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2024 Board of Directors Agenda and Materials Board of Directors Agenda and Materials 
8-1-2024 
Meeting of the Executive Committee - Open Session Book 08/01/
2024 
UC Law SF 
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Available at: https://repository.uclawsf.edu/board_materials_2024/37 
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Executive Committee Meeting 
University of California College of the Law, San Francisco
https://uchastings.zoom.us/j/95140974096 or; Willkie Farr & Gallagher 333 
Bush St. San Francisco, CA 94104
2024-08-01 09:30 - 10:30 PDT
Table of Contents
1. Roll Call
2. Public Comment
 (10 minutes)  This is an opportunity for members of the public to comment on agenda items. 
Public comment on any agenda item will be limited to no more than three minutes per 
speaker and 10 minutes total. Groups or organizations that wish to comment on a particular 
item are encouraged to have a single representative speak for no more than three minutes. 
These limits can be varied at the discretion of the Chair. Persons who wish to speak on 
matters not on the agenda should make their request in writing to the General Counsel and 
Secretary of the College. 
3. Update on hiring for the Chief Advancement Officer
4. Student Success Strategies...............................................................................................2
      7.15.24 AD re Bar Success Proposals and Questions.pdf..................................................2
5. Legal Updates: UAW – Student Union..............................................................................4
      Settlement of Petition.pdf....................................................................................................4
6. Real Estate Acquisition: Campus Expansion
7. Adjournment
1
 
Bar Success Initiatives  Deliberative Work Product   
 
MEMORANDUM 
 
To:  File  
From:  Morris Ratner 
Date:  July 15, 2024 
Re:  Updated Bar Success Initiatives and Questions Grid 
 
The table, below, lays out proposals we have discussed and research questions to be answered 
before the September 13 retreat.  
 
Topic 
 
Possible proposals  Questions 
Grading 1. Modification of curve (e.g., 
required or allowed grades below 
B-) 
2. Required or presumptive course-
level GPA means 
3. Required or presumptive spread 
of grades below B- 
4. More specificity re the “range of 
grades” requirement in classes of 
< 30 students 
1. What are current grading practices under 
existing policies (mean GPAs, variation in means, 
etc.)?  
2. Can we quantify grade inflation since 2020?  
3. How are faculty applying current guidance re 
grades below B-? 
4. Do grading trends match faculty qualitative 
assessment of student performance?  
5. What are the possible bar passage and 
employment effects? 
6. What other facts do faculty want to know before 
making changes to the existing regulations? 
 
DQ 1. Increase minimum GPA in 
Academic Regulation 904 
2. Assess whether petition for 
readmission process is effective 
 
1. How have academic attrition rates changed since 
the faculty voted to increase the minimum GPA 
from 2.2 to 2.5? 
2. How do our academic attrition rates compare to 
peer schools’ rates?  
3. What are the predicted effects of changes?  
4. How well do students do who are currently in 
GPA bands above 2.5 on first-time bar passage, 
ultimate bar passage, and employment? 
 
Academic 
supervision 
and 
counseling 
1. Widen GPA bands or return to 
quartile approach rather than 
GPA approach (currently, 
supervision applies to the 
bottom 10% of the class, roughly, 
and counseling applies to the 
bottom quartile; a more 
aggressive approach could for 
example apply supervision to Q4 
and counseling to Q3) 
2. Evaluate current conditions 
(new or additional 
requirements) 
 
1. How has the GPA approach to defining academic 
counseling and supervision compared to the 
prior quartile approach?  
2. Does supervision or counseling work?  
3. If so, should it be expanded?  
4. If not, how else can we target support to the most 
at-risk students?  
 
2
 
Deliberative Work Product 
Bar Success Initiatives 2 
Topic 
 
Possible proposals  Questions 
Assessment by 
subject and 
topic; 
information 
sharing 
1. Share more data on bar 
performance by subject and 
topic within subject 
2. Assess efficacy of bar courses by 
subject1 
3. Require coverage of tested topics 
by subject2 
 
1. Do we have subject and topic-specific data that 
we can share? What does it show? What patterns 
do we see?3 
2. To what extent is current topic coverage within 
bar courses omitting regularly covered topics?  
3. Are our students most challenged because of lack 
of coverage or as a result of other factors (lack of 
time management skills, poorly developed study 
skills, challenges with legal analysis, etc.)? 
 
Instruction 
and formative 
assessment 
 
1. Mandatory formative 
assessments of essay writing 
(bar-like exam essay questions) 
2. Mandatory integration of 
performance test-like questions 
3. Mandatory use of AdaptiBar 
 
1. How much formative assessment is happening 
now in 1L or upper division bar classes?  
2. What is AdaptiBar adoption now? 
3. What is the impact on teaching load/mix? 
Integration of 
LRW and 
doctrinal 
courses  
 
1. Link LRW1 and/or 2 writing 
projects and fall and/or spring 
doctrinal sections within each 
Inn as David Takacs once did on 
a trial basis with Stephen 
Tollafield viz STAT: Env. Law 
 
1. What’s the process for selecting memo topics 
now?  
2. What are the mechanics of this level of 
coordination and what resources would be used 
to support it?  
 
 
  
 
1 We have tried to assess the efficacy of individual course or subjects using statistical analyses, but the “n” is too 
small. We can assess the efficacy of bar courses in general but not by subject or by course.  
2 Absent a faculty vote, academic freedom principles militate against this approach. Regardless, faculty have 
demonstrated a willingness to factor information into course design on a voluntary basis. For more information 
re the principle of academic freedom, see the American Association of University Professors website, here, ABA 
Standard 201, UC Law SF Standing Orders Section 102.3, and this policy adopted by the faculty of UC Law SF. 
Fortunately, unlike some schools, we have a long history of collaboration at the law school among all stakeholders 
that functionally moots questions of jurisdiction, especially when it comes to student success. 
3 We do. See Section II, below. 
3
STATE OF CALIFORNIA 
PUBLIC EMPLOYMENT RELATIONS BOARD 
 
1 
 
 
  
UC COLLEGE OF THE LAW, SAN 
FRANCISCO 
 
Employer, Case No. SF-RR-1042-H 
  
and 
 AGREEMENT REGARDING 
BARGAINING UNIT 
COMPOSITION 
UNITED LEGAL EDUCATORS-UAW,  
 
Employee Organization. 
 
