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Legal Gender Recognition in Nepal and Comparative Context
No full textThe Supreme Court of Nepal was a groundbreaker when it ruled in Pant v. Nepal (2007) that people have the right to change their gender on identity documents based on “self-feelings” and “self-determination” rather than medical or other criteria; at the time, no other national apex court or government had so clearly prioritized self-determination for gender identity. Pant, however, centered “third gender” persons (neither male nor female), and now the Court is considering the case of a transgender woman, Ms. Kapali, who seeks to be identified as female on her documents and is challenging authorities that rejected her requests.
Analyzing Ms. Kapali’s claim through comparative law, the Article charts a rapidly expanding global trajectory recognizing self-determination of legal gender—including binary transitions—and roots this trend in compelling human rights principles. It presents a dataset and synthesis showing that comparative, constitutional, and international law strongly support gender self-determination on identity documents, positioning Nepal to once again lead on gender identity rights while offering the most comprehensive study to date of global gender self-determination laws with implications beyond Nepal
Democratizing Administrative Law
No full textWhen agencies make statements about the law, people listen. This insight yields a fundamental tension. According to one set of views, such agency statements, and their ability to influence public behavior, are critical not only for a well-functioning bureaucracy but also for our entire system of government. According to another set of views, this agency power, if left unchecked, could border on tyranny.
Administrative law responds to this tension through an extensive, purportedly comprehensive, framework that attempts to police agency statements. The framework places different types of agency statements into different legal categories. On the one hand, legislative rules make new binding law. On the other hand, less formal guidance (including interpretive rules and policy statements) offers an agency’s interpretive or policy positions about the law. Scholars and courts have long debated the categorization effort as well as what legal consequences flow from it.
This Article identifies a striking gap in this categorization framework. As a critical part of their service to the general public, agencies often simply explain the law. Although such explanations are central to agency interactions with the public, the intricate administrative law framework that applies to agency statements fails to capture such explanations. Agency explanations of the law could be seen as a subset of existing categories of agency statements (such as “legislative rules,” “interpretive rules,” or “policy statements”), but agency explanations do not fit comfortably into any of these categories. All of these regimes assume that agencies are communicating what the law is or what agencies believe it to be. But when agencies provide such explanations to the public, they often present the law as simpler than it is or what agencies believe it to be.
We argue that administrative law’s failure to address communications between agencies and the general public reflects a broader “democracy deficit.” Administrative law fails to ensure that agency communications with the general public occur in ways that are consistent with essential features of democratic governance, such as transparency, public scrutiny, and debate. In contrast, when sophisticated parties and industry insiders engage with agencies regarding formal guidance, there are ample protections to engender agency transparency and provide affected parties with opportunities to contribute to the guidance.
After identifying the democracy deficit in administrative law, we propose a framework for infusing agency communications with the general public with the same administrative law and democratic values as those that apply in interactions between agencies and sophisticated parties. These reforms would encourage public participation in drafting and issuing agency explanations of the law, provide opportunities to challenge published agency explanations, and allow members of the public to rely on certain agency explanations and to bind the agencies to follow these statements in enforcing the law. We also identify the types of agency communications with the public that most urgently need reform
Designing Sanctuary
No full textIn recent decades, a growing number of cities in the United States have adopted “sanctuary policies” that limit local participation in federal immigration enforcement. Existing scholarship has focused on their legality and effect, especially with respect to our nation’s immigration laws. Largely overlooked, however, is the local process through which sanctuary policies are designed and the reasons why cities choose to adopt them through city ordinances, mayoral orders, or employee handbooks. This Article argues that municipal sanctuary policies are far from uniform, and their variation reflects the different local interests and institutional actors behind their adoption and implementation. More specifically, municipal sanctuary policies can be broadly categorized into three models: administrative sanctuary, political sanctuary, and silent sanctuary. Each of these models reflects a specific approach in how cities choose to balance their political relationship with residents, their administrative relationship with employees, and their intergovernmental relations with the state and federal government. Moreover, these three models correspond with different eras in sanctuary’s development and anti-sanctuary responses at the state and federal level. This typology highlights the structural and institutional forces that have contributed to the diversity of sanctuary policies in the United States. In addition, it calls into question many of the assumptions in the sanctuary literature about the assessment of sanctuary policies, the goals of anti-sanctuary efforts, and the effect of all of this on local policymaking
Rethinking Tax Information: The Case for Quarterly 1099s
No full textWhen an electricity provider wants customers to pay their bills monthly, it sends them a bill each month. Yet, this is not how the tax system works— at least not for independent contractors. Their taxes are due quarterly, but they receive a tax statement (Form 1099) only one time a year. It is up to the individual, then, to know when their taxes are due and how to pay them, and it is on that individual to estimate how much they owe each quarter. As a result, compliance for independent contractors—particularly for online platform workers—tends to be lacking. Failure to pay their estimated taxes subjects these taxpayers to potential penalties and causes the government to collect less tax revenue.
