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Of Sheepdogs and Ventriloquists: Government Lawyers in Two New Deal Agencies
Get PDFFrom the neo-Weberian literature on state-building and the political sociology of the legal profession, one might expect government lawyers to be sheepdogs, nipping at the heels of straying administrators, supplying their agencies with the bureaucratic autonomy so often missing in American government. In this contribution to “Serious Fun” a symposium in honor of John Henry Schlegel of the University at Buffalo School of Law, I report my preliminary findings for two agencies created during the Hundred Days of Franklin D. Roosevelt’s presidency, the Agricultural Adjustment Administration and the National Recovery Administration. I suggest that the neo-Weberian model tends to minimize the lawyers’ agency as political actors. In particular, the New Deal lawyers’ projection of their own preferences upon general statutory delegations of legislative power, which they then interpreted authoritatively, could make them less the faithful agents of their master’s voice than ventriloquists in pursuit of their own political agenda
In Search of Equality for Women: From Suffrage to Civil Rights
Get PDFThis article analyzes women’s rights advocacy and its impact on the meanings of gender equality during the period from the achievement of suffrage in 1920 until the 1964 Civil Rights Act. It teaches that one cannot separate the conceptualization of equality or the jurisprudential philosophy underlying it from the dynamics and characteristics of the social movements that actively give it life. Social movements identify the institutions and practices that will be challenged, decisions that in turn determine which doctrinal issues will provide the raw material for jurisgenerative change. Without understanding a movement’s strategy and opportunities for action, one cannot know why law developed as it did.
The article also demonstrates that this phase of women’s rights advocacy comprised not one movement – as it is usually described – but three: the suffragists who turned to a campaign for an Equal Rights Amendment after winning the Nineteenth Amendment; the organizations inside and outside the labor movement that prioritized the wellbeing of women workers in the industrial economy; and the birth control movement. Each was dominated by white women, but Black women worked in and through all three branches, in addition to developing distinctive organizations. Women engaged with courts, legislatures and other lawmakers, using a variety of methods and a mixture of complementary and contradictory arguments in an effort to secure full citizenship status for women in the political, economic and family realms.
Different approaches to equality, however, created a significant movement disability. Prioritizing the ERA cemented that branch’s allegiance to what would now be called formal equality, the principle that men and women should be held to the same rights and duties under law. This absolute equality stance precluded support for laws setting protective working standards only for women, the paramount goal of those most concerned with women working in factories. ERA advocates saw protective laws as Trojan horses that promised minimum wages and a cap on hours but also disqualified women from some of the highest-paying jobs. Labor activists saw the disabilities associated with women’s political and family status as problematic, but secondary to economic issues. Birth control advocates developed arguments that sidestepped the frame of equality altogether.
The absence of a united position on the scope of gender equality under the law facilitated the silence of the Supreme Court, which perpetuated a discourse of domesticity with respect to the legal status of women that began before suffrage and continued long after. The gap in constitutional law as to gender not only stymied doctrinal development, but also deprived women’s rights advocates of the cultural power that attaches to an overarching equality narrative. Yet although the discourse of law drove the branches of women’s rights advocacy apart, it also provided a venue in which equality had to be, and ultimately could be, defined, at least for regulatory purposes.
Somewhat surprisingly, it was the labor-oriented portion of the movement that brought the kind of statutory anti-discrimination model that we know today as “civil rights” into women’s rights advocacy. Demands for equal pay combined the no-differential-treatment approach of the ERA wing with the workplace-only focus of the labor movement. This linkage brought the women workers groups substantively closer to the anti-classification position associated with the equality/sameness understanding advocated by supporters of the ERA.
The institutional mechanism that led to the embedding of this model in federal law was the 1961-1963 President’s Commission on the Status of Women. The Commission produced a report that appeared to be destined for the shelves of bureaucracy. In its work on developing the report, however, the Commission served the function of aggregating and integrating women’s rights advocacy across all three movement branches and prepared the way for the successful fight to include sex discrimination within the parameters of Title VII of the 1964 Civil Rights Act.