 
 In the interest of promoting harmonious labor relations between the parties and 
to avoid the uncertainty, inconvenience, and expense of litigation, the UC College of 
the Law, San Francisco (College) and the United Legal Educators-UAW (Union), in 
settlement of the above-captioned case before the Public Employment Relations 
Board, agree as follows: 
1. The appropriate bargaining unit is a single unit described as follows: 
SHALL INCLUDE: All students enrolled at the University of California College of 
Law, San Francisco (“UC Law”) who are employed by UC Law, including but 
not limited to: Teaching Assistants, Legal Research & Writing Teaching 
Assistants, Moot Court Board Members, Research Assistants, Legal Research 
Assistants, Admissions Fellows, Library Circulation Desk Assistants, Events 
Coordinators, Sack Fellows/Sack Teaching Fellows, Legal Education 
Opportunity Program Tutors, Skills Fellows, Note Takers, Discussion Group 
Leaders, Discussion Group Leader Facilitators, and Research Fellows.  
SHALL EXCLUDE: 1. All non-student employees; 2. All employees defined by 
HEERA as managerial, supervisory and/or confidential; 3. All positions that are 
exclusively represented at the time of this petition. 
 
 
4
2. Students who receive only academic credit for their work are not student 
employees within the meaning of HEERA and therefore are not in the bargaining unit.  
This provision is not intended to imply a waiver of any rights and/or remedies of the 
parties. 
3. This Settlement Agreement represents a full and complete resolution of the 
claims and disputes between the parties based upon the above-referenced matter. 
4. The undersigned parties represent that they have read and understand the 
terms of this settlement and that they are authorized to execute this Settlement 
Agreement on behalf of their principals. 
5. The above terms are subject to approval by the College’s Board of 
Directors. 
 
For Employer: For Employee Organization: 
 
________________________________ 
Andrew Scott                 July 30, 2024 
Chief Human Resources Officer 
 
  
 
________________________________ 
Molly Stuart                     July 30, 2024 
UAW International Representative
 
 
  
  
  
  
 
 
5
STATE OF CALIFORNIA 
PUBLIC EMPLOYMENT RELATIONS BOARD 
 
1 
 
 
  
UC COLLEGE OF THE LAW, SAN 
FRANCISCO 
 
Employer, Case No. SF-RR-1042-H 
  
and 
 AGREEMENT REGARDING 
BARGAINING UNIT 
COMPOSITION 
UNITED LEGAL EDUCATORS-UAW,  
 
Employee Organization. 
 
 
 In the interest of promoting harmonious labor relations between the parties and 
to avoid the uncertainty, inconvenience, and expense of litigation, the UC College of 
the Law, San Francisco (College) and the United Legal Educators-UAW (Union), in 
settlement of the above-captioned case before the Public Employment Relations 
Board, agree as follows: 
1. The appropriate bargaining unit is a single unit described as follows: 
SHALL INCLUDE: All students enrolled at the University of California College of 
Law, San Francisco (“UC Law”) who are employed by UC Law, including but 
not limited to: Teaching Assistants, Legal Research & Writing Teaching 
Assistants, Moot Court Board Members, Research Assistants, Legal Research 
Assistants, Admissions Fellows, Library Circulation Desk Assistants, Events 
Coordinators, Sack Fellows/Sack Teaching Fellows, Legal Education 
Opportunity Program Tutors, Skills Fellows, Note Takers, Discussion Group 
Leaders, Discussion Group Leader Facilitators, and Research Fellows.  
SHALL EXCLUDE: 1. All non-student employees; 2. All employees defined by 
HEERA as managerial, supervisory and/or confidential; 3. All positions that are 
exclusively represented at the time of this petition. 
 
 
6
2. Students who receive only academic credit for their work are not student
employees within the meaning of HEERA and therefore are not in the bargaining unit.  
This provision is not intended to imply a waiver of any rights and/or remedies of the 
parties. 
3. This Settlement Agreement represents a full and complete resolution of the
claims and disputes between the parties based upon the above-referenced matter. 
4. The undersigned parties represent that they have read and understand the
terms of this settlement and that they are authorized to execute this Settlement 
Agreement on behalf of their principals. 
5. The above terms are subject to approval by the College’s Board of
Directors. 
For Employer: For Employee Organization: 
________________________________ 
Andrew Scott                 July 30, 2024 
Chief Human Resources Officer 
________________________________ 
Molly Stuart                     July 30, 2024 
UAW International Representative
7
STATE OF CALIFORNIA 
PUBLIC EMPLOYMENT RELATIONS BOARD 
 In the interest of promoting harmonious labor relations between the parties and 
to avoid the uncertainty, inconvenience, and expense of litigation, the UC College of 
the Law, San Francisco (College) and the United Legal Educators-UAW (Union), in 
settlement of the above-captioned case before the Public Employment Relations 
Board, agree as follows: 
1. The appropriate bargaining unit is a single unit described as follows: 
SHALL INCLUDE: All students enrolled at the University of California College of 
Law, San Francisco (“UC Law”) who are employed by UC Law, including but not 
limited to: Teaching Assistants, Legal Research & Writing Teaching Assistants, 
Moot Court Board Members, Research Assistants, Legal Research Assistants, 
Admissions Fellows, Library Circulation Desk Assistants, Events Coordinators, 
Sack Fellows/Sack Teaching Fellows, Legal Education Opportunity Program 
Tutors, Skills Fellows, Note Takers, Discussion Group Leaders, Discussion 
Group Leader Facilitators, and Research Fellows.  
SHALL EXCLUDE: 1. All non-student employees; 2. All employees defined by 
UC COLLEGE OF THE LAW, SAN 
FRANCISCO
Employer, Case No. SF-RR-1042-H
and
AGREEMENT REGARDING 
BARGAINING UNIT 
COMPOSITION
UNITED LEGAL EDUCATORS-UAW,
Employee Organization.
 1
8
HEERA as managerial, supervisory and/or confidential; 3. All positions that are 
exclusively represented at the time of this petition. 
2. Students who receive only academic credit for their work are not student 
employees within the meaning of HEERA and therefore are not in the bargaining 
unit.  This provision is not intended to imply a waiver of any rights and/or remedies 
of the parties. 
3. This Settlement Agreement represents a full and complete resolution of the 
claims and disputes between the parties based upon the above-referenced matter. 
4. The undersigned parties represent that they have read and understand the 
terms of this settlement and that they are authorized to execute this Settlement 
Agreement on behalf of their principals. 
5. The above terms are subject to approval by the College’s Board of 
Directors. 
For Employer: For Employee Organization:
________________________________ 
Andrew Scott                 July 30, 2024 
Chief Human Resources Officer  
 
