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Brief of Amici Curiae Environmental Law Professors in Support of Federal Respondents and Intervenor-respondents, Weyerhaeuser Company v. United States Fish and Wildlife Service, No. 17-71 (U.S. July 3, 2018)
Get PDFThe Fifth Circuit correctly upheld the Secretary’s designation of the St. Tammany Parish tract (Unit 1) as critical habitat for the dusky gopher frog. To advance the ESA’s goals of species survival and recovery, Congress explicitly gave the Secretary broad discretion to designate as critical habitat areas that are unoccupied where the Secretary determines “that such areas are essential for the conservation” of the species. 16 U.S.C. § 1532(5)(A)(ii). The question whether designation of such habitat has the potential to serve the recovery goals for a particular species is a matter within the sound expertise of the Secretary.
Here, the Secretary reasonably interpreted the ESA when he found that Unit 1—an area that the frog previously occupied and that continues to contain rare ephemeral ponds suitable for the frog’s breeding habitat—is “essential for the conservation” of the species. Accordingly, and based on the unanimous recommendation of the scientific peer review panel, the Secretary properly designated the area as critical habitat. The text, structure, purpose, and legislative history of the ESA support the Secretary’s interpretation and critical habitat designation.
Contrary to Petitioner’s argument and the views of the dissent below, the plain text of the ESA does not include a “habitability” requirement. Rather, Congress made a conscious decision to differentiate between occupied and unoccupied habitat, making it clear that unoccupied habitat need not contain all of the “physical or biological features” required for immediate occupancy. See id. § 1532(5)(A)(i), (ii).
The structure of the Act, along with its broad remedial purpose of species recovery, supports the Secretary’s interpretation of “essential for the conservation” of the species. The ESA defines “conservation” as “the use of all methods and procedures which are necessary to bring any endangered species . . . to the point at which the measures provided pursuant to [the Act] are no longer necessary.” Id. § 1532(3). Another provision requires the Secretary to develop and implement recovery plans “for the conservation and survival of endangered species.” Id. § 1533(f)(1). These provisions—read together against the backdrop of a statutory scheme aimed at species recovery—support the interpretation that the Secretary may designate unoccupied habitat as critical habitat even if, as here, it has been altered by human activities and requires substantial restoration in order to fully meet the physical and biological needs of the species. Because the land at issue in this case offers the only viable option for species recovery, prohibiting the Secretary from designating that land would be contrary to the Act’s structure and purpose.
The legislative history confirms the reasonableness of the Secretary’s interpretation and contradicts Petitioner’s reading. In the 1978 amendments to the Act, Congress explicitly rejected language that would have imposed temporal and habitability requirements on the designation of unoccupied habitat. This history further confirms that Congress intended to give the Secretary broad authority to designate unoccupied critical habitat that might require the reintroduction of species unable to reach it on their own.
Contrary to Petitioner’s suggestion, the interpretation of the ESA that amici support would not grant carte blanche authority to the Secretary to designate anything and everything as critical habitat. The presence of a rare, virtually impossible to reproduce complex of breeding ponds—the last remaining within the historic range of the frog outside of Mississippi—is what renders the protection of Unit 1 “essential for the conservation” of the frog and justifies the Secretary’s critical habitat designation.
The Fifth Circuit also correctly declined to review the Secretary’s decision not to exercise his discretion to exclude an area from critical habitat designation. The text of section 4(b)(2) limits the Secretary’s discretion to exclude an area from designation in certain circumstances (i.e. where the benefits of exclusion do not outweigh the benefits of inclusion or where extinction would result from exclusion). A decision to exclude—which is equivalent to a decision not to designate critical habitat—is, therefore, properly reviewable.
However, the statute is silent with respect to decisions not to exclude. Section 4(b)(2) contains no “judicially manageable standards” limiting the Secretary’s exercise of discretionary authority not to exclude. Heckler v. Chaney, 470 U.S. 821, 830 (1985).
