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Practice Guide: How to Integrate AI and Emerging Technology into Your Practice and Comply with Model Rule 3.1
Get PDFWith Great Power Comes Great Responsibility : Improving Your Feedback and Hallmarks of Effective Feedback
Get PDFEffective feedback can change a law student’s trajectory in law school and beyond. The feedback-centric nature of experiential learning courses allows law students to both develop their skills and personal lawyering style. However, many experiential instructors are from a different generation, with different expectations and communication styles than today’s law students. This article highlights hallmarks of effective feedback for the modern law school classroom. As the field of law continues to evolve, law schools will need to as well.
This article discusses four key hallmarks: (1) provide feedback in multiple formats,(2) help each student develop their personal style, (3) explain the why, and (4) highlight both the “good” and areas of opportunity. The goal of showcasing these hallmarks is to fuel instructor introspection and further discussion. By taking the time to reflect and reformulate their feedback style and substance, instructors can ensure they are maximizing their positive impact on a law student’s development
OT \u2722 and the Path of Administrative Law
Get PDFThis symposium piece reflects on the Supreme Court’s October 2022 term and what it reveals for the direction of administrative law. It argues first that the nondelegation doctrine is dead but not for the reason functionalists have been arguing for so long. It is dead rather because the causes of its revival have been effectively removed. Nondelegation concerns are most felt when there is significant executive unilateralism; in the past such unilateralism was encouraged by the Chevron doctrine, which allows the executive branch to interpret statutes creatively and, so long as those interpretations are plausible, requires courts to defer to that branch’s interpretation. Part I describes this legal framework and how it contributes to executive unilateralism.
In the Court’s two most important administrative law decisions this past term, Sackett v. EPA and Biden v. Nebraska, involving executive interpretations of statutes, not once did the Supreme Court mention Chevron; indeed, not once did the parties mention Chevron. The doctrine is therefore dead, at least at the Supreme Court, and the Court will be giving the statutes their best readings. That alone would go a long way to deflating concerns about nondelegation. But the Court has gone even further: in both cases, the Court deployed a version of the “major questions doctrine” to conclude that the statutes did not authorize the politically and economically significant regulations in question. That doctrine requires a clear statement from Congress when delegating questions of major political or economic significance. In short, the Court will no longer defer, and in fact will demand, a clear statement that Congress intended major delegations. Between the two phenomena, there will likely be no reason to address nondelegation in the near future. Part II explains this shift.
Importantly, however, the removal of serious nondelegation challenges is not because the Court’s new approach to statutory interpretation enforces the nondelegation doctrine, at least not directly. Rather, the Court’s new approach is consistent with textualism and only incidentally affects the nondelegation concern. This Article concludes with a positive evaluation of Justice Amy Coney Barrett’s concurrence in Biden v. Nebraska, which tracked the view the present Author has defended at length elsewhere that the major questions doctrine is a linguistic rather than substantive canon. At times, however, Justice Barrett’s defense of the major questions doctrine serves to enforce the nondelegation doctrine more than it lets on. Part III elaborates on these observations
The Right to Fail
Get PDFIn 2013, the Department of Justice entered into a consent decree with the state of New York concerning the lives of 4,000 people with mental illness who had been segregated into group homes in the state. These group homes were overcrowded and dangerous, and New York agreed to move all but the most severely mentally ill people into supportive housing, if they desired it. This outcome was seen as vindicating the dignity of risk, a foundational value of disability rights scholarship and politics. This principle holds that it is normatively desirable for individuals to be able to make their own choices and experience the positive or negative consequences of those choices.
Instead of being warehoused, thousands of people with mental illness could now exert some control over their social and physical environments. In other words, they could experience what many people without cognitive impairments take for granted: the right to fail.
Of those who were moved out of group homes, several relished their newfound freedoms and the abilities to live a “normal life.” However, many of those who moved out were not ready for independent living. They forgot or refused to take medication to treat their illnesses, engaged in various forms of self-neglect, or went missing and died. That is to say, they experienced the negative consequences of their decisions. Put more harshly, they “failed.” If they did indeed fail, however, the failure was not theirs alone. The state of New York did not provide adequate supportive services, and it did not adequately assess who might be best served by supportive housing versus other housing arrangements. Thus, New York also failed its own residents living with mental illness.
