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West Virginia v. EPA: Maybe A Big Deal, But Maybe Not
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In West Virginia v. EPA, the Supreme Court held that the Environmental Protection Agency (“EPA”) lacked statutory authority to enact the Clean Power Plan, an EPA rule that encouraged coal-fired power plants to use non-coal sources of energy. The Court’s decision relied on the “major questions doctrine.” Under this doctrine, even if an unclear statute does not directly prohibit an administrative agency’s action, courts will reject an agency’s action when it is “asserting highly consequential power beyond what Congress could reasonably be understood to have granted.” Because the major questions doctrine is itself unclear, a variety of commentators suggested that the Court’s decision radically limits environmental regulation or even the administrative state generally.
The West Virginia v. EPA majority opinion, however, is quite narrowly written. By emphasizing the unique facts of the case, the Court gave itself ample discretion to distinguish its decision in future cases. It logically follows that the Court’s decision is not the end of greenhouse gas regulation or environmental regulation generally—at least not yet.
Part I of this Essay briefly summarizes the West Virginia case. Part II focuses on the details of the majority opinion of that case, showing how the Court emphasized the unique facts of the case. Part III suggests that federal jurisprudence under the Takings Clause of the Fifth Amendment is analogous
Power, Responsibility, and Judicial Deference to Police Expertise in Fourth Amendment Decisionmaking
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Courts have long deferred to police expertise in Fourth Amendment decisionmaking, most prominently in their application of the reasonable-person standard in assessments of probable cause and reasonable suspicion. Scholars have often bemoaned such deference as an abdication of the judicial obligation to make independent determinations of Fourth Amendment reasonableness. Nonetheless, the Supreme Court of the United States and lower courts are unlikely to abandon their view of police officers as possessing elevated knowledge, skill, experience, and perceptual abilities that merit judicial consideration in the evaluation of Fourth Amendment probabilities. On the other hand, the Court has tended to assume that certain technical skills are beyond the ken of police officers. Yet, given the similarities between tort law’s reasonable person standard and the Supreme Court’s invocation of that norm in its Fourth Amendment jurisprudence, attention to tort law’s demands of people who engage in risky conduct could inform a more balanced jurisprudence. Specifically, as in tort law, courts should insist that police officers obtain expertise commensurate with the risks their activities pose to the public, including awareness and avoidance of the flawed heuristics on which laypeople might rely to draw false conclusions about the likelihood of criminal conduct. In some instances, this principle would require police officers to rely on quantitative analysis to guide their judgments. Likewise, tort law’s assessment of reasonableness for people who already possess specialized skill and knowledge could inform the development of a more nuanced approach to the analysis of police expertise under the Fourth Amendment. If police officers are, in fact, exceptionally capable of perceiving circumstances indicative of criminal activity, then courts must also hold police officers accountable for failing to notice potentially exculpatory circumstances to which their greater perceptive abilities should have alerted them.
In this Article, I will provide a sustained assessment of the ways in which tort law’s reasonable person standard might guide judicial treatment of police expertise in deciding whether probable cause or reasonable suspicion established a legitimate basis for a Fourth Amendment search or seizure. I will examine not only the doctrinal implications of tort law’s balanced approach but also the normative basis for balancing deference to expertise with accountability for exercising one’s superior abilities responsibly and for obtaining expertise sufficient to offset the risks one imposes on others. In Part I, I will describe the history of the Supreme Court’s treatment of law enforcement expertise, including its sense of the limits of that expertise, in its analysis of Fourth Amendment probability. I will also discuss scholarly reactions to judicial deference to police training and experience. In Part II, I will examine tort law’s reasonable person standard, including the ways in which negligence law deals with superior mental attributes, and I will discuss the justifications for that approach. In Part III, I will evaluate the implications of tort law’s approach to superior knowledge and experience for the assessment of probable cause and reasonable suspicion. In circumstances in which the facts are susceptible to quantitative analysis, these principles suggest that courts should require police to acquire expertise that judges have assumed is beyond the scope of law enforcement ability. On the other hand, in circumstances requiring qualitative analysis, tort law suggests that courts should hold police responsible for using the faculties judges tend to assume they already possess, not merely to ferret out crime but also to protect the interests of people their investigative conduct puts at risk. Overall, I will contend that the arguments for tort law’s approach to superior mental capacity are equally compelling in the Fourth Amendment context
Get Educated: Ask, Tell, and Say Gay