________________________________ 
Molly Stuart                     July 30, 2024 
UAW International Representative 
  
9
 PROOF OF SERVICE 
 
 I declare that I am a resident of or employed in the County of Alameda, 
California.  I am over the age of 18 years and not a party to the within entitled cause.  
The name and address of my residence or business is Public Employment Relations 
Board, San Francisco Regional Office, 1515 Clay Street, Suite 2206, Oakland, CA, 
94612-1403. 
 
 On July 31, 2024, I served the Agreement Regarding Bargaining Unit 
Composition regarding Case No. SF-RR-1042-H on the parties listed below by 
 
        I am personally and readily familiar with the business practice of the Public 
Employment Relations Board for collection and processing of correspondence for 
mailing with the United States Postal Service, and I caused such envelope(s) 
with postage thereon fully prepaid to be placed in the United States Postal 
Service at Oakland, California. 
       Personal delivery. 
  X  Electronic service (e-mail). 
 
Steve Cikes, Attorney 
Renne Public Law Group 
350 Sansome Street, Suite 300   
San Francisco, CA  94104 
Email: scikes@publiclawgroup.com 
 
Margo A. Feinberg, Attorney 
Schwartz, Steinsapir, Dohrmann & Sommers LLP 
6300 Wilshire Boulevard, Suite 2000   
Los Angeles, CA  90048-5268 
Email: margo@ssdslaw.com 
 
 
 
 I declare under penalty of perjury that the foregoing is true and correct and that 
this declaration was executed on July 31, 2024, at Oakland, California. 
 
 
Anna Robinson 
  
(Type or print name)  (Signature) 
 
/s/ Anna Robinson
10


English

Meeting of the Executive Committee - Open Session Book 08/01/2024

UC Law SF 
UC Law SF Scholarship Repository 
Long Range Campus Planning Archive UC Law SF Archives and History 
9-18-2024 
Filing of Notice of Determination in Compliance with Section 
21108 or 21152 of the Public Resources Code 
UC Law SF 
Follow this and additional works at: https://repository.uclawsf.edu/lrcp 
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Resources Code (2024). 
Available at: https://repository.uclawsf.edu/lrcp/74 
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wangangela@uchastings.edu. 




Filing of Notice of Determination in Compliance with Section 21108 or 21152 of the Public Resources Code

Short, Jodi L.

The Judges' Book 
Volume 8 Article 3 
2024 
Administrative Law: In Search of the Public Interest 
Jodi L. Short 
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 Part of the Judges Commons 
Recommended Citation 
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Article 3. 
Available at: https://repository.uclawsf.edu/judgesbook/vol8/iss1/3 
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for inclusion in The Judges' Book by an authorized editor of UC Law SF Scholarship Repository. For more 
information, please contact wangangela@uchastings.edu. 
Vol. 8 The Judges’ Book 3 
Administrative Law 
In Search of the Public Interest 
 
Jodi L. Short1 
 
In a rapidly changing jurisprudential landscape, litigants are 
pressing novel challenges to the structure of administrative 
agencies and the scope of their delegated statutory authority.2  
Recent Supreme Court opinions have invited such challenges, but 
they provide little guidance to lower courts. Justice Gorsuch made 
one of the bluntest overtures in his dissent in Gundy v. United 
States,3 where he called for reconsideration of the nondelegation 
doctrine4—a call that now has been publicly endorsed by a majority 
of current justices.5  
Against the rising chorus of demands that courts rein in broad 
statutory delegations to administrative agencies, this Chapter 
examines the broadest delegation of all: the “public interest” 
standard. Legal scholars have decried the public-interest standard 
 
1 Excerpted and adapted from Jodi L. Short, In Search of the Public 
Interest, 40 YALE J. REG. 759 (2023). 
2 See, e.g., Jarkesy v. S.E.C., 34 F.4th 446 (5th Cir. 2022) (addressing 
whether the nondelegation doctrine precludes agency discretion to elect 
whether to enforce statutory mandates through administrative adjudication 
or litigation in federal court); Consumers’ Research v. F.C.C., 67 F.4th 
773 (6th Cir. 2023) (addressing whether the Universal Service Fund 
created pursuant to the Communications Act and Telecommunications 
Act violates the nondelegation doctrine); Consumers’ Research v. F.C.C., 
63 F.4th 441 (5th Cir. 2023) (same). 
3 139 S. Ct. 2116 (2019). 
4 Id. at 2131 (Gorsuch, J., dissenting) (rejecting the prevailing 
nondelegation doctrine). 
5 Writing for three justices, Justice Alito concurred with the judgment in 
Gundy but indicated that he would be willing to “reconsider the 
[nondelegation] approach we have taken for the past 84 years.” Id. (Alito, 
concurring). Justice Kavanaugh, in a statement respecting denial of 
certiorari five months later, praised “Justice Gorsuch’s scholarly analysis 
of the Constitution’s nondelegation doctrine” in Gundy and noted that his 
dissent “raised important points that may warrant further consideration in 
future cases.” Paul v. United States, 140 S. Ct. 342, 342 (2019) 
(Kavanaugh, J.). 
4 Scholarship for the Bench 2024 
as “vacuous,”6 “empty,”7 and “so vague that it can mean whatever 
[regulators] say it means on any given day.”8 It has been suggested 
that the indeterminacy of the public-interest standard and the scope 
of discretion it lodges in agency officials “would surely 
shock . . . the founders of our nation.”9 Indeed, some nondelegation 
revivalists have set their sights squarely on the public-interest 
standard as “easy kill number one.”10  
But that is not so simple. Regulation in the public interest has a 
long history in the U.S. legal system.11 More than 1,200 public-
interest standards appear in the U.S. Code (and legions more in state 
statutes). Agencies apply public-interest standards in the work they 
do every day. This Chapter moves beyond the rhetoric by 
conducting a grounded inquiry into how agencies implement 
public-interest standards in the statutes they administer. My 
findings provide insights to inform courts’ analysis of legal 
challenges to these and other broad statutory delegations.  
Using data from agency adjudications under four different 
statutory schemes dating from the early 1900s through the early 
2000s, I conducted a qualitative study centering on four questions:  
 
