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Decreasing Transparency for Certain Department of Health and Human Services Actions
No full textOn February 28, 2025, the US Department of Health and Human Services (HHS) announced a significant departure in how it will interact with its key stakeholders, which include physicians, health care organizations, and patients in public programs like Medicaid. Specifically, HHS will no longer provide an opportunity for public comments on many actions around contracts, grants, and benefits.1 Additionally, it will not engage in public comments when it decides there is “good cause” to bypass them. On the surface, this may appear to be a minor, technical shift in HHS’ administrative processes, but this change may have significant implications for transparency in HHS policies as well as health care practitioners’ and patients’ ability to influence rulemaking
Reply Brief for Plaintiff-Appellant, Jane Roe v. Marshall University Board of Governors
Get PDFMarshall does not dispute that Jane Roe’s experience as a student there was marred by fellow-student John Doe’s repeated sexual harassment. Doe’s harassment of Roe escalated on September 3, 2022, when he sexually assaulted her at a Marshall-football-watch party near campus. Instead of supporting Roe to confront the assault’s aftermath or the lingering on campus hostile environment, Marshall punished her, pretextually shuffling her through an investigation riddled with procedural deficits, in an attempt to cover its tracks.
Marshall argues it isn’t liable because it lacks control over all off-campus sexual assaults. But it undermines itself by admitting it exercised control over the off-campus context at issue here to punish Roe, purportedly for underage drinking. It also ignores its control over the harassment that pervaded its campus—the hostile environment inhibiting Roe’s access to the full benefits of education at Marshall. And though it chose not to, it had enough control to remedy Roe’s educational harms. Marshall argues it was not deliberately indifferent because it also punished Doe and instituted an interim no-contact order. But its conduct was clearly unreasonable because it did not tell Roe whether the no-contact order remained effective following its investigation into her, address Doe’s prior sexual abuse, or offer Roe supportive measures, all while punishing her.
Marshall also denies that its response was retaliatory. It asks this Court to ignore binding precedent about what it means to engage in protected activity and what counts as a materially adverse action. And it refuses to engage with the facts showing its real reason for punishing Roe was her protected activity and its proffered reason for punishing Roe, underage drinking, was pretextual. The evidence shows that Marshall deviated from its procedures to punish Roe, did not investigate other students that it knew were drinking underage, and maintained per se retaliatory policies in its student-conduct office.
Across the board, Marshall accuses Roe of taking creative license with the facts. But it’s Marshall that asks this Court to flip the summary-judgment standard on its head. Applying that standard properly—that is, viewing the facts and drawing reasonable inferences in Roe\u27s favor—this Court should reverse the district court’s grant of summary judgment and remand for trial
Reclaiming Abortion as a Moral—and Religious—Decision
Get PDFElizabeth Sepper, Free Exercise of Abortion, 49 BYU L. Rev. 177 (2023).
In 1973, before the Supreme Court decided Roe v. Wade, two members of a group of clergy committed to helping women receive abortion care stated: “every woman must possess the freedom, guaranteed by the U.S. Constitution, to follow her religious conscience in the determination of whether she will or will not bear a child.”1 Religious supporters of abortion access also cited the Establishment Clause: states were adopting, in a religiously diverse nation, a religious view about when life begins and how to value fetal and maternal life. These pre-Roe examples, Elizabeth Sepper argues in Free Exercise of Abortion, are part of a long history of recognizing the religious dimensions of abortion decisions. A significant post-Roe example is the initial success, in federal district court, of a free exercise challenge to the Hyde Amendment, which excluded most abortions from Medicaid coverage while funding all other pregnancy-related expenses. After hearing extensive testimony by religious authorities about religious teachings on abortion, Judge Dooling framed a woman’s abortion decision, when “medically necessary to her health” and exercised “in conformity with religious belief and teaching,” as “conscientious,” and doubly protected under the Due Process Clause and the First Amendment.2 However, the U.S. Supreme Court, in upholding the Hyde Amendment in Harris v. MacRae, avoided reaching the Free Exercise argument and rejected plaintiffs’ Establishment Clause argumen
What the Hell is the Major Questions Doctrine?
Get PDFAnita S. Krishnakumar, What the New Major Questions Doctrine Is Not, 92 Geo. Wash. L. Rev. 1117 (2024).