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On July 6, 1999, Private Barry Winchell was murdered in his sleep by a fellow soldier for dating a transgender woman. Superiors were aware that Private Winchell was being harassed for dating a transgender woman but took no action to stop it. U.S. Department of Defense Directive 1304.26, commonly referred to as “Don’t Ask, Don’t Tell” (“DADT”), was the policy for the United States military for nearly two decades beginning in 1993. A policy meant to protect “unit cohesion” instead itself engendered hatred and violence among servicemembers. Unfortunately, government-sanctioned discrimination against the LGBTQ+ community did not end with the repeal of DADT in 2010. On March 28, 2022, the Florida State Legislature passed H.B. 1557, known as the Parental Rights in Education Act and now commonly referred to as the “Don’t Say Gay” law (“the DGS law” or “DSG”). The law’s purported purpose was to “reinforce the fundamental right of parents to make decisions regarding the upbringing and control of their children” and required all Florida school districts to adhere to guidelines, standards, and framework established by the state’s Department of Education by June 30, 2023. The law, under the veneer of championing parental rights in the public education landscape, was intended to—and does—directly undermine the core, constitutionally recognized civil rights of LGBTQ+ students and faculty members in Florida public schools. It effectively forces these individuals back into the proverbial closet (if they are out) or locks them inside it (if they are not). With its sweeping and unconstitutional breadth that directly targets the LGBTQ+ community in the name of its purported objective, the DSG law is reminiscent of the now-defunct DADT policy. Like DADT, the harms inflicted by DSG upon the LGBTQ+ community are innumerable, and as with DADT, those who seek to challenge the constitutionality of the DSG law through litigation will likely fail.
Part I of this Note will address the background of DADT, issued by the federal government on November 30, 1993, as well as the background of the DSG law, which took effect on July 1, 2022. Specifically, it will examine how both DADT and DSG silenced and terrorized those in the LGBTQ+ community. Part II will explain how and why DSG is unconstitutional under the First and Fourteenth Amendments of the Constitution, but as with DADT, the realities of the judicial review process as related to constitutional claims of injury will prevent LGBTQ+ Floridians from obtaining relief through state and federal courts. Part III will argue that public policy demands that Congress enact legislation to protect Florida’s LGBTQ+ students and faculty from discrimination as Congress did when they repealed DADT. As was the case for DADT, as a matter of practical reality, the United States Congress is best positioned to right the constitutional wrongs inflicted upon LGBTQ+ Floridians by the DSG law
Barred From the Profession, Mischaracterized as Unfit by Law
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There is growing recognition that the bar examination can have racial and social effects when determining who can be an admitted and barred attorney in the United States. This Essay explores the history and current racialized issues with the other portion of bar admission—the character and fitness process. The simultaneously rigid and fluid definition and subjective enforcement of “good moral character” is only one example of how the law continues to reproduce and maintain racial and class hierarchy by creating barriers to entry. This Essay does not come to any direct conclusions or specific solutions. This Essay is a discussion on whether or how mechanisms such as moral character investigations, background checks, credit score inquiries and other entry requirements to professions reproduce racial hierarchy even when the mechanism may appear neutral. Becoming a lawyer is often a gateway to positions of power in the U.S. political system. Beyond the judiciary, lawyers make up a significant percentage of governors, congressional committees, and legislative staff at both the state and federal level. Critically examining the ways in which barriers to a profession that serves as a pathway to power have been constructed to keep the profession White and upper class is central to understanding how the law has operated in the creation and maintenance of racial and social hierarchy
Stare Decisis and the 1L Classroom: Can Legal Reasoning Be Taught Without Judicial Respect for Precedent?
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I began my career as a law professor in 1998 and, in every year but one, since then I have taught at least one first-year required law school course. I have taught Civil Procedure each of these years and some version of a required Constitutional Law course in about half of them. I want to say just a little bit about stare decisis and its importance in our legal system from the perspective of a law professor teaching first-year students.
I have found that although teaching Civil Procedure involves a focus on a range of substantive issues including judicial jurisdiction and rules and systems for conflict resolution, the most important part of my job is not coverage of legal rules but the orientation of new law students for legal education and the legal profession just a few years beyond. Teaching first-year students is certainly about teaching the law—the “black letter” law of the foundational 1L courses. But this work also includes helping students to learn how to think like, and prepare to be, a lawyer beyond specific rules of personal jurisdiction or federalism. The essential features of this development include exposing students to the terminology and nomenclature of the law, and the role that lawyers and judges play in a broader legal system that is designed, in its idiosyncratic way, to achieve something resembling “justice.” As much as anything, I want my 1L students by the end of the semester to have a strong sense of how a lawyer can use the law and the legal system to effectively advocate on behalf of their client
Executory Contract Provisions That Provide Solely For an Equitable Remedy Are Enforceable Post-Rejection.
