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Foreign Affairs in Court: Lessons from CJEU Targeted Sanctions Jurisprudence
No full textThere are many myths about the role of courts in foreign affairs and national security in Western democracies. Traditionally, courts and scholars in different jurisdictions have taken the view that executive action related to foreign affairs has unique attributes, making it ill-suited for review by unelected judges with limited institutional competence.1 This approach has relied on a combination of functional considerations and concerns about the democratic legitimacy of judicial interference with inherently political foreign and security policies
El Salvador - A Peace Worse than War: Violence, Gender and a Failed Legal Response
No full textAfter twelve years of violent conflict, the bloody civil war in El Salvador came to an end in January 1992 with the signing of peace agreements and, ultimately, comprehensive Peace Accords. During the conflict between the Frente Farabundo Marti para la Liberaci6n Nacional (FMLN) [Farabundo Marti National Liberation Front] and the government, at least seventy-five thousand people were killed, seven thousand were "disappeared," and five hundred thousand were displaced. The great majority of these abuses were committed by the Salvadoran government, which received more than $5 billion in assistance from the United States
The Problem of Wage Theft
No full textWage theft inflicts serious harm on America's working poor but has received little attention from policymakers seeking to address income inequality in the United States. This Article provides a comprehensive analysis of the causes of the wage theft crisis and the failure of the current enforcement regime to address it. It argues that existing policy reforms will fail, because they misunderstand the nature of the crisis and the incentives that employers face when deciding to steal workers' wages. It then proposes series of reforms that could work, while arguing that changing the economic calculus alone will be unlikely to solve the problem if social norms remain unchanged
Federal Agency Guidance and the Power to Bind: An Empirical Study of Agencies and Industries
No full textThe typical federal agency issues a vast amount of guidance, advising the public on how it plans to exercise discretion and interpret law. Under the Administrative Procedure Act (APA), the agency must follow onerous procedures to issue full-blown regulations (including notice and comment) but can issue guidance far more easily. What justifies this difference, in the familiar telling, is that guidance is not binding in the way regulations are. Agencies are supposed to use guidance flexibly. But critics claim that agencies are not flexible—instead they follow guidance rigidly and thus pressure regulated parties to do the same. If true, this claim means agencies can issue de facto regulations simply by calling them guidance, threatening to make a dead letter of the APA’s constraints.
I evaluate this claim from a qualitative empirical perspective, drawing upon interviews I conducted with 135 individuals across government, industry, and NGOs in eight different regulatory fields. I make three findings. First, the critics have a genuine basis for their claim. Regulated parties often face overwhelming pressure to follow guidance, and agencies are sometimes inflexible. Second, pressure and inflexibility, though real, are not universal. One can identify regulated parties who feel little pressure and agencies who are open-minded. The degree of pressure and inflexibility can be predicted on the basis of certain organizational and legal factors that are present in some regulatory schemes but not others. Third, even when regulated parties are strongly pressured, or when officials are inflexible, this is normally not because agency officials are engaged in a bad-faith effort to coerce the public without lawful procedures. The sources of pressure on regulated parties are mostly hard-wired into the structure of the regulatory schemes Congress has imposed and are beyond the control of agency officials who issue or administer guidance. And when agencies are inflexible in the face of a regulated party’s plea to depart from guidance, that is usually because (a) officials face
competing pressures from other stakeholders to behave consistently and predictably— pressures that spring from rule-of-law values that agencies would be remiss to ignore; and (b) officials are trapped by organizational tendencies that cause rigidity, which the officials do not intend but cannot redress without costly reforms.