When the sun sets in New York City, it rises in Tokyo. Okay, maybe not exactly, but you get the idea: setting somewhere, rising somewhere else. Now substitute Chevron for N.Y.C. and the Major Questions Doctrine for Tokyo. For the past forty years, administrative law scholars have been arguing over Chevron, and now that the sun has set on that doctrine, it’s time to turn our attention to the new rising sun, the Major Questions Doctrine (“MQD”). The sudden emergence and prominence of the MQD in administrative law has led scholars to ask just what kind of legal doctrine the MQD is. If the voluminous scholarship on Chevron is any indication, there will be much, much more to come
Consumer Agents
Get PDFIn the twenty-first century economy, individuals need market help that they are not getting. The technology has long existed for a browser plug-in that would filter out toxic social media content or a virtual shopping assistant that would find and even purchase the best deals online without having to go to many different websites and product pages. Yet tech platforms have used lawsuits and data control to stifle such tools. The lack of digital helpers has potentially profound consequences. Social media use is linked to alarming increases in teenage depression and anxiety. Businesses’ ability to manipulate consumers into paying higher prices harms the economy and may significantly contribute to heightened levels of economic inequality not seen since the Gilded Age. The absence of sophisticated third-party digital tools reflects a gaping hole in the federal regulatory framework dating back almost a century. In the throes of the Great Depression, lawmakers enacted powerful regulatory statutes for the economy’s three most important individual actors—workers, investors, and consumers. That legislation, however, strengthened third-party help only for workers and investors—via labor unions and stockbrokers. In contrast, New Deal consumer protection legislation paid no attention to how third-party market actors might help consumers. This Article shows how that omission cemented the federal core of consumer law in a dyadic, buyer-seller framework inapt for the modern networked economy. It also describes a new polyadic consumer law regime emerging at the state and sectoral level. The new regime moves beyond directly policing the consumerbusiness dyad to also cultivating an ecosystem of helpful private market actors. Some laws have begun to mandate that dominant incumbent businesses give data access to third-party digital helpers. Others have conscripted the world’s largest companies, such as Facebook and Citibank, to protect consumers from other harmful actors. These laws have the potential to thrive in deregulatory times because they are conservative—in the sense that they primarily rely on markets rather than government actors. But they also have the potential to upend an industry’s power structure. At its most ambitious, the emerging framework amounts to a digital-age consumer industrial policy with the potential to construct more efficient, equitable, and ethical markets
Performance Leads Governance: A Comment on Professor Tallarita’s Dual-Class Analysis
No full textThe rise of dual-class stock structures in corporate governance has sparked intense academic, legal, and regulatory debate. In his recent contribution, Dual-Class Contracting, Professor Tallarita persuasively challenges some contemporary interpretations of contractarian theories by showing that dual-class structures do not reflect bespoke bargaining or firm-specific negotiation, but rather result from lawyer-driven standardization, social norms, and path dependency.
Drawing on Tallarita’s empirical findings, we argue that the reality of dual-class structures extends beyond governance formality. Specifically, we contend that investor behavior is driven not by structural governance ideals, but by corporate performance and mission alignment. Companies increasingly design governance structures based on what is most likely to drive performance, not on academic theories or even the views of proxy advisory firms.
Engaging directly with Tallarita’s accurate analysis, we move the debate one step forward by emphasizing that any account of dual-class structures must be grounded in empirical realities: the persistence of dual-class structures reflects not a market failure, but a rational understanding by market participants—including founders, investors, bankers, and others—that greater value has been and can be created through a variety of governance structures that allow companies to focus on mission and long-term value in addition to short-term performance
The Misuse of Ratification-Era Sources by Unitary Executive Theorists
No full textThis symposium essay suggests that, given an ostensibly originalist Supreme Court, the future depends on getting the past right. The unitary executive theory is approaching its political and doctrinal zenith in 2025, at the very moment it is approaching an evidentiary crisis. This essay details that crisis: a subset of misuses and misrepresentations of sources in the unitary executive scholarship. This subset focuses on serious misrepresentations of the Ratifications debates.
The Ratification debates appropriately have become the primary source of evidence for original public meaning, the dominant theory of originalism. The Ratification debates have always been a significant problem for the unitary executive theorists, because The Federalist Papers are solid contrary evidence. The Ratification debates were silent about whether the President had a general power of removal—even in the voluminous Anti-Federalist speeches and writings, where one would most expect to see such warnings if they existed.