(1) How do agencies define the public interest?  
 
(2) What claims do agencies make about the scope of their 
authority under the public-interest standard?  
 
(3) What justifications do agencies and the parties before them 
make about why a particular outcome is—or is not—in the public 
interest?  
 
 
6 Gary Lawson, Delegation and Original Meaning, 88 VA. L. REV. 327, 
328 n.8 (2002). 
7 Richard J. Pierce, Jr., The Role of Constitutional and Political Theory in 
Administrative Law, 64 TEX. L. REV. 469, 474 (1985). 
8 Randolph J. May, The Public Interest Standard: Is It Too Indeterminate 
to Be Constitutional?, 53 FED. COMM. L.J. 427, 453 (2001). 
9 Id. at 428. 
10 Gary Lawson, Delegation and the Constitution, 22 REGUL. 23, 29 
(1999). 
11 WILLIAM J. NOVAK, THE PEOPLE’S WELFARE: LAW & REGULATION IN 
NINETEENTH-CENTURY AMERICA (1996). 
 
Vol. 8 The Judges’ Book 5 
(4) What arguments about the public interest do agencies tend to 
find most persuasive?  
 
I analyzed nearly a century’s worth of adjudications from three 
federal agencies and one state agency administering public-interest 
standards under the Interstate Commerce Act (administered first by 
the Interstate Commerce Commission and later by the Surface 
Transportation Board), the Federal Communications Act 
(administered by the Federal Communications Commission), the 
Federal Water Power Act (administered by the Federal Energy 
Regulatory Commission), and the California Water Commission 
Act (administered by the California State Water Resources Control 
Board). These statutes regulate either merger review in heavily 
regulated industries or natural-resource allocation. 
My four key findings suggest that agencies do not use broad 
statutory delegations such as the public interest to make lawless 
power grabs. First, agencies applying statutory public-interest 
standards exhibit rational and predictable patterns that comport 
with rule-of-law values of transparency and consistency. By and 
large, agencies explicitly define what constitutes the public interest 
in their respective statutory contexts, and these definitions remain 
stable over time. Agencies firmly ground these definitions in a close 
reading of the enabling statute in which the public-interest standard 
is embedded, and agencies are highly responsive to feedback from 
courts and legislatures in articulating their understanding of the 
public interest. Significant changes to agencies’ public-interest 
definitions are almost always triggered by statutory amendments or 
judicial decisions, not undertaken on the agencies’ own initiative.  
Second, agencies tend to be modest about the scope of their 
own public-interest authority. Agencies rarely assert broad, 
discretionary authority under a public-interest standard, and they 
often explicitly recognize that their decisionmaking authority is 
cabined either by statute or case law. 
Third, parties and agencies in adjudicatory proceedings 
articulate defensible and customary justifications for why a 
particular outcome is—or is not—in the public interest. The 
justifications fall into discrete categories. The most common 
category encompasses claims about the efficiency of various 
outcomes, including arguments about how the agency’s decision 
would affect costs, prices, quality, competition, and growth in 
regulated markets, as well as arguments about net costs and 
6 Scholarship for the Bench 2024 
benefits. Another category includes procedural arguments about the 
public interest, e.g., arguments about open access to agency 
proceedings, support or buy-in by stakeholders, and parties’ 
willingness to accommodate one another’s interests. A final 
category comprises arguments about the public interest in 
advancing substantive values, such as defending national security 
or protecting affected communities, the environment, and workers’ 
rights. While some substantive values raised in adjudicatory 
proceedings are extra-statutory, most are required considerations 
under the agency’s authorizing legislation. 
Fourth, despite the wide range of arguments made about what 
is in the public interest, the types of justifications that the agencies 
typically found most compelling were efficiency-related 
arguments. In most contexts studied, economic arguments were the 
most-raised and most-accepted justifications for why a particular 
outcome is in the public interest. Long before the late-1900s 
economic critique of regulation and the imposition of regulatory 
cost-benefit analysis requirements by executive order, the agencies 
in this study and the parties in administrative proceedings framed 
their public-interest claims primarily in terms of economics and 
efficiency. By contrast, agencies rarely considered substantive 
values in their public-interest analyses unless the statute mandated 
such considerations. And even then, values-based concerns were 
rarely outcome-determinative; at most, values provided 
atmospherics. These findings suggest that agencies are not 
exploiting broad public-interest standards to impose their own 
values. Indeed, they suggest that agencies might fail to fully realize 
the values embodied in statutory law. 
My empirical findings are consistent with nearly a century of 
case law repeatedly upholding public-interest standards against 
legal challenge. In rejecting an early challenge to a statutory public-
interest standard, the Supreme Court observed: “It is a mistaken 
assumption that [the public-interest criterion] is a mere general 
reference to public welfare without any standard to guide 
determinations. The purpose of the Act, the requirements it 
imposes, and the context of the provision in question show the 
contrary.”12 My study confirms the Court’s intuition. Agencies 
 