Thus, a decision by the Secretary not to exclude an area from designation is unreviewable because it is “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2)
Public Health Emergency Preparedness: Globalizing Risk, Localizing Threats
Get PDFInfectious diseases are a constant reality, yet it takes a shock to jolt the public’s attention and spur political action. The past weeks saw such as a shock at busy US airports, with the emergency quarantine of 3 flights. At the same time, seemingly a world away, insecurity, weak health systems, and distrust are fueling a second major Ebola outbreak in the Democratic Republic of Congo (DRC) this year. Yet reacting to periodic shocks won’t safeguard our collective future. Emergency preparedness requires proactive planning and funding, with US leadership pivotal
International Taxation in an Era of Digital Disruption: Analyzing the Current Debate
Get PDFThe “taxation of the digital economy” is currently at the top of the global international tax policymaking agenda. A core claim some European governments are advancing is that user data or user participation in the digital economy justifies a gross tax on digital receipts, new profit attribution criteria, or a special formulary apportionment factor in a future formulary regime targeted specifically at the “digital economy.” Just a couple years ago the OECD undertook an evaluation of whether the digital economy can (or should) be “ring-fenced” as part of the BEPS project, and concluded that it neither can be nor should be.
Importantly, concluding that there should be no special rules for the digital economy does not resolve the broader question of whether the international tax system requires reform. The practical reality appears to be that all the largest economies have come to agree either that a) there is something wrong with the taxation of the “digital economy,” or b) there is something more fundamentally wrong with the structure of the current international tax system given globalization and technological trends.
This paper is intended as a limited exploration of the second (or third, or fourth) best. It analyzes three policy options that have been discussed in general terms in the current global debate. First, I consider whether “user participation” justifies changing profit allocation results in the digital economy alone. I conclude that applying the user participation concept in a manner that is limited to the digital economy is intellectually indefensible; at most it amounts to mercantilist ring-fencing. Moreover, at the technical level user participation faces all the same challenges as more comprehensive and principled proposals for reallocating excess returns among jurisdictions. Second, I consider one such comprehensive international tax reform idea, loosely referred to by the moniker “marketing intangibles.” This idea represents a compromise between the present transfer pricing system and sales or destination-based reforms to the transfer pricing regime. I conclude that splitting taxing rights over “excess” returns between the present transfer pricing system and a destination-based approach is complex, creates new sources of potential conflict, and requires relatively extensive tax harmonization. This conclusion applies equally to user participation and marketing intangibles. If such a mechanism were nevertheless pursued, I suggest that a formulary system for splitting the excess return is the most manageable approach. Third, I consider “minimum effective taxation” ideas. I conclude that, as compared to the other two policy options discussed herein, minimum effective taxation provides a preferable path for multilateral cooperation
A Tale of Two Sovereigns: Federal and State Use and Regulation of Unmanned Aircraft Systems
Get PDFDespite claims to the contrary, the federal government is severely limited in what it can do to regulate unmanned aircraft systems (UASs). States, on the other hand, as governments of general jurisdiction, have expansive powers that they are already using to grapple with the questions posed by UAS related to privacy, crime, and public safety. This chapter outlines the evolution of federal measures, noting their limitations, before delving into three categories of state law, related to law enforcement, criminal measures, and regulatory regimes. The chapter then turns to the history of state sovereignty, looking at states’ jurisdiction over persons and land within their bounds, before turning to the limits of federal interstate commerce authorities. With river navigation and aviation serving as the forerunners of federal power, the chapter distinguishes the types of questions that accompany UAS, arguing that it is in relation to adjacent airspace and noneconomic activities where the federal government is at its weakest in any effort to regulate the states. Up to 500 ft above the ground, states have sovereignty, with authority over roads, land, and waterways. Within this domain, federal Commerce Clause powers only occupy a narrow area, leaving state police powers the dominant framework for UAS. The chapter concludes by highlighting the advantages of having states take the lead for UAS, focusing on the risk to rights of allowing the federal government to move into this realm and underscoring the importance in the role of the states as incubators of innovation
Supreme Court Institute Annual Report, 2017-2018
Get PDFDuring the U.S. Supreme Court’s October Term (OT) 2017 – corresponding to the 2017-2018 academic year –the Supreme Court Institute (SCI) provided moot courts for advocates in 98% of the cases heard by the Supreme Court, offered a variety of programs related to the Supreme Court, and continued to integrate the moot court program into the education of Georgetown Law students.