The conventional understanding that feminism was dormant between adoption of the Nineteenth Amendment and the eruption of rights claims in the 1960’s is wrong. Examining the campaigns for legal change across the branches of the movement during this time reveal an increase, not a diminution, in demands for full and equal citizenship in multiple arenas. What was dormant was the development of the concept of gender equality in constitutional law, but that was not for lack of activity by women on the ground
Brief of Professor Laura K. Donohue as Amicus Curiae in Support of Neither Party, FBI v. Fazaga, No. 20-828 (U.S. Aug. 6, 2021)
Get PDFAmicus submits this brief in support of neither party to provide the Court with background on the origins and evolution of the state-secrets privilege. The English and American cases decided before United States v. Reynolds, 345 U.S. 1 (1953), as well as the decisions before and after the enactment of the Foreign Intelligence Surveillance Act of 1978 (FISA), produce several observations that may help the Court to resolve this case.
First, both Reynolds and earlier English and American case law treat state secrets as an evidentiary privilege rather than a substantive rule of decision. As with other privileges, upholding an assertion of state secrets means that the case should continue, if possible, without the privileged information. Totten v. United States, 92 U.S. 105 (1876), in contrast, states a different rule of narrow applicability resting on the secrecy inherent in certain government contracts, as the Court made clear in General Dynamics Corp. v. United States, 563 U.S. 478, 485, 490 (2011), and Tenet v. Doe, 544 U.S. 1, 9-10 (2005).
Second, although the judiciary affords the executive branch deference in asserting state secrets, courts consistently acknowledge their own, critical role in ensuring that those invocations of privilege are justified.
Third, courts strive to find ways to avoid dismissing cases whenever possible. Often that means using in camera procedures to evaluate a defense, as in then-Judge Scalia’s opinion in Molerio v. FBI, 749 F.2d 815, 822 (D.C. Cir. 1984).
Fourth, although dismissal based on the state-secrets evidentiary privilege finds no support in early English or U.S. cases before FISA (outside of the inapposite Totten line), a few post-FISA decisions have dismissed lawsuits regardless of their merits on the grounds that further litigation presents too great a risk of exposing state secrets. Those decisions underscore how rare that severe result should be. And they are confined primarily to circumstances in which state secrets are central, such as extraordinary rendition or defamation, where the truth or falsity of statement
Supreme Court Institute Annual Report, 2020-2021
Get PDFDuring the U.S. Supreme Court’s October Term (OT) 2020—corresponding to the 2020-2021 academic year— the Supreme Court Institute (SCI) provided moot courts for advocates in 57 of the 58 cases argued at the Supreme Court, offered our annual press and student term preview programs, and continued to integrate the moot court program into the Law Center curriculum. As in past Terms, the varied affiliations of advocates mooted reflect SCI’s commitment to assist advocates without regard to the party represented or the position advanced.
Responding to the COVID-19 pandemic, the Supreme Court took the unprecedented step of hosting all OT 2020 oral arguments telephonically. To prepare advocates for these arguments, SCI held remote moot courts using Zoom. Advocates practiced their oral arguments while remaining off-video, and then joined the moot “justices” with video on for the feedback portion of the moot.
Mooting virtually eliminated the normal physical space constraints, allowing SCI to host the majority of first-year Legal Practice students at two fall moots. To help limit student live-remote classroom time, SCI Director Debbie Shrager created video briefings to introduce new law students to our program and to prepare them for the substantive issues in the cases being mooted. These videos helped students get the most out of the opportunity to observe our moots. Overall, SCI moot court attendance was exceptionally strong. A total of 1,945 student observers attended SCI moots, averaging 31 students per moot. This high attendance is particularly notable because the Supreme Court had an unusually light Term—hearing arguments in only 58 cases.
To expand our service to the Court and the Georgetown Law community, SCI launched a pilot program to offer moots to both parties, with mutual consent, in select cases. SCI has had a longstanding practice of mooting an amicus appointed by the Court with the petitioning party’s consent. This term, SCI also provided moot courts for both petitioner and respondent in four contested cases.
A list of all SCI moot courts held in OT 2020—arranged by sitting and moot court date, including the name and affiliation of each advocate and the number of student observers—is included at the end of this report. Select facts and figures about SCI moot courts this term appear immediately below. Comparable figures from the past nine Terms, OT 2010 through OT 2019 are also included
#BlackLivesMatter: From Protest to Policy
Get PDFIn summer 2020, mass protests spread across the globe challenging police brutality and racial injustice and demanding change. Fueled by the Black Lives Matter (BLM) movement in the wake of the police murder of George Floyd, these protests drew 15 million to 26 million participants in the United States alone to participate in late May and June of 2020. The sheer scale of these protests made them the largest movement in U.S. history. While there has been some consensus that this unprecedented protest movement pushed social awareness and changed the national conversation around race, existing research has yet to clearly document the extent to which it affected law and policy on the federal, state, and local levels. We begin to fill this gap by documenting the correlation between the online and offline protest activity, and showing the relationship between the location and intensity of protest activity and the initial wave of legal and policy change.