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Under Section 365(a) of title 11 of the United States Code (the Bankruptcy Code ), a trustee [or debtor in possession], subject to the court’s approval, may assume, or reject an executory contract. Generally, a contract is executory if performance remains due to some extent on both sides. In general, a debtor may decide whether its executory contract is a good deal going forward. The debtor will likely want to reject a contract that is no longer a good deal in order to repudiate any further performance of its duties. When reviewing the trustee or debtor-in-possession’s decision to assume or reject an executory contract, a bankruptcy court should apply the business judgment test.
Section 365(g) of the Bankruptcy Code provides that rejection of an executory contract constitutes a breach of such contract. As a result of such rejection, the counterparty thus has a claim against the estate for damages resulting from the debtor’s non-performance. The counterparty’s prepetition claim places the claimant in the same position as an unsecured creditor.
This article examines what an executory contract is and the effect rejection has on a debtor’s contractual obligations. Part I discusses the two approaches that courts have taken to determine whether a contract is characterized as executory. Part II explores which of the debtor\u27s obligations remain enforceable after contract rejection, considering the meaning of rejection and whether the non-debtor has a claim in bankruptc
Non-Applicability of Proof of Claim and Discharge Requirements to Defensive Setoff in Chapter 11 Proceedings
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Setoff is generally recognized as an equitable right through which party A can offset its debt to party B against party B\u27s debt to party A, resulting in simultaneous cancellation. The right of setoff . . . allows entities that owe each other money to apply their mutual debts against each other, thereby avoiding \u27the absurdity of making A pay B when B owes A.\u27 In bankruptcy cases filed under Chapter 11 of Title 11 of the United States Code (the Bankruptcy Code ), creditors commonly use the right to setoff to affirmatively implicate and recover from the bankruptcy estate as a functional equivalent of a secured claim. Nonetheless, courts have also allowed creditors to use setoff defensively to shield assets from recovery attempts by the bankruptcy estate in adversary proceedings.
The S.D.N.Y. Bankruptcy Court held in In re SVB Financial Groupthat a creditor may assert its setoff right defensively, post-petition, without having filed a proof of claim as long as the right is preserved under the Bankruptcy Code, and this right to defensive setoff cannot be discharged post-confirmation. Under this ruling, creditors seeking to assert defensive setoff in adversary proceedings would face less procedural constraints, such as proof of claim and discharge, that would otherwise bound affirmative setoff.
The next section of this memorandum presents key concepts and facts surrounding unsettled legal issues in In re SVB Financial Group. The memorandum then analyzes issues surrounding defensive setoff, proof of claim, and discharge. The memorandum concludes by exploring the effects of the current ruling of In re SVB Financial Group
The Gatekeepers: How State Bar Associations\u27 Disciplinary Process Is Racialized and Classist
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Modern U.S. legal ethics and attorney regulations exist for three ostensible goals: to protect clients from unprofessional lawyers, to compel ethical performance from all licensed attorneys, and to safeguard the legal profession’s freedom to self-regulate. However, a recent study conducted by the California Bar Association revealed attorney regulation is more racialized and classist than these objectives suggest. The study explored attorney disciplinary action and found significant disparities in probation and disbarment along race and class. Put simply, the Bar functioned more to police the “other” than to protect the rights of consumers and the profession. These disparities are not unique to California. Rather, the formation of modern bar associations, particularly the American Bar Association (“ABA”), which other states model their ethics regulations after, reveals a pattern of discrimination against non-white and non-affluent lawyers.
We argue this discriminatory pattern demonstrates that Bars function as racial and classist gatekeepers rather than as consumer protection agencies or representative ethics organizations. First, we review the ABA’s formation and how it shepherded the standardization of legal training and licensing processes. Second, we explore the genesis of legal ethics enforcement as promulgated by the ABA. Third, we track the fitful development of legal ethics. Fourth, we examine enforcement structures and trends, focusing on diverse states. Lastly, we propose solutions to dismantle the gatekeeping function embedded in Bar disciplinary processes