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Men are Winning: Why Paid Paternity Leave Has Not Taken Full Flight in the United States
No full textAssessing Visions of Democracy in Regulatory Policymaking
No full textMotivated in part by Congress’s failure to legislate, presidents in recent years seem to have turned even more to the regulatory process to make major policy. It is perhaps no coincidence that the field of administrative law has similarly seen a resurgence of scholarship extolling the virtues of democratic accountability in the modern administrative state. Some scholars have even argued that bureaucracy is as much as if not more democratically legitimate than Congress, either in the aggregative or deliberative sense, or both.In our contribution to this Ensuring Democratic Accountability in the Administrative State Symposium, we make a modest intervention to suggest that visions of democracy in administrative law need to better take into account that presidents pursue major policymaking through modes of regulatory action beyond notice-and-comment rulemaking. They include interim final rulemaking, subregulatory agency guidance, executive orders and other presidential directives, formal agency adjudication, and informal adjudication and orders. These other modes of regulatory policymaking are far less democratically accountable, in terms of leveraging agency and public expertise and engaging stakeholders and issues in a public and transparent manner. As such, we argue that presidents should embrace notice-and-comment rulemaking as the default regulatory mode when it comes to making major policies through administrative action. We conclude, moreover, that notice and-comment rulemaking, even when done well, is no panacea for democratic accountability. Congress needs to play its proper role in modern governance when it comes to questions of deep economic, moral, and political significance
Private Environmental Nudges
No full textA few years ago, before the onset of a global pandemic, I noticed that my preferred Portland, ME coffee shop—Tandem Coffee Roasters—implemented a new policy. Upon ordering a beverage, the barista asked if I brought my own mug. They informed me that, if had I not, I could purchase a paper, disposable vessel from the shop for twenty-five cents. Some might (understandably) ask, “Does coffee not come in a cup anymore?” The shop implemented what this paper dubs a “private environmental nudge,” a subset of policies that define private environmental governance (PEG)—the actions taken by nongovernmental entities to achieve traditional governmental ends regarding environmental protection. This subset of PEG, pioneered by small businesses, relies on insights from behavioral economics, particularly Richard Thaler and Cass Sunstein’s famous theory of “nudges.” In my coffee example, the economics for the business are identical to the more common nominal discount for bringing a reusable cup; the only difference is in choice architecture. This paper includes a brief empirical case study of this emblematic example. It fills two gaps in the PEG literature with respect to small businesses and behaviorally informed policies. It further provides a typology of private environmental nudges, describing four archetypes, which will inform and guide future studies
Hearing the Voice of the Woman Judge: Diversity, Equality, and Participation
No full textThe UK has not achieved the judicial diversity of other common law jurisdictions. Whilst there is some success in the lower courts, few women judges have ever sat on the UK Supreme Court bench. It has long been argued that diversity enhances decision making, and the presence of women judges enhances the decision-making process. But this can only occur if women are appointed to the bench and supported to participate fully. Drawing on the theoretical framework developed by Sandra Fredman and the UK equality legislation, this Article explores how the structures and processes of the Supreme Court limit substantive equality on the bench. Analysis of the processes of appointments to the UK Supreme Court highlights the structural barriers to effective participation of women. Substantial procedural changes will be required if equality is ever to be achieved on the UK Supreme Court bench
The Presumption of Constitutionality and the Demise of Economic Liberties
No full textFor over two centuries the United States Supreme Court has embraced a presumption of constitutionality that places the burden of proof on those challenging the constitutionality of governmental actions. Usually, the presumption is stated as a given, but when explained it is most often said to be founded in republicanism and due respect for the co-equal branches of government. Thus, the presumption constitutes a deference to the constitutional interpretations of the elected branches of government. This majoritarian view of the Constitution’s foundational principle is counter to the dominant view of the Constitution’s founders. They designed a government constituted of numerous constraints on the democratic excesses experienced during the period of the Articles of Confederation. Among those constitutional constraints is a Supreme Court with responsibility to safeguard liberty by assuring constitutional compliance by state governments and the other two branches of the national government.
