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The Kavanaugh Court and the Schechter-to-Chevron Spectrum: How the New Supreme Court Will Make the Administrative State More Democratically Accountable
Get PDFIn a typical year, Congress passes roughly 800 pages of law—that’s about a seveninch
stack of paper. But in the same year, federal administrative agencies promulgate
80,000 pages of regulations—which makes an eleven-foot paper pillar. This move
toward electorally unaccountable administrators deciding federal policy began in
1935, accelerated in the 1940s, and has peaked in the recent decades. Rather than
elected representatives, unelected bureaucrats increasingly make the vast majority
of the nation’s laws—a trend facilitated by the Supreme Court’s decisions in three
areas: delegation, deference, and independence.
This trend is about to be reversed. In the coming years, Congress will delegate
less, agencies will receive less deference from courts, and agencies will enjoy less
independence from the President—all because the Supreme Court will add new life
to Schechter’s nondelegation doctrine, severely limit Chevron, and roll back
Humphrey’s Executor. With each decision, the Court will shift decision-making away
from policymakers, who are politically unaccountable, and toward those more
directly controlled by the citizenry, as it moves the administrative state away from
the Chevron extreme of what I call the Schechter-to-Chevron spectrum.
This Article argues that the Court’s most junior member, Justice Brett
Kavanaugh, will lead this impending movement along the Schechter-to-Chevron
spectrum; that Kavanaugh’s conservative colleagues will follow him; and that the
principle of democratic accountability will animate each movement of this
jurisprudential revolution.
Although Justice Kavanaugh’s nomination process focused on hot-button topics
like abortion, presidential investigations, and accusations of sexual assault, the most
long-lasting impact of his confirmation lies in this area of separation of powers. His
membership on the Court may not change what the federal government can do, but
it will profoundly change who can do it. In this sense, we are likely to see the most
rapid change in how the federal government makes national policy since the New
Deal.
What follows is an exploration of how, and why, this change is coming soon
Models of Pre-Promulgation Review of Legislation
Get PDFPre-promulgation review seeks to harmonize legislation with the constitution by engaging in a dialogue among government institutions that seeks to prevent unconstitutional legislation from becoming law. Pre-promulgation review is an integral part of the lawmaking process, and this study seeks to unite scholarship on different methods of this review in a comparative survey to assist lawyers, policymakers, and scholars. A wide range of institutions may fulfill the function of reviewing proposed legislation for compliance with the constitution or other codes of national importance prior to their passage into law. Because of this diversity, scholarship on the topic of pre-promulgation review is split between discussions of legislative debate and judicial review by courts, rather than as a distinct mechanism. The following analysis presents seven models of pre-promulgation review currently in practice around the world, further divided into subcategories for a total of thirteen approaches. This taxonomy of pre-promulgation constitutional review of legislation presents a framework for thinking comparatively about the various mechanisms currently in use across the world. Rather than a comprehensive catalogue, the purpose of this taxonomy is to provide a concise overview of overarching commonalities of states’ pre-promulgation review mechanisms to provide categories of the approaches. The framework invites further development through additional cases and refinement of its categories as this area of institutional design distinguishes itself in the literature
In Loving Memory of Purva Sethi
Get PDF1994–2020
Purva Sethi was a valued and loved member of this journal. During the
time we were privileged to work with her, she was diligent and team
oriented in everything she did. She always brought a smile with her to
the Journal office and excellence to her tasks. While she is no longer
with us, her memory will live on and shape us forever. As Professor
Charles Geyh said about Purva: “She was not someone that would let
something get in the way of her goals. She does have a legacy: a way
of looking at the world today and not being deterred by the barriers.”