This case illustrates that promoting the right to fail is not simply a matter of providing choice. Support matters. This Article explores the conceptual dimensions of the right to fail, particularly the role of support in its conceptualization. The descriptive claim is that both choice and consequence in decision-making are more interdependent in nature than the traditional individualistic framing of the right to fail might suggest. The normative claim is that we should promote the adequacy and legal recognition of support networks in order to vindicate the right to fail, particularly but not exclusively for the population of people with cognitive impairments.
Part I sketches out the contours of the right to fail, describing its normative foundations and application to people with cognitive impairments. Part II describes how an individualistic framing of the right to fail misdescribes both how humans make choices and how they experience consequences. We all make use of support networks for decision-making in various ways, and our choices produce consequences for those networks as well. Part III draws on these insights to suggest ways of ensuring a robust right to fail. These include supporting individuals and their support networks as a matter of policy and recognizing support networks as a matter of law
May Contain Peanuts, Eggs, and a Natural Solution: How to Challenge Food Manufacturers\u27 Harmful Use of Precautionary Allergen Labels
Get PDFFood allergies are one of the most pressing health issues of our time. Around thirty-three million Americans currently have food allergies, thirteen million of which are severe or life-threatening. These numbers continue to increase at alarming rates, with an estimated one in thirteen children being diagnosed with food allergies every year. Despite this surge, much is still unknown about food allergies, including, most notably, the underlying causes and potential cures. Currently, the only recommended treatment method is strict avoidance, leaving those with food allergies almost completely dependent on food labeling. Despite the importance of food labels for those with allergies, Congressional action in the area fails to properly protect those with food allergies. In 2004, Congress passed the Food Allergen Labeling Consumer Protection Act (FALCPA), which mandates clear disclosure of the eight major allergens on food labels. Without question, this requirement made life easier for those with food allergies. Nevertheless, the FALCPA still falls short because it does not cover precautionary allergen labels (PALs). These advisory labels are below the ingredient list and state something like “may contain [allergen].” PALs were originally intended to warn consumers of the risk of cross-contamination, but their current use has strayed far from this intended purpose. Because of the economic incentive they provide—applying a PAL is cheaper than adhering to stringent manufacturing hygiene—food manufacturers are applying PALs in a pervasive, haphazard way. This has caused PALs to lose all credibility amongst those with food allergies. In fact, most consumers now ignore them, creating the potential for an allergic reaction— the very thing PALs were intended to prevent. This Note provides a path to challenge food manufacturers’ haphazard PAL use through litigation. This Note first urges Congress and the FDA to standardize them. Since this is unlikely, the Note then urges consumers to act by filing lawsuits. Though PALs seemingly shield manufacturers from liability under traditional common law theories, this Note articulates an alternative approach through California’s consumer protection statutes. This approach draws heavily on one taken by consumers challenging manufacturer use of the term “natural,” which is similarly unregulated. Most “natural” lawsuits settled, but consumer action created a powerful deterrent effect that caused a sharp decrease in the use of the term. This Note concludes that this litigation approach is the best—and perhaps only—way for consumers to reduce PAL use and return them to their intended purpose
Past Wounds, Present Scars: A Historical-Legal Analysis of Religion, Regulation, and Rights in Article 36 of the Chinese Constitution
Get PDFThis article focuses on the role of written constitutions and religion in the Chinese context, with a focused examination of the “no foreign domination qualifier” (“NFDQ”) of religion in Article 36 of the Chinese Constitution, for which little to no dedicated research has been conducted to date. The article conducts a historical-legal analysis to uncover reasons for the inclusion of the NFDQ in the Chinese Constitution, aiming to identify the nature of this unique clause. By examining treaties involving foreign control of Christianity imposed by various Western powers on nineteenth century China and their effects, the article identifies the NFDQ as both constitutionally denunciating past foreign control of religion, as well as mandating indigenous-Chinese management of religion in China. Based on this, the article examines how past foreign control of Christianity relates to the formation and structure of the Three-Self Patriotic Movement and Chinese Christian Association, the two national bodies tasked with overseeing Christianity in China. The article concludes by arguing that awareness of historical antecedents is indispensable for a proper understanding of the modern legal system governing religion in China and should not be neglected in discourse on the relationship between the state and religion in China today
Profit, Mission, and Protest at Work