Because the presumption requires that the government show only a rational basis for its actions, the Supreme Court has abandoned its deference to executive and legislative interpretations of the Constitution when confronted with what a majority of the justices consider to be particularly important rights claims, first in First Amendment cases and later where other rights are found to be fundamental or particular groups of people are affected. While this selective abandonment of the presumption of constitutionality reflects an acknowledgement of the libertarian foundations of the Constitution, the presumption remains the default, resulting in variable scrutiny of constitutional claims depending on the rights asserted and the individuals asserting those rights. This levels of scrutiny-hierarchy of rights and peoples approach requires courts to independently assess the importance of government actions relative to individual rights claims, thereby intruding on the policy making role of the legislative and executive branches while creating a hierarchy of rights and peoples. Because the Court has continued to presume the constitutionality of laws said to be adjusting the benefits and burdens of economic life, economic liberty claims are seldom successful. The overarching contention of this Article is that the Constitution allows for no hierarchy of rights or peoples and therefore requires a default presumption of unconstitutionality. The courts should strictly scrutinize every constitutional rights claim
You Guys Are Getting Paid? Time for Interns to Cash in on the FLSA
No full textUnder the Fair Labor Standards Act (“FLSA”), individuals who qualify as employees are entitled to the federal minimum wage. Because the statute itself gives little guidance about who meets the FLSA definition of an employee, courts generally determine employee status by applying the economic reality test, which assesses the economic circumstances of the relationship and tends toward broad inclusivity. The Supreme Court, however, created a caveat in 1947 in Walling v. Portland Terminal, holding that trainees might be uniquely excluded from FLSA employee status and its attending benefits. The trainee exception, as it has since become known, has expanded in the last 76 years. In that time, the exception has been extrapolated to a growing cohort that scarcely existed at the time of Walling: interns. As the intern population has grown, so have the number of tests attempting to determine the employee status of interns under the FLSA. A few have gained traction, and one has risen to the top: the primary beneficiary test. This Comment reviews the trajectory of internships as engines of opportunity in the last several decades and the circuit split over the proper test for determining interns’ employee status. Ultimately, this Comment recommends that the Supreme Court take up the issue again and reject the primary beneficiary test. Instead, the Court should adopt a test backed by the tenets of Walling, the aspirations of the FLSA, and the realities of the modern-day intern economy: an objective, employer-focused cost-benefit approach
The Paradox of The Paradox of Democracy
No full textIn The Paradox of Democracy: Free Speech, Open Media, and Perilous Persuasion, authors Zac Gershberg and Sean Illing argue that democracies contain the capacity for their own destruction because they promote open communication but such communication can be manipulated by authoritarian forces. They argue further that with contemporary communications technologies the descent into fascism is even more likely. The authors argue that in order to confront these threats, democratic nations must increase media literacy within the citizenry and strengthen local journalism. Given the grave nature of the threats the authors have exposed, these solutions do not appear up to the task of defending democracy. Indeed, a deeper analysis of The Paradox of Democracy suggests that it is not just the solutions, but the analysis itself, that leaves some stones unturned, glossed over, or completely ignored. Although the work is a useful complement to other works addressing the present threats to democracy, like some of those other works, it, too, fails to provide a complete picture of these threats or offer viable options for resisting them. When read together, however, a more complete picture of not just the threats, but also the tactics and strategies necessary to oppose them, comes into view
Industrial Jurisdiction
No full textWilliam Novak’s New Democracy: The Creation of the Modern American State reveals how the current administrative state evolved to control economic activity through an incremental rejection of state-based common law and police powers in favor of centralized public regulation. This review identifies the business case for the administrative state and presents the first academic treatment of pro-regulation testimony from business interests during congressional consideration of the Interstate Commerce Act. In so doing, this review shows how the concept of industry is as much a legal concept as it is an economic one. This review argues that the nature of regulatory jurisdiction being tied to the concept of industry has implications for current regulatory entrepreneurship scholarship, which examines the ways regulation can be both a barrier as well as a subsidy to business. By explicating the legal significance of industrial jurisdiction, this review identifies the significance of industry and jurisdiction as typologies of interest in the study and adjudication of administrative law
The Impact of Education Abroad Participation on College Student Success Among First-Generation Students
No full textThis study utilized the large-scale, multi-institutional CASSIE dataset to examine the impact of education abroad participation on academic outcomes for first-generation college students. Using robust multivariate matching methodology that effectively minimized self-selection bias, results showed the magnitude of benefit offered by studying abroad was greater for first-generation students than for continuing-generation students. Even after matching on a variety of background and prior achievement variables, first-generation students who studied abroad had higher 4- and 6-year graduation rates, had higher cumulative GPA scores, and took less time to graduate—relative to first-generation students who did not study abroad. These findings suggest that education abroad programming can be leveraged as a high-impact educational practice to promote college completion rates among first-generation students