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In Defense of Pickering: When a Public Employee\u27s Social Media Speech, Particularly Political Speech, Conflicts with Their Employer\u27s Public Service
Get PDFWith the rise of social media and the United States’ increasing political polarization, public employees take to social media to post about political issues such as race and policing. But when public employees make posts on political issues in an inflammatory or controversial way, public employers often discipline or fire the employee, fearing disruption and community backlash. The result is First Amendment litigation involving social media speech, an uncharted territory for courts. When a public employee is disciplined for engaging in political speech on social media, courts usually analyze the employee’s First Amendment claim under the Pickering balancing test. This test weighs the government’s interest in operating an efficient workplace against the employee’s free speech rights as a private citizen. Scholars often critique this analysis, arguing that, when it comes to Internet speech, the test unfairly favors employers and is too uncertain. This Note responds to those arguments and defends the use of the Pickering balancing test as applied to public employee social media speech. To that end, this Note offers three arguments in support of Pickering’s balancing test. First, the government has a unique interest in sustaining public trust and thus needs some discretion, especially in light of the inherent risks associated with speech on social media. The Pickering analysis properly allows for these considerations while still holding the government accountable. Second, a case-by-case analysis is both unavoidable and necessary for this area of law, where free speech conflicts with the government’s interest in efficiently providing its public services. Furthermore, Pickering may be more predictable than some scholars argue. Third, while Pickering may have some drawbacks, those drawbacks do not warrant changing the legal analysis, particularly at the federal level. While it is always important to review legal analyses as the world evolves, further inquiry reveals Pickering’s test is still an adequate legal standard that should not be altered or replaced even considering the advent of social media
The Mississippi River Basin Compact: A New Governance Structure to Save the Mississippi River
Get PDFThe Mississippi River is one of the most significant and yet one of the most imperiled water bodies in the United States. It faces a myriad of problems, from rampant pollution, widespread flooding, wildlife habitat loss, and considerable droughts. Indeed, this is a critical time for the Mississippi River. Fall of 2023 saw River levels drop to extreme lows, with commercial barges grounded and cities deploying emergency measures to protect their municipal water intakes from saltwater intrusion. Meanwhile, polluted Mississippi River water created a dead zone in the Gulf of Mexico spanning hundreds of square miles, just as it has every summer over the past few decades. Only months prior, record winter precipitation brought major flooding to cities along the upper part of the Mississippi. As demands on the River increase as climate change worsens and the population of the United States grows, these stresses will compound. Droughts will become more consequential, and floods will become more devastating. Impairments to barge traffic will have growing impacts on the economy of the whole United States. Thus, the window of time the country has to put in place preventative measures is slipping and a solution must be implemented quickly. This Note traces the issues facing the Mississippi back to a problem of governance. Existing state and federal initiatives have failed to make a marked dent in many of these problems by failing to work together in a consistent manner. States individually face a collective action problem, lacking the power or the will to effectuate solutions within their borders. The federal government under existing legislation has also been unable to regulate the Mississippi effectively and now has diminished authority to do so after Sackett v. EPA. In the face of this interstitial power vacuum, this Note proposes a solution that passes legal muster: an interstate compact. Compacts between states are explicitly enshrined in the Constitution, favored by the Supreme Court, and have a track record of success when it comes to regulating water bodies. Specifically, the Great Lakes Water Compact and the Delaware River Basin Compact provide strong models for watershed governance that could well be scaled to the Mississippi River Basin. These compacts draw upon the legal authority of each sovereign signatory, harmonically regulating their respective waterbodies. This Note broadly outlines an interstate compact for the Mississippi River that combines the powers and interests of the states in the Mississippi River basin as well as the federal government, creating an interstate agency that has the legal authority necessary to effectuate proper and timely decisions. While not purporting to provide a silver bullet to the problems faced by the River, this Note argues that such an interstate compact is the best mechanism from which effective solutions can be borne to sustain this great American body of water for future generations
Institutional Flexibility in Tax Law and Enforcement
Get PDFThis paper examines how governments can optimally audit to discourage tax avoidance. We assume that an accounting firm designs and promotes strategies for tax avoidance. This firm adapts the quality and diversity of these strategies in response to shifts in government policies. We investigate when it is more effective to approve some methods while cracking down on others, rather than targeting all tax-avoidance activities uniformly. We find that selectively enforcing against specific methods can be optimal. This approach not only reduces the quality but also limits the variety of tax avoidance activities in the market and positively impacts the government’s tax revenue collection. Our analysis provides practical insights, linking the costs of auditing with the interaction between enforcement, the quality of tax avoidance methods, and tax revenue outcomes
