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Identifying International Legal Trends for Managing Transboundary Groundwater and Aquifers
No full textHumanity is heavily dependent on transboundary groundwater resources and aquifers for its freshwater. As a result, policymakers, groundwater managers, water law professionals, and the public must become more aware about this critical resource to ensure its sustainable use into the future. This book reviews the handful of treaties and informal arrangements implemented by various nations around the world for the assessment, use, allocation, and protection of cross-border groundwater and aquifers. It also identifies international legal trends, practices, and priorities emerging from these instruments, identifies gaps and shortcomings in the emerging legal regime, and offers recommendations for further development of the law
Separation of Powers by Contract: How Collective Bargaining Reshapes Presidential Power
Get PDFThis Article demonstrates for the first time how civil servants check and restrain presidential power through collective bargaining. The executive branch is typically depicted as a top-down hierarchy. The President, as chief executive, issues directives with vast implications for federal policy. Usually, the tenured bureaucracy of civil servants below him follow these directives. Occasionally, when the President’s policies appear corrupt or ill-advised, bureaucrats may illicitly “resist” them. This presumed top-down structure shapes many influential critiques of the modern administrative state. Proponents of a strong President decry civil servants as an unelected “deep state” usurping popular will. Skeptics of presidential power fear the growth of an “imperial” presidency, held in check by an impartial bureaucracy. But federal sector labor rights, which play an increasingly central role in structuring the modern executive branch, complicate each of these critiques. Under federal law, civil servants have the right to enter into binding contracts with administrative agencies governing the conditions of their employment. These agreements restrain and reshape the President’s power to manage the federal bureaucracy in profound ways and can impact nearly every area of executive branch policymaking, from how administrative law judges decide cases to how immigration agents and prison guards enforce federal law. Under a bargaining regime, bureaucratic power arrangements are neither imposed from above by an “imperial” presidency nor subverted from below by an “unaccountable” bureaucracy. Rather, the President and the civil service bargain over the contours of executive authority and litigate their disputes before arbitrators and courts. Bargaining thus encourages a form of government-wide civil servant “resistance” that is legalistic rather than lawless, and highly structured and transparent rather than opaque and inchoate.Despite the increasingly intense judicial and scholarly battles over the administrative state and its legitimacy, civil servant labor rights have gone largely unnoticed and unstudied. This Article shows for the first time how these labor rights both restructure and legitimize the modern executive branch. It makes two primary contributions. First, using a novel dataset of almost 1,000 contract disputes spanning forty years, as well as in-depth case studies of multiple agencies, it documents the myriad ways in which collective bargaining reshapes bureaucratic relationships within the executive branch. Second, this Article draws on primary source material and academic literature to illuminate the history and theoretical foundations of bargaining as a basis for bureaucratic government. The practice developed in the second half of the twentieth century to ensure that American bureaucracy was governed by enforceable legal agreements, subject to oversight by Congress and the courts. It also ensured that the contours of bureaucratic independence were shaped directly by the President and public sector unions, rather than by independent civil service commissions. Contract-based labor relations thus imported key elements of legal and democratic accountability into the bureaucracy, attempting to shore up its constitutional legitimacy in the post-New Deal era. What emerges from this history is a picture of modern bureaucracy that is more mutualistic, legally ordered, and politically responsive than modern observers appreciate
The Role of Accountability in Preserving Judicial Independence: Examining the Ethical Infrastructure of the Federal Judicial Workplace
Get PDFAfter news reports of sexual harassment allegations involving federal judges, U.S. Supreme Court Chief Justice John Roberts asked the Director of the Administrative Office of the U.S. Courts to assemble a working group to address concerns related to misconduct in the federal judicial workplace. Following the working group’s report, the judiciary adopted recommendations relating to discrimination and harassment in the federal judiciary. Using the ethical infrastructure framework, this article reviews what changes have been made and what is missing. It explains how the steps taken largely focus on formal aspects of communicating and monitoring standards of conduct. Notably missing are measures that relate to sanctions for wrongdoing and remedies for persons harmed. The article examines legislation designed to extend antidiscrimination laws to federal judicial employees. By supporting the provision of civil remedies available to other federal employees, the judiciary communicates that it is no longer relying on judicial exceptionalism, but recognizes the connection between accountability for law violations and public confidence in those who apply and interpret the law
Not-So-Special Solicitude