The problem with guidance, though real, is largely an institutional problem that calls for an institutional-reform response, not a problem of bureaucratic bad faith that calls for accusation and blame
Negotiating the Federal Government's Compliance with Court Orders: An Initial Exploration
No full textJudicial review of federal agencies rests on the premise that if a court gives an order to an agency, the agency will obey. Yet the
federal government's compliance with court orders is far from automatic, especially with orders telling an agency to act affirmatively, which may strain limited agency resources, interfere with the agency's other legally required tasks, or force the agency to act on deficient information. An agency may invoke these difficulties to convince a judge that it should be cut more slack-that is, given more latitude (especially more time) to comply. Judges often find the agency's difficulties to be quite real and hold back from demanding strict and rapid compliance. Thus, whether an agency must actually do what a court has ordered, and on what terms, entails a delicate negotiation between agency, judge, and plaintiff These compliance negotiations, despite their great practical importance, are little analyzed or understood in the academic literature, for it is difficult to learn about them through traditional sources like appellate case law. This Essay, drawing upon a large cache of dockets from district court cases in which compliance troubles arose, provides an initial exploration of this unexplored subject. This Essay finds that the central problem in these cases is the judge's access (or lack of access) to information about why the agency is falling short and whether it could do more. On this
theme, this Essay discusses (1) the kind of information that an agency can provide about its own internal management so as to
convince the judge that it is trying hard enough to comply; (2) the imperfect and even crude methods that judges use to discern
whether an agency is trying hard enough; and (3) the ways in which judges can employ information-gathering techniques, such
as requiring testimony by high agency officials, as quasi sanctions to force the agency to pay more attention to what the court has ordered
An Oppressor Engaging Herself
No full textA few weeks ago, I was honored to participate in a conversation on “Engaging the Oppressor,” along with freedom fighters from around the world. As they shared their pain, trauma, and steadfast determination, I felt deeply grateful to learn from their brilliance. If you have not yet read their reflections, please turn the page and read them first. But as I sat down to share some reflections, it did not feel right for me to comment on how members of oppressed groups should engage the oppressor. In the context of Palestine, I am the oppressor: a white Jewish woman, raised in mainstream American Jewish and Zionist institutions, with a long history of travel to and support for Israel. Much of my privilege and power has come at the expense of Palestinian freedom. I decided that the best use of this space might be to share my process of engaging myself. The following text is my attempt to do that. My hope is that this text will serve liberation movements in some small way in the years to come
Innovation Policy Pluralism
No full textWhen lawyers and scholars speak of “intellectual property,” they are generally referring to a combination of two distinct elements: an innovation incentive that promises a market-based reward to producers of knowledge goods, and an allocation mechanism that makes access to knowledge goods conditional upon payment of a proprietary price. Distinguishing these two elements clarifies ongoing debates about intellectual property and opens up new possibilities for innovation policy. Once intellectual property is disaggregated into its core components, each element can be combined synergistically with non-IP innovation incentives such as prizes, tax preferences, and direct spending on grants and government research, or with non-IP allocation mechanisms that promote broader access to knowledge goods
The Problem of Intra-Personal Cost
No full text"Externalities," or harms to others, provide a standard justification for government intervention in the private market. There is less agreement over whether government is justified in correcting "internalities," or harms we inflict on our own health or well-being. While some of the internality dispute is philosophical, some is practical. Critics suggest government lacks information to regulate internalities, and that any intervention would inefficiently distort a private market for self-help. This Article argues that these critiques of regulation overlook well-established tools of externality regulation, as well as a burgeoning literature on the measurement of internalities
A More Possible Meeting: Initial Reflections on Engaging (As) the Oppressor
No full textWe have chosen each other and the edge of each other’s battles the war is the same if we lose someday women’s blood will congeal upon a dead planet if we win there is no telling we seek beyond history for a new and more possible meeting. Audre Lorde, excerpt of “Outlines” In the poem included above, civil rights poet, activist, and revolutionary Audre Lorde reminds us of the agency we have in deciding whether to embark on the paradigm-shifting project of seeing and choosing each other across difference and creating the conditions for a “more possible meeting.” Lorde is speaking to a profound shift that needs to take place within the consciousness of every person in order for contact across difference to even hold the potentiality of genuine (and therefore revolutionary) connection. In “Age, Race, Class and Sex: Women Redefining Difference,” the essay fromwhich I drew the poem, Lorde sets out as a prerequisite to this exchange the task of dismantling “that piece of the oppressor which is planted deep within each of us, and which knows only the oppressors’ tactics, the oppressors’ relationships.