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Forgetting Marbury\u27s Lesson: Qualified Immunity\u27s Original Purpose
Get PDFSubstantial parts of the history of qualified immunity remain unwritten. While qualified immunity is hotly debated among scholars and practitioners, we know little about qualified immunity’s origins, and the institutional pressures that shaped its historical path. This Article provides that missing history. It begins by observing the striking parallels between Pierson v. Ray—qualified immunity’s origin case—and Marbury v. Madison. Both were suits against government officials to vindicate individual rights granted by a congressional statute, and both cases arose while the Court was under intense political pressure. In each case, the Supreme Court struck a surprising middle ground: It insisted that those individual rights should be broadly available but reserved judicial discretion on when to provide a remedy. In both cases, the Court thus declined to apply a broad statutory grant of authority and interposed a new, judicially created authority—judicial review in Marbury, and qualified immunity in Pierson. And in both cases, the Supreme Court turned political pressures to its advantage.
But while Marbury is recognized as a success story, qualified immunity is not. In the first decade after Pierson, the Court still tried to use qualified immunity to position the judiciary as a mediator between citizens and government officials in § 1983 and Bivens actions. This effort, led by Justice Byron White, culminated in Harlow v. Fitzgerald, which articulated the modern qualified immunity standard. But ever since Harlow, the Supreme Court has abandoned the Marburian middle position of balancing rights and remedies. Spearheaded by Chief Justice William Rehnquist, the Court began to limit the availability of both judicial remedies and individual rights in qualified immunity actions.
Marbury’s success story—and qualified immunity’s failure—thus gives guidance on how a politically beleaguered Court should mediate between citizen plaintiffs and officer defendants: recognize the broad availability of individual while granting a partial victory to the Court’s critics, and carve out a new domain of authority that enhances the judiciary’s independence and legitimacy in the process. This Article traces qualified immunity’s historical departure from its Marburian wisdom, points to a litigation strategy that could restore it, and derives some deeper lessons about the Court’s institutional limitations
The Clean Water Act at 50: Is the Act Obsolete?
No full textAs an introduction to “The Clean Water Act at 50” symposium, this Article explores the question of statutory obsolescence in the particular context of the CWA. Part I considers the phenomenon of statutory obsolescence and what it means to say that a given statute is “obsolete.” Part II then evaluates the CWA, identifying the reasons one might conclude that the Act is (or is not) obsolete. Part III then considers what could be done about the CWA’s obsolescence if, in fact, one concludes it is obsolete.
This abstract has been taken from the author\u27s introduction
Executive Office for Immigration Review at the Richmond Immigration Adjudication Center in Richmond, Virginia
No full textNancy Rosen [2L] will work with the Executive Office of Immigration Review at the Richmond Immigration Adjudication Center, researching and drafting memoranda and decisions on motions and applications for relief from removal, including claims for asylum and protection under the UN Convention Against Torture
National Center for State Courts, International Programs Division in Arlington, Virginia
No full textJulianne Kouba [1L] will be working with the National Center for State Courts International Programs Division assisting in implementing Rule of Law projects and modernizing court operations in post-conflict and developing countries
Legal Resources Centre in Cape Town, South Africa
No full textTatyana Cobbin [1L] will intern with the Legal Resources Centre in Cape Town, South Africa. LRC offers free legal assistance to indigent persons, focusing especially on those in need of protection of their socio-economic rights under South African Constitution
Tribal Resilience and Community Plans: A Primer for Tribal Communities Looking to Create Their Own
Get PDFThis paper serves as an overview of various Tribal resilience plans across the nation and community planning efforts in Virginia. Although each plan is particularly detailed to address one locality’s specified areas of concern, the plans are fully adaptable to meet any community’s particular needs. Additionally, the paper includes a synthesis of commonalities that these plans share with the goal of providing an overview of resilience plan options and strategies that can be used as a framework for Tribal communities looking to create their own plans.