A list of all SCI moot courts held in OT 2017 – arranged by argument sitting and date of Moot, and including the name and affiliation of each advocate and the number of observers – follows the narrative portion of this report
What Lawyers Can and Should Do about Mendacity in Politics
Get PDFDonald Trump has brought new attention to the mendacity of politicians. Both major national newspapers have reported tallies of Trump\u27s false and misleading claims. On November 14, 2017, The Washington Post reported that in the 298 days that President Trump has been president, he had made 1,628 false or misleading claims, telling them at a rate of nine per day in the thirty-five days prior to November 14. Trump, the Post reported, has made fifty false or misleading claims “that he as repeated three or more times.” The Post also catalogued scores of “flip-flops” from Trump. In general, from 2016 into 2017, journalistic political fact-checking has surged in frequency and scope. Newspapers and magazines regularly run articles, columns, and features on Trump\u27s record-breaking lying.
Though the frequency and blatancy with which Trump lies is exceptional, he is not the only elected political leader active today whose mendacity has been documented. Catalogues exist for Speaker of the House Paul Ryan, Vice President Mike Pence, Senate Majority Leader Mitch McConnell, Senate Minority Leader Chuck Schumer, and Senate Minority Leader Nancy Pelosi. Trump cabinet members and White House spokespeople have also come under scrutiny for their untruthfulness.
Clearly, not all mendacity is of equal concern. Some mendacity is not even troubling at all. Small white lies told to protect another\u27s feelings about a trivial matter are at one end of the scale, while serial deception to defraud investors out of their life savings or to sustain two families, each kept secret from the other, are at another. Similarly, political hype or bluster may not be troublesome, whereas lying about criminal activity or scientific fact seems clearly so. Most political mendacity falls into a middle ground. Understanding when and how middle-ground mendacity is dangerously harmful is crucial. Decrying all mendacity is overkill, yet narrowing the field is difficult. Press tallies and online databases vary in what they count as lies. Entries run the gamut of fibs to whoppers, fudges to half-truths or falsehoods. Yet even calibrated catalogues of mendacious statements from politicians do not identify when and how mendacity from politicians should alarm us. Fact-checkers spot mendacity and sometimes put it on a scale of deceptiveness, but this is not the same as identifying harmful mendacity.
With mendacity in politics receiving so much attention, it is important to figure out which mendacity is dangerous and why. Lawyers, I will demonstrate, have a particular expertise in parsing mendacity. They can and should put that expertise to use in identifying the political mendacity that is particularly problematic for the health of representative democracy
Federalism Hedging, Entrenchment, and the Climate Challenge
Get PDFThe virtues and effects of federalism continue to generate political, judicial and scholarly ferment. While some federalism partisans champion exclusivity and separation, others praise the more common political choice to retain federal and state regulatory overlap and interaction. Much of this work, however, focuses on government learning or rule clarity, giving little or no attention to how different federalism choices can heighten or hedge risks of regulatory failure and policy reversal. These debates play out with unusual fervor and with high stakes in battles over climate change regulation. Despite broad agreement that any effective climate policy intervention must include national action, disagreement reigns regarding the retention of state authority. Prominent policymakers, industry voices, and scholars have championed a single regulator and clean authority delineation as the answer to the challenges of climate change. They characterize state climate policies as a weak or even harmful alternative, especially if overlapping or intertwined with a federal role. A global challenge like climate change does intuitively seem to be a quintessential setting for a single, comprehensive regulator, especially if addressed through marketutilizing regulation. This intuition, however, only makes sense under an idealized view of politics and regulatory efficacy. This Article introduces the concept of federalism hedging—namely retention of concurrent federal and state authority due to its benefits and especially protective effects, even in an area ideally regulated by a single national regulator— then disaggregates sometimes blurred but related strains in federalism analysis. It illuminates federalism hedging dynamics through a theoretical and historical case study of climate regulation and federalism choice. This Article argues