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Bureaucratic Resistance and the National Security State
Get PDFModern accounts of the national security state tend toward one of two opposing views of bureaucratic tensions within it: At one extreme, the executive branch bureaucracy is a shadowy “deep state,” unaccountable to the public or even to the elected President. On this account, bureaucratic obstacles to the President’s agenda are inherently suspect, even dangerous. At the other end, bureaucratic resistance to the President represents a necessary benevolent constraint on an otherwise imperial executive, the modern incarnation of the separation of powers, as the traditional checks on the President of the courts and Congress have fallen down on the job. These “deep state” and “benevolent constraints” approaches to bureaucratic behavior lead, respectively, to fear of or over-reliance on bureaucratic resistance, which I define here broadly as action or inaction within the executive branch that hinders executive movement. Fear of bureaucratic resistance results in an over-erosion of internal checks on the President. Alternatively, over-reliance on these internal checks may result in complacency, and an abdication of responsibility from the traditional external checks of Congress and the courts. Both approaches result in an insufficiently constrained President.This Article seeks to navigate the tension between these approaches in order to craft a more realistic account of bureaucratic resistance, divorced from substantive views about the policies or President at hand. This account suggests that critics of the bureaucracy under-estimate the extent to which bureaucrats wield formal authority well-tethered to politically accountable sources. But both critics and champions of bureaucratic resistance over-estimate the extent to which bureaucrats exercise functional power free from practical constraint. Ultimately, the bureaucracy is neither all-powerful nor unaccountable. While it plays an essential – and endangered – role in the modern separation of powers, it is neither the threat that some fear, nor the holistic cure to a President who is
Deep Fakes: A Looming Crisis for National Security, Democracy and Privacy?
No full text“We are truly fucked.” That was Motherboard’s spot-on reaction to deep fake sex videos (realistic-looking videos that swap a person’s face into sex scenes actually involving other people). And that sleazy application is just the tip of the iceberg. As Julian Sanchez tweeted, “The prospect of any Internet rando being able to swap anyone’s face into porn is incredibly creepy. But my first thought is that we have not even scratched the surface of how bad ‘fake news’ is going to get.” Indeed
To All Government Lawyers, Roger Left You a Note: Tribute to Roger C. Cramton
Get PDFRoger\u27s contribution to the field of legal ethics cannot be overstated. A prolific scholar, first class teacher, and energetic participant in many important debates at the ALI, ABA, and other fora on what the law governing lawyers should be, there are few, if any, who have contributed more. But when asked to write about Roger\u27s contribution to the field of legal ethics-a field still much maligned but which Roger did all he could to elevate-I was not lost in a sea of this and that; one article of his immediately came to mind
The New Health Care Federalism on the Ground
Get PDFThis essay, part of a symposium investigating methods of empirically evaluating health policy, focuses on American health care federalism, the relationship between the federal and state governments in the realm of health care policy and regulation. We describe the results of a five year study of the implementation of the Patient Protection and Affordable Care Act (ACA) from 2012-2017. Our study focused on two key pillars of the ACA, which happen to be its most state-centered — expansion of Medicaid and the implementation of health insurance exchanges — and sheds light on federalism in the modern era of nationally-enacted health laws that preserve key roles for state leadership. The full study is detailed in the Stanford Law Review; here, we offer a more accessible snapshot and highlight a key aspect of the research: interviews of approximately twenty high ranking former state and federal officials at the forefront of ACA implementation.
The interviews corroborate the study data and substantiate our conclusions about the defining characteristics of the ACA’s implementation from a federalism perspective. Specifically, we found that the ACA’s implementation process has been 1) dynamic; 2) pragmatic; 3) negotiated; and 4) and marked by intrastate politics. We observed waves of engagement and estrangement between states and the federal government, and state decisions to participate in the ACA’s programs have not been binary, in/out choices. Vertical and horizontal negotiation and copying have been near constants.
The findings also reveal theoretical and empirical challenges for quantitatively evaluating health care federalism. Does it exist? Is it successful? We found the traditional federalism attributes pop up in inconsistent ways under the ACA and emerge from virtually every structural arrangement of the law. We tried, for instance, to measure how “cooperative” the states were, only to find that concept meaningless. Some states attempted implementation but failed; other states rebelled by refusing to run their own programs at all. The federal government stepped in for both. Were such states equally “cooperative” or “autonomous”? The same challenges occurred for all of the classic federalism metrics. For example, we saw local experimentation emerge from every kind of governance structure under the ACA, including nationalist ones.