12 Fed. Radio Com. v. Nelson Bros., 289 U.S 266, 285 (1933); see also 
N.A.A.C.P. v. Fed. Power Comm’n, 425 U.S. 662, 669 (1976) (“This 
Court’s cases have consistently held that the use of the words ‘public 
Vol. 8 The Judges’ Book 7 
ground definitions of the public interest in their statutory authority 
and respond to legislative amendments of that authority. Further, 
they rarely consider substantive values outside the four corners of 
their statutory authority in making public-interest determinations.  
The Court has invoked two additional arguments for rejecting 
challenges to public-interest standards. First, the Court has 
reasoned that the public-interest standard is no less discernible or 
definite than other commonly used legal standards that delegate 
decisionmaking power to agencies, such as “just and reasonable”;13 
“public convenience and necessity”;14 or “reasonableness.”15 To 
require more of the public-interest standard “would be to insist on 
a degree of exactitude which not only lacks legal necessity but also 
conflicts with the requirements of the administrative process.”16 
Second, the Court has recognized the important role that public-
interest standards play in the administrative process, facilitating 
regulation in complex areas where implementation demands 
expertise and flexibility.17 
None of the cases upholding the constitutionality of various 
statutory public-interest delegations was decided using the 
“intelligible principle” standard—the lodestar of contemporary 
nondelegation doctrine. Indeed, while decisions rejecting these 
constitutional challenges rest on foundational nondelegation 
principles regarding the appropriate exercise of legislative and 
executive power, they do not address whether the “public interest” 
is a sufficiently intelligible principle to cabin agency discretion. 
Instead, they take a more holistic approach to nondelegation, 
considering a range of different factors to assess the shape and size 
of the authority agencies actually exercise under their public-
 
interest’ in a regulatory statute is not a broad license to promote the general 
public welfare. Rather, the words take meaning from the purposes of the 
regulatory legislation.”). 
13 Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 398 (1940). 
14 N.Y. Cent. Secs. Corp. v. United States, 287 U.S. 12, 25 (1932). 
15 Id. 
16 Sunshine Anthracite Coal, 310 U.S. at 398. 
17 See Fed. Comms. Comm’n v. Pottsville Broad. Co., 309 U.S. 134, 138 
(1940) (acknowledging the vagueness of the public interest standard but 
insisting that it is “as concrete as the complicated factors for judgment in 
such a field of delegated authority permit”). 
8 Scholarship for the Bench 2024 
interest delegations.18 My findings illustrate the utility of this 
approach by providing concrete evidence that agency authority can 
take modest shape and size even under a broad statutory public-
interest standard. 
My findings also undercut the rationale driving the Court’s 
broader project to rein in the powers of administrative agencies. 
This project is animated by a highly stylized caricature of 
administrative agencies as power-hungry usurpers, lying in wait for 
any statutory opening that will allow them to pounce on citizens’ 
liberties and “churn out new laws more or less at whim.”19 This 
caricature explains the Court’s renewed interest in the 
nondelegation doctrine. It underlies the formalist turn the Court has 
taken in appointment and removal cases. It fuels the Court’s 
antipathy toward longstanding deference doctrines. And it 
underwrites the Court’s official embrace of the major-questions 
doctrine, which it explained is necessary to police “a particular and 
recurring problem: agencies asserting highly consequential power 
beyond what Congress could reasonably be understood to have 
granted.”20  
The picture of administrative agencies that emerges from my 
study looks very different from this cartoon. Acting under what is 
considered the broadest of statutory delegations, the agencies 
studied exercised restraint and sought limits on their authority 
rather than loopholes to exploit it. The agencies explicitly defined 
what constitutes the public interest in their respective contexts, 
grounding their definitions in statutory law. These definitions 
remained mostly stable over time, with significant changes 
occurring not through agencies’ own initiatives but in response to 
statutory amendments or judicial decisions. Agencies also refused 
to entertain arguments raised by parties that strayed far beyond the 
boundaries of these constraints and ventured into the territory of 
values and morality. These implementation practices are consistent 
with rule-of-law and separation-of-powers principles and should 
 
18 For further elaboration of this approach, see Cary Coglianese, 
Dimensions of Delegation, 167 U. PA. L. REV. 1849 (2019). 
19 N.F.I.B. v. Dep’t of Labor, 142 S. Ct. 661, 669 (2022) (Gorsuch, J., 
concurring) (fretting that an agency “may seek to exploit some gap, 
ambiguity, or doubtful expression in Congress’s statutes to assume 
responsibilities far beyond its initial assignment”); accord West Virginia 
v. EPA, 597 U.S. 697, 735 (2022) (Gorsuch, J., concurring). 
20 West Virginia, 597 U.S. at 724. 
Vol. 8 The Judges’ Book 9 
temper concerns about the breadth of statutory public-interest 
delegations of authority. To be sure, as the Court has made clear, 
agencies cannot cure an unconstitutionally broad delegation by 
adopting a narrowing construction of their statutory authority. But 
these agency practices and interpretations are not narrowing 
constructions; they are simply the agencies’ best—and only—
understanding of the meaning of these statutes. It would surely stun 
agency officials to learn that these statutes give them unbounded 
powers. 
What do my findings mean for judges? First and foremost, they 
call for attention to context and institutional nuance when 
addressing nondelegation questions and other questions implicating 
the scope of agency power. Formalist abstraction and heated anti-
administrative rhetoric obscures important dimensions of these 
issues. Second, they suggest that judges should identify the rich 
panoply of values that statutory schemes seek to advance and 
should hold agencies accountable for adequately considering those 
values in their decisionmaking processes. Just because agencies are 
staying within statutory lines does not mean that they are painting 
the full picture envisioned by Congress. 
 
* * * 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
10 Scholarship for the Bench 2024 
 
 


Administrative Law: In Search of the Public Interest

Price, Zachary S.

