply “banning the box” on employment applications. Today, states across the country are expanding access to criminal records relief for those touched by criminal law’s expanding web of enforcement. Diversion and expungement have emerged as two promising reforms to further that effort.
But how does criminal record relief work, exactly, and who benefits from it most? Amy Kimpel addresses these questions in her recent article, Paying for a Clean Record. Kimpel demonstrates that, through participation in diversion and expungement programs, defendants often incur various fees and fines that make gaining a clean record costly. This tendency disproportionately burdens poor and black and brown defendants such that these reforms threaten to entrench racial caste in the United States. Through her descriptively rich analysis of these two seemingly different practices, Kimpel help readers understand the complexity of criminal legal reform in the United States. Continue reading "Costly Criminal Record Relief"
Dec 5, 2023 Angela BanksLexImmigration
Gun violence remains a serious issue in the United States. The Gun Violence Archive reports that between January 1, 2023, and May 1, 2023 there have been 185 mass shootings that injured 744 people and killed 252 people. In 2008, the United States Supreme Court held that the Second Amendment protects an individual right to possess firearms, separate and apart from militia service in Heller v. District of Columbia. This right is held by “the people.” Yet, the Court has simultaneously held that noncitizens are not part of “the people” guaranteed a right to bear arms. In the Second Amendment context “the people” has been defined as citizens. Pratheepan Gulasekaram’s forthcoming article in the Vanderbilt Law Review explores the Supreme Court’s expansion of individual gun rights while shrinking the Court’s conception of “the people.” Gulasekaram offers a more capacious interpretation of “the people” and his analysis offers an approach for noncitizen inclusion in other core constitutional rights.
The Second Amendment’s “People” Problem begins with a history of federal regulation of gun possession and noncitizens. Gulasekaram demonstrates how the restrictions implemented stemmed from a desire to limit specific ideologies and subversive activities. Noncitizens in this context were viewed as threats to the constitutional order. Under a pre-Heller Second Amendment that focused on organized armed defense of the constitutional order, noncitizens viewed as a threat could not be viewed as “the people” who would protect the constitutional order. In Part II, Gulasekaram demonstrates how Heller’s emphasis on an individual right to self-defense does not lend itself to the same wholesale exclusion of noncitizens from “the people.” Part III presents Gulasekaram’s argument that once the right to bear arms is rooted in an individual right based on self-protection, the rationale for connecting gun rights to citizenship status disappears. Continue reading "Noncitizens as “The People”"
Dec 4, 2023 Lauren ScholzContracts
Algorithmic accountability is a pressing contemporary issue. Machine learning algorithms—also known as artificial intelligence (AI)—are used in decision-making by state and federal agencies, as well as in the private sector. The decisional outcomes from AI can be critical to the quality of life of affected people, and yet the rationale for algorithmic decisions is often obscure. Algorithmic accountability is the process of assigning responsibility for the results of decision making assisted by AI. In Contracting for Algorithmic Accountability, Cary Coglianese and Erik Lampmann argue that public procurement—or government contracting—is a tool to promote algorithmic accountability in governance and beyond.
Federal, state, and local agencies use machine learning algorithms to aid in many tasks, from forecasting crime to allocating social services. The algorithms are not always immediately successful, but there is great enthusiasm in developing AI for governmental decision-making due to the potential for efficiency and cost savings in the long run. However, most government entities do not have the expertise or resources to develop machine learning algorithms on their own. They must contract with private parties to create these tools for them through public procurement processes. Continue reading "Government Contracts, Algorithms, and the Benefits of Trial and Error"
Dec 1, 2023 Steve VladeckCourts Law
Andrea Scoseria Katz & Noah A. Rosenblum,
Removal Rehashed, 136
Harv. L. Rev. F. 404 (2023).
When Congress chartered the federal judicial system in the Judiciary Act of 1789, the creation of a chief legal officer for the government—an attorney general—was almost an afterthought. Congress addressed the issue only in the last sentence of the last of the statute’s 35 sections, and the language it used is surprisingly vague about how such an important federal officer was to be selected—providing only that “there shall also be appointed a meet person, learned in the law, to act as attorney-general for the United States . . . .” That passive voice was deliberate; the original draft bill adopted by the Senate would have had the Supreme Court appoint the Attorney General (a model that Tennessee still follows today). Muddying the waters left it open for the President to fill the position, as George Washington shortly would with Edmund Randolph.
This historical episode has been oft- and well-recounted, including by Susan Low Bloch in her canonical 1989 Duke Law Journal article on the early role of the attorney general. But it also seems like an obvious data point for contemporary debates over the “unitary executive” theory of presidential power: If the First Congress was so profoundly ambivalent about the President’s power to even select (let alone control) an officer as central to the enforcement of the laws as the Attorney General of the United States, that calls into some question the certitude with which some contemporary judges, justices, and scholars have defended the unitary executive on originalist—as opposed to normative—terms. Andrea Katz and Noah Rosenblum’s Removal Rehashed targets that certitude. Continue reading "An End Without Argument: The New Judicial Politics of Legal History"