Our work leads us to a key question: Why choose federalism-oriented health reform models in the first place? In ACA implementation, it sometimes appeared that federalist arrangements did not aim to improve health outcomes but rather reflected “federalism for federalism’s sake”—federalism to advance political or constitutional values, such as reserving power to the states in the interest of sovereignty and balance of power — regardless of the effect on health care coverage, cost, quality, or other measures of health policy success. At other times, it seems federalism was intended as a means to an end — e.g., that state-led health policy is assumed to produce better health outcomes. In the end, we were able to conclude more assuredly that the ACA’s many structural arrangements served state power than that any particular one of those arrangements was more federalist or that any particular one produced better health policy. Clearly, we cannot evaluate federalism — whether it exists, whether it is working, whether it is worth defending — without knowing what it is for in the first place
\u27These Are Animals\u27 Has Quickly Become American Doctrine — And That’s Dangerous
No full textThe “animals” I’ve represented as an immigration attorney are middle school students, home health aides, hairdressers and restaurant workers. My clients like Harry Potter, club soccer and seeing their first snowfall. When President Trump called immigrants “animals” recently, I immediately thought of my client who, for privacy reasons, I’ll call Denis
Universal Proxies
Get PDFContested director elections are a central feature of the corporate landscape, and underlie shareholder activism. Shareholders vote by unilateral proxies, which prevent them from “mixing and matching” among nominees from either side. The solution is universal proxies. The Securities and Exchange Commission has proposed a universal proxy rule, which has been the subject of heated debate and conflicting claims. This paper provides the first empirical analysis of universal proxies, allowing evaluation of these claims./= / \u3e/= / \u3eThe paper’s analysis shows that unilateral proxies can lead to distorted proxy contest outcomes, which disenfranchise shareholders. By removing these distortions, universal proxies would improve corporate suffrage. Empirical analysis shows that distorted proxy contests are a significant problem: 11% of proxy contests at large U.S. corporations between 2001 and 2016 can be expected to have had distorted outcomes. Contrary to the claims of most commentators, removing distortions can most often be expected to favor management nominees, by a significant margin (two-thirds of distorted contests, versus one-third for dissident nominees). A universal proxy rule is therefore unlikely to lead to more proxy contests, or to greater success by special interest groups./= / \u3e/= / \u3eGiven that the arguments made against a universal proxy rule are not valid, the SEC should implement proxy regulation. A rule permitting corporations to opt-out of universal proxies would be superior to the SEC’s proposed mandatory rule. If the SEC chooses not to implement a universal proxy regulation, investors could implement universal proxies through private ordering to adopt “nominee consent policies.
Exploring the Meaning of Experiential Deaning
Get PDFThis article explores the position of associate dean of experiential education in law schools across the country and the central role associate deans play in the changing landscape of legal education. Experiential deans have broad responsibility for overseeing law schools’ experiential education programs. Additional responsibilities differ between institutions, but range from leading efforts to comply with new ABA standards to overseeing the integration of experiential education into the broader curriculum. Analyzing survey data collected from associate experiential deans across the country, the authors find the structure, content, and authority of the position is under-developed. The authors make recommendations on how institutions can carve out the role intentionally and provide institutional support to increase the efficacy of the position
Martin Luther King Jr. And Pretext Stops (and Arrests): Reflections on How Far We Have Not Come Fifty Years Later
Get PDFBy January, 1956, the Montgomery Bus boycott was in full-swing. Black citizens in Montgomery, Alabama were refusing to ride the city’s private buses to protest racially segregated seating. On the afternoon of January 26, 1956, twenty-seven-year-old Martin Luther King, Jr. had finished his day of work at the Dexter Avenue Baptist Church in Montgomery. On his drive home, King stopped his vehicle to offer a ride to a group of bus boycotters standing at a downtown car-pool location. After the boycotters entered King’s car, two motorcycle policemen pulled-in behind King’s vehicle. While everyone in King’s car tried to remain calm, the police continued to follow King’s car. At the next car-pool location, when some of King’s passengers began to exit, one of the policemen pulled next to King’s window, stating: “‘Get out, King. You’re under arrest for speeding thirty miles an hour in a twenty-five-mile zone.’” While stunned by the police action, King did not protest. He was arrested and taken to the Montgomery City Jail, where he was