The Judges' Book 
Volume 8 Article 7 
2024 
Constitutional Law: Faithful Execution in the Fifty States 
Zachary S. Price 
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 Part of the Judges Commons 
Recommended Citation 
Price, Zachary S. (2024) "Constitutional Law: Faithful Execution in the Fifty States," The Judges' Book: Vol. 
8, Article 7. 
Available at: https://repository.uclawsf.edu/judgesbook/vol8/iss1/7 
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Vol. 8 The Judges’ Book 47 
Constitutional Law 
Faithful Execution in the Fifty States 
 
Zachary S. Price1 
 
Acute political conflicts have arisen recently over the scope of 
prosecutorial discretion. For decades, if not longer, prosecutors 
generally presented themselves as humble servants of the public 
will, as reflected in legislation, even as they exercised enormous 
discretion in practice. Within roughly the past decade, however, 
this model of the prosecutorial role has eroded, giving way to a 
different model in which prosecutors actively reshape the operative 
law in their jurisdictions by openly suspending enforcement of 
disfavored statutes. Employed at the federal level in high-profile 
policies relating to marijuana regulation, immigration, and the 
Affordable Care Act, this model has since become a hallmark of 
self-described “progressive prosecutors” who have won office in 
local jurisdictions across the country. Among other reforms, these 
prosecutors have announced policies suspending enforcement of 
laws forbidding drug possession, petty theft, shoplifting, 
prostitution, and other crimes. 
This approach to prosecutorial authority, which I call 
“categorical nonenforcement,” has sparked a heated, nationwide 
controversy, with some celebrating the shift and others decrying it 
as inviting lawlessness. Yet this debate has been remarkably 
disconnected from the actual law governing the question. Far from 
prescribing a common model of prosecutorial authority, as much 
commentary has presumed, the laws of the federal government and 
the fifty states vary widely regarding the degree of enforcement 
discretion and autonomy for local prosecutors. 
At the federal level, although enforcement discretion is central 
to federal criminal law and other areas of regulation, separation-of-
powers provisions, including the President’s constitutional duty to 
“take Care that the Laws be faithfully executed,”2 place important 
 
1 Excerpted and adapted from Zachary S. Price, Faithful Execution in the 
Fifty States, 57 GA. L. REV. 651 (2023). 
2 U.S. CONST. art. II, § 3. 
48 Scholarship for the Bench 2024 
limits on categorical nonenforcement.3 At the state level, states 
nearly uniformly impose similar obligations of faithful execution 
on their governors, suggesting that state law likewise constrains 
categorical nonenforcement of state laws. Yet nearly every state 
also provides for locally elected prosecutors, a choice that may 
permit varied prosecutorial approaches based on local democratic 
preferences, and state laws vary widely in the degree of authority 
and autonomy they afford to those prosecutors. Whether categorical 
nonenforcement is permissible in any given jurisdiction should turn 
on these features of state law and not generalized abstractions or 
federally derived assumptions about the separation of powers. 
Attention to state law reveals that the fifty states can be placed 
along a spectrum with respect to their relative hostility to 
categorical nonenforcement by local prosecutors. At one extreme, 
Massachusetts’s constitution forbids “suspending . . . the execution 
of the laws;”4 California’s constitution obligates the state Attorney 
General to “to see that the laws of the State are uniformly and 
adequately enforced;”5 and North Dakota’s Supreme Court has held 
that local prosecutors “may not effectively repeal a law by failing 
to prosecute a class of offenses.”6 Laws in these states and others 
like them are at odds with presuming any categorical 
nonenforcement power at all, let alone one vested in locally elected 
officials.  
By contrast, at the other end of the spectrum, both heavily 
Republican Mississippi7 and heavily Democratic Illinois8 limit 
 
3 See Zachary S. Price, Enforcement Discretion and Executive Duty, 67 
VAND. L. REV. 671, 769 (2014). 
4 MASS. CONST. pt. I, art. XX. 
5 CAL. CONST. art. V, § 13. 
6 Olsen v. Koppy, 593 N.W.2d 762, 767 (N.D. 1999). 
7 See MISS. CODE § 25-31-11(1) (“It shall be the duty of the district 
attorney to represent the state in all matters coming before the grand juries 
of the counties within his district and to appear in the circuit courts and 
prosecute for the state in his district all criminal prosecutions and all civil 
cases in which the state or any county within his district may be 
interested.”). 
8 See 55 ILL. COMP. STAT. 5/3-9005(a)(1) (“The duty of each State’s 
Attorney shall be . . . [t]o commence and prosecute all actions, suits, 
indictments and prosecutions, civil and criminal, in the circuit court for 
Vol. 8 The Judges’ Book 49 
centralized oversight of local prosecutors in ways that effectively 
guarantee broad local discretion over nonenforcement. Mississippi, 
in particular, allows state-level officials to intervene only to assist 
in local prosecutions; under its law, “[i]ntervention of the attorney 
general into the independent discretion of a local district attorney 
regarding whether or not to prosecute a criminal case constitutes an 
impermissible diminution of the statutory power of the district 
attorney.”9 As a practical matter, such autonomy makes local 
categorical nonenforcement possible, if not specifically authorized. 
Between these extremes is a variety of intermediate choices. 
Some states grant state-level officials broad authority to override 
local-prosecutorial choices but impose no duty to exercise this 
authority in any particular circumstances—an arrangement that 
effectively leaves categorical nonenforcement to a political tug-of-
war between local and state-level officials.10 Others allow state-
 