In this Article, we use Twitter conversation and protest data to show how BLM fueled global protests that changed minds, hearts, and the baseline understanding of inequality in ways that could also ultimately drive legal and policy change. We then focus on the relationship between protest and activism in the summer of 2020 and legal and policy changes occurring across states and cities over the following year. We find that the protests of 2020 did indeed begin a paradigm shift in the social awareness of racialized police violence, and this important and significant social change has in turn already inspired political change and some degree of legal and policy change. However, the movement remains in a precarious position and it is uncertain how enduring these state and local policy changes will be and whether they will lead to the deeper and lasting structural changes sought by the movement. We are also observing substantial backlash policy that threatens to not only derail current racial justice efforts, but also exacerbate the underlying inequalities that the movement opposes.
In Part I, we offer an analysis of the 2020 protests, including the critical role of social media in building the protests themselves as well as the policy demands that the protests helped to broadcast. In Part II, we assess the policy activity occurring within the first year following this historic level of activism in the United States, looking specifically at where and when legislators responded to three different kinds of movement demands: individual accountability, institutional changes, and broader systemic reform
Para-Ethnographic Study: The Project and its Methodology
Get PDFThis paper explains the methodology that I use for my work, and it comes from the Preface of my book Emerging Powers and the World Trading System: The Past and Future of International Economic Law. This approach has an important ethnographic dimension when ethnography is viewed in a broad (but non-traditional) sense of participant observation of a field. The object of the study is the flow of norms and institutional practices in the field of international trade law, and, to a lesser extent, the related fields of international investment and intellectual property law. It is not a traditional ethnography rooted in a specific location, but rather the place of study is multi-sited and “deterritorialized.” My approach entails sustained engagement with practitioners in multiple locations in different states over time. Within the case studies of Brazil, India, and China, the sites are likewise multiple, and include government offices, lawyer offices, trade association offices, think tanks, law schools, and embassies, located in different cities.
My method can be viewed as a form of “para-ethnography” given that many of my informants were equally interested in understanding the processes that I was studying. Para-ethnography entails the study of social processes through interviewing practitioners who are themselves engaged in “studies” of these processes because they aim to understand and respond to them. In this way, the interviews, in part, can be viewed as “collaborations” from the perspective of forays into “making sense” of developments in the trade law world. In this Preface I explain my interviewing and broader methodological process
Delegation, Administration, and Improvisation
Get PDFNondelegation originalism is having its moment. Recent Supreme Court opinions suggest that a majority of justices may be prepared to impose strict constitutional limits on Congress’s power to delegate policymaking authority to the executive branch. In response, scholars have scoured the historical record for evidence affirming or refuting a more stringent version of nondelegation than current Supreme Court doctrine demands. Though the debate ranges widely, sharp disputes have arisen over whether a series of apparently broad Founding-era delegations defeat originalist arguments in favor of a more stringent modern doctrine. Proponents—whom I call “nondelegationists”—argue that these historical delegations can all be explained as exceptions to an otherwise-strict constitutional limit.
As this article shows, it is highly doubtful that the Founding generation thought of delegation in such categorical terms. The evidence nondelegationists cite in favor of their preferred classifications—systematically assessed here for the first time—is remarkably thin. More importantly, this article highlights how, for the Founding generation, building the administrative capacity needed to fulfill the national government’s responsibilities was not a quest to trace out hard constitutional boundaries between the branches. It was a dynamic and improvisational experiment in governance, in which Congress sought to mobilize the limited resources available to it in order to meet the myriad challenges the new nation faced.
To recapture early delegation’s dynamism, this article focuses on the Remission Act of 1790. It gave the Secretary of the Treasury broad and unreviewable authority to remit statutory penalties for violations of federal law governing maritime commerce—power a strict nondelegation principle would not have allowed. This arrangement was not the obvious choice, and Congress considered vesting this power in a range of institutional actors before settling on the Secretary. Yet despite deep concerns over the wisdom—and even the constitutionality—of concentrating too much power in the hands of a single executive branch officer, Congress repeatedly affirmed this discretion, and the early Secretaries (including Alexander Hamilton) did not hesitate to use it.