There is a simple—yet entirely overlooked—reform that could vastly improve compliance when it comes to paying estimated taxes: third-party information returns (Form 1099s) should be issued to taxpayers on a quarterly basis. The idea is straightforward and intuitive. If the government wants people to pay taxes four times per year, it needs to effectively “bill” them four times per year. This idea is supported by social science research showing that, the more taxpayers are reminded to pay their taxes, the more likely they are to do so.
This Article is the first to propose quarterly tax information returns. It offers a detailed proposal for a new Form 1099-ES, which would communicate quarterly earnings and provide guidance on how much to pay in estimated taxes. In doing so, this Article argues for rethinking the conventional wisdom surrounding tax information, taking a more taxpayer-focused approach. Rather than viewing Form 1099s solely as a source of information for the government to monitor taxpayers and deter cheating, we should also view the role of information returns as assisting taxpayers in tracking their income and estimating their tax liability. When viewed in this light, the goal should not necessarily be more year-end returns to more people, but instead should be more frequent and useful information for taxpayers
Masking Identity at Public Protests
No full textThis Article will explore these issues to assist those seeking to enact constitutionally valid mask policies. To situate today’s mask regulation challenges in the context of American history, Part I reviews events that led to enactment of anti-mask laws many years ago. Part II explains when the First Amendment protects the right to wear a mask in public and when such permission may be lawfully abridged. The section explains the importance of analyzing whether wearing a mask in public is sufficiently expressive to merit First Amendment protection. When it is, the next challenge is to identify the constitutional standard for reviewing government action that impacts this kind of symbolic speech. Part III reviews judicial precedent on the constitutionality of mask legislation, identifies state interests that may justify regulating masks, and explains why some anti-masking laws were upheld while others were found unconstitutional. Drawing from history and precedent, the Conclusion sets forth a framework for civic leaders seeking to enact constitutional masking policies and legislation that protect anonymous speech while keeping citizens safe and holding unlawful actors accountable
Against Associational Standing
No full textThis Article calls for the abandonment, or at least serious modification, of associational standing. Even without associational standing, groups may still sue to enforce their own rights. And they could continue to help vindicate their members’ rights by providing legal representation for member plaintiffs in individual or class action suits (filed anonymously, if necessary), covering members’ litigation costs, and providing expert witnesses and other guidance. In short, associational standing is a largely unnecessary deviation from both Article III’s injury-in-fact requirement and the fundamental principles underlying our justice system. Eliminating associational standing would not limit public law and other important collective litigation, but rather ensure that such cases proceed through the proper channels (i.e., Rule 23) while preventing a range of unnecessary procedural, preclusive, remedial, and other complicatio
History and the School Prayer Cases
No full textIn a series of two decisions known as the School Prayer Cases, the Supreme Court famously held that the Establishment Clause forbids state-sponsored prayer in public schools—even where the government provides opt-outs for dissenters. Yet subsequent legal developments have rendered those decisions unstable. And with the Court’s recent turn to “historical practices and understandings,” many question whether the School Prayer Cases can possibly survive.
It is too soon to tell where the Court’s renewed focus on Founding-era history might lead. But this Article contends, contrary to both some originalist Justices and their critics, that a focus on history does not spell the end of the School Prayer Cases. On the contrary, it may well place those decisions on firmer ground.
In a recent opinion, the Supreme Court observed that state-sponsored school prayer bears some relation to at least one “hallmark” of Founding-era establishments—namely, laws requiring citizens to attend worship in the established church. Contrary to what some Justices have suggested, however, the problem with these Founding-era laws was not that they lacked exemptions for dissenters. Rather, for the Founding generation, laws mandating attendance at state-sponsored worship were objectionable, opt-outs or no, because such laws exceeded the government’s rightful authority. On this view, the key feature of the School Prayer Cases is not the presence or absence of exemptions or proof of individual coercion. Instead, it is the government’s claimed right to mandate attendance at worship in the first place, no matter how tolerant the scheme. And understanding that point may offer important insight into larger questions about the propriety and limits of government-sponsored prayer, inside as well as outside of public schools