Be thou at peace, Purva
Pro Bono Work in Colombia: How Can It Help Broaden, Equalize, and Ensure Access to Justice
Get PDFThis article does not discuss whether pro bono programs should exist in Colombia, or whether they cause positive transformation in the legal profession. These issues are examined in other types of legal literature, and this author departs from the standpoint of viewing this type of work as a positive practice within the legal culture. The main thesis of this article is that pro bono work is still developing in Colombia, both in its numbers of participating attorneys and clients, as well as in the ways it is affecting the legal culture. As important as it might be, the work of the PBF has not yet reached significant service levels, and there are still structural barriers to the emergence and solidification of a pro bono culture in many law firms, particularly the smaller ones, and solo practitioners in Colombia. The removal of these barriers might contribute to the elimination of structural social inequalities and a more significant contribution of the legal profession to this goal.
How is institutionalized pro bono serving its purpose of broadening and equalizing access to justice in Colombia? How are law firms, in particular, responding to this goal? Who else needs to chip in to make the system work better for the under-resourced population? In short, and in addition to providing a detailed description of the current state of pro bono efforts in the country, this paper seeks to answer the question: how can pro bono institutions and lawyers in Colombia increase the quality and volume of their services?
This article presents empirical analysis to evaluate whether pro bono work has increased citizens\u27 exercise of their right to access justice, and whether institutionalized forms of it have been successful. Statistics from the PBF are the primary resource for measurement of the pro bono efforts carried out by its member law firms annually. Also, during the first month of 2017, the author surveyed the pro bono coordinators of the PBF member firms. This survey was also distributed to the first group of pro bono interns from Los Andes University Law School. It gathered information on pro bono structure, institutions, internships, and overall prioritizing of pro bono efforts at each of the firms
Movement Lawyering
Get PDFThis article examines the relation between movement lawyering and American legal theory, explores the meaning and content of movement lawyering in the contemporary American context, and reflects on the implications of movement lawyering for the theory and practice of access to justice around the globe. It suggests that the rise of movement lawyering signals frustration with process-oriented solutions to fundamental problems of inequality and discrimination in the legal system, and challenges access to justice proponents to frame their work in connection with a political strategy that builds on movements for progressive legal change. In this sense, the article suggests that movement lawyering offers occasion for hope: a sign of ambition among a generation of lawyers eager to strengthen alliances with marginalized communities in the pursuit of a transformative social vision that reclaims government from the clutches of neoliberalism and nativism, while crafting a progressive vision of social justice that attends to, but moves beyond, access to legal knowledge, dispute resolution, lawyers, and courts. In the end, the real promise of movement lawyering may thus be in repowering a contemporary dialogue-less freighted by the critical debates of the past-in which scholars and practitioners can create a new account, more rooted in sustained empirical inquiry, of the conditions in which lawyers may align with social movements to challenge the ravages of inequality in the United States and other liberal democracies
Dean\u27s Perspective: The Bar Exam: It\u27s Time for Indiana to Adopt a Uniform Bar Exam
No full textTemporary Protection Status: A Yugoslavian Precedent
Get PDFAnalyzing the past use of temporary protection status to shield those facing ethnic cleansing, massacres, mass rapes, and cultural vandalism is fundamental in understanding how this tool can be utilized to protect modern refugees, and why EU members have refused to implement this status further. In other words, should temporary protection status, considering the legal framework and the socioeconomic effects, be granted to Syrian refugees? This note argues in favor of granting temporary protection status to Syrian refugees because the status (1) offers a recourse for displaced persons that would not be covered by traditional legal protections, (2) produces quicker results, and (3) grants refugees with basic human rights not currently available in their home country.
Part I of this note describes how the ethnic tensions led to the Yugoslavian war, which generated internal and external displacement. Part II explains the EU response by setting a precedent for temporary protection status and describes the advantages and disadvantages of temporary protection status. Part III shows the modern picture of temporary protection status, including its benefits and drawbacks. Part IV illustrates the Syrian refugee crisis, and its similarities to the former Yugoslavian refugee crisis. Finally, Part V argues that just as temporary protection status was granted to Yugoslavian refugees, so too should it be granted to Syrian refugees today