the county, in which the people of the State or county may be 
concerned.”); Rifkin v. Bear Stearns & Co., 831 N.E.2d 563, 570 (Ill. 
2005) (rejecting arguments that the legislature could “reduce a State’s 
Attorney’s constitutionally derived power to direct the legal affairs of the 
county”). 
9 Williams v. State, 184 So. 3d 908, 913 (Miss. 2014). 
10 See, e.g., COLO. REV. STAT. § 24-31-101(1)(b) (obligating the state 
Attorney General to “appear for the state and prosecute and defend all 
actions and proceedings, civil and criminal, in which the state is a party or 
is interested when required to do so by the governor”); ME. REV. STAT. tit. 
5, § 199 (“The Attorney General [who is appointed by the legislature] 
may, in the Attorney General’s discretion, act in place of or with the 
district attorneys, or any of them, in instituting and conducting 
prosecutions for crime, and is invested, for that purpose, with all the rights, 
powers and privileges of each and all of them.”); MINN. STAT. § 8.01 
(allowing the Attorney General to appear in local criminal cases at the 
local county attorney’s request and further providing that “[w]henever the 
governor shall so request, in writing, the attorney general shall prosecute 
any person charged with an indictable offense, and in all such cases may 
attend upon the grand jury and exercise the powers of a county attorney”); 
N.M. STAT. § 8-5-2(B) (“[T]he attorney general shall . . . prosecute and 
defend in any other court or tribunal all actions and proceedings, civil or 
criminal, in which the state may be a party or interested when, in his 
judgment, the interest of the state requires such action or when requested 
to do so by the governor.”); S.D. CODIFIED L. § 1-11-1(2) (establishing the 
state Attorney General’s duty, “[w]hen requested by the Governor or 
50 Scholarship for the Bench 2024 
level officials to supersede local prosecutors, but only in limited 
circumstances.11 These institutional arrangements afford local 
prosecutors greater freedom to adopt categorical nonenforcement 
policies, within certain limits.  
These varied positive laws should govern whether categorical 
nonenforcement violates some duty of faithful execution on the part 
of local prosecutors or state officials. Just as the proper extent of 
federal prosecutorial discretion presents a question of federal 
separation of powers, so, too, does the extent of local prosecutorial 
discretion present a question of state and local positive law. Going 
forward, debates over categorical nonenforcement’s legality should 
focus on the particular laws governing the question in a particular 
state, without presuming any uniform nationwide understanding of 
faithful execution. 
Attending to governing state laws and constitutional provisions 
could help resolve current debates over prosecutorial authority in a 
more grounded and dispassionate matter. Doing so also could help 
forestall unintended consequences of current prosecutorial 
approaches. Though associated for the moment with progressive 
politics and criminal-justice reform, broad theories of prosecutorial 
discretion can enable law-enforcement officials to pursue any 
number of policy aims. Theories employed today to justify relaxed 
 
either branch of the Legislature, or whenever in his judgment the welfare 
of the state demands, to appear for the state and prosecute or defend, in 
any court or before any officer, any cause or matter, civil or criminal, in 
which the state may be a party or interested”). 
11 See, e.g., LA. CONST. art. IV, § 8 (generally allowing the state Attorney 
General to prosecute local cases only if requested by the district attorney 
or “for cause, when authorized by the court which would have original 
jurisdiction and subject to judicial review”); PA. CONSOL. STAT. tit. 71, § 
732-205(a) (generally allowing the Pennsylvania Attorney General to 
pursue criminal charges in place of a district attorney only if the Attorney 
General petitions a court and “establishes by a preponderance of the 
evidence that the district attorney has failed or refused to prosecute and 
such failure or refusal constitutes abuse of discretion”); WYO. STAT. § 9-
1-603(c) (generally allowing allows the state-wide Attorney General to 
prosecute particular crimes when the local elected district or county 
attorney fails to act and the Attorney General receives a request from “the 
board of county commissioners of the county involved or of the district 
judge of the judicial district involved”). 
Vol. 8 The Judges’ Book 51 
prohibitions on marijuana, prostitution, and petty theft can be used 
tomorrow to eliminate gun controls, voter protections, or public-
health requirements, not to mention federal pollution limits, 
consumer protections, or banking regulations. 
In any given state, such local policies should stand or fall 
together. By the same token, however, upholding categorical 
nonenforcement in one jurisdiction need not mean blessing it in 
others. The Constitution’s federalist structure should enable not 
only varied policies and approaches to criminal justice but also 
varied institutional arrangements and understandings of 
prosecutorial discretion. Attending to each state’s particular laws 
could help lower the stakes in any particular controversy over 
prosecutorial policy. 
The debate over prosecutorial discretion pits competing harms 
against each other. The current structure of criminal law in many 
jurisdictions in the United States—a structure with deliberately 
excessive punishments and expansive crime definitions aimed at 
imposing trial penalties and facilitating plea deals—is costly to the 
rule of law. It gives prosecutors too much discretion, weakens due-
process rights, and places citizens at unjustified risk of punishment 
for socially accepted conduct. Yet one emerging response to this 
structure’s flaws—a model of prosecutorial discretion that 
encourages categorical nonenforcement—may be costly as well. 
Among other things, it weakens societal reliance on enacted 
legislation as the focus of behavioral regulation, creates confusion 
about what the law really requires, invites reliance on policies that 
may not in fact protect individuals against future enforcement, and 
gives prosecutors a form of de facto law-making power at odds with 
their limited institutional role. This prosecutorial practice might 
even be counterproductive with respect to reformers’ own aims. By 
siphoning off pressure for political change, prosecutorial 
nonenforcement may lessen the urgency for more durable 
legislative reform. 
How to balance these competing harms is an important policy 
question. But it is also a question of legal and institutional authority 
that different jurisdictions may answer differently. Although 
federal law does not allow a general practice of categorical 
nonenforcement, state governments differ both from each other and 
from the federal government in their organization. These varied 
52 Scholarship for the Bench 2024 
state arrangements make local categorical nonenforcement 
plausible in some states, implausible in others, and potentially up 
for grabs in still others. To enable federalist experimentation and 
strengthen state constitutionalism—and because it is what the law 
requires—we should give effect to these differences. In criminal 
law, the states follow no uniform model of faithful execution, and 
public debates should not presume that they do.  
 
