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The Origins of the Major Questions Doctrine
Get PDFIn a series of recent cases, the Supreme Court has invoked the newly named “major questions doctrine” to strike down agency regulations that protect public health and the environment. Several Justices have argued that while the name “major questions” may be new, these decisions are simply the latest iteration in a longstanding effort of the courts to curtail the explosive growth of the administrative state since 1970. The first paradigmatic example of this line of cases is the 1980 “Benzene” case, in which the Supreme Court set aside the Occupational Safety and Health Administration (OSHA)’s new workplace standards for the toxic chemical benzene.
This paper argues that we cannot make sense of contemporary debates about the major questions doctrine without a deep understanding of the doctrine’s supposed origins in the Benzene case. It relies on hundreds of archival documents and a dozen oral histories collected over several years to provide a historical study of the decision and its aftermath. No other legal scholars or historians have analyzed these materials, which the author amassed from Freedom of Information Act requests as well as visits to government and university archives. They include internal agency documents, court records, and the personal papers of multiple Supreme Court Justices involved in the Benzene decision.
Based on this novel set of materials and interviews, the Article shows that the Justices’ misunderstanding of OSHA’s scientific evidence and fears of overregulation led them to demand that the Agency use a specific analytical method to demonstrate benzene’s harms in order to avoid a constitutional delegation problem. Yet OSHA had decided not to utilize the method—now called quantitative risk assessment—because of insufficient data. The Court instead deferred to industry-funded experts with little or no background in environmental and public health research, who argued that the method could be used and would reveal that the rule saved very few lives. The Justices’ embrace of quantitative risk assessment contradicted Congress’s clear desire to avoid industry influence over public health research when passing the Occupational Safety and Health Act (“OSH Act”) as well as judicial precedent on deferring to agencies working at the frontiers of scientific knowledge.
Rather than upholding separation of powers principles or agency adherence to the text of its authorizing statute, the Supreme Court’s Benzene decision is best characterized as a judicial power grab at the expense of both agency expertise and the democratically elected branches of government. The paper concludes by showing how the Supreme Court’s missteps in the Benzene case—exaggerating economic costs, ignoring statutory constraints on agency discretion, and deferring to unqualified experts—have continued to plague the Supreme Court’s “major questions” decisions, and provides suggestions for how the courts and agencies can avoid these problems
The Rise and Fall of the Consideration of Race and Ethnicity in the Admissions Process: The Long-Term Negative Consequences of the Fall
Get PDFChief Justice Roberts wrote the majority opinion for the Supreme Court that struck down the affirmative action policies of Harvard College and the University of North Carolina. While Justices Thomas, Gorsuch, and Kavanaugh each wrote separate concurring opinions, they also joined Chief Justice Roberts’s opinion along with Justices Alito and Barrett. Thus, unlike the Court’s prior significant decisions that narrowly upheld affirmative action by one vote, this decision’s six-Justice majority allowed Chief Justice Roberts to write an opinion that more definitively rejected affirmative action than the Court’s tentative and cautious opinions upholding it. Despite what many may think about the Court’s affirmative action decisions, those opinions always required the role race played in admissions “to be cabined” and extremely limited
Valuing ESG
Get PDFCorporate environmental, social, and governance (ESG) commitments promise to make capitalism better. Unfortunately, ESG has become a hotbed of hype and controversy. The core problem is that ESG mixes vague environmental and social goals with a profit maximization goal and does not provide a framework for resolving the conflicts that exist between them. The result is confusion that invites deception and cynicism. This Article proposes a mechanism for resolving conflicts between goals by translating them into the common language of money. Once nonpecuniary environmental or social goals are translated into dollar values, they can provide clear and actionable guidance for firms and investors, enabling ESG to fulfill its promise.
