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All the Sovereign\u27s Agents: The Constitutional Credentials of Administration
Get PDF[...] This Article suggests that agency institutions should be measured against the notion that popular sovereignty demands not consensus and consent, but instead institutions that permit citizens to understand themselves as coequal participants in the collective decision-making process.
Part I situates administrative agencies in an understanding of liberal democratic constitutionalism that eschews outmoded notions of popular sovereignty and natural law. It will then explain how adequately conceived notions of the separation of powers and the rule of law cannot serve as indefeasible objections to administration. Part II makes a positive case for agency authority by drawing from the insights gained from political theory’s representative turn. It will first define this important intellectual development and then explain how administrative agencies might fit comfortably within a representative system. The Article concludes by showing how theories of representation can inform some enduring debates in administrative law and suggesting some changes that might enhance the legitimacy of agency action.
This abstract has been taken from the author\u27s introduction
Religious Liberty Interest Convergence
Get PDFAmericans are deeply polarized on a plethora of issues. One of the most prominent areas of polarization is religious liberty, which in recent years has increasingly pitted conservative, white Christians against a range of marginalized minorities, particularly Muslims. The divide threatens Muslims’ rights and the vitality of religious liberty more broadly. This Article assesses the extent to which self-interest— especially the self-interest of the conservative Justices of the Supreme Court—can help depolarize religious liberty.
Professor Derrick Bell’s theory of “interest convergence” helps connect different self-interests that, in turn, enable issue-specific coalitions strong enough to effect serious cultural and legal change. Bell used interest convergence theory to analyze judicial decision-making during the civil rights movement. Other scholars have built upon Bell’s original thesis about Black people’s rights by extending interest convergence to other racial minorities. This Article is the first to consider the implications of interest convergence not just for religious minorities but specifically the status of religious minorities in today’s politicized religious liberty landscape. In so doing, it aims to formulate a theory of “religious liberty interest convergence.”
Specifically, this Article applies Bell’s framework to two recent Supreme Court cases. It uses interest convergence theory to explain the rulings against Muslim claimants in Trump v. Hawaii (2018) and for Muslim claimants in Tanzin v. Tanvir (2020).
The Article concludes by assessing the relevance of religious liberty interest convergence to political coalition-building. In both the judicial and coalition-building contexts, relying on self-interest helps create openings where openings may not otherwise be possible
Reconciling Corporate Interests with Broader Social Interests - Pursuit of Corporate Interests Beyond Shareholder Primacy
Get PDFA seminal case in corporate law, Dodge v. Ford Motor Co., set the cardinal principle that corporations must serve the interests of shareholders rather than the interests of employees, customers, or the community. This principle, referred to as “shareholder primacy,” has been considered a tenet of the fiduciary duty owed by corporate directors. Scholars have disagreed on the current legal status of shareholder primacy. This Article examines the controversy in light of the current state legislation and case law. Regardless of its current legal status, shareholder primacy has influenced corporate behavior and encouraged short-term profit-seeking behavior with significant social ramifications. Corporations have been criticized for undermining the interests of employees, customers, and the community in the name of profit maximization. This Article argues that corporate interests and broader social interests, such as benefits to consumers and employees, are not mutually exclusive and can be reconciled by allowing corporate managers and majority shareholders to define corporate interests more broadly, beyond the narrow confines of shareholder primacy
The Time Is Now: A Call for Federal Elimination of Non-Competes Against Low-Wage and Hourly Workers in the Wake of the Pandemic
Get PDFThe COVID-19 pandemic has greatly impacted the United States’ labor market and has led to an economic recession. Millions of Americans lost their jobs as a result of the pandemic and were forced to apply for unemployment benefits. Consequently, many of these workers were confronted with the question of whether their existing non-compete agreements were enforceable. Not surprisingly, courts across the nation started seeing more pandemic-related litigation surfacing during the second part of 2020, related to employees seeking a declaration that these agreements were unenforceable.
Prior to the pandemic, there was a rise in the use of noncompete agreements at all levels, including management-level employees and low-wage employees. To combat this, the federal government and several states have become increasingly critical of the use of non-competes. In fact, in July 2021, President Biden issued an Executive Order urging the FTC to curtail employers’ use of unreasonable noncompetition agreements.
This Article argues that it is even more critical in the wake of the pandemic for the federal government to ban non-compete agreements, particularly for low-wage and hourly workers. Many of the individuals who were terminated during the pandemic were lower-wage earners or hourly workers—individuals very likely in the most vulnerable financial positions—and enforcing noncompete agreements against them would unfairly restrain their ability to earn money.
Recent job market changes, beginning in 2021, indicate that workers who generally work in low-wage jobs have seen an influx of job opportunities, and employers have struggled with filling these positions. The United States is currently in need of workers to rejoin the job market in order to help the economy rebound and grow. Thus, forcing non-compete agreements on low-wage or hourly workers in this pandemic era would be a disincentive to those workers regaining employment, and negatively impact the recovery of the economy