This was a pattern Congress repeated elsewhere, making early delegations of varying breadth across the spectrum of federal administration. This experiment in governance was not easy, nor was it free from controversy. Disputes over how and where to allocate governmental authority were frequent and contentious. But if legislative debates occasionally sounded in a constitutional register, overwhelmingly they turned on the kinds of practical considerations that animated Congress’s deliberations over the Remission Act. When it came to designing a workable administrative system for the new federal government, delegation’s boundaries were apparently quite expansive
Complicity and Lesser Evils: A Tale of Two Lawyers
Get PDFGovernment lawyers and other public officials sometimes face an excruciating moral dilemma: to stay on the job or to quit, when the government is one they find morally abhorrent. Staying may make them complicit in evil policies; it also runs the danger of inuring them to wrongdoing, just as their presence on the job helps inure others. At the same time, staying may be their only opportunity to mitigate those policies – to make evils into lesser evils – and to uphold the rule of law when it is under assault. This Article explores that dilemma in a stark form: through the moral biographies of two lawyers in the Third Reich, both of whom stayed on the job, and both of whom can lay claim to mitigating evil. One, Helmuth James von Moltke, was an anti-Nazi, and a martyr of the resistance; the other, Bernhard Lösener, was a Nazi by conviction who nevertheless claimed to have secretly fought against the persecution of Jews from the improbable post of legal adviser on Jewish matters. The Article critically examines their careers and self-justifications. It frames its analysis through two philosophical arguments: Hannah Arendt’s stern injunction that staying on the job is self-deception or worse, because like it or not, obedience is support; and a contemporary analysis of moral complicity by Chiara Lepora and Robert Goodin. The chief question, with resonance today as well as historically, is whether Arendt is right – and, if not, under what conditions lesser-evilism can succeed.
This article will appear in a symposium with comments by Leora Bilsky and Natalie Davidson, Kathleen Clark, Erica Newland, and Shannon Prince
Dominant Digital Platforms: Is Antitrust Up to the Task?
Get PDFIt has been one hundred years since the end of the Progressive Era and twenty years since the Microsoft settlement. This twenty-year period has seen the rise of the Internet and a new set of dominant platforms, as well as increased consolidation in the brick-and-mortar world. Antitrust has become more permissive. This Essay examines both issues: (i) the potential legal difficulties in reining in exclusionary conduct by dominant platforms; and (ii) merger under-enforcement. This Essay argues that it is necessary to strengthen antitrust enforcement. Consolidation through mergers and exclusionary conduct by dominant firms can harm consumers and workers and reduce innovation. Digital networks are a particular concern because barriers to entry, which result from substantial network effects and economies of scale and scope, rise as platforms’ dominance is enhanced. While antitrust law in principle can evolve, new legislation would be a more rapid—and more certain—path to reform
Federal Courts: Art. III(1), Art. I(8), Art. IV(3)(2), Art. II(2)/I(8)(3), and Art. II(1) Adjudication
Get PDFThe distinction among the several types of federal courts in the United States has gone almost unremarked in the academic literature. Instead, attention focuses on Article III “constitutional” courts with occasional discussion of how they differ from what are referred to as “non-constitutional” or “legislative” courts. At best, these labels are misleading: all federal courts have a constitutional locus, and most, but not all, federal courts are brought into being via legislation. The binary approach further ignores the full range of federal courts, which are rooted in different constitutional provisions: Art. III(1), Art. I(8); Art. IV(3); Art. II(2)/I(8)(3); and Art. II(1). These distinctions matter for defining jurisdiction and understanding the scope of the authorities—and constitutional protections—that apply. The failure of scholars to take into account the full panoply of the federal judicial system has contributed to inaccurate analyses and cabined the debate. This article takes a significant step forward, providing a conceptual framework for each type of court and delineating, based on their legal and historical underpinning, which adjudicatory bodies in the history of the United States fall within each category. It details the constitutive elements of the courts and their jurisdiction as supported by doctrine, statutory law, and scholarly literature, providing the first, comprehensive taxonomy of federal courts in the United States