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How Agencies Can Better Regulate for Racial Justice
Get PDFOn his first day in office, President Joseph R. Biden signed an executive order to advance racial equity throughout the federal government by taking a “systematic approach to embedding fairness in decision-making,” redressing inequities, and advancing equal opportunity in agency policies and programs.
This order is an important step. President Biden’s executive order promises new, proactive engagement by the administrative state to promote racial equity and other dimensions of inclusion in agency programs. But federal administrative agencies have played a key role in structuring racial segregation and sustaining racial inequality in housing, health care, access to transit, and wealth. President Biden’s executive order does not, however, lay out specifics, leaving it to agencies and the Office of Management and Budget to give shape to the aspirations of the executive order.
Commentators have offered a range of promising ideas, including retooling or abandoning cost-benefit analysis to advance racial justice and equity considerations, scoring policies and regulations for their impact on racial equity, and disaggregating agency data by race, ethnicity, and gender, among other characteristics, to help agencies better understand the impact of programs and regulations on particular communities.
Here are three additional ideas to consider
Courts in Conversation
Get PDFRalph Waldo Emerson once suggested that we read not for instruction but for provocation. By that standard, in The Words That Made Us, Akhil Reed Amar has written a characteristically great book. This is not to deny that there is abundant instruction in its many pages: Amar offers a synoptic and yet still nuanced description of the great constitutional conversation that engulfed American political life in the eighty or so years around the founding. One of the chief values of the book, though, is that it will provoke a whole new set of additions to the constitutional conversation that it so ambitiously describes. The present symposium is a testament and a preview.
My symposium essay will isolate and attend to one voice in the constitutional polyphony: the judiciary. A remarkable transformation takes place over the course of Amar’s narrative. In the beginning, the institutional voice of the judiciary is scarcely audible. The courts’ contributions to the constitutional conversation pale in comparison to the much more significant contributions of Presidents, cabinet officials, members of Congress, pamphleteers, litigators, and citizens. By the end of Amar’s story, however, the Marshall Court has become a major voice in America’s constitutional conversation. How did that happen? What accounts for this dramatic change in the relative volume of the judicial voice?
The passage from judicial inaudibility to judicial preeminence is a complex sociopolitical event that cannot be reduced to a single cause, and that is not my intention here. But this essay will suggest that a series of subtle, and now largely forgotten, institutional changes that occurred in the early decades of the Supreme Court’s existence laid the groundwork for the dramatic growth in the Court’s importance on the constitutional scene across that same period. And that growth, of course, has only continued: By the twenty-first century the Supreme Court “has by a very large margin the loudest institutional voice in constitutional debate.” These early institutional choices, then, though subtle, have powerfully defined the character of our constitutional conversation ever since.
After briefly discussing the judiciary in the colonial period, this essay begins with two interconnected developments between the Revolution and the ratification of the Constitution that bolstered the idea of judicial review: The appreciation, at least among elites, of the danger of unrestrained legislative power, and the advent of written constitutions with special democratic authority that could serve as sources of justiciable limits on government power. This essay then turns to the period after the Constitution went into effect and the federal judiciary materialized, when the early Supreme Court made a series of critical institutional choices to define and strengthen its voice. In particular, the Justices separated themselves from the executive branch, they tamped down on extracurricular partisan activities, they started to coalesce around unified “opinions of the Court,” and they enlisted Congress to create an official reporter. Blended together, these reforms enabled the Supreme Court to speak in a powerful and distinct institutional voice. On top of these reforms, Justice Joseph Story’s appointment to a professorship at the fledgling Harvard Law School cemented a close connection between the courts and the intellectual study of law that continues to this day, further enhancing the Court’s prestige and influence. In all, these institutional reforms enabled the Court to achieve the preeminence it now enjoys in our constitutional conversation
