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Protecting the Watchdog: Using the Freedom of Information Act to Preference the Press
Get PDFThe fourth estate is undergoing dramatic changes. Many newspaper reporters, already surrounded by a growing number of empty desks, are shifting their focus away from costly investigative reporting and towards amassing Twitter followers and writing the perfect “share line.” Newspapers’ budgets can no longer robustly support accountability journalism and pitching fights against the government. And so, while this busier and noisier media environment may have a desirable democratizing effect—more of us are able to participate in analyzing, debating, and perhaps even making the news—it has not succeeded in filling a role that print journalists have traditionally played well—keeping watch on the government. In order to perpetuate its historical role as watchdog, the fourth estate needs fortification. This fortification should come in the form of legal preferences for the press. Providing such preferences is not new, but it arguably has not been done in a significant way since postal subsidies were granted to newspapers in the colonial era. Today, with few exceptions, the law generally treats journalists just like any other citizens and news organizations like any other business.
This article proposes a new way to preference the press—one that would not involve direct subsidies or discriminating between old media and new. Instead, it would give journalists a commodity that is fundamental to their work: information. To preference the press, this article looks to the Freedom of Information Act, the law governing when and how the executive branch discloses information to the public. While in theory the law facilitates the press’s access to vast amounts of information in the hands of the executive branch, implementation of FOIA has, since it was passed in 1966, been fraught with problems. Agencies routinely take months and even years to respond to journalists’ requests, making the process incompatible with a news cycle that is spinning ever faster.
This article proposes focusing on FOIA’s expedited processing provisions to prioritize journalists’ requests over those of other requesters, expedite agency fulfillment of them, and ease the press’s ability to challenge late, incomplete, or otherwise unsatisfactory disclosures. It argues that any journalist filing a FOIA request seeking expedited processing should presumptively go to the front of the queue. At that point, there would be firm deadlines (where none exist now) for providing the journalist with the information requested. These small but significant changes to an already established provision of FOIA could help the media better serve as a watchdog at a time when that role needs protecting
The President\u27s Budget as a Source of Agency Policy Control
Get PDFA large body of literature in administrative law discusses presidential control of executive agencies through centralized review of regulations in the Office of Information and Regulatory Affairs (OIRA), part of the White House’s Office of Management and Budget (OMB). Largely overlooked in this literature is how the President’s budget acts as a source of agency policy control—in particular, how the White House exercises control through OMB’s authority to prepare the budget, oversee agencies’ execution of the budget, and create and implement management initiatives through the budget process. This Article identifies seven levers associated with OMB’s work on budget preparation, budget execution, and management and shows how these levers can control agency policymaking. These levers have some salutary aspects, especially in their valuable coordination work throughout the administrative state, but they also raise a series of accountability concerns related to opacity, the extensive discretion afforded to civil servants and lower-level political appointees, and the potential for substantive policy (and political) choices to be obscured by technocratic-sounding work. The Article concludes with a reform agenda, mapping out ways that the President, OMB, Congress, and civil society should respond to these accountability problems. Future analyses of OIRA’s authority should incorporate discussion of the complementary power of OMB to use the budget as a source of agency policy control
The Role of Law in Global Value Chains: A Research Manifesto
Get PDFMost scholars attribute the development and ubiquity of global value chains to economic forces, treating law as an exogenous factor, if at all. By contrast, we assert the centrality of legal regimes and private ordering mechanisms to the creation, structure, geography, distributive effects and governance of Global Value Chains (GVCs), and thereby seek to establish the study of law and GVCs as rich and important terrain for research in its own right
Immigration, Criminalization, and Disobedience
Get PDFThis symposium essay explores two contending visions of immigration justice: one focused on expanding procedural rights for immigrants, and a second associated with a movement of immigrant youth who have come out en masse as “undocumented and unafraid,” issuing a fundamental challenge to immigration restrictionism. As immigration enforcement in the United States increasingly relies on criminal prosecution and detention, advocates for reform have increasingly turned to constitutional criminal procedure, seeking greater procedural protections for immigrants. But this essay argues that this focus on enhanced procedural protections is woefully incomplete as a vision of immigration justice. Although a right to counsel, for example, may provide comfort and aid to certain vulnerable individuals, such procedural protections are unlikely to change the quasi-criminal character of immigration enforcement or to address the plight of the millions of people without a path to lawful status. Just as U.S. constitutional criminal procedure failed to ameliorate the harshness of substantive criminal law, more robust immigration procedural protections would likely fail to reorient immigration enforcement in a more humane direction. By contrast, a growing movement of immigrant *557 youth offers a more expansive conception of immigration reform. As these immigrant youth lay claim to a “right to remain,” infiltrate immigration detention centers, and crash the border, they have reshaped our political and legal discourse, gesturing towards an alternative vision of immigration justice