that where effective regulation is dependent on innovations and applies in areas characterized by rapid change in regulatory design, markets, and technology, such regulatory design choices—especially regarding federalism allocations of authority—should not be based on optimistic assumptions of steady progress and easy implementation. Effective regulatory structures should hedge risks, with special attention to linked political and economic dynamics. Regulation that retains room for both federal and state involvement and overlap can provide room for regulatory learning and adjustment, catalyze commitment and corrective efforts, while still fostering beneficial regulatory and market entrenchment and resulting stability through a web of similarly directed regulation
The Law (?) of the Lincoln Assassination
Get PDFShortly after John Wilkes Booth killed Abraham Lincoln on April 14, 1865, President Andrew Johnson directed that Booth’s alleged coconspirators be tried in a makeshift military tribunal, rather than in the Article III court that was open for business just a few blocks from Ford’s Theater. Johnson’s decision implicated a fundamental constitutional question that was a subject of heated debate throughout the Civil War: When, if ever, may the federal government circumvent Article III’s requirements of a criminal trial by jury, with an independent, tenure-protected presiding judge, by trying individuals other than members of the armed forces in a military tribunal?
The political branches and others have debated this Article III question in several of the nation’s major wars, yet it remains unresolved, particularly with respect to the trial of domestic-law offenses. Moreover, that question is especially significant in the United States’ current armed conflicts against nonstate terrorist organizations, such as al Qaeda, because although members of such enemy forces, who lack international law “combatant immunity,” can often be tried in Article III courts for violation of U.S. criminal laws, Congress has recently authorized military commissions to try such enemy forces for certain domestic-law, war-related offenses. Moreover, during the recent campaign, President Trump indicated that he intends to increase the use of military tribunals—including even to try United States citizens.
In attempting to justify the constitutionality of such military trials, the government and several judges on the U.S. Court of Appeals for the D.C. Circuit have turned to the Lincoln assassination commission as a leading precedent, one that is said to help establish a political branch practice that should inform our current constitutional understandings of the proper scope of military jurisdiction. Such reliance on the Lincoln trial as legal authority is, in one sense, understandable, because that proceeding was, in Judge Kavanaugh’s words, “the highest-profile and most important U.S. military commission precedent in American history,” and thus it would be striking—indeed, a significant constitutional embarrassment—to conclude that the trial was unlawful.
As this Article demonstrates, however, such respect for the Lincoln assassination trial as a canonical constitutional precedent would itself be historically anomalous. For almost 150 years it was virtually unthinkable for anyone to rely upon that proceeding as venerated legal authority: as one esteemed expert wrote, the Lincoln trial was a case of military jurisdiction that “no self-respecting military lawyer [would] look straight in the eye.
There is a rich and familiar literature on many of the great constitutional questions raised during the Civil War—on issues such as secession, habeas suspension, emancipation, and presidential prerogatives. This is, however, the first comprehensive account of one of the most important and most dramatic of the constitutional debates of that war and its aftermath, involving the permissible scope of military justice and whether certain wartime exigencies might justify circumvention of Article III’s guarantees. All three branches engaged on this difficult question during and after the war, but it resisted resolution; indeed, it was the rare constitutional problem that flummoxed even Lincoln himself. At war’s end, the President and many of his congressional allies appeared to be on the verge of repudiating the system of military tribunals that Lincoln himself had superintended. His assassination, however, prompted his successor to convene the most controversial military trial of them all, an audacious proceeding that not only revived the heated debate over the constitutional question, but also precipitated one of the only instances in the nation’s history in which the Executive actually disregarded a judicial order—an action to prevent the Article III courts from adjudicating a challenge to their own displacement. The Article uncovers this fascinating but long-neglected chapter in the history of constitutional war powers.
