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International Foundation for Electoral Systems
No full textThis summer, I will contribute to research and programming efforts that support electoral justice, legal and regulatory frameworks for elections and governance in new and emerging democracies
International Bridges to Justice in Cambodia, Myanmar, & Indonesia
No full textThis summer, I will contribute to efforts in Cambodia, Myanmar, and Indonesia to ensure that criminal defendants receive competent defense, protection from cruel and unusual punishment, and fair trials by researching legal issues that will be accessible to lawyers around the world via an app
International Bridges to Justice in Kigali, Rwanda
No full textThis summer, I will work to promote individual rights in Rwanda by assisting in filling gaps in the country’s legal aid system and working to create a culture where political leaders and citizens understand and support due process rights
International Bridges to Justice in Geneva, Switzerland
No full textThis summer, I will work to promote systemic global change in the administration of justice. My work will help to guarantee individuals the right to competent legal representation in countries where pretrial detention and torture are abused
The Nature of Standing
Get PDFMost academic studies of standing have focused on restrictions on federal court jurisdiction drawn from Article III of U.S. Constitution and related doctrinal schemes developed by state courts. These rules are constructed atop a few words of the Constitution: The judicial Power shall extend to all Cases, in Law and Equity, arising under various circumstances. The Supreme Court has interpreted these words to require federal courts to assess whether a plaintiff has suffered an injury in fact that is both fairly traceable to the actions of the defendant and redressable by a favorable ruling before proceeding to the merits of a case.
States, however, are not limited by Article III\u27s grant of the federal judicial power, and many have developed versions of standing that differ from federal doctrine. Although every state has a standing doctrine of some sort, state courts often impose looser requirements for standing than do the federal courts. And even in federal courts, there are fault lines in various areas of the doctrine. Although Article III justiciability doctrines are described as jurisdictional in nature, numerous exceptions challenge the usual doctrinal model.
We propose to understand these doctrinal differences and the related jurisdictional controversies through a far broader conception of standing, expressed in basic institutional mechanics and context-specific cooperative goals. Rather than focusing minutely on standing as an idiosyncratic jurisdictional and prudential doctrine, we aim to analyze its place in the larger world of agenda-control rules-- that is, rules that institutions such as courts employ to regulate how they decide whether to decide. From this taxonomic and institutional calculus, the federal standing rules follow as a possible application, their debatable content a consequence of disagreements over federal judicial mechanics and objectives. More importantly, though, this model enables us to uncover and analyze some coherent foundational principles in the diversity of standing and standing-like doctrines that are often ignored by scholars and practitioners
Free Speech, Strict Scrutiny and a Better Way to Handle Speech Restrictions
Get PDFWhen it comes to unprotected speech categories, the Roberts Court has taken an amoral and inaccurate approach. When the Court first created unprotected speech categories-- defined categories of speech that are not protected by the First Amendment-- it was unclear what rendered a category of speech unprotected. One school of thought argued that speech was unprotected if it provided little or no value to society. The other school of thought argued that speech was unprotected if it fell into a certain category of speech that was simply categorically unprotected. Then, in 2010, the Court strongly sided with the latter approach, with the added twist that unprotected speech categories would be determined solely by reference to American history and traditions. It held that unprotected speech categories were defined solely with reference to American history, and language that appeared related to interest balancing was merely descriptive.
This approach was wrong both descriptively and normatively. Descriptively, in the past, when the Court decided the cases in which it created the modern definitions of many of the current unprotected speech categories, the Court was consciously departing from American history and tradition for moral reasons; the moral considerations were more than descriptive. Normatively, by basing unprotected speech categories solely on history and tradition, the Court has written out mechanisms for revising ill-considered decisions of the past, which threatens to perpetuate decisions that would be considered immoral by modern standards.
Fortunately, these historical-categorical analyses are not the only analyses applied to content-based speech restrictions. When a statute would restrict speech based on the content of that speech, that statute may still withstand constitutional review if it satisfies a strict scrutiny analysis. To pass a strict scrutiny analysis, a law must be narrowly tailored to serve a compelling government interest. This analysis is flexible, and it takes into account contemporary-moral interests.
This Note argues that strict scrutiny is the superior approach-- both descriptively and normatively. It argues that the Court should abandon the historical-categorical approach, and use only strict scrutiny to analyze content-based speech restrictions.
Part I of this Note describes in detail the various approaches the Court has taken toward content-based restrictions. It describes how unprotected speech categories currently interact with a strict scrutiny analysis and details the shift in the Court\u27s approach to unprotected speech categories. Part I argues further that unprotected speech categories are currently determined only by history.
Part II argues that the Roberts Court\u27s view of unprotected speech categories does not comport with the actions of prior Courts, specifically the Court throughout the 1960s and 1970s. Focusing on defamation and commercial speech, Part II shows that past Courts were willing to depart from tradition for moral reasons.