\u3ci\u3eMeyer, Pierce\u3c/i\u3e, and the History of the Entire Human Race: Barbarism, Social Progress, and (the Fall and Rise of) Parental Rights
Get PDFLong before the Supreme Court’s seminal parenting cases took a due process Lochnerian turn, American courts had been working to fashion family law doctrine on the premise that parents are only entrusted with custody of the child, and then only as long as they meet their fiduciary duty to take proper care of the child. With its progressive, anti-patriarchal orientation, this jurisprudence was in part a creature of its time, reflecting the evolutionary biases of the emerging fields of sociology, anthropology, and legal ethnohistory. In short, the courts embraced the new, “scientific” view that social “progress” entails the decline and, by some accounts, the demise of parental authority.
The eighteenth and nineteenth centuries witnessed the emergence of social science disciplines built on a materialistic theory of cultural progress and an evolutionary view of law. One result of these early enthographic efforts was the enormously influential stage-theory of societal development. Simply enough, stage-theory describes how a society moves from a primitive to a civilized state of development, and how it might fail to do so. The theory was congenial to the moral philosophers and social theorists of the Scottish Enlightenment; to libertarian-minded contractualists of late-nineteenth-century America; and to the founding fathers of revolutionary socialism. It was a part of the nineteenth century’s great idiom of secular progress and social engineering, part of a story of worldly advancement and human achievement in which the courts had their own role to play.
Part I of this article looks at what might be the most formative application of stage-theory to family relations, John Millar’s The Origins of the Distinctions of Ranks (1771). Drawing on the sociohistorical work of David Hume and Adam Smith, Millar provides an empirical account of how rights of personal authority (the right of husband over wife, father over children, and master over servant) arise out of and evolve in response to changing socioeconomic conditions. For Millar, there is little doubt that parental authority “has been reduced within narrower bounds, in proportion to the ordinary improvements of society.”
A product of the Scottish Enlightenment’s focus on sociability, Millar’s historical critique of paternal authority translated comfortably to the individualistic currents of the nineteenth century. Part II of this article looks at the work of two prominent libertarian legal theorists: the British comparative cultural and legal historian Henry Maine and the British moral philosopher Herbert Spencer. Though these writers took different routes through the emerging sociological territory of the nineteenth century, they all agreed that the historical record dictated the conclusion that there is no social progress without the repudiation of patriarchalism.
With its focus on economic conditions and its pragmatic approach to rights, stage-theory could be put to far more radical uses. In the socialist utopia imagined by Marx and Engels, the private family would vanish along with private property and profit. Part III of this article has two goals: to remind readers that 1) socialist historymaking considered the dissolution of the bourgeois family as a key step toward a stateless state, and 2) this repudiation of the family was no mere doctrinal abstraction for American legal professionals. As the Supreme Court weighed the competing claims of parent and state, the threat of a socialist takeover of the family—“the principle of the soviet”— was always close at hand.
In response to this unhappy prospect, the Court drew from the murky, mysterious well of state-constraining liberties we refer to as substantive due process. Repudiating the communistic models of ancient states—Sparta being the poster-child of historical statism—the Court began to write it own story of social progress. Social primitivism lay not in the patriarchal family but in the paternalistic state, and progress did not lie in a movement from personal rights to public responsibilities, but just the reverse. With regard to domestic life, this narrative of progress was one of struggle: a struggle of parental rights against the ever encroaching state. For the modern Court, regulation of the family would no longer be one of the proper functions of government. If history has an ash heap, and if the Court had its way, Sparta would once and for all be relegated to it
The United Nations Sustainable Development Goals: Achieving the Vision of Global Health with Justice
Get PDFWe are resolved to free the human race from the tyranny of poverty and want and to heal and secure our planet” (UN General Assembly, 2015, September 25, preamble). So pronounces the 2030 Agenda, the United Nations declaration on the Sustainable Development Goals (SDGs), adopted on September 25, 2015, succeeding the Millennium Development Goals (MDGs). If achieved, the SDGs will secure an improved level of health, development, and global justice. However, if the international community fails to live up to its commitments, an untold number of people will likely perish prematurely, people’s opportunities to thrive will be cut off, social dynamics will continue to leave people behind, and unsustainable environmental pathways will create risks to the health and well-being of generations to come.