Get PDFIn a high-profile case last term about state standing to sue in federal court, Justice Gorsuch deemed it “hard not to wonder why” the majority said “nothing about ‘special solicitude.’” The silence was indeed surprising, for in a landmark decision several years earlier, the Supreme Court had declared that states were “entitled to special solicitude”—presumably meaning some sort of preferential treatment—“in [the] standing analysis.” And since then, commentators had depicted the concept as permitting opportunistic states to wage ideological crusades in courts across the country, especially through administrative-law attacks on federal-government defendants.But what if “special solicitude” is not so special after all? With a deep dive into appellate caselaw, this Article argues just that. After discussing how special solicitude has faded from explicit prominence in Supreme Court precedent, the Article analyzes the Court’s state-standing decisions to determine whether the concept has exerted implicit influence. To the contrary, the Court has narrowed multiple aspects of justiciability law that state-standing skeptics have long criticized as faulty for the nation’s federalist structure, including in two key cases from June 2023. The Article then catalogues each and every state-standing case from the federal courts of appeals to discuss special solicitude. This examination finds no consensus about what the concept means—but again concludes that it lacks doctrinal significance. Courts often deny state standing or pronounce special solicitude extraneous to the analysis. And even where courts purport to apply it, special solicitude seems not to have made a definitive and dispositive difference in a single case.At the very least, this Article argues, special solicitude plays a much smaller part in federal-courts cases than conventional wisdom assumes. Accordingly, scholars and other stakeholders hoping to improve this important area of constitutional law should focus far less on special solicitude and far more on other areas of potential reform
Reconceptualizing Property Law\u27s Background Principles in Takings Law
Get PDFBoth libertarians and progressives celebrated the result in Tyler v. Hennepin County. This Article asserts that this unified celebration has overshadowed the extent to which the Supreme Court’s reasoning calls into question even our most foundational assumptions about the meaning of property and the takings protections the constitution affords to it. Followed to its literal end, Tyler remarkably suggests that owners may well need to ground their expectations in the property laws endorsed by a majority of states rather than in the laws of their own state.Suspicious that the Court intended such a revolutionary upheaval of the state variations that have characterized our federalist system for more than two centuries, the Article contends that Tyler is better interpreted as an epic failure in judicial transparency: The opinion reflects a sly reticence to acknowledge the reality that resolving competing claims to property demands moral judgment regarding the background principles of property law. In following this deceptive course, Tyler invites a race to legislative homogeneity and erects a dangerous barrier to states’ abilities to innovate in the face of evolving social, economic, and environmental conditions
Law, Fact, and Appellate Review
Get PDFFor centuries, courts have been called upon to distinguish between law and fact. That distinction played a key role in recent Supreme Court decisions on two critical components of appellate review. Dupree v. Younger considered an important question regarding what a party must do at trial to preserve an issue for appellate review. And Google LLC v. Oracle America, Inc. addressed how to select and apply the standard of appellate review--specifically, whether and how the appellate court must show deference to particular decisions made at the trial level. Both decisions were partially right. Dupree correctly focused on whether certain early rulings are unreviewable on appeal because they are overcome by proceedings at trial. Google properly recognized that an appellate court must defer to the jury as to underlying findings jurors may have made in reaching the ultimate verdict. But both decisions went awry in concluding that the appellate court could further increase its review power simply by characterizing certain issues as legal rather than factual. A close analysis of the Dupree and Google decisions themselves--and a sound understanding of the structure of appellate decision-making--reveals that the labels of law and fact are ill-suited to assessing questions of issue preservation and appellate deference. This Article details those shortcomings and argues for a more coherent approach to both questions. Rather than characterizing the issue being appealed, courts should focus on the decisional outcome for that issue. Regarding issue preservation, courts should inquire whether the outcome of a pretrial ruling had conclusively resolved an issue such that there is no need for a further decision on that issue at trial. If so, that ruling may be appealed regardless of whether the party took additional steps at trial to reassert its position. With respect to appellate deference, what matters is the analytical outcome reached by the appellate court in conducting its review. The appellate court can always articulate generalizable principles independently when those principles are part of its decisional analysis. But where it would merely impose a different ultimate result than the trial judge or jury, reversal should require heightened justification
The Ideology of Press Freedom
Get PDFThis Article offers a critical account of the law of press freedom. American law and political culture laud the press as an institution that plays a vital role in democracy: guarding against corruption, facilitating self-governance, and advocating for free expression. These democratic functions provide justification for the law of press freedom, which defends the media’s autonomy and shields the press from outside interference.
But the dominant accounts of the press’s democratic role are only partly accurate. The law of press freedom is grounded in large part in journalism’s professional commitments to objectivity, public service, and autonomy. These idealized characterizations, flawed from the start, drive a business model and a legal strategy that is increasingly at odds with democracy itself. In both its journalism and in its legal advocacy, the press often reifies existing social and racial hierarchies. An inconsistent defender of free expression, the press strategically sits out many First Amendment battles; in others, it pursues narrow, modest remedies unlikely to protect many outside of its ranks. While the press continues to burnish its image as a critical force for the preservation of democracy, its legal strategy has become increasingly detached from the public good.
Alongside a more clear-eyed assessment of the press’s foundational commitments should come a broader rethinking of the press’s freedom and legal strategy. Amid dire technological, economic, and political challenges, the reigning ideology of press freedom disserves press institutions as well as broader First Amendment values and democratic interests. This Article concludes by pointing a path toward alternative legal strategies for the press that would better respond to contemporary challenges to democracy