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Major Questions About Presidentialism: Untangling the “Chain of Dependence” Across Administrative Law
Get PDFA contradiction about the role of the president has emerged between the Roberts Court’s Article II jurisprudence and its Major Questions Doctrine jurisprudence. In its appointment and removal decisions, the Roberts Court claims that the president is the “most democratic and politically accountable official in Government” because the president is “directly accountable to the people through regular elections,” an audacious new interpretation of Article II; and it argues that tight presidential control of agency officials lends democratic legitimacy to the administrative state. We identify these twin arguments about the “directly accountable president” and the “chain of dependence” as the foundation of “Roberts Court presidentialism.”
Meanwhile, each of the policies in dispute in the Major Questions cases over the past three decades are the product of the “directly accountable president” and the “chain of dependence” in action. This Article documents seven MQD cases, from 1990s tobacco regulation to the recent student debt waiver: presidents campaigning on the policy, directing agencies to adopt the policy, and then publicly taking credit and responsibility for the policy. Nevertheless, the Supreme Court has almost always ignored the presidents’ role in Major Questions policies and has instead blamed the agency for overstepping its delegated power. The erasure of presidents serves the Court’s narrative of blaming “unaccountable bureaucrats,” rather than either granting the policy more democratic legitimacy for its presidential backing or holding the president who ordered the policy accountable for overstepping the separation of powers. The erasure also suggests the Court has an underlying ambivalence or anxiety about the problems of presidential power, which Roberts Court presidentialism has exacerbated. Ironies abound: relying on a theory of presidential accountability, but then retreating from holding presidents accountable; unaccountable judges expanding judicial power based on a narrative of “unaccountable bureaucrats.”
The rule of law requires consistent reasoning. We suggest five doctrinal opportunities to resolve the contradictions between the Roberts Court’s Article II presidentialism and its Major Questions’ erasures of presidents: 1) SEC v. Jarkesy on the removal of administrative law judges; 2) future MQD cases crediting or blaming presidents; 3) the applicability of MQD to presidents; 4) the future of Chevron deference; and 5) in applying the non-delegation doctrine. The Roberts Court can untangle the “chain of dependence” with more consistency in either direction, but perhaps the most important lessons from these contradictions are for judicial restraint and of acknowledging the costs of direct presidential power, not just the benefits
Opening Brief for Plaintiff-Appellant Brandon Velez
Get PDFReasons Why Oral Argument Should Be Heard: Oral argument would significantly aid this Court. This appeal presents important questions about what constitutes excessive force, retaliatory arrest, and unlawful failure to train police officers. Oral argument would allow the Court to investigate the complex facts at issue and the elements of these claims
50 Years of Legal Education in Ethiopia
No full textStanley Fisher discusses his experience as one of the early members of the Haile Selassie I University (H.S.I.U.), Law Faculty in Ethiopia
Government Misinformation Platforms
Get PDFThere is a harmful mismatch between how information published by the government is perceived-as highly trustworthy-and the reality that it is often not. This Article shows that the government frequently collects information from third party private entities and publishes it with no review or vetting. Although this information is riddled with errors and inaccuracies, scholars, policymakers, and the public treat the information with unwarranted confidence because it derives from the government. Further, institutional imprimatur (and consequent trust) attaches to information even tangentially associated with the government and to information where the government explicitly disclaims review.
This Article highlights the ubiquity of government platforms for private, unvetted information that is easily misinterpreted as authoritative. For example, the EPA encourages the public to rely on emissions data supplied by companies and unreviewed by the agency, the FDA disseminates official-looking information about drugs that is generated by drug manufacturers and posted without agency evaluation, and the CDC publicizes a database of potential vaccine side-effects to which anyone can submit unverified reports.
Many policies push open access to government information under the belief that the public can use this information for valuable ends. Greater access to government information is also touted as promoting transparency and democratizing governance. This Article argues that, contrary to scholarly consensus, policies to promote openness may instead spread misinformation, which often works against the goal of the institution disseminating the information and has broader social harms. These harms are aggravated by a growth in public access to government information via private intermediaries. Existing policy tools-disclaimers and sanctions-offer only an incomplete solution to the problem of government misinformation. This Article proposes new solutions including mechanisms to correct inaccurate information and methods to package information in ways that render it less misleading. Without reform, the push towards open access to government information may erode, not build, trust in government
Chapter 9: Liability Insurance Issues for Fraternal Organizations
No full textChapter 9 Liability Insurance Issues for Fraternal Organizations 197
I. Introduction to Fraternal Organization Insurance Liability Issues 197II. The Conventional Rules of Insurance Contract Interpretation 202III. Agency Theory — Actual Versus Apparent Authority and the Torts Lens 207IV. The Fraternal Organization Insurance Contract as a Tool of Social Policy — Moral Hazard 210
V. Other Sources of Insurance Coverage — University Liability and Parents’ Homeowners policies 214 a. University/College Liability 214 b. Homeowners’ Liability 217
VI. A Word on Criminal Liability 220VII. Conclusion 22
Implementing an EU pull incentive for antimicrobial innovation and access: blueprint for action
Get PDFIn June, 2023, the Council of the EU published a recommendation that the European Commission should contribute to the design and governance of an EU cross-country pull incentive to stimulate antimicrobial innovation and access. In this Personal View, we discuss six key considerations to support the implementation of the new pull incentive—ie, the size of the potential pull incentive and possible contributions of the member states, design of the incentive model, interplay of the new pull incentive with the proposed revisions of the EU pharmaceutical legislation, roles and responsibilities of both the EU and member states, balance between pull and push incentives, and global cooperation and responsibility. As the involvement of the member states with the EU pull incentive will be voluntary, member states should have confidence that the processes used to identify eligible antimicrobials, negotiate terms and conditions, and oversee access agreements are transparent, inclusive, and methodologically robust