This abstract has been taken from the author\u27s introduction
Recommendations to Increase the Resilience of Wastewater Treatment in Coastal Virginia
Get PDFThis white paper discusses the problem of septic failures in Virginia, as infrastructure ages and previously installed systems can no longer function. Section II.A. discusses the feasibility of regulatory and other measures that the Virginia state and local governments can implement to incentivize the identification, maintenance and repair of septic systems. Among these measures is a point-of-sale inspection requirement, which would require real property sellers to have their septic system inspected upon sale. Additionally, this white paper addresses several alternative options to conventional onsite septic systems, including public information campaigns to inform septic system owners of maintenance and repair techniques; and programs incentivizing the creation and use of innovative septic systems as alternatives to conventional systems. Section II.C examines eligibility for aid based on different federal metrics of hardship and discusses options to increase the number of people eligible for aid. The Virginia General Assembly has created grant and loan programs to address the growing septic problem, and the Virginia Department of Health has received federal funding to assist with septic and private well repairs as well. This white paper also discusses the potential environmental justice and equitable concerns raised by the implementation of various programs and proposes some septic options. Adopting any or a combination of these options could improve the longevity and resiliency of septic systems as well as homeowner awareness of emerging issues.
This abstract has been taken from the authors\u27 introduction
Salt, Smurthwaite, and Smith: The Origins of the Modern Legal Identity of the Church of Jesus Christ of Latter-day Saints
Get PDFIn 2019 there existed a legal entity known as The Church of Jesus Christ of Latter-day Saints. This fact will likely strike most readers as unexceptional. More interesting, however, prior to 2019 there had been no such legal entity as the Church of Jesus Christ of Latter-day Saints for over 150 years, the last of that name likely having been disincorporated in 1862. Even more strangely, although there were millions of people around the globe who identified themselves as Latter-day Saints, in 2019 the only member of the legal entity known as The Church of Jesus Christ of Latter-day Saints was Russell M. Nelson. This somewhat surprising state of affairs is the result of how the efforts to disestablish the established colonial churches in the wake of the American Revolution created a body of corporate law in the United States with a distinctly Protestant inflection; and how the Church of Jesus Christ of Latter-day Saints, with its hierarchical emphasis on prophetic authority and its massive ecclesiastical ambitions, became entangled within and ultimately resisted that body of law. It may also have been the result of a bitter dispute over salt, now long forgotten but famous at the time, between Joseph F. Smith, president of the church from 1901 to 1918, and Charles Smurthwaite, a Utah entrepreneur.
Beginning in 1830, the church struggled to define the nature of its legal personality. During the lifetime of Joseph Smith it attempted to formally incorporate under the laws of two states. No American jurisdiction at the time, however, provided a legal form that meshed harmoniously with the ecclesiastical structure and government of the church, contributing to the chaos that marked its legal affairs at the time of Smith’s murder. The Latter-day Saints took advantage of the comparative legal independence of early territorial Utah to incorporate the church in a way that allowed it to pursue its ecclesiastical ambitions, but this legal structure soon drew the ire of Congress. In the late 1880s, as the federal government’s crusade against polygamy reached its height, the corporate structure of the church became a key legal battleground. In the aftermath of those battles, the church chose to eschew any centralized legal entity for its affairs, despite its hierarchical ecclesiology. Unresolved questions came to a head when controversies over post-Manifesto polygamy and church business enterprises boiled over into litigation during Joseph F. Smith’s administration. Smurthwaite, an excommunicated Mormon businessman, and Don Carlos Musser, the scion of a prominent Latter-day Saint family, sued Smith over the use of tithing funds. The case drew national media attention, and pitted two of the most prominent and talented members of the Utah Bar—church general counsel Franklin S. Richards and former Utah Supreme Court justice Charles Zane—against one another. Ultimately Richards prevailed, but the case vividly illustrated the precarious nature of the church’s ambiguous legal structure and likely contributed to the creation of the corporate entity that continues legally to embody the church today