Narrow but Deep: The McCulloch Principle, Collective-Action Theory, and Section Three Enforcement
No full textIn Trump v. Anderson, 144 S. Ct. 662 (2024), the Supreme Court of the United States held that the Colorado Supreme Court erred in excluding former President Donald J. Trump from the Republican Party’s primary ballot in the state. The Court reasoned that the Constitution makes Congress, not the states, solely responsible for enforcing Section 3 of the Fourteenth Amendment. Scholars of Section 3 have persuasively argued that Section 3 is self-executing, so the Court’s rationale lacks a sound basis in the original or contemporary meaning of the text of the Civil War Amendments, the original intent of their drafters, or the Court’s own precedent interpreting them. This Article nonetheless argues that the Court’s judgment is justifiable on structural grounds identified in the author’s recent book, The Collective-Action Constitution (2024). As envisioned in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), the Constitution’s federal structure bars states from enforcing Section 3 against candidates for President or Vice President, at least if they enjoy substantial support within their own political party. More than two centuries ago, McCulloch articulated a structural principle that disables states from causing multistate collective-action problems by interfering with a function of the national governing process. That structural, collective-action principle extends in parallel fashion to actions by states that interfere excessively with a function of the national political process. The Presidency, along with the Vice Presidency, is a uniquely national office because all states, and all voters in states, play a role in determining who will run for that office and ultimately occupy it. Just as “a part” may not tax “the whole” because the whole is not represented in the part, so a part may not make presidential eligibility decisions that significantly undermine the capacity of the whole to determine who will represent it in the White House. Legal scholars can justly criticize much of the Court’s reasoning in Trump v. Anderson, but not the result that it reached
Populist Secularism
Get PDFThis article argues that in the context of a developing democracy, the rise of religiously oriented parties should be viewed contextually as part of an ongoing process of democratic negotiation and consolidation. Using Turkey as a case study, this article argues that religion and secularism are best viewed as parts of a symbiotic relationship, informing each other’s identity, and defining characteristics through an ongoing process of negotiation. The article discusses commonly used concepts relevant to secularism in general and argues for the need to distinguish between the secular, secularism, and secularization as a governance project. Through a historical survey of military interventions in the political process and judicial construction of secularism, the article discusses the development of state-religion relationship from the Ottoman Empire to modern day Turkey. The surveyed events of the republican era highlight the brutal and militant nature of the secularization project, followed by the populist response in the form of over two decades of electoral victories by the Adalet ve Kalkinma Partisi (Justice and Development Party) (“AKP”) whose governance project has led to a radical reformulation of Turkish secularism. The article also argues that even though pious populations were marginalized during the decades of militant secularization, the current shifts to a populist secularism have created new marginalized and excluded identities, including religious and ethnic minorities, LGBTQ+ populations, as well as increasing threats to gender equality and equity
{W]e have had enough revolutions : International Advocacy Strategies through the Lens of Russian Political Prisoners
Get PDFAuthoritarian states are not known for promoting freedom of expression. In order to maintain power, successful authoritarian governments must restrict oppositional voices to survive. However, as a matter of institutional legitimacy in the eyes of their people, many regimes still superficially hold elections, request opinions from their constitutional courts, and even incorporate human rights protections into national laws. Such is the case in the Russian Federation, where the government strives to appear democratic despite its widespread repression. Behind the arguably feeble appearance of a legitimately elected government with constitutional safeguards, the Russian legal system systemically punishes and incarcerates political dissidents. Russian authorities target conduct ranging from social media posts critical of President Vladimir Putin to public speeches condemning the Russian government. The right to freedom of expression in Russia is increasingly restricted every year, in large part due to the rise of the internet. Two years after opposition leader Alexei Navalny was poisoned and imprisoned, Amnesty International’s Russia Director, Natalia Zviagina, proclaimed that “not one critic, human rights defender or independent journalist is safe from the threat of persecution, reprisals and repression” in Russia. In this political environment, the founder of the Institute for Modern Russia, Pavel Khodorkovsky, asserted that “[I]t’s [not] an over-dramatization to say that Putin is longing for a return to Soviet Union times . . . not only in geopolitical power but in terms of total control inside the state.” This Note analyzes the legal contradictions between international law and Russian law in the context of political prisoners and the violation of their legal right to freedom of expression. With this backdrop, the Note proceeds to examine human rights advocacy strategies to determine potential paths of action that outsiders can use to promote human rights abroad. Part I provides context of the recent Russian political system, international and national laws that protect and limit freedom of expression, and the inseparable link between