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The Federal Reserve\u27s Mandates
Get PDFSolutions 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 macro-economic 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.
In this Article, we propose a framework to answer these two questions of “can we” and “should we”—a framework grounded in administrative law and macroeconomics. In Part I, we consider the legal challenges that the Federal Reserve would face if it tried to adopt new mandates by itself, without congressional blessing. These challenges include the major questions doctrine and procedural hurdles in administrative law. In Part II, we tackle the normative question by leveraging macroeconomic theory to understand whether new mandates can be successfully balanced against existing ones. Even if adopting a new mandate is legal, it might not be good policy—regardless of whether the Federal Reserve enacts the mandate itself or Congress does so.
We then apply our framework to newly proposed policy objectives for the Federal Reserve, including the proposed purchase of green bonds, the implementation of climate stress tests, and the closing of racial wealth gaps. To be clear, nothing in our framework implies that Congress should ignore longstanding social problems. Rather, our framework suggests that Congress should not have a regulatory agency—with its limited set of tools—expand beyond its original mandates and core competencies to solve those problems. Instead, Congress should empower the agencies most closely aligned with those objectives, thereby avoiding real administrative law constraints and minimizing difficult policy- making dilemmas where the agency faces competing responsibilities. Indeed, if an agency tries to juggle too many balls at the same time, it may drop them all
Localism, Pretext, and the Color of School Dollars
Get PDFEducational inequality is embedded in the structure of education itself. School districts, not individual schools, are the gatekeepers of educational opportunity. Racial isolation exists between school districts, not within them. Enormous funding gaps exist between neighboring school districts, sometimes in the same city, but not within them. These fault lines dictate everything from class size and teacher quality to suspension rates, achievement test scores, and graduation. To date, courts have rejected claims and remedies that would interfere with school district boundaries or local funding. The reluctance rests on the notion that localism is the historical foundation of public education. This Article reveals that this notion is thoroughly mistaken. Drawing on education history and state constitutions, this Article demonstrates that localized and unequal schools are contrary to the original intent for public education. State constitutions consistently assigned educational responsibilities to the states, rather than local communities, with the goal of ensuring all students’ access to a quality education. The only exception to this trend occurred in the late 1800s when Southern states reverted to localism as a strategy to segregate and defund Black children’s access to education. Using this history, this Article identifies two doctrinal solutions to current inequality. First, federal courts should recognize certain aspects of southern states’ continued reliance on local school funding as violating the Equal Protection Clause. Second, regardless of historical discrimination, state courts should reject localism as a sufficient justification for states’ failure to ensure adequate and equal education under their state constitutions
More than Numbers : Empirical Evidence of an Innovation Approach to Admissions
Get PDF“I am proof that your LSAT score does not define you; law schools need to understand that every student’s lived experience is unique. Thanks to Southwestern’s admissions process I was able to show that I’m more than the numbers on my application.” This third-year law student was admitted to Southwestern Law School and went on to place in the top twenty percent after her first year following an admissions waitlist interview, based on Southwestern’s first-of-its-kind empirically based approach that utilizes factors beyond the typical numerical indicators—in particular, the Law School Admission Test—that drive admissions decisions and limit access to law school and the legal profession. This scalable toolkit is connected to preparation for practice, may improve diversity outcomes using a race-neutral approach, and is a low-cost supplement to other admissions tools. This Article reports on Southwestern’s three-year empirical project, developing an evidence-based tool to more fully and meaningfully assess applicants’ law school potential. This tool goes beyond the limited cognitive measure of the LSAT, which at best is only predictive of first-year law school performance. This project is driven by the moral imperative that law schools—as gatekeepers to the legal profession—should commit to innovative and rigorous admissions processes that define merit broadly and provide opportunities based on a spectrum of factors, beyond the traditional numerical indicators. This research, based on hundreds of waitlist interviews, has produced initial reliability and validity metrics for the measure developed—i.e., a tool that could be used with confidence in the admissions process
COVID-19 Response in an Alternative America: Legal Tools that the US Government Failed to Invoke
Get PDFThe Contours of Contempt in Patent Law After TiVo, Inc. v. EchoStar Corp.: An Empirical Study
