Alabama Law Scholarly Commons - The University of Alabama
Not a member yet
1539 research outputs found
Sort by
Squaring a Circle: Advice and Consent, Faithful Execution, and the Vacancies Reform Act
Get PDFSuccessive presidents have interpreted the Federal Vacancies Reform Act of 1998 to authorize the appointment of principal officers on a temporary basis. Despite serving in a mere acting capacity and without the Senate\u27s approval, these acting principal officers nevertheless wield the full powers of the office. The best argument in favor of this constitutionally dubious practice is that an acting principal officer is not really a principal officer under the U.S. Constitution because she only serves for a limited period. Although not facially specious, this claim elides the most important legal fact: an acting principal officer may exercise the full powers of the office, just like a Senate-confirmed cabinet officer. This approach broadly vindicates Article I\u27s Take Care Clause, which requires that the President have the assistance needed to ensure that the laws be faithfully executed. Unfortunately, this approach effectively reads the Appointments Clause out of the Constitution. For a person to hold a principal office, the Appointments Clause expressly requires that the President first seek and obtain the advice and consent of the Senate. Without the Senate\u27s approval, a person cannot constitutionally hold a principal office (i.e., head a cabinet-level department or agency).
This Article proposes a better approach that would vindicate both the Take Care and Appointments Clauses: federal courts should limit the scope of authority acting principal officers may exercise to the performance of essential and necessary tasks-in other words, an acting principal officer must be a caretaker in both form and substance. Federal courts should not allow acting principal officers to undertake new discretionary programmatic initiatives. Moreover, if an acting principal officer attempts to wield the full powers of the office, federal courts should nullify, as ultra vires, discretionary policymaking initiatives that are not clearly essential and necessary to the performance of core executive functions. This approach would render acting principal officers more plausibly inferior under the Appointments Clause, would make them subordinate to a supervisor other than the President (Article III courts), and would create a powerful incentive for the President to nominate and obtain the Senate\u27s approval of a principal officer who could constitutionally exercise the full powers of the office
Appellate Courts and Civil Juries
Get PDFIn federal civil litigation, decisionmaking power is shared by juries, trial courts, and appellate courts. This Article examines an unresolved tension in the different doctrines that allocate authority among these institutions, one that has led to confusion surrounding the relationship between appellate courts and civil juries. At base, the current uncertainty stems from a longstanding lack of clarity regarding the distinction between matters of law and matters of fact. The high-stakes Oracle-Google litigation - which is now before the Supreme Court - exemplifies this. In that case, the Federal Circuit reasoned that an appellate court may assert de novo review over a jury\u27s verdict simply by characterizing a particular issue as legal rather than factual. But this approach misperceives the approach demanded by Rule 50 of the Federal Rules of Civil Procedure, which permits judicial override of a jury\u27s verdict only when a reasonable jury would not have a legally sufficient evidentiary basis to reach such a verdict.
Rule 50\u27s reasonable-jury standard does not permit de novo review of a jury\u27s verdict on a particular issue. Rather, it requires deference to the jury\u27s conclusion on that issue unless the reviewing court can explain why principles of substantive law or other aspects of the trial record render that verdict unreasonable. This deferential standard of review faithfully implements the text and structure of the Federal Rules and respects the jury\u27s role in our federal system. Yet, it also preserves appellate courts\u27 ability to provide meaningful clarification that will guide future decisionmakers
The Emerging Lessons of Trump v. Hawaii
Get PDFIn the years since the Supreme Court decided Trump v. Hawaii, federal district courts have adjudicated dozens of rights-based challenges to executive action in immigration law. Plaintiffs, including U.S. citizens, civil rights organizations, and immigrants themselves, have alleged violations of the First Amendment and the equal protection component of the Due Process Clause with some regularity based on President Trump\u27s animus toward immigrants. This Article assesses Hawaii\u27s impact on these challenges to immigration policy, and it offers two observations. First, Hawaii has amplified federal courts\u27 practice of privileging administrative law claims over constitutional ones. For example, courts considering separate challenges to the travel ban waiver process and the mass-rescission of humanitarian parole concluded that plaintiffs had not stated constitutional claims under Hawaii\u27s circumscribed inquiry, but these courts remained receptive to plaintiffs\u27 claims that an agency violated its obligation to provide a reasoned justification, consider reliance interests, explain itself sufficiently, or follow its own procedures. Second, Hawaii has prompted district courts to engage more deeply with the notion that different classes of immigrants are entitled to different levels of constitutional protection. This more open discussion of the contours of immigrants\u27 rights acknowledges immigrants as potential rights-holders but ultimately exposes the limits of a rights-based approach to protecting immigrants\u27 well-being
Unintended Legislative Inertia
Get PDFInstitutional and political forces create strong inertial pressures that make updating legislation a difficult task. As a result, laws often stagnate, leading to the continued existence of obsolete rules and policies that serve long-forgotten purposes. Recognizing this inertial power, legislatures over the last few decades have increasingly relied on a perceived solution -- temporary legislation. In theory, this measure avoids inertia by requiring legislators to choose to extend a law deliberately.