To achieve this, corporations and institutional investors that claim to be ESG-friendly should publicly commit to specific valuations for ESG issues. For example, a company or mutual fund concerned with both climate change and profit might commit to valuing a metric ton of carbon emissions at 100 for every ton of additional carbon emitted. A mutual fund would use the valuation when voting on climaterelated governance issues or investment decisions. For example, the fund would back a shareholder resolution supporting lower corporate carbon emissions so long as the resolution would not reduce profits by more than 100. In effect, companies and investors would bid on their valuation of ESG impacts relative to ordinary profit maximization, sending clear and actionable signals on actual and desired behavior. By providing concrete standards and a sorting mechanism for making sense of competing goals, valuation would help realize the potential of ESG investing
The Procedural Justice Industrial Complex
Get PDFThe singular focus on procedural justice police reform is dangerous. Procedurally just law enforcement encounters provide an empirically proven subjective sense of fairness and legitimacy, while obscuring substantively unjust outcomes emanating from a fundamentally unjust system. The deceptive simplicity of procedural justice – that a polite cop is a lawful cop – promotes a false consciousness among would-be reformers that progress has been made, evokes a false sense of legitimacy divorced from objective indicia of lawfulness or morality, and claims the mantle of “reform” in the process. It is not just that procedural justice is a suboptimal type of reform; it is the type of reform that actively frustrates other reforms by dressing up policing with the perception of correctness and legitimacy.
And yet, procedural justice dominates police reform policy. Virtually all current federally funded police reform proposals support procedural justice trainings to the exclusion of proposals to address police brutality, eliminate discriminatory overpolicing, demilitarize departments, and end qualified immunity. As a result, a growing procedural justice industrial complex has taken shape. This multilayered public-private partnership between government agencies, academic institutions, and for-profit training companies increasingly helps police departments “protect their brand” and “reduce liability” through procedural politeness, while requiring no changes to unlawful, unnecessary, and violent police behavior.
This Article provides the first comprehensive account of this growing complex, charting its roots in community policing and evolving into a cottage industry of private, for-profit purveyors offering costly procedural justice trainings to departments flush with federal grant money. This Article also challenges the dominant scholarly narrative supporting these procedural justice policies, interrogating its role in promoting unnecessary ubiquitous police presence and justifying new racially discriminatory practices like “hot spots policing” and “precision policing.” In doing so, the Article applies these process-oriented critiques to five substantive police reform proposals, exploring how this singular focus on procedural justice distinctly frustrates more necessary transformative reforms in the areas of discriminatory policing, police brutality, police accountability, legal reform, and police abolition
Coping with COPPA: Exploring Alternatives to the Children\u27s Online Privacy Protection Act
Get PDFThe Children’s Online Privacy Protection Act of 1998 (COPPA) stands as one of the greatest protectors of children’s privacy for nearly twenty-five years. However, COPPA has struggled to keep pace with technological changes during this time, and the COVID-19 pandemic highlighted the shortcomings of COPPA regulations as children were forced to spend increased amounts of time in digital spaces. As the Federal Trade Commission (FTC) is set to make changes to COPPA, it is necessary to consider what changes would be most beneficial to protect children. This paper will explore the current regulatory framework, its strengths and weaknesses, and then delve into proposed reforms to COPPA. To understand which reforms would be most effective, it is necessary to consider the purpose of COPPA as well as the vulnerabilities of children that necessitate these regulations. Finally, having considered the barriers to each reform, this paper will consider which changes the FTC is likely to consider and how these could be implemented
FDI in Developing Countries: A Study of Vietnam
No full textFDI, an increasingly popular form of international investment providing an alternative means of establishing or expanding existing businesses overseas through its various forms of ownership, stood the test of time. Centuries after its presence, FDI is still a successful economic model and is recognized for its significant contributions to the revolution of global capital movement.
FDI took a shallow dive into Vietnam to begin but emerged as a driving force in the State’s economic growth and development. While significant lines of research have been devoted to exploring factors that impact FDI efficiency by using multiple research methods, we are left with identifying an appropriate approach to determine FDI\u27s effects on Vietnam’s economic growth and development and the negative impacts that FDI left on Vietnam’s ecosystem in particular. In addition, despite a large body of research highlighting FDI achievements, a crucial consideration of the status of FDI was partly discovered. Furthermore, many FDI scholars focused on FDI implementation and economic governance, though there are limitations in assessing the importance of the FDI climate in investors’ strategies and Vietnam’s FDI strategic development schemes.