The article also carefully examines the place of the Lincoln trial in the nation’s constitutional discourse over the past century and a half—the ways in which that proceeding, and other Civil War military trials, have been accorded authority, or dismissed as nonauthoritative, by later generations. This broader historical narrative is not only of direct significance to the ongoing constitutional litigation challenging such military trials, but can also inform current academic and judicial debates about whether and under what circumstances political branch practice, especially high-profile precedents, ought to inform, or “liquidate,” the meaning or proper application of the Constitution
Accountability as a Debiasing Strategy: Testing the Effect of Racial Diversity in Employment Committees
Get PDFCongress passed Title VII of the Civil Rights Act of 1964 with the primary goal of integrating the workforce and eliminating arbitrary bias against minorities and other groups who had been historically excluded. Yet substantial research reveals that racial bias persists and continues to limit opportunities and outcomes for racial minorities in the workplace. Because these denials of opportunity result from myriad individual hiring and promotion decisions made by vast numbers of managers, finding effective strategies to reduce the impact of bias has proven challenging. Some have proposed that a sense of accountability, or “the implicit or explicit expectation that one may be called on to justify one’s beliefs, feelings, and actions to others,” can decrease bias. This Article examines the conditions under which accountability to a committee of peers reduces racial bias and discrimination.
More specifically, this Article provides the first empirical test of whether an employment committee’s racial composition influences the decision-making process. My experimental results reveal that race does in fact matter. Accountability to a racially diverse committee leads to more hiring and promotion of underrepresented minorities than does accountability to a homogeneous committee. Members of diverse committees were more likely to value diversity, acknowledge structural discrimination, and favor inclusive promotion decisions. This suggests that accountability as a debiasing strategy is more nuanced than previously theorized. If simply changing the racial composition of a committee can indeed nudge less discriminatory behavior, we can encourage these changes through voluntary organizational policies like having an NFL “Rooney Rule” for hiring committees. In addition, Title VII can be interpreted to hold employers liable under a negligence theory to encourage the types of changes that yield inclusive hires and promotions
The Letter and the Spirit: A Unified Theory of Originalism
Get PDFThe concept of constitutional construction is of central importance to originalist theory but is both underdeveloped and controversial among originalists. Some object that its apparent open-endedness undermines the constraining virtues of originalism and exposes citizens to arbitrary judicial power. In this Article, we respond to this challenge by presenting an originalist theory of constitutional construction that can guide and constrain judicial activity within the “construction zone.” When combined with an originalist theory of constitutional interpretation, our approach yields a unified theory of originalism.
Our theory of constitutional construction draws upon a familiar common-law concept long used in contract and fiduciary law to handle the problem of opportunistic abuse of discretion: the duty of good faith. We contend that judges who take an oath to “support this Constitution” enter into a fiduciary relationship with private citizens—a relationship characterized by discretionary powers in the hands of judges and a corresponding vulnerability in the citizenry. As fiduciaries, judges are morally and legally bound to follow the instructions given to them in “this Constitution” in good faith. This means that judges engaging in constitutional construction (or “implementation”) must seek to give legal effect to both the Constitution’s “letter” (its original public meaning) and its “spirit” (the original function or purpose of the particular clauses and general structure of the text).
Therefore, when interpretation of original meaning is not sufficient to resolve a controversy, judges have a duty to employ good-faith construction. Good-faith construction consists of (a) accurately identifying the spirit—or “original function”—of the relevant constitutional provision at the time it was enacted and (b) devising implementing rules that are calculated to give effect to both the letter and the spirit of the text in the case at hand and in future cases. Conversely, bad-faith construction consists in opportunistically using the discretion inherent in implementing the Constitution to evade its original letter or spirit in pursuit of the judge’s own extraconstitutional preferences