Get PDFThe classic understanding of capitalism maintains that the social responsibility of business is to increase its profits. But in the last decade, many firms have announced commitments to various social justice issues, folding them into corporate mission statements, codes of corporate social responsibility, and branding. Firms engaging in so-called “woke capitalism” signal their virtuous support for progressive social causes favored by both their consumer base and their idealistic young workers. This has become particularly important in a tight labor market: by targeting workers\u27 values, savvy firms increase recruiting yields, enhance productivity, and reduce training costs as retention rates rise, while simultaneously providing better service for customers who share the workers\u27 values and are attracted to the brand--all of which translate into larger profits. When workers undertake employment at these firms, they assume that the firm\u27s social justice commitments are both authentic and enforceable and that they will dedicate their labor toward producing goods and services that are consistent with their values. Indeed, the Wall Street Journal and the Harvard Business Review recently characterized the effort by corporations to reframe their corporate commitments to purposes beyond profit-maximization as forging a “new social contract” with employees, offering workers a sense of higher purpose at work and an opportunity to make a positive difference in the world in exchange for deeper engagement and, in some cases, lower compensation. Unfortunately, many representations of corporate commitment to political and social agendas are anemic at best, and inauthentic at worst. When workers learn that the firm\u27s commitment to its version of woke capitalism is weak or nonexistent and that they have invested their single greatest resource--their labor--towards the unrealized goal, they have protested around topics spanning social justice, environmental, and political arenas. Because most nonunion workers are employed at will, and because labor and employment law have long bowed to firms\u27 managerial prerogative to control and to alter the entrepreneurial direction of the firm as necessary in order to thrive in a competitive market, workers who lack explicit contractual protection can be disciplined or fired for engaging in such protests. This Article outlines a proposal for interpretation of the National Labor Relations Act that would protect workers against retaliation where employers deliberately utilize social justice commitments in mission statements, CSR codes, and brand marketing campaigns as a carrot to attract and retain workers, effectively converting those commitments into a form of fringe benefit or a working condition that relates to workers\u27 material self-interest. At stake is a clash between workers\u27 statutory rights under the labor laws to speak collectively at work, and firms\u27 First Amendment rights to control the public presentation of their brand, even when doing so is duplicitous. As economic and political power becomes increasingly concentrated in the hands of private parties, including large firms, collective workplace protest seeking to hold firms to their marketing messages and mission statements offers the greatest possibility for worker influence and voice. Protecting workers\u27 voices also serves the public interest: firms should not be permitted to use the First Amendment as a sword to leverage social justice movements to increase corporate profit while simultaneously blocking real change
Chevron on the Eve of Loper Bright
No full textChevron is dead. What does this mean for judicial review of agency interpretations of statutes in the lower courts? Perhaps not much. Using new data of circuit court decisions from 2012 and 2022, this Essay examines how lower courts changed their decision-making as the Supreme Court became more skeptical of Chevron deference. This Essay finds that---contrary to the assertion of some justices---circuit courts had not stopped applying Chevron in the lead up to Loper Bright. Moreover, courts agreed with agency interpretations of statutes at similar rates in both 2012 and 2022. Nevertheless, the data shows that the Supreme Court\u27s skepticism toward administrative governance encouraged lower courts to change the reasoning behind their decisions. By 2022, circuit courts decided most cases at Chevron step one. At the same time, agency win rates increased at step one. In 2012, circuit courts accepted the agencies\u27 interpretations in 42.5% of disputes resolved at step one. By 2022, they accepted the agencies\u27 interpretations in 67.3% of disputes resolved at step one. These empirical results help answer two questions lurking after the Supreme Court\u27s decision in Loper Bright v. Raimondo. First, why did the Supreme Court decide to overrule---rather than clarify---Chevron? From the lens of positive political theory, the results suggest that the Supreme Court was reassured that circuit courts would comply with its decision because the circuit courts decided a majority of cases using traditional tools of statutory interpretation. Second, how will Loper Bright influence judicial review of agency interpretations of statutes? The results suggest that agencies will continue to win at high rates in mundane cases but that harder cases may be decided based on the ideology of the judges
Presidential Investment in the Administrative State
No full textIn this paper, we explain how presidents strategically invest in administrative capacity, noting that presidents have few incentives to invest effort in capacity building in most agencies. We test our account with two analyses. First, we examine the time it took for the Bush, Obama, Trump, and Biden Administrations to nominate individuals to appointed positions. We find that presidents prioritize appointments to policy over management positions and that nominations occur sooner in agencies that implement presidential priorities. Second, we examine the responses of federal executives to the 2020 Survey on the Future of Government Service to see whether perceptions of presidential investment in administrative capacity match our predictions. We find that federal executives perceive higher levels of investment when the agency is a priority of the president and when the agency shares the president’s policy views. We conclude with implications for our understanding of the modern presidency and government performance