My departure began with the fact that FDI has been defined as an “engine of economic growth” in Vietnam. While FDI’s potentialities have been well perceived, its significance in investors’ strategies and Vietnam’s FDI development schemes and spillover effects on economic growth and development have not yet received much attention. What has not been emphasized is the next step in the research stream of the importance of FDI and investment climate in investors’ strategies and Vietnam’s FDI development schemes. This stream of research requires that an appropriate approach and theoretical framework be identified to determine the role that FDI and the investment climate play in investors’ strategies and Vietnam’s FDI strategic attraction, development, and policy improvements. I aimed to fill in the gaps with extensive research on Vietnam’s FDI and investment climate with a strong focus on developing a new approach for assessing the spillover effects of FDI on Vietnam’s economic growth and development and the investment climate significance in investors’ decisions and Vietnam’s FDI development strategies at the macro and micro levels
2024/25 Indiana University Maurer School of Law Faculty
No full texthttps://www.repository.law.indiana.edu/facgrp/1030/thumbnail.jp
Countering Jihadi Cool and the Case of Raza v. City of New York
Get PDFThis Article begins with an explanation of the rhetoric, aesthetics, and culture of jihadi cool/chic, which is a crucial factor in the formation of self-radicalizing individuals. It then analyzes the jurisprudence, and legal and cultural ramifications of Raza v. City of New York, in which the New York Police Department had initiated an intense covert surveillance operation that focused on Muslims in New York and beyond without probable cause. This led to a lawsuit that claimed that the New York Police Department’s Muslim Surveillance Program violated the Fourteenth Amendment’s Equal Protection Clause, the First Amendment’s Free Exercise and Establishment Clauses, and the New York State Constitution. The Article concludes with analyzing the hidden assumptions that underlay the legal and cultural dynamics in Raza to illustrate that both sides ironically assumed one of jihadi cool’s corollaries: that Islam is the gateway to radicalization
Fulfilling the Promise of the Housing Choice Voucher Program: Blind Review as an Enforcement Method for Source-of-Income Antidiscrimination Laws
Get PDFThe housing choice voucher program (HCV) is one that provides subsidies to very low-income individuals. These subsidies allow recipients of the vouchers to pay thirty percent of their income out of pocket towards their rent, with the difference being paid by the subsidy from the government directly to a landlord. Although the program itself is federal, it is administered by the states at the local level. As with most housing in the United States, the Fair Housing Act protects HCV recipients from discrimination based on “race, color, religion, sex, familial status, or national origin,” regardless of the state where the housing unit is located. However, the Fair Housing Act does not provide protection against discrimination based on source of income. This kind of discrimination is barred at the state level by a minority of jurisdictions. However, recent source-of-income antidiscrimination laws enacted in high-population localities have resulted in half or more than half of voucher holders benefiting from this protection. In those jurisdictions where source-of-income discrimination is permissible, landlords may turn down HCV recipients solely because a portion of their rent will be paid by the voucher program. In jurisdictions prohibiting such discrimination, source of income may not be considered in the selection of potential tenants
Sex, Guns, Climate Change, and More: Why Our Republic Needs Independent State Attorneys General
Get PDFWabash College established the David W. Peck Senior Medal in 1974 to recognize eminence in the law in memory of Judge David W. Peck, Wabash class of 1922. In his long and distinguished legal career, Peck served as partner at Sullivan and Cromwell and as Presiding Justice of the Appellate Division of the New York Supreme Court. The annual Peck Lecture has honored some of the nation’s most distinguished practitioners, judges, and law professors. Solicitor General Fisher’s 2023 Peck Lecture explores the origins of the office of state attorney general and argues that the political independence of attorneys general is critical to development and maintenance of the rule of law