FAQ on the U.S. Archivist and the Future of the Equal Rights Amendment
Get PDFOn Wednesday, September 21, 2022, the Senate will hold hearings on the nomination of Colleen Shogan as the new Archivist of the United States. This FAQ offers a short primer on what the Archivist does, her official role in the finalization of proposed amendments to the U.S. Constitution, including the Equal Rights Amendment (ERA), and the impact of Archivist action on the validity of the ERA
Statement from Columbia Law School’s Center for Gender and Sexuality Law on the Supreme Court Decision Overruling the Constitutional Right to Abortion
Get PDFThe Supreme Court opinion in Dobbs v. Jackson Women’s Health Organization signals a major break with at least three generations of constitutional law. This opinion eliminates not only constitutional protections for abortion, but well-settled legal principles on which fundamental rights have rested for over 60 years. “Within a 24-hour period the Supreme Court ruled on the one hand that abortion rights are a local issue to be decided by each state independently, while on the other, states are barred from making local decisions about how to regulate guns,” said Katherine Franke, James L. Dohr Professor of Law and Director of the Center for Gender and Sexuality Law. “Both cases involve the meaning of freedom, morality, and safety
Assessing the Influence of Amici on Supreme Court Decision Making
No full textThe authors analyze a dataset of indicators of the influence of amicus filings on the decisions of the United States Supreme Court from October Term 2013 through October Term 2018), examining the effect of filings on the prevailing party, on citations to amicus filings, and on sources drawn from amicus filings. The dataset includes 386 cases, 4500 amicus filings, and 22,000 citations in Supreme Court decisions. In some ways, the paper updates scholarship from the turn of the century, when amicus filings were much less prevalent, but it also breaks new ground with the data about citations to amicus filings and sources drawn from amicus filings.
The principal findings are (1) the effect of amicus filings on the decision is much more even than it was at the turn of the century, when it was concentrated on bottom-side filings; and (2) the effects of filings are much more noticeable for amicus filers less directly motivated by monetary considerations (academics, think tanks, and the like) and less noticeable for those more directly motivated by monetary considerations (trade associations and businesses)
Business Guide: Respecting the Human Rights of Communities in Wind and Solar Project Deployment
Get PDFCompanies involved in commercial wind and solar projects are facing heightened scrutiny of their human rights performance. This Business Guide provides companies with information and strategies to identify, prevent, mitigate, and account for adverse human rights impacts that they cause, contribute to, or are directly linked to through their operations, products, or services by virtue of their business relationships. It may also be useful for investors, business partners, government actors, civil society organizations, communities, and other stakeholders.
Drawing on the UN Guiding Principles for Business and Human Rights, the Guide provides practical recommendations, with over 40 examples from peer companies and initiatives, on the core elements of a comprehensive human rights program that should be integrated throughout wind and solar energy companies’ business operations to improve their respect for community-related human rights and manage actual and potential risks both proactively and reactively.
Read the companion to the Business Guide, the Legal Risk Primer.
This resource was produced as part of CCSI’s ALIGN partnership with Namati and the International Institute for Environment & Development, funded by the UK Foreign, Commonwealth & Development Office. Learn more about the ALIGN partnership here
The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State
No full textThe Constitution makes Congress the principal federal lawmaker. But for a variety of reasons, including partisan gridlock, Congress increasingly fails to keep up with the challenges facing our society. Power has inevitably shifted to the executive branch agencies that interpret laws already on the books and to the courts that review the agencies’ interpretations.
Since the Supreme Court’s 1984 decision in Chevron v. Natural Resources Defense Council, this judicial review has been highly deferential: courts must uphold agency interpretations of unclear laws as long as these interpretations are “reasonable.” But the Chevron doctrine faces backlash from constitutional scholars and, now, from Supreme Court justices who insist that courts, not administrative agencies, have the authority to say what the law is. Critics of the administrative state also charge that Chevron deference enables unaccountable bureaucratic power.
