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Ambiguity\u27s Final Auer: Insisting on Consistency After Loper Bright Enterprises
No full textCan one lose something they still have? Apart from this potential brainteaser, a common sense understanding of loss requires an item to actually be removed from its owner. Nevertheless, under the United States Sentencing Commission Guidelines, an interpretive rule automatically punishes convicted defendants for money they never took by including “intended loss” in the definition of loss. This interpretive rule multiplies the number of years a defendant spends in prison due to the doctrine of Auer deference, even though such a rule is not supposed to have the weight of law. Auer deference requires courts to defer to agency interpretations of ambiguous agency regulations—ignoring that the very same agency failed to promulgate a clear regulation. Furthermore, the rule of lenity, an ancient doctrine privileging a criminal defendant if the government fails to be clear in writing rules that affect their liberty, gets consigned to oblivion when a court relies on Auer to resolve an ambiguity. This binding deference harms politically powerless groups, such as criminal defendants, to the greatest degree as they are not likely to mount criticisms to ambiguous rule promulgations at the notice-and-comment phase. When agencies create defining interpretive rules, no outside voices enter the decision-making process, exacerbating these power imbalances.
The Supreme Court’s decision in Loper Bright Enterprises v. Raimondo emphasized how doctrines of binding deference that rely on a finding of ambiguity lead to unpredictability and result in an abandonment of judicial authority to decide matters of law. Auer deference suffers from these ills. After the overturning of Chevron deference, this lingering deference is inconsistent with courts returning as the interpreters of ambiguity. Judicial predictability and fairness require courts to reclaim their proper place as the deciders of the fates of criminal defendants, without disregarding key interpretive tools. This Comment argues that the Court’s reasoning in Loper Bright necessitates overturning Auer deference to restore fairness to the sentencing system and rebalance the separation of powers
Remedying Labor Violations of the United States–Mexico–Canada Agreement on Both Sides of the Border
No full textThe labor provisions of the United States’ Free Trade Agreements contain language that allows labor violations to seep through unpenalized. Parties to the United States–Mexico–Canada Agreement (USMCA) sought to rectify this by drafting the most comprehensive labor provisions of any free trade agreement to date by crafting the Facility-Specific Rapid Response Mechanism (RRM). This Mechanism provides that a particular facility found to be in violation of the USMCA labor provisions must enforce a remediation plan that preserves workers’ rights or face the threat of losing its preferential trade status. The most salient way facilities breach the USMCA’s labor provisions is by infringing or denying workers’ right to free association and collective bargaining.
In surveying the cases resolved under the RRM, this Comment makes clear that this Mechanism, though more efficient than its predecessor, contains significant constraints that curb its ability to enhance labor conditions in Mexico and provide redress to workers. To ameliorate these shortcomings of the USMCA, this Comment proposes a judicial solution: Workers should invoke the transitory tort doctrine in U.S. courts to hold U.S. firms accountable for labor violations occurring on Mexican soil. This litigation strategy can provide recourse to Mexican workers to the extent that the USMCA has fallen short of meeting this lofty goal
Prevention Beyond Deterrence
No full textThis Article reconceptualizes preventive justice—the public safety paradigm that seeks to prevent harm before it occurs. Scholars have long documented how cities have advanced this paradigm through largely punitive measures, notably variants of broken windows policing, which posit that aggressive misdemeanor enforcement deters more serious crime. Yet in the aftermath of the 2020 George Floyd protests, and as underscored recently in City of Grants Pass v. Johnson, these measures have faced a legitimacy crisis—prompting calls for nonpunitive responses to nonviolent incidents.
This Article establishes a preventive justice approach that advances health and safety without emphasizing crime deterrence. It draws on fieldwork research on alternative emergency response programs (“Alternative Responses”) that proliferated after the 2020 protests to replace police in health crises and other nonviolent incidents. Data include interviews with fifty individuals and over two hundred hours of observations in Oakland, California; Dayton, Ohio; and Madison, Wisconsin.
The findings reveal a paradox. Although government officials claimed Alternative Responses to be separate from police, these programs are in fact institutionally enmeshed with law enforcement agencies. But despite this enmeshment, Alternative Responses employ distinct preventive methods at the street level: While police deter crime via traditional enforcement actions, these programs prevent harm through various nonpunitive means, notably the provision of life-sustaining resources and connections to needed services.
This research illuminates a preventive justice approach called “supported crisis response.” Grounded in a revised, health-centered understanding of rehabilitation, this approach ensures that people have agency to make decisions, resources to bring those decisions to fruition, and support to sustain the fruits of those choices. This approach also suggests a model for public safety governance—one that requires near-term reforms and long-term structural changes to expand Alternative Responses’ involvement in nonviolent incidents and to limit the role of police
Silver Lining in a Soap Opera: A Boon for Hospital Debtors in the Midst of In re Steward\u27s Madness
No full textLost in the technical jargon of the Medicare Statute and Bankruptcy Code are the powers to shape the posterity of hospitals that serve the American public. Distressed health care providers are increasingly turning to Chapter 11 relief, and ultimately the deal market, to salvage their businesses and fully monetize their assets. In the frequent event of an unsuccessful reorganization, hospital failures tank the health and well-being of their surrounding communities.