processed, fingerprinted and jailed with other black prisoners.It has been nearly sixty years since Martin Luther King, Jr. was subjected to this arbitrary and discriminatory police practice. Surely, things have changed in America. After the demise of the Jim Crow system, the enactment of federal and civil rights legislation protecting blacks from discriminatory application of state and local laws, and several decades of Supreme Court rulings enforcing the rights of black citizens, it would seem that law enforcement officials can no longer perform this type of arbitrary and bigoted policing. Although much has changed in America, investigatory or pretext stops unfortunately remain ubiquitous. As in King’s case, these stops are not aimed at enforcing the traffic code. Rather, police who conduct investigatory stops are a fishing expedition to look for evidence of criminal conduct. Various types of law enforcement agencies utilize pretext stops; and high-ranking police officials endorse pretext stops as a crime control measure. Indeed, two decades ago, investigatory stops were given a major boost when the federal government actively encouraged state and local police departments to use traffic laws as a basis for stopping cars suspected of drug smuggling.From one perspective, the use of pretext stops in the War on Drugs specifically, and to fight crime generally, raises no legal alarm. For most white Americans, modern application of this practice may seem annoying, but it is worth the cost in the fight against crime. A motorist is stopped by the police. The officer then questions the motorist about his or her travel plans (and if there are passengers, they are also questioned). Finally, a traffic summons or ticket may be issued. While bothersome, this practice, viewed in the aggregate, does not amount to a constitutional crisis. Moreover, on a rare occasion, criminality is exposed as a result of the stop.Black Americans, however, have a distinctly different perception of the situation. For King, the pretext stop was much more than a “stop.” The upshot was a frightening ride to jail; at one point during the ride, King believed the police were going to lynch him. Today, the modern pretext stop is on display when a black motorist is seen standing on the side of a highway or city street while police (typically white officers) search his vehicle. Study after study has demonstrated that African-Americans are targeted for pretext stops at a rate greater than white Americans. For blacks, particularly black men, a pretext stop is unequivocal notice of their inferior status in America. As Don Jackson, a former police officer, put it not too long ago: “The black American finds that the most prominent reminder of his second-class citizenship are the police.”The authors in this symposium were asked to consider how far America has come in the fifty years after the tragic assassination of Martin Luther King, Jr. Of course, America has made substantial progress on several fronts that would have pleased Dr. King had he lived to see them. Many aspects of our criminal justice system, however, would have deeply disappointed King. We are confident that the continued and widespread use of pretext stops and their attended consequences would have offended King. Looking forward, America can honor Dr. King by ending pretext stops.This article was presented at “MLK 50: Where Do We Go From Here?,” a symposium co-sponsored by the University of Memphis Cecil C. Humphreys School of Law and the National Civil Rights Museum, on April 2-4, 2018. It will be published in the forthcoming Volume 49 of the University Memphis Law Review
Barack Obama\u27s Emancipation Proclamation: An Essay in Memory of Judge Richard D. Cudahy
Get PDFIn a case involving whether illegal immigrants were protected under federal labor law, Judge Richard Cudahy, observed that illegal immigrants are often at the mercy of unscrupulous employers and that immigrations laws provide employers “with a powerful tool for unfair and oppressive treatment of migrant labor.” There are millions of people in the United States who are vulnerable to exploitation in the workplace due to their illegal immigration status. In 2012 and 2014, the Obama administration announced programs designed to provide limited security to some of the millions of illegal immigrants present in the United States. These programs are, in many important ways, analogous to President Abraham Lincoln’s Emancipation Proclamation, which was designed to provide security and dignity to millions of enslaved people living in the United States. This essay, a memorial tribute to Judge Cudahy, is designed to explore the parallels between President Obama’s immigration reform and emancipation from slavery, including similarities in the way the opposition reacted to Lincoln’s and Obama’s actions
FOSTA: The New Anti-Sex-Trafficking Legislation May Not End the Internet, But It’s Not Good Law Either
No full textAmid the chaos of the last week, one of the most significant pieces of internet legislation of the last two decades went relatively unnoticed. Most people likely had no idea that Congress was moving full steam ahead on altering a law that some credit for “why we have the internet.” And so it did: On March 21, the Senate passed into law the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA)