27127 research outputs found
Sort by
Responding to the New Major Questions Doctrine
No full textThe new major questions doctrine has been a focal point in administrative law scholarship and litigation over the past year. One overarching theme is that the doctrine is a deregulatory judicial power grab from both the executive and legislative branches. It limits the president’s ability to pursue a major policy agenda through regulation. And in the current era of political polarization, Congress is unlikely to have the capacity to pass legislation to provide the judicially required clear authorization for agencies to regulate major questions. Especially considering the various “vetogates” imposed by Senate and House rules, it is fair to conclude that the new major questions doctrine will be difficult for Congress to override via legislation. Thus, its predominant, asymmetric effect will be deregulatory, as opposed to getting Congress to make the major value judgments in federal lawmaking.But that does not have to be the case. Congress has tools at its disposal to respond to the major questions doctrine. I focus here on one: Congress could enact a Congressional Review Act (CRA) for the major questions doctrine. This fast-track legislative process would bypass the Senate filibuster and similar congressional slow-down mechanisms whenever a federal court invalidates an agency rule on major questions doctrine grounds. The successful passage of a CRA-like joint resolution would amend the agency’s governing statute to expressly authorize the regulatory power that the agency had claimed in the judicially invalidated rule. This proposal would encourage Congress to decide the major policy question itself—helping to restore Congress’s legislative role in the modern administrative state—and would counteract the major questions doctrine’s asymmetric deregulatory effects
The Ties that Bind Us: An Empirical, Clinical, and Constitutional Argument Against Terminating Parental Rights
No full textThis Article explores the unnecessary termination of a child\u27s relationship with their parent from an empirical, clinical, and constitutional lens. Part I explores administrative data related to TPR, which like many child protection metrics, resembles nothing short of a wild west of practices and policies relating to how often and how fast child protection systems terminate parental rights. These data also reveal how TPR can unnecessarily delay legal permanency for children, particularly those children who are living with extended family, and how a State pursuing TPR can drain its own scarce resources, a system perpetually decrying insufficient resources. Part II highlights the clinical research showing the need for children to have relationships with their birth parents, even with those who might be unable to care for them. This section also summarizes the research documenting the trauma experienced by parents who have their parental rights terminated, which might impact the parent\u27s ability to care for other children in the future. Part III discusses the unconstitutional features of the child protection system\u27s overutilization of TPR. Well-established principles of constitutional law require courts to search for less restrictive alternatives prior to infringing on individuals\u27 fundamental rights, like the right to direct the care of one\u27s child. Still, child protection systems stubbornly persist in terminating parental rights, a thinly veiled effort held out as a means to achieve legal permanency for children despite TPR being neither necessary nor sufficient to achieve legal permanency for children
I Owe My Teaching Career To Peter Henning
No full textIn the late 1990s, I was very happily working as an appellate public defender in Detroit when the then-dean of Wayne State University Law School, Jim Robinson, contacted me to ask if I could teach a section of Criminal Procedure at night. Joe Grano, who had taught at Wayne for many years, had fallen ill, and so a replacement was needed. Dean Robinson was a close friend of Ralph Guy, the judge for whom I had clerked some years earlier, and Judge Guy had recommended me. I accepted the offer.
Even though I was just a lowly adjunct scheduled to teach a single class at night, Peter Henning, whom I had never met, immediately reached out to help me get ready for this daunting task. He offered to meet with me, helped me put together a syllabus and critiqued my draft, answered the many questions I had about running a large class (do I need to take attendance, how long should I spend on each cold call, how do office hours work for night students, etc.), and was just generally very reassuring in every possible way
Congress\u27s Anti-Removal Power
No full textStatutory restrictions on presidential removal of agency leadership enable agencies to act independently from the White House. Yet since 2020, the U.S. Supreme Court has held two times that such restrictions are unconstitutional precisely because they prevent the President from controlling policymaking within the executive branch. Recognizing that a supermajority of the Justices now appears to reject or at least limit the principle from Humphrey’s Executor that Congress may prevent the President from removing agency officials based on policy disagreement, scholars increasingly predict that the Court will soon further weaken agency independence if not jettison it altogether.
This Article challenges that conventional wisdom. True, the Court is skeptical of statutory restrictions on the President’s removal power. But statutory removal restrictions are not the only tools available to achieve agency independence. Instead, the Constitution provides Congress with what we dub the anti-removal power—the ability to discourage the White House from using its removal power. For example, because the Senate has plenary authority under the Appointments Clause to withhold its consent for executive branch nominees, there is no guarantee that the Senate will confirm a replacement if the President removes the incumbent for a poor reason. As Alexander Hamilton explained, the “silent operation” of that uncertainty often allows Congress to prevent removal in the first place. Similarly, James Madison acknowledged during the Decision of 1789 that although the Constitution (in his view) forbids statutory removal restrictions, Congress has means to make removal costly for the President, which should “excite serious reflections beforehand in the mind of any man who may fill the presidential chair.”
Importantly, moreover, Congress can strengthen its anti-removal power by, among other things, enacting reason-giving requirements, raising cloture thresholds, and preventing presidential evasion of the Appointments Clause. Using history, real-world examples, and game theory, we demonstrate how Congress can create a level of agency independence without the use of statutory removal restrictions. We also explain why Congress’s anti-removal power has advantages over statutory removal restrictions, including a surer constitutional footing and enhanced accountability: Both the President and Congress face political consequences for how they exercise their removal and anti-removal powers. Finally, we offer Congress a path forward to restore some agency independence and limit judicial challenges to agency structures
Unreasonable Risk: The Failure to Ban Asbestos and the Future of Toxic Substances Regulation
No full textEvery day, Americans are exposed to hundreds of chemicals in the air we breathe, the water we drink, and the products we use. The vast majority of these chemicals have never been tested far safety. Many have been shown to cause serious health harms, ranging.from cancer to autoimmune illness to IQ loss. They also have disproportionate effects on some of the most vulnerable populations in our society, such as children, minorities, and industrial workers.
The law that is supposed to protect Americans from dangerous chemical exposures-the Toxic Substances Control Act ( TSCA )-was long considered a dead letter after the Environmental Protection Agency ( EPA ) failed to ban asbestos, an extremely hazardous carcinogen. The agency issued a ban in 1989, but it was struck down by the U.S. Court of Appeals far the Fifth Circuit in Corrosion Proof Fittings v. EPA Following the Fifth Circuit decision in 1991, the agency never again sought to exercise its authority under TSCA to prohibit the use of a chemical already on the market
The UTPR and the Treaties
No full textOn December 15, 2022, the Council of the EU unanimously adopted a directive implementing pillar 2 of the OECD/G-20/inclusive framework base erosion and profit-shifting 2.0 project. Given that the United Kingdom is also going ahead, and several other countries (for example Australia, Canada, New Zealand) are likely to go ahead, this step renders it likely that pillar 2 will come into effect outside the United States. It therefore becomes important to address the interaction between the UTPR (now known as the undertaxed profits rule) and tax treaties, even though both EU directives and national legislation in the United Kingdom can override treaties
The Great Regulatory Dodge
No full textU.S. privacy law is in a renewed moment of regulatory possibility, with both Congress and the states considering sweeping consumer privacy laws. These new proposals to enact “omnibus” privacy protections could be couched as an antidote to the current U.S. privacy regime: a patchwork of sectoral privacy laws stitched atop the background of FTC consumer contract enforcement. However, this Essay maintains that a one-size-fits-all approach cannot successfully capture both privacy’s value and its variability. Yet, it is clearly the case that the present- day sectoral regime in the United States suffers from significant shortcomings. These shortcomings allow behaviors that seem clearly to violate privacy to flourish, effectively gouging meaningful oversight from sectoral privacy laws. We call these “regulatory dodges.” Understanding and addressing these dodges is essential to preserving the value of contextual privacy protection. We first focus on specific health (the Health Insurance Portability and Accountability Act of 19961 (“HIPAA”)) and financial (the Gramm-Leach-Bliley Act2 (“GLBA”)) privacy regulations to elucidate two illustrative types of regulatory dodges. We then use the General Data Protection Regulation (“GDPR”) and the California Consumer Privacy Act3 (“CCPA”) (as amended by the Consumer Privacy Rights Act) to illustrate why omnibus regulation may not solve these problems. We conclude with proposals for designing more contextually sensitive, gap-free privacy law
Sacred Children, Taboo Tradeoffs, and Distorted Discourses
Get PDFThis Article brings together three literatures—bioethics, psychological research on taboo tradeoffs, and family law—to reveal pervasive distortions in current family law scholarship and judicial reasoning. Empirical work in bioethics shows that child welfare occupies a unique moral sphere. People routinely resist making tradeoffs between spheres. Just as sacrificing adult lives for money is taboo, so too is sacrificing child welfare for adult welfare. When faced with the prospect of these tradeoffs, people engage in a predictable set of avoidance and moral mitigation strategies. Across five case studies, this Article shows how child welfare has talismanic qualities which, even in the rarified world of the legal academy, ward off any open discussion of competing interests and powerfully distort scholarly arguments. The problems are worse in the context of elected officials. No legislator can plausibly say: “Of course I’m harming these children, but look at all the offsetting benefits to adults!” Recognizing the taboo nature of trading off child welfare is critical to fully understanding recent critiques of empirics within family law and has sobering implications for the budding movement toward evidence-based policymaking
The Federal Reserve\u27s Mandates
No full textSolutions to systemic problems such as climate change and racial inequities have eluded policymakers for decades. In searching for creative solutions, some policymakers have recently thought about expanding the Federal Reserve’s core set of macroeconomic mandates to tackle these issues. But there are real questions about whether that can be done from a legal perspective and whether that should be done from a policy perspective
On Firms
No full textThis Essay is about firms as a type of economic coordination and about how we think about them in relation to other forms of coordination as well as in relation to competition and markets. A prominent stream of thought about firms—which has both strongly influenced contemporary competition law and, more indirectly, served as a support to the fundamental ideas of neoclassical price theory that guide many areas of law and policy—ultimately explains and justifies the centralization of both decision-making rights and flows of income from economic activity on productive efficiency grounds. The Essay makes two simple points, drawing upon and synthesizing prior contributions where relevant. First, we have very good reasons to doubt this approach as explanation because power perpetuation by incumbent control groups is often a better explanation for such centralization (of coordination rights and income flows) than productive efficiency. Second, we should also be skeptical of the approach as justification because it often either takes as given (or assumes away) contested legal rules that also affect productive efficiency outcomes; because the approach’s conception of productive efficiency is impoverished; and because the nature of competition and markets itself gives us no good reasons to limit the normative bases for our legal choices about economic coordination to productive efficiency alone. Together, these points ought to ultimately change our starting points for evaluating policy across a range of areas of antitrust, corporate, and labor law