Thomas Merrill reviews the history and immense consequences of the Chevron doctrine and suggests a way forward. Recognizing that Congress cannot help relying on agencies to carry out laws, Merrill rejects the notion of discarding the administrative state. Instead, he focuses on what should be the proper relationship between agencies and courts in interpreting laws, given the strengths and weaknesses of these institutions. Courts are better at enforcing the rule of law and constitutional values; agencies have more policy expertise and receive more public input. And, unlike courts, agencies are subject to at least some political discipline. The best solution, Merrill suggests, is not of the either–or variety. Neither executive agencies nor courts alone should pick up the slack of our increasingly ineffectual legislature.https://scholarship.law.columbia.edu/books/1334/thumbnail.jp
CCSI’s Consolidated Feedback on the WBA Draft Nature Benchmark Methodology
Get PDFPrivate sector actors are paying more attention to their negative impacts on climate, nature, and biodiversity. CCSI engages with private sector initiatives, frameworks, and benchmarks in this area to ensure the core corporate responsibility to respect human rights is prioritized and addressed.
As part of this work, in March and April 2022, CCSI submitted comments to and engaged with the World Benchmarking Alliance on their Draft Methodology for their Nature and Biodiversity Benchmark. The World Benchmarking Alliance is a leading multi-stakeholder organization which creates benchmarks to publicly assess and rank the world\u27s most influential companies on their contributions to the SDGs using the best available science and existing international norms and standards. As a WBA Ally interested in strengthening private sector benchmarks and standards and ensuring that they, at a minimum, promote the expectation that companies respect internationally-recognized human rights, CCSI welcomed the opportunity to submit comments on WBA\u27s Nature Benchmark as part of their public consultation. Subsequently, WBA published their final Nature Benchmark Methodology, which addressed many of the points raised by CCSI
Tributes to Family Law Scholars Who Helped Us Find Our Path
Get PDFAt some point after the virus struck, I had the idea that it would be appropriate and interesting to ask a number of experienced family law teachers to write a tribute about a more senior family law scholar whose work inspired them when they were beginning their careers. I mentioned this idea to some other long-term members of the professoriate, and they agreed that this could be a good project.
So I reached out to some colleagues and asked them to participate. Many agreed to join the team. Some suggested other potential contributors, and some of these suggested faculty members also agreed to submit a tribute.
The authors have written about a diverse group of distinguished scholars in the area of family law. We have included 12 scholars who have contributed substantially to the field, and they have also influenced those who have written about them here. The honored scholars and the tribute authors are as follows (organized alphabetically by the honoree): Homer H. Clark Jr. (1918-2015), by Ann Laquer Estin Cooper Davis, by Melissa MurrayPeggy Mary Ann Glendon, by June Carbone Herma Hill Kay (1934-2017), by Barbara A. Atwood Robert Levy, by Paul M. Kurtz Marygold (Margo) Shire Melli (1926-2018), by J. Thomas Oldham & Bruce M. Smyth Martha Minow, by Brian H. Bix Robert Mnookin, by Elizabeth S. Scott Twila Perry, by R.A. Lenhardt Dorothy E. Roberts, by Jessica Dixon Weaver Carol Sanger, by Solangel Maldonado Barbara Bennett Woodhouse, by Sacha M. Coupet
Each colleague who participated in this project chose the scholar whose work he or she would celebrate. So, the list of those honored here is subjective and, to a certain extent, serendipitous. This Article is part of a Family Law Quarterly issue that also honors other pioneering contributors to the family law field. We hope to make this a continuing project and to have future opportunities to recognize the many scholars who have had a profound impact on their students – and on all of us – in addition to having an important impact on the development of the law. I trust the reader will find these tributes of interest
ASIL Hudson Medal Conversation Songs My Mother Taught Me: A Very Personal Account : Remarks by Lori Fisler Damrosch
Get PDFFirst, I am deeply appreciative of this honor, especially in the presence of so many who encouraged me along the way. I would like to acknowledge previous Hudson honorees who are present, including Charlie Brower, Edie Brown Weiss, and Bernie Oxman. Thanks to Catherine, Patrick, and the Allen & Overy law firm for sponsoring this event.
I also want to acknowledge my debts to other Hudson medalists who reached out to me early in my career — when I was, say, a twenty-five-year-old lawyer just getting started in the State Department, and that person was, say, a deputy legal adviser or an AJIL editor in chief. I am sure we will cover several of them in the course of this interview