Aditya Bamzai and Saikrishna Prakash, attempting to rescue their theory that Article II implies a presidential power of removal at pleasure, claim to have identified five passages from the Ratification debates. Unfortunately, none of these five passages withstand scrutiny. These misuses are part of a serious pattern of misuses of historical materials. Historians and legal scholars have offered so much evidence against these claims, with the unitary theory’s defenders offering so little evidence in return, that it is safe to say that none of these pillars remain standing
The Endorsement Test\u27s Early Years, 1983-1985: Notes from the O\u27Connor Files
No full textOne of Justice Sandra Day O’Connor’s signature contributions to U.S. constitutional law was the endorsement test, a subtle but critically important reformulation of the Court’s then prevailing approach to applying the Establishment Clause that focused on the message sent by government action supporting religion and the potentially harmful effects of that message on religious minorities and the political community. Now that the current Court has discarded the endorsement test, leaving the government freer than ever to support religion in a variety of ways, we should expect to see the harms that Justice O’Connor cared about become increasingly widespread and prevalent. Accordingly, now would seem to be an ideal time for scholars and court-watchers to consider whether Justice O’Connor’s approach to constitutional decision-making might in some ways be preferable to those that predominate today at the Court. The recent opening of Justice O’Connor’s files in the Library of Congress presents new opportunities for this type of inquiry. Specifically, as detailed in this Essay, the files from the key cases between 1983 and 1985 involving the endorsement test reveal a justice who cared about legal principles but also about the real-world consequences of constitutional decision-making. They show someone who thought hard about how to make the law better, who gave serious consideration to the views of others (her colleagues, her clerks, scholars in the field) but who was not afraid to strike out on her own, and who demonstrated substantial courage in the face of forces—particularly the Chief Justice of the Court on which she sat—trying to contain and limit her influence
Contested Criminalization
Get PDFHow does the U.S. government decide to deploy criminal justice abroad? From the Syrian civil war to the Israel-Gaza conflict, Russia-Ukraine War, and U.S.-China relations, criminal law sits at the heart of contemporary U.S. foreign relations. And yet legal scholarship has never precisely explained how the U.S. government deploys or supports criminal prosecutions abroad, often defaulting to simplistic labels of the United States as exceptionalist, carceral, or isolationist. This Article rectifies this by introducing a theory of contested criminalization, piercing the veil of U.S. government decisionmaking in its use of criminal law in foreign policy. According to this process, criminalization occurs when the U.S. government pulls three levers—codification, cooperation, and creation. But such process is contested, developing contingently in geopolitical crises due to the divergent equities of Congress and three executive agencies: the Department of Justice, Department of State, and Department of Defense. Using a criminal law minimalism frame, this Article argues for a policy of cooperation to redress wrongs and advance justice for victims
Criminal Court\u27s Disability
Get PDFDo criminal courts meaningfully accommodate psychiatric disability? A review of competency proceedings across the United States suggests not. In competency to stand trial proceedings, criminal court actors offer a narrow vision of psychiatric disability that excludes many defendants. Ultimately, the institutional context of criminal court undermines even the meagre accommodations that the competency framework provides.
Competency proceedings are the constitutional accommodations available to disabled defendants if they can establish that they are unable to consult with their lawyers or if they do not have a rational or factual understanding of the proceedings against them. After a finding of incompetency, the accused is typically institutionalized until a mental health expert finds them restored.
Criminal court judges and examiners systematically deny recognition to one group of diagnoses--personality disorders (PDs). Even when defense attorneys argue that symptoms of the accused’s PD impede their ability to collaborate, courts and some forensic experts insist that such defendants are competent. Examiners and courts reframe these difficulties as deliberate acts of subversion and conclude that defendants with PDs choose to be uncooperative. PDs receive an exceptional and paradoxical status: they are considered psychiatric conditions, yet their expressions are deemed volitional. This Essay argues that CST outcomes reveal court actors’ primary preoccupation with determining responsibility rather than due process. As a result of this preoccupation, courts selectively apply the competency standard, discounting its inter-personal dimensions and prioritizing the accused’s cognitive capacities.
Forensic examiners are the protagonists of this story. Courts defer to experts’ decisions, but they cede too much. To reach their findings, examiners step outside their clinical role and make normative, rather than descriptive claims about responsibility, disability and deviance. Thus, although competency is a procedural protection, substantive concerns, rooted in criminal law and about responsibility intrude on court actors’ decision-making.
Competency proceedings illustrate that it may not be possible for criminal courts to both embrace and adapt themselves to the reality of neurodivergence while also pursuing criminalization. Furthermore, evidence from competency proceedings suggests that mental health expertise is neither an antidote to criminalization, nor sufficient for disability justice