Hidden in Plain Sight: Redefining the Field of National Security
Get PDFThroughout his campaign for presidency, Trump called for a ban on Muslims entering the United States. As President, he kept his word. Only days after he took office, the new administration released the first version of the Executive Order: Protecting the Nation From Foreign Terrorist Entry Into the United States. The first Executive Order, however, did not say the word Muslim. Instead, it listed only Muslim-majority countries as necessary for restrictions on entry. The Executive Order also trafficked in stereotypes about Muslims, such as the need to ban people who engage in acts of bigotry or hatred, including honor killings. As scholars note, honor killings are often popularly understood as being linked to the Middle East and South Asia. Lawyers and civil rights advocates objected to the ban. Protests at airports drew significant attention as droves of lawyers and activists stepped up to help people arriving into the United States. Recognizing this new form of hostility towards Muslims, signs went up in stores and restaurants around the United States, often featuring a woman wearing a hijab: Everyone is Welcome Here. Eventually, litigation challenging the Executive Order made it to the Supreme Court. Plaintiffs, including the Muslim Association of Hawaii and individual Muslims, challenged the constitutionality of the law. In Trump v. Hawaii, the Supreme Court found the Executive Order constitutional. Chief Justice Roberts\u27 majority opinion dismisses the claims by the Plaintiffs that the Executive Orders were driven by anti-Muslim animus. The justices separate Trump\u27s comments about Muslims from the Executive Order itself. They look behind the Executive Order and use rational basis review to uphold the order on the grounds that vetting immigrants could be plausibly related to the Government\u27s stated objective to protect the country and improve vetting processes as an independent justification for its legality. For progressives, the unwillingness to read religious (and racial) animus into the law was a form of constitutional gaslighting. In her dissent, Justice Sotomayor (writing for herself and Justice Ginsburg) concludes: Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. \u2
Becoming Steve Bright
Get PDFThis is a Director\u27s Cut version of material that appears in condensed form in Robert L. Tsai, Demand the Impossible: One Lawyer\u27s Pursuit of Equal Justice for All (Norton 2024). This essay to be published in Kentucky Law Journal was originally Chapter One. Drawing on archival documents and interviews, this essay delves into Stephen Bright\u27s childhood growing up in Kentucky first in segregated Danville and later in Lexington once he emerges as a social activist and student body president. Special attention is paid to the Vietnam era protests that engulfed the University of Kentucky in the wake of the Kent State massacre, the political exploitation of social unrest by the governor and weak leadership by university officials, and the federal court litigation over the governor\u27s emergency measures and the university\u27s disciplinary process afterward
The War on Higher Education
Get PDFAcademic freedom is under assault in the United States.1 Like the authoritarian populism rising across the globe, domestic attacks on individual professors and academic institutions buttress a broader and multifaceted campaign to undermine multiracial democracy and the institutions that sustain and safeguard it.2 The individuals and entities driving this antidemocratic movement have also targeted the electoral process; public education; the right to bodily autonomy; the civil rights and liberties of minoritized and marginalized communities; and freedom of speech and expression (increasingly marshaled against pro-Palestinian advocacy).3 Their openly stated goal is to delegitimize, defund, and “lay siege to”4 the institutions that anchor American democracy and civil society, including the institutions that comprise higher education.5
This backdrop shapes our analysis and speaks to the urgency of this moment. It also may explain why the United Nations Special Rapporteur on the right to education (SRE) conducted an official country visit to the United States in spring 2024.6 The SRE is an independent human rights expert that the United Nations Human Rights Council (UNHRC) appointed in 1998 to “examine the crucial issue of the right of all persons to access quality education without discrimination, and to provide recommendations to Governments and other stakeholders.”7
To fulfill her mandate, the SRE produces and presents periodic reports to the UNHRC.8 Earlier this year, the SRE announced a forthcoming report on “academic freedom and freedom of expression in educational institutions.”9 The Report“[will] build[] on previous work achieved by other United Nations human rights mechanisms on the topic” and “take stock of setbacks and progress both under international human rights law and in domestic legislation and practice with respect to defining academic freedom, ensuring its enjoyment by all relevant actors and protecting it from attacks and interferences.”10
As is practice, the SRE invited input from entities ranging from nation-states and UN agencies to human rights organizations and individual academics.11 The Critical (Legal) Collective (CLC)12 answered this call with a submission that outlined the escalating assault on academic freedom, university independence and freedom of expression in the United States.
This Essay expands upon that submission and proceeds as follows. Part I outlines academic freedom’s core features and spotlights GOP-led attacks on academic freedom in North Carolina and Florida. In Part II, we situate the two preceding case studies within a nationwide right-wing assault on academic freedom and university independence. Part III links academic freedom’s present precarity to often-bipartisan neoliberal reforms that privatized and corporatized much of higher education
Constitutionalizing Racism
Get PDFUnreasonable is Devon Carbado at his best. Through accessible prose, carefully crafted hypotheticals, effective visualizations, and some cross-examination (for the reader), Carbado reintroduces us to the Fourth Amendment. In arresting detail, Unreasonable exposes how the Supreme Court has turned the Fourth Amendment against “the people”—and specifically, against people racialized as Black. Part of the “Bill of Rights,” the Fourth Amendment was adopted to protect “the right of the people” from police overreach. Yet over the past half-century, the Supreme Court has systematically repositioned the Fourth Amendment as a weapon of police power. Or as Carbado argues: whereas many assume that the Bill of Rights was intended to “protect and empower ‘we the people,’ [Unreasonable] contends that Fourth Amendment law overly protects and empowers ‘we the police.’