Russian law and politics. It also introduces the four advocacy strategies that will be explored in the Note: economic sanctions, corporate pressure, moral condemnation raised by non-governmental organizations (“NGOs”), and Universal Periodic Review (“UPR”) at the United Nations. Part II analyzes two methods used by the Russian government to detain political prisoners: consistently targeting and detaining outspoken opposition leaders like Alexei Navalny under the guise of countering extremism and terrorism and bringing a quick succession of charges against dissidents to supposedly counter foreign influence, as befell activist and author Vladimir Kara-Murza. Part II subsequently examines the strengths and weaknesses of advocacy strategies in relation to Russian political prisoners. The Note concludes that, to successfully raise issues of human rights violations under authoritarian regimes in the twenty-first century, a combination of condemnation and engagement-based strategies is critical. The Note also emphasizes that it is necessary for the U.S. and other countries to continue to diplomatically engage with states like Russia in order to avoid isolationism and encourage international cooperation on global issues such as climate change or the proliferation of nuclear weapons. While human rights advocacy strategies are imperfect, it must be emphasized that human rights advocacy is not a zero-sum game and that it is still worth advocating for fundamental rights even if states do not alter their damaging behavior
A Power Move in the Solar Trade Arena? How the Inflation Reduction Act\u27s Preference for Domestically Produced Solar Products May Conflict with International Trade Rules
Get PDFWhen the Inflation Reduction Act (“IRA”)—described as “the most important climate action in U.S. history”—was passed in August of 2022, it came as a surprise not only to the citizens of the United States, but also to key Senators who helped pass the legislation. In the past decade, the United States had seemingly abdicated its role as a global leader in addressing climate change. When this law, with a title that has little to do with environmental legislation, burst onto the world stage, it signaled that the United States’ was working to reclaim its role as a global leader in the climate policy arena. Still, the law became the subject of some international controversy because of its implications on international trade. Among these are the IRA’s preference for domestically manufactured solar products. While the IRA contains the largest investment ever made by the U.S. government toward climate action, it also contains subsidies for clean energy that have been deemed as “green protectionism” by some, because these subsidies reward domestically produced renewable energy products. Specifically, the IRA includes in its provisions a ten percent bonus tax credit for solar products that incorporate domestically produced products. Yet, favoring domestic products at the expense of foreign products is a violation of the General Agreement on Tariffs and Trade (“GATT”). The GATT prohibits nations from implementing policies that favor their own products at the expense of international products, a practice known as the “national treatment principle.” The IRA violates this principle by rewarding a credit for domestic production of solar and renewable energy products. Still, the GATT does allow for exceptions to this principle under Article XX. In order to determine whether a policy can qualify for an Article XX exception, the World Trade Organization (“WTO”) employs a “two-part test.” Part I analyzes whether the policy fits within a listed exception. There are two relevant exceptions that the IRA may qualify for: (1) an exception for policies that are “necessary to protect human, animal or plant life or health” and (2) an exception for policies that are “relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption.” Part II of the “two-part test” analyzes whether the policy complies with the Chapeau of Article XX, specifically analyzing whether the policy is an “arbitrary or unjustifiable discrimination between countries where the same conditions prevail” or if it is “a disguised restriction on international trade.” The question becomes: does the IRA satisfy this two-part test and, therefore, qualify for exceptions to the GATT? If it does not qualify for exceptions, what implications does this have? This note argues that the IRA violates Article III of the GATT and will likely not satisfy Part I of two-part test, and it also may not satisfy Part II of the test. If a challenge to the IRA is brought before the WTO, the implications of a successful challenge could include commensurate tariffs, if approved by the Dispute Settlement Body (“DSB”), and similar trade barriers enacted by other countries in the international arena. The international implications of the IRA are important: global cooperation to ensure the quickest ramp up of renewable energy is crucial to addressing climate change and meeting the goals of the 2015 Paris Climate Agreement. This note will proceed as follows: Part II will summarize the IRA and provide an overview of the global solar disputes in the years preceding the IRA. Part III will describe the relevant international trade rules, focusing on the WTO and the GATT. Part IV will analyze whether the IRA violates the GATT, and whether the IRA qualifies for an exception under Article XX of the GATT. Part V will discuss the remedies and international legal implications of the IRA. And Part VI will offer a conclusion. The issue of whether the IRA violates international trade laws is important: international trade affects how quickly nations can scale-up their renewable energy resources, which will impact their policy responses to climate change. If domestic preferences for solar panels are found to violate international law, then this could result in more retaliatory trade barriers being implemented in the renewable energy market (and generally, less restrictions on trade results in more economically efficient outcomes). And addressing the climate crisis will require international cooperation, even in the sphere of international trade