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In Search of a Legislative Leviathan: Judicial Enforcement of Senate Nominations Rules
Get PDFThe Senate is trapped in a collective action problem. Both political parties would be better off if the Senate could consistently confirm judicial nominees on a reasonable timeline. However, when the party that controls the presidency does not control the Senate, Senate leaders face strong incentives to block nominees using whatever excuse they can find. Any Senate majority considering playing nice with a president of the opposing party runs the risk that its kindness will not be repaid when the tables are turned. The only rational strategy is to apply what scholars have called the Iron Rule: do unto others before others have the chance to do unto you.
In many situations, individuals or institutions can address a collective action problem by committing to engage in socially optimal behavior, and allowing a third party, like the courts, to enforce their agreement. However, the conventional wisdom is that senators cannot. Courts, it is assumed, will decline to decide cases that allege violations of internal Senate rules. By this logic, the Senate’s dilemma can be addressed only by senators themselves. If that leads to suboptimal outcomes, so be it.
This Article argues that the conventional wisdom is wrong. As a matter of constitutional law and constitutional principle, courts should hear cases that involve violations of Senate nominations rules when the Senate so authorizes. The Article begins by articulating a hypothetical nominations rule that could improve the status quo, but is unlikely to be adopted unless it can be enforced by some entity external to the Senate. It then reviews the case law governing judicial enforcement of Senate rules, and related questions, which suggests that courts have a duty to decide cases that turn on nominations rules. Finally, the Article makes the counter-intuitive claim that, whereas judicial action is generally associated with “counter-majoritarian” interference in the affairs of the political branches, judicial enforcement of Senate nominations rules facilitates democratic governance by enabling the American people to build a better process for staffing the courts
Freedom in the Balance: Procedural Due Process Rights and the Burden of Proof in Detention Hearings in Immigration Removal Proceedings
Get PDFPart I of this Note considers the statutory and regulatory basis for immigration detention. Part II reviews prior cases decided by the Board of Immigration Appeals (BIA) that bear on the question. Part III discusses how the Supreme Court has addressed previous procedural due process concerns within the immigration system and how lower courts have reacted. Part IV lays out how the Supreme Court has conceptualized the constitutional due process rights extended to noncitizens and how that has changed over the years. Part V considers how other categories of individuals are treated with respect to involuntary detention and the burden of proof. Part VI presents the circuit split and contrasts the two Courts’ analytical approaches. Finally, Part VII synthesizes these considerations and presents an argument that the government must bear the burden of proof to avoid violating the individual’s constitutional due process rights.
This abstract has been taken from the author\u27s introduction
Heirs\u27 Property in Virginia: Filling in the Gaps
Get PDFThe term heirs’ property refers to land that has been passed down informally for multiple generations through intestate succession. Each generation of intestate succession can drastically increase the number of heirs who own the property as tenants-in-common to the point that many may not even know their heirship status. This clouds the title to the property and makes ownership more fractionalized. Because heirs’ property exists outside of the official estate and title systems, owners are vulnerable both at the community and individual levels for three main reasons.
First, and most importantly, heirs’ property is a leading cause of involuntary Black land loss.
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Second, scholars have found a link between heirs’ property and diminished community vitality.
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Finally, heirs’ property ownership structures can remove owners’ access to funding and government assistance programs, creating links to poverty at a parcel-by-parcel level.
This abstract has been adapted from the authors\u27 opening paragraphs
Get Out: Structural Racism and Academic Terror
Get PDFReleased in 2017, Jordan Peele’s critically acclaimed film Get Out explores the horrors of racism. The film’s plot involves the murder and appropriation of Black bodies for the benefit of wealthy, white people. After luring Black people to their country home, a white family uses hypnosis to paralyze victims and send them to the Sunken Place where screams go unheard. Black bodies are auctioned off to the highest bidder; the winner’s brain is transplanted into the prized Black body. Black victims are rendered passengers in their own bodies so that white inhabitants can obtain physical advantages and immortality.
Like Get Out, this Article reveals academic horrors that are far too familiar to people of color. In the legal academy, structural racism is the monster, and under the guise of academic freedom, faculty members inflict terror on marginalized people. Black bodies are objectified and colonized in the name of diversity and anti-racism. No matter how loud we scream, it remains a Sunken Place. Only time will tell if the anti-racism proclamations of 2020 are a beginning or a killer ending.
This Article explores the relationship between structural racism and academic terror in the legal academy and articulates an effective framework for analyzing academic terrorism
The Importance of Accessible Government Data in Advancing Environmental Justice
Get PDFPart I of this Article sets forth the history and animating principles of the environmental justice movement in the United States during the 1970s, which developed as an adjunct to the larger civil rights movement. Part II then turns to the role of documents and data in exposing where toxins present a risk to public health and where documentation habitually falls short. It discusses how freedom of information laws can unlock access to the documents and data that quantify environmental hazards but also how those laws fail to produce reliable results because of the influence of regulated industries. Part III examines how journalists and advocates use data to call public attention to dangerous environmental conditions and provoke change—and how, at times, they must build their own databases to make up for government regulators’ failings. Part IV concludes by underscoring the symbiotic relationship between two movements—environmental justice and open government—that evolved along parallel timelines with complementary goals. Because effective environmental advocacy depends on requiring regulators to gather and report trustworthy information, the authors conclude, government transparency should be recognized as a necessary prerequisite to the success of environmental justice advocacy.