This Article argues that temporary legislation is a double-edged sword. While some temporary laws ultimately expire, many perpetuate through cycles of extension and reauthorization. Temporary legislation often creates its own inertial force, leading to the unintended permanence of what was originally believed to be provisional. Using a case study from a large public subsidy adopted as a localized fix to a temporary problem, this Article demonstrates how the subsidy has inadvertently grown in scope and in size, creating its own inertial pathways that made its repeal exceedingly difficult.
Path-dependent dynamics of temporary legislation affect not only present-day policies, but also the ability of legislatures to resist status quo bias and bring about legal change. This Article concludes with normative insights on ways to utilize flexible rulemaking whilst circumventing legislative inaction. Careful design of expiring provisions that is aware of the inertial power of temporary legislation can effectively ensure that laws are kept or discarded given their merits, not by force of the past
Incentivized Torts: An Empirical Analysis
Get PDFCourts and scholars assume that group causation theories deter wrongdoers. This Article empirically tests, and rejects, this assumption, using a series of incentivized laboratory experiments. Contrary to common belief and theory, data from over 200 subjects show that group liability can encourage tortious behavior and incentivize individuals to act with as many tortfeasors as possible. We find that subjects can be just as likely to commit a tort under a liability regime as they would be when facing no tort liability. Group liability can also incentivize a tort by making subjects perceive it as fairer to victims and society. These findings are consistent across a series of robustness checks, including both regression analyses and nonparametric tests.
We also test courts\u27 and scholars\u27 insistence that the but-for test fails in cases subject to group causation. We use a novel experimental design that allows us to test whether, and to what extent, each individual\u27s decision to engage in a tortious activity is influenced by the decisions of others. Upending conventional belief, we find strong evidence that the but-for test operates in group causation settings (e.g., concurrent causes). Moreover, across our experiments, subjects\u27 reliance on but-for causation produced the very tort that group liability attempted to discourage.
A major function of liability in torts, criminal law, and other areas of the law is to deter actors from engaging in socially undesirable activities. The same is said about doctrines that result in group liability. Our empirical results challenge this basic logic
Immigration Law\u27s Arbitrariness Problem
Get PDFDespite deportation’s devastating effects, the Immigration and Nationality Act (INA) specifies deportation as the penalty for nearly every immigration law violation. Critics have regularly decried the INA’s lack of proportionality, contending that the penalty often does not fit the offense. The immigration bureaucracy’s implementation of the INA, however, involves a spectrum of penalties short of deportation. Using tools such as administrative closure, orders of supervision, and deferred action, agency bureaucrats decide who is deported and who stays, and on what terms, on a purely ad hoc basis. In this “shadow system,” immigrants, their advocates, and the broader public lack basic information about what penalties are being imposed and why.
This Article argues for reframing the problem of immigration law’s disproportionality as a problem of insufficient justification—one remediable only by building the infrastructure for reason giving in the immigration bureaucracy. Deportation strikes many as disproportionate because the government often lacks satisfactory reasons for imposing such a drastic penalty. But in the system of shadow sanctions today, the government not only fails to offer good reasons: It fails to offer any at all. As a result, the system of shadow sanctions represents a classic case of an arbitrary exercise of government power. Looking to examples of procedural innovation across the administrative state, this Article backs prudential reforms to create immigration law’s missing reason-giving infrastructure. With it in place, the public can demand better reasons or proportionality. But the first step is addressing immigration law’s arbitrariness problem