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Minnesota’s Mandatory Court Surcharge and the Failure of the Fee-for-Service Criminal Justice System
Get PDFThe Press Clause Needs Teeth: The Case for Strengthening Constitutional Press Protections at Protests
Get PDFJournalists and the government have often had a tense relationship because of journalism’s watchdog role. In recent years, that tension has reached a boiling point. Law enforcement arrested journalists at an unprecedented rate in 2020, primarily while they were covering racial justice protests after Minneapolis police officer Derek Chauvin murdered George Floyd. Given the press’s watchdog role, the presence of journalists at protests criticizing government action (such as police brutality) is particularly important. Moreover, law enforcement seemingly targeted the press at these protests, even when they clearly presented themselves as journalists. In Minnesota and Oregon, hotspots for these protests, courts responded by issuing injunctions which prohibited law enforcement from arresting journalists or enforcing dispersal orders and curfews against them, among other things. While these injunctions were welcome developments, neither are a permanent solution. The injunctions do, however, provide a helpful template for establishing constitutional protections for journalists covering protests. The First Amendment reads, in part, “Congress shall make no law . . . abridging the freedom of speech, or of the press.” This language establishes the Speech Clause and the Press Clause. While the Supreme Court has developed robust Speech Clause protections, it has not identified any constitutional protections arising from the Press Clause alone. Indeed, when ruling in favor of journalists and news organizations, the Court has typically referenced both the Speech and Press Clauses. In many cases, this makes sense since the cases involve published material or information that is about to be published, making it natural to invoke both clauses. However, the Court’s hesitance to rely solely on the Press Clause means journalists enjoy few constitutional protections for newsgathering practices. Legal scholars, judges, journalists, and others have proposed several competing interpretations of the Press Clause. This Note identifies four dominant interpretations: Press as Publication, Press as a Technology, Press as Established Organizations, and Press as a Function. After discussing what each interpretation means and assessing each interpretation’s validity, this Note asserts that the Press as a Function interpretation is the best because it is both faithful to Founding Era values and appropriate for the state of journalism today with many journalists working as freelancers or independently. Under the Press as a Function interpretation, individuals exercising press functions are entitled to constitutional protections. In the protest context, these protections could be modeled off the Minnesota and Oregon injunctions. Specifically, journalists covering protests would not be subject to arrests, curfews, dispersal orders, or other law enforcement actions, so long as the journalists are acting lawfully. Finally, this Note considers how to identify journalists at protests by considering two options: government credentialing and totality of the circumstances. This Note disfavors a government credentialing system and prefers a totality of the circumstances approach
Deals in the Heartland: Renewable Energy Projects, Local Resistance, and How Law Can Help
Get PDFRural communities in every windblown and sun-drenched region of the United States are enmeshed in legal, political, and social conflicts related to the country’s rapid transition to renewable energy. Organized local opposition has foreclosed millions of acres from renewable energy development, impeding national and state-level commitments to achieving renewable energy targets in the face of the mounting climate crisis. This Article analyzes why and how communities, using county ordinances, township regulations, and electoral processes, mobilize against renewable energy companies and repel commercial wind projects. It describes the surprising and complex interplay of national, state, and municipal law governing the transition to renewable energy, and provides tangible reform proposals that can address this emerging policy crisis. Informed by original empirical research conducted in the Midwestern United States, this Article provides a rich and textured understanding of the rapidly emerging opposition to renewable energy projects. The fieldwork at the heart of this Article provides evidence that the importance of government in contracts is currently underappreciated. This is particularly so in the context of the transition to renewable energy, where national and state governments have articulated ambitious policy objectives. Governments can add value to the deals between companies and communities, by incentivizing the deals ex ante and by stabilizing the resulting legal relationships ex post. The Article thus concludes that the trend restricting governmental presence in contracts also limits governments’ ability to achieve articulated public goals. The Article also illustrates the importance of contract formality, especially in tight-knit communities. In such local contexts, transparent, clearly articulated deals and deal-making can inspire trust, serving as the pivot point in local decisions about whether to allow renewable energy projects. Because formality opens possibilities for durable relationships in tight-knit communities it can serve as a catalyst for renewable energy projects in America’s heartland