This abstract has been taken from the authors\u27 introduction
The Case for Iterative Legal Writing Practice with ChatGPT
Get PDFIn this session, Professor Joe Regalia will share his work developing legal-writing education tools that leverage GPT technology. He will also share best practices for creating assessments, exercises, and activities for your own students that are tailored to how and what you teach in the classroom.
Much of this presentation will focus on case studies and live, hands-on examples (given this is virtual) so that we can spend most of the time learning by doing together
Faux Advocacy in Amicus Practice
Get PDFAmicus brief filing has reached “avalanche” volume. Supreme Court Justices and lower court judges look to these briefs particularly for non-case-specific factual information––“legislative facts”—relevant to a case. This Article calls attention to a recurrent yet unrecognized problem with amicus filings offering up legislative facts in the many cases centrally involving the most vulnerable members of society—namely, non-autonomous persons, including both adults incapacitated by mental illness, intellectual disability, or other condition, and children. Some amici present themselves as advocates for such persons but use the amicus platform to serve other constituencies and causes, making false or misleading factual presentations about the interests of the group for whom they purport to speak and urging the Court to act on rights of other parties— rights that might operate contrary to the welfare of the non-autonomous persons. Law professors present themselves as scholarly experts on the rights and interests of these vulnerable populations when they actually are not and their real aim is furthering a personal political agenda. The danger of duping judges seems especially great with these faux advocates and experts, both because they bear the aspect of disinterested altruism and because their supposed beneficiaries are incapable of choosing, monitoring, or correcting them. This Article catalogs the various manifestations of faux advocacy using child welfare cases that reach the Supreme Court to illustrate, then proposes new checks on amicus practice, including ex ante vetting and ex post penalties, to eliminate this unethical and dangerous practice
Promoting Healing and Avoiding Retraumatization: A Proposal to Improve Mental Health Care for Detained Unaccompanied Minors Through a Best Interests of the Child Standard
Get PDFPart I of this Note will describe the circuit split. It will provide background on the A.M. [A.M. v. Luzerne County Juvenile Detention Center] and Doe 4 cases, including an explanation of the major precedents on which the Third and Fourth Circuits based their respective decisions. Then, Part II will argue that A.M. and its deliberate indifference standard cannot appropriately be applied in cases involving detained unaccompanied minors, also called Unaccompanied Alien Children (UACs). This almost twenty-year-old standard does not consider the latest information about immigration policy and the unique mental health needs of UACs such as Doe 4 who came to the United States to escape traumatic situations in their home countries. At the same time, though, Part II will explain why Doe 4’s substantial departure from professional judgment standard, which the Supreme Court declined to review, is still not the correct solution to the UAC-specific problems that A.M.’s standard does not cover. Part III will recommend possible alternative standards that would be better equipped to practically and efficiently ensure that detained UACs receive the mental health care to which they are entitled. Finally, Part IV will acknowledge and refute several potential counterarguments.
This abstract has been taken from the author\u27s introduction
Wandering Mind as Fiduciary Breach: Cognitive Duties of Corporate Directors
Get PDFDrawing on contemporary science and ancient wisdom, this Article assesses the ubiquitous human problem of mind wandering as it relates to the fiduciary obligations of corporate directors. Directors must endeavor to advance shareholder interests carefully and loyally. Boards have extremely wide latitude to determine the substance of corporate policies, but the law imposes certain process obligations on corporate decision-making with particularity. Directors must approach their decision-making in an informed and deliberate way. They must listen to reports, and they must deliberate with their fellow directors before voting on corporate action at board meetings. This Article identifies the duty to concentrate as a heretofore unrecognized element of the fiduciary obligations of corporate directors. In the corporate boardroom, a wandering mind can be a fiduciary breach. Having made this innovative doctrinal contribution, the Article then situates its lessons in the context of a broader inquiry into the ways in which fiduciary concepts can inform an approach to personal renewal, excellence, and transcendence, in ordinary life, altogether separate from corporate affairs
A New Dawn for the Common Law: A Proposal for a New Court System for the ASEAN Trade in Goods Agreement
Get PDFThe Association of Southeast Asian Nations (ASEAN) formed the ASEAN Trade in Goods Agreement (ATIGA) to facilitate trade liberalization between the bloc’s members. The ASEAN Member States have continued to implement the agreement according to the dispute settlement mechanism set out in the ASEAN Protocol on Enhanced Dispute Settlement Mechanism (Protocol). However, this Note will argue that the current dispute settlement mechanism (DSM) is inadequate because the panel system does not always provide a final forum for disputes between Member States. A new mechanism is necessary to better adhere to the principles of the ASEAN Charter, strengthen Southeast Asia as a trade destination, and facilitate legal access for firms based in common law countries. This Note, therefore, argues for the establishment of a permanent court system that adjudicates disputes over tariff rates under the principles of the ASEAN Charter as well as the provisions of the ATIGA and the Protocol