Part III argues that strict scrutiny is normatively superior to any form of categorical approach. It argues that strict scrutiny ensures a values-driven normative analysis of laws, while the historical-categorical approach simply assumes that American history and tradition will render morally justifiable decisions. It further argues that as long as the Court thinks in terms of unprotected speech categories, the Court is at risk of allowing history alone to justify modern law
Special State Standing is Environmental: Clarifying Massachusetts v. EPA
Get PDFWhen the Court granted states “special solicitude in [its] standing analysis” in Massachusetts v. EPA, it left lower courts with more questions than answers. While legal scholars continue to debate these questions thirteen years later, the practical impacts of Massachusetts v. EPA are coming into focus. Today states are suing the federal government, often in multistate coalitions, to enforce or challenge federal administrative policies. This intergovernmental, public-law litigation increased dramatically during the Obama administration and has further skyrocketed since January 2017. States do not exclusively rely upon special state solicitude in suing the federal government. However, this lowered procedural bar is likely a contributing factor to the dramatic rise in state-initiated litigation.
The Trump administration’s regulatory “rollback” efforts are also inspiring public-law litigation. These rollbacks are arguably more pronounced than the characteristic “ebb and flow” of environmental policy since the 1970s. The administration is hollowing out existing environmental and climate policies, increasing atmospheric pollutants like carbon dioxide, methane, sulfur dioxide, nitrogen dioxide, and particulate matter. Instead of merely slowing progress on clean energy development and emissions reductions, the administration’s rollbacks are reversing decades of environmental policy development and are pushing the globe toward climate catastrophe.
The Trump administration’s rollbacks include stays and repeals of dozens of environmental rules. These rules affect national air quality, water quality, endangered species, automobile emissions, and coal-fired power plants. Keeping with its stated goals, the administration is successfully slowing implementation of, reversing, and replacing many Obamaera climate policies like the Clean Power Plan. But these changes have not gone unchallenged.
Over a dozen states, primarily led by California, New York, and Massachusetts, are challenging these deregulatory efforts, creating multistate coalitions with other interested states. State attorneys general are leading this litigation charge. Historically, attorneys general have been empowered to sue on behalf of their citizens as parens patriae or “parent of his or her country.” However, the Court’s decision in Massachusetts v. Mellon limited states in this representative capacity. Following that decision, states remained empowered to sue to protect their own interests, like their property and the enforcement of their own laws. Some argue that attorneys general are uniquely situated as popularly accountable officials to initiate litigation against the federal government. This is because intergovernmental state public-law litigation can serve as a checking function for the federal executive. For example, the Court’s grant of special state solicitude in Massachusetts v. EPA relies on this principle, namely that states can sue the federal government in their capacity as a quasi-sovereign. In that case, the court held that the state had established standing to challenge how EPA was enforcing the Clean Air Act (“CAA”), because EPA’s failure to regulate greenhouse gases threatened that state’s coastal property.
This Note clarifies the scope of the Massachusetts v. EPA Court’s grant of special solicitude to states challenging federal administrative policies. To clarify muddy doctrine, this Note proposes a “limiting principle” to special state standing: courts should ask whether a state asking for special standing solicitude claims an environmental injury. This Note argues that states have benefitted from a lowered standing threshold with little guidelines, and this lack of guidance led to an overbroad application of Massachusetts v. EPA. This Note concludes that special state standing is limited to environmental injuries to states’ quasi-sovereign interests. This limitation is supported by Supreme Court precedent, the unique spillover effects of environmental injuries, and the policy considerations that anthropogenic climate change requires.
Part I of this Note outlines the ebb and flow of environmental policy and argues that the Trump administration has moved from the typical deregulatory strategy of “low profile” policy retrenchment to an aggressive policy reversal approach. Specifically, this section summarizes the history of environmental policy in the United States, and the political “ebb and flow” of environmental policy—and it discusses how the Trump administration is decidedly reversing environmental laws in the name of industry.
Part II outlines state intergovernmental litigation as a response to federal environmental policy making and policy retrenchment. This section examines the development of state-led intergovernmental litigation and the impact of political polarization in both state coalitions and the federal government. Part II further proposes a limiting principle to special state standing. Part III elaborates on this limiting principle that states are entitled to special standing when protecting quasi-sovereign, environmental rights. After defining states’ quasi-sovereign rights, it argues that the Fifth Circuit in Texas v. United States misappropriated the Massachusetts v. EPA holding. It concludes that because that court granted special solicitude to a mere economic, non-environmental injury, it overextended the intended scope of Massachusetts v. EPA special state standing.
Environmentally focused state public-law litigation is different from the other policy-influencing actions brought by state attorneys general. In light of this difference, this Note asks whether non-environmental lawsuits by state attorneys general, like in Texas, should receive special state standing. This Note answers this question in the negative and concludes that special state standing should be limited to intergovernmental litigation where states allege environmental injuries to their quasi-sovereign rights