Here, we systematically review the MDGs—specifically, their formation, achievements, and shortcomings. Next, we review the transition to the SDGs—how they differ from the MDGs, some of the critical challenges they present, and suggestions for a response to these challenges, using a human rights-based approach. Finally, we will offer early markers to assess whether states are sincere in their commitment to longer, healthier lives for all, and offer a next step to ensure that commitment: a global health treaty based on the right to health—embodying the vision of global health with justice
Student Loans as Taxes
Get PDFThe growth of college tuition and the corresponding rise in student loan debt have become major issues of public importance. Total outstanding student debt is at least $1.3 trillion, and tuitions keep growing, even while we arguably need to invest more in higher education to add skills and grow our economy. Sen. Bernie Sanders, I-Vt., has made higher education reform a major part of his Democratic presidential campaign platform, proposing a new financial transactions tax to pay for large grants to states that offer free tuition to public universities. His opponent, Hillary Clinton, has proposed grants to states to offer ‘‘no-debt-tuition,’’ paid for in part by repealing several tax expenditures. These and other plans would essentially increase federal spending on higher education through expanded progressive taxation
A Response to Professor Samuel Rascoff’s Presidential Intelligence
Get PDFShould foreign intelligence collection be subject to more rigorous oversight, and therefore, improved accountability, through a policy process that involves deeper personal involvement by the President and National Security Council (NSC)? Would a greater number of political appointees across the intelligence community facilitate that oversight? These are the essential questions posed by Professor Samuel Rascoff in his article Presidential Intelligence
Zika Virus and Global Health Security
Get PDFAmericans are largely apathetic about the risks of Zika virus and Congress cannot agree on preparedness funding. Strategies to counter the spread of Zika by the World Health Organisation (WHO) grossly underestimate the disease’s impact. WHO and member countries lack sufficient resources to respond. Consequences of fiscal apathy can be measured in lives lost and long-term disabilities. Zika prevention is a matter of global health security.
The epidemiologic brunt of Zika in South America falls largely on vulnerable women at heightened risk of exposure through mosquitoes and sexual transmission. Resulting transmission to fetuses and infants will have generational impacts in South American and Caribbean countries, as well as the U.S. Global costs to address Zika infections among infected infants will exceed hundreds of billions (U.S. dollars).
WHO and some U.S. leaders, including President Obama, correctly assert that Zika threatens national and global security similar to humanitarian crises, climate change, and war. Words alone, however, are not enough. Global recognition of this public health crisis must stimulate greater investment in preventing negative repercussions
Sovereign Debt: Now What?
Get PDFThe sovereign debt restructuring regime looks like it is coming apart. Changing patterns of capital flows, old creditors’ weakening commitment to past practices, and other stakeholders’ inability to take over, or coalesce behind a viable alternative, have challenged the regime from the moment it took shape in the mid-1990s. By 2016, its survival cannot be taken for granted. Crises in Argentina, Greece, and Ukraine since 2010 exposed the regime’s perennial failures and new shortcomings. Until an alternative emerges, there may be messier, more protracted restructurings, more demands on public resources, and more pressure on national courts to intervene in disputes that they are ill-suited to resolve.
Initiatives emanating from wildly different actors — the United Nations General Assembly, the International Monetary Fund, the International Capital Market Association and the Jubilee coalition, among others — reflect broad-based demand for reform. Now is the time to reconsider the institutional architecture of sovereign debt restructuring, along with the norms and alliances that underpin it. In this symposium essay, I suggest broad criteria for evaluating a successor regime, and offer a package of incremental measures to advance sustainability, fairness, and accountability