Hospital buyers regularly acquire a debtor’s Medicare Provider Agreement (Provider Agreement), a one-page form which credentials providers to participate in Medicare. In re Steward Health Care System, LLC, the largest and most polarizing hospital failure in decades, demonstrates how estate valuation can depend on the treatment of this unsuspecting document. When providers transfer this agreement, courts are divided in their interpretations of what responsibilities the debtor assumes, which liabilities attach to the agreement, and if rights are retained by the government. Some view the Provider Agreement as an executory contract under 11 U.S.C. § 365, unleashing a cascade of unfavorable financial consequences for all parties except the government, who directly benefits. Others consider participating in Medicare a statutory entitlement, allowing the debtor to sell the Provider Agreement free and clear of all claims, liens, and encumbrances under 11 U.S.C. § 363. However, a third “trend” surged in Steward, where the government encouraged out-of-court negotiation surrounding Provider Agreement liability. Providers are now finding predictability at the bargaining table rather than in memoranda of decision.
This Comment advocates that the soundest legal rationale, consistent with non-bankruptcy law, and public policy support evaluating the Provider Agreement as a statutory entitlement and § 363 estate asset. However, despite the appalling facts of Steward’s demise, its resolution illuminates that it is entirely within the government’s prerogative to instead resolve this issue through dealmaking. Thus, this Comment proposes that Steward’s quiet solution creates a new path forward for financially stressed providers that promotes transaction certainty and the health of Medicare beneficiaries nationwide
Trial by Character
No full textIn this Article, I argue that courts regularly deviate from Federal Rule of Evidence 404(b), which prohibits character evidence—evidence of a defendant’s past misdeeds offered to prove that the defendant acted in conformity with a certain character trait on the occasion in question. These deviations undermine the fairness of a trial and the presumption of innocence. The Article addresses this problem in three ways. First, it explains how courts have misinterpreted Rule 404(b)—an error that I call the permitted-purpose fallacy—and how they have fortified this misinterpretation with a body of flawed principles and precedent. Second, it reports the results of an empirical case review examining the prevalence of improper evidentiary admissions based on the permitted-purpose fallacy and the ineffectiveness of a 2020 amendment to Rule 404 in resolving that misinterpretation. The findings show that, notwithstanding the amendment, improper admissions of character evidence under Rule 404 remain common, with as many as 40–48% of admissions under Rule 404(b) reflecting misapplications of the rule resulting in the erroneous admission of character evidence. Third, the Article proposes three reforms: amending Rule 404(b) to clarify its meaning and intended function, addressing the permitted-purpose fallacy directly in judicial reasoning, and removing the underlying pressure on courts to deviate from Rule 404 in the first place
Constitutionalizing Climate Rights
Full text linkThis Essay proceeds in three Parts. In Part I, I describe and analyze which states have climate and environmental amendments within their state constitutions. Here, I focus on three states (Hawaii, Montana, and Pennsylvania) that have comparably strong Green Amendments and have experienced litigation in recent years enforcing these constitutional provisions. I describe and analyze three cases: Navahine F. v. Hawaii Department of Transportation (Hawaii), Held v. Montana (Montana), and Robinson Township (Pennsylvania). I argue that these three decisions—all of which enjoyed varying degrees of success—will spur greater efforts to constitutionalize state environmental rights. Indeed, there are grassroot efforts within several states to amend their respective state constitutions to add new Green Amendments. In Part II, I address the unique legal challenges litigants face when asserting rights-based environmental claims. Constitutionalizing environmental rights via state or federal constitutions face justiciability obstacles centering around redressability. I conclude in Part III by addressing the challenges and opportunities in constitutionalizing environmental rights. Here, I argue that rights-based environmentalism will play a growing role in state courts but will continue to struggle in federal courts. Following the success of plaintiffs in Navahine F. and Held, I identify several factors that will help determine the success of prospective Green Amendment lawsuits.
While I do not anticipate a tsunami of successful litigation anytime soon, Green Amendments lawsuits can play an important role in advancing environmental rights, particularly if a state has taken a specific legislative action that counteracts the underlying constitutional provision
Recusal Reform: Treating a Justice\u27s Disqualification as a Legal Issue
Full text linkThis article addresses the pressing issue of recusal in the U.S. Supreme Court. It critiques the current practice of Supreme Court Justices deciding individually whether to recuse themselves from cases, highlighting the flaws and potential biases inherent in this practice. The authors advocate for a reform where initial recusal decisions are made by individual Justices but then are subject to review by the Supreme Court as a whole.
The article offers several arguments to support this proposal. First, the authors explore the evolution of recusal laws, focusing on the significant amendments to 28 U.S.C. § 455 in 1948 and 1974. These amendments aimed to establish an objective standard for recusal, requiring judges to step aside when their impartiality might reasonably be questioned. Despite these changes, however, the authors point out that the current practice still problematically allows Justices to make unreviewable recusal decisions. Next, the authors conduct a comparison of the U.S. recusal process with those in other common law jurisdictions, revealing that many other nations have adopted collective decision-making for recusal issues at their highest courts. Finally, the authors delve into constitutional concerns, discussing whether the current self-recusal procedure violates due process by failing to guarantee an impartial tribunal. The article also addresses potential separation of powers issues, arguing that Congress has the authority to regulate judicial ethics, including recusal procedures, without infringing on judicial independence.
The article concludes that reforming the recusal process is crucial for maintaining public trust in the judiciary. By treating recusal as a legal issue to be decided by the full Court, rather than as a personal ethical decision by individual Justices, the Supreme Court can uphold its duty to provide impartial justice and reinforce its legitimacy