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The Judicial Nondelegation Doctrine
Get PDF“Nondelegation doctrine.” Lawyers know it as the rule barring Congress from delegating power to other branches of government. The doctrine, however, has another side—one that applies to the judiciary. This aspect of the doctrine holds that courts may not delegate judicial power to other branches of government. Nonetheless, courts do precisely that. And they do it thousands of times each and every day. Judges empower non-judicial actors to do everything from making legal findings and rendering sentences to resolving custody disputes and setting probation conditions.
This Article is the first to explore the constitutionality of these kinds of delegations. To that end, this piece presents an original dataset of more than one thousand judicial nondelegation challenges. Reviewing these cases will illustrate the scope of judicial delegations, the problems with current case law, and the need for a clear rule to guide courts in delegating judicial power. This Article concludes by arguing that courts should look to the Intelligible Principle Standard for such a guiding rule
The Possible Futures of American Democracy
Get PDFEveryone worries about democracy, although not everyone pauses to say what they mean by it. A New York Times poll shortly before the last election found that large shares of voters in both parties feared for democracy, although they didn’t fear the same things. In the run-up to the 2020 presidential election, about ninety percent of partisan voters said the country would suffer serious damage if the other guy won2; they presumably didn’t have quite the same worries. Pollsters ask people whether they expect political violence in future elections, and voters respond that they do. Bookstores have been full of titles like How Democracies Die4 and How Democracy Ends5—yes, the field is crowded enough that those are different books. For many law students, this time of intense anxiety, which we can date to 2016, has been the only political climate you’ve known as an adult
Tribal Cannabis Agriculture Law
Get PDFIndian tribes have some freedom to develop their own approach to cannabis agriculture, but what is the nature of that freedom, and how have tribes acted upon it?
This Article investigates the current legal framework surrounding tribal cannabis agriculture and tribal participation in legal cannabis markets. It is generally believed that tribes have some authority to determine the legality of cannabis cultivation on their lands, and to create rules and regulations governing that practice. However, this freedom is nascent and inconsistently granted by the federal government. In addition, the legal frameworks tribes are developing with respect to cannabis agriculture are still evolving and poorly understood, since each tribe is free to craft their own unique approach to the cannabis industry.
This Article examines the current tribal cannabis agriculture landscape in several ways. First, a big-picture snapshot of the U.S. cannabis industry in 2023 is provided in order to place tribal cannabis policies in an appropriate context. Second, the Article attempts to discern the federal government’s opaque perspective on tribal cannabis law, including the contours of tribal freedom to self-regulate in this area. Third, the Article identifies trends and approaches to tribal cannabis agriculture that have emerged to date, with examples of cannabis policies from tribes around the country. Finally, a case study of the Hoopa Valley Tribe is presented in order to bring to life the legal complexities of this topic
It Shouldn’t Be This Hard: The Law and Economics of Business in Indian Country
Get PDFIndian reservation economies have been in shambles for generations. Although some tribes operate successful gaming enterprises, no tribe has a vibrant private sector economy. Law and economics help explain why. Economics is the study of choices, and Indian country’s complex legal rules deter businesses from investing on tribal land. After all, no business wants to spend a year waiting for the federal government to approve a land lease on reservation when land is easily accessible off reservation. Likewise, jurisdictional rules are clear off reservation, but within Indian country, simply determining whether to file a breach of contract suit in tribal, state, or federal court can take years. Complications like this cause private investors to avoid Indian country.
This Article uses an economic lens to explain how the rules governing Indian country trap tribes in poverty. This Article explains the inefficiencies created by federal Indian law are a consequence of the federal government undermining tribal sovereignty. Accordingly, this Article suggests tribes revitalize their legal institutions to improve their business climates
Second-Generation Source of Income Housing Discrimination
Get PDFThis Article aims to provide courts and practitioners with the tools they need to address second-generation SOI discrimination, examining the most prevalent tactics and marshalling the relevant materials in one place. Part I of this Article provides a brief overview of SOI discrimination, demonstrating that such discrimination is rampant throughout the country, even in states and municipalities with SOI protections. Part II examines the statutes and authorities relating to the most common manifestations of second-generation SOI discrimination, namely minimum-income and minimum-credit requirements. Part III applies those authorities to voucher holders with both full and partial vouchers, demonstrating that these requirements are illogical and discriminatory when applied to voucher holders with no rental obligation, i.e., those with 100% of the rent paid by the voucher; that income requirements not based upon the voucher holder’s share of the rent are similarly discriminatory, and where voucher programs already calculate voucher holders’ rent share based upon their income, there is no justification for imposing additional income requirements; and that credit requirements for those with a rent share must at the very least be applied in a fair and reasonable manner so as not to frustrate the purpose of the SOI laws
Lawyerless Law Development
Get PDFThe typical American civil trial court is lawyerless. In response, access to justice reformers have embraced a key intervention: changing the judge’s traditional role. The prevailing vision for judicial role reform calls on trial judges to offer accommodation, information, and process simplification to people without legal representation.