* * * 
 


Constitutional Law: Faithful Execution in the Fifty States

Finance Committee Meeting - Open Session Book (5) 08/22/2024

UC Law SF 
UC Law SF Scholarship Repository 
2024 Board of Directors Agenda and Materials Board of Directors Agenda and Materials 
8-22-2024 
Finance Committee Meeting - Notice and Agenda 08/22/2024 
UC Law SF 
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Available at: https://repository.uclawsf.edu/board_materials_2024/46 
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MEETING NOTICE AND AGENDA 
 
 
The Finance Committee of the University of California College of the Law, San Francisco will hold a 
meeting as set forth below.  
 
EVENT:  Meeting of the University of California 
   College of the Law, San Francisco Board of Directors    
   Finance Committee  
 
DATE:   Thursday, August 22, 2024 
 
STARTING TIME: 10:15 a.m. 
 
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Agenda:  
 
 
1.  Roll Call 
Director Chip Robertson, Chair 
Director Andrew Giacomini 
Director Andrew Houston 
Director Claes Lewenhaupt 
Director Courtney Greene Power 
Director Albert Zecher 
 
2. Public Comment Period 
This is an opportunity for members of the public to comment on agenda items. Public comment on any 
agenda item will be limited to no more than two minutes per speaker and 30 minutes total. Groups or 
organizations that wish to comment on a particular item are encouraged to have a single representative 
speak for no more than two minutes. These limits can be varied at the discretion of the Chair. Persons 
who wish to speak on matters not on the agenda should make their request in writing to the General 
Counsel and Secretary of the College. 
 
*3. Approval of Prior Meeting Minutes       (Written) 
Approval of Minutes from February 22, 2024 
Approval of Minutes from February 29, 2024 (Audit Subcommittee) 
Approval of Minutes from May 16, 2024 
 
4. 2023-24 Year-end Investment Report       (Written) 
 
5. State Budget Report - Preliminary 2023-24 Year-end     (Written) 
 
6. Core Operations – Preliminary Base Budget for 2024-25    (Written) 
 
 *7. Core Operations –Budget & Cost Restructuring Plan     (Written) 
 
*8. Student Fees – JD, LLM & MSL Increases for 2025-26    (Written) 
 
  9. Non-State Budget Report - Preliminary 2023-24 Year-end    (Written) 
 
*10. Non-State Budget for 2024-25       (Written) 
 
11. Preliminary 2023-24 Year-end Auxiliary Enterprises Budget Report   (Written) 
 
12. Preliminary 2023-24 Year-end Academe at 198 Budget Report   (Written) 
 
  13. Academe at 198 - Leasing & Marketing Update     (Written) 
 
  14. State Contracts & Grants in Excess of $100,000     (Written) 
*14.1 Instructional Technology - Avidex 360 Audio Visual Support Services  
*14.2 Grant Extension & Increase – CNDR - Department of Industrial Relations 
 
15. Nonstate Contracts and Grants in Excess of $100,000     (Written) 
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*15.4 Grant - US Dept of State-US & Saudi Academic Partnerships Project 
*15.5 Consulting - AI Law & Innovation Institute - Sunny Springs Advisory Group 
 
  16. [Item Deleted: Contract and Service Agreement Renewals for 2024-25 in Excess of $100,000] 
 
17. Annual Report on Insurance Coverage – 2024-25     (Written) 
 
  18. Core Operations – State Budget Planning for 2025-26    (Written) 
 
  19. Environmental Impact Report – 201-209 Golden Gate – CEQA Review  (Written) 
 
*20. Approval of Five-Year Infrastructure Plan 2024-29     (Written) 
 
 *21. Long Range Campus Plan –Tower Seismic Upgrade – Budget Change   (Written) 
 
  22. Academic Village Finance Authority – Board of Directors Discussion  (Written) 
 
 *23. Human Resources – Personnel Policy Manual – Update    (Written) 
 
 24. Listing of Checks and Wire Transfers over $100,000    (Written) 
 
 
The Committee will enter closed session Pursuant to Education Code Section 92032(b)(5)&(6). Only 
Board members and authorized participants are permitted to attend. 
 
1.  Call to Order 
 
*2. Approval of Prior Meeting Minutes     (Written) 
Approval of Minutes from February 22, 2024 
Approval of Minutes from November May 16, 2024 
 
3. Real Estate - Campus Expansion – Status Report      (Oral) 
 
4. Personnel - Core Operations –Budget & Cost Restructuring Plan    (Oral) 
 
5. Real Estate - Long Range Campus Plan –Tower Seismic Upgrade    (Oral) 
 
6. Litigation Update          (Oral) 
a. AFSCME  
b. UAW – Student Union  
c. Sidewalks Litigation  
d. Name Change Litigation  
 
 
The Committee will return to open session. 
 
25. Adjournment  
 
 
*Denotes Action Item 
 
The Board and its committees reserve the right to take action, or not, on any item on the agenda. 
 
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The University of California College of the Law, San Francisco complies with the Americans with 
Disabilities Act. Please contact the Secretary’s Office in advance of the meeting for accommodations.  
 
 


Finance Committee Meeting - Notice and Agenda 08/22/2024

Chin, Gabriel J.

Black Equal Citizenship and Residential Segregation in the Supreme Court’s Race Jurisprudence

Many Americans know the Ku Klux Klan (KKK) for its horrific acts of violence directed at African Americans. Although generally overshadowed by that violence, the KKK’s vilification of other groups, including immigrants and religious minorities, long has been central to its quest for white Anglo-Saxon supremacy. This Essay analyzes the enduring legacy of the KKK’s immigration philosophy on contemporary American immigration law and politics. Some modern anti- immigrant advocates champion remarkably similar policies to the Klan’s with racial animus on full display. Former President, and the 2024 Republican nominee for President, Donald Trump is an example

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Filing of Notice of Determination in Compliance with Section 21108 or 21152 of the Public Resources Code

Administrative Law: In Search of the Public Interest

Constitutional Law: Faithful Execution in the Fifty States

Finance Committee Meeting - Open Session Book (5) 08/22/2024

Finance Committee Meeting - Notice and Agenda 08/22/2024

Black Equal Citizenship and Residential Segregation in the Supreme Court’s Race Jurisprudence

The KKK, Immigration Law and Policy, and Donald Trump

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