Until now, scholars have known little about judicial behavior in lawyerless courts, including whether and how judges are implementing role reform recommendations. Our lack of knowledge stands in stark contrast to the responsibility civil trial judges bear—and the discretionary power they wield—in dispensing justice for millions of unrepresented people each year. While today’s civil procedure scholarship focuses on documenting and analyzing growing judicial discretion in complex litigation, a much larger sphere of unexamined and largely unchecked judicial discretion has been hiding in plain sight in state civil trial courts.
At the intersection of civil procedure, judicial behavior, and access to justice, this Article presents a theoretically driven multijurisdictional study of judges’ interactions with unrepresented people in state civil trial court hearings. It examines courts in three jurisdictions at the top, above the median, and near the median in the Justice Index (a ranking of state-level access to justice efforts). Despite significant jurisdictional differences, judges’ behaviors are surprisingly homogenous in the data. Rather than offering accommodation, information, and simplification as reform models suggest, judges maintained the courts’ legal complexity and exercised strict control over evidence presentation.
The Article theorizes that a fundamental structural problem drives this unexpected finding—civil courts were not designed for unrepresented people. And judicial behavior is shaped by three factors that result: ethical ambiguity and traditional assumptions about a judge’s role in adversarial litigation, docket pressure, and systematic legal assistance provided only to petitioners. The Article concludes that judicial role failure is but one symptom of lawyerless courts’ fundamental ailment: the mismatch between courts’ adversarial, lawyer-driven dispute resolution design and the complex social, economic, and interpersonal problems they are tasked with solving for users without legal training
Trade Secret
Get PDFA trade secret is information that has commercial value to an organization due to its secrecy, is not known outside of the organization, and the continuing secrecy of which the organization has taken reasonable measures to protect. Trade secrets may include information embodied in documents, electronic records, products and other media, as well as information known to individuals. The EU and some other jurisdictions exclude from the definition of trade secrets trivial information or experience/skills gained by employees during the normal course of their employment and information that is generally known among, or is readily accessible to, persons within the circles that normally deal with the kind of information in question
Flipped Constitutional Supremacy: Inferior Local Law Blocking Federal Policy
Get PDFAll cities and towns in the U.S. utilize electric power. Electric power needs to be generated. Now, energized by larger issues of rapid climate change, the U.S. and all nations must transition to lower-carbon-emission sources of power generation, of which wind power currently is the most prominent and used technology. Any community hostile to wind power can pass a highly restrictive amendment to its zoning ordinance that makes the community unattractive or costprohibitive to wind or other power generation projects. There is no requirement under state law for states to allow tens of thousands of cities and towns carte blanche to elect to ‘zone-out’ the most prevalent renewable power generation technology through ‘aesthetic’ zoning unless that specific wind power project also always presents a legally recognized conventional nuisance injury to proximate citizens or their properties. Ironically, the use of land for wind turbine power capture leaves that land as open space without human habitation and increases the property tax base realized and enjoyed by the town.
Each of the six innovative alternative pathways identified in Part IV of this article could be implemented within existing state authority without amending U.S. federal law or the Constitution. Each would flexibly allow renewable electric power infrastructure siting to proceed on a case-by-case basis, preserving all stakeholders’ rights under existing common law and/or through requirements for developers to obtain local land-use special permits. These innovative legal tools can support states to contribute to decarbonizing the U.S. electric system at the rapid pace required to rescue and preserve the world climate
Opening the Range: Reforms to Allow Markets for Voluntary Conservation on Federal Grazing Lands
Get PDFFor nearly a century, the federal government has authorized ranchers to graze livestock on large areas of federal lands in the western United States. Federal-land grazing has generated substantial conflict in recent decades, as conservation interests and others have lobbied and litigated against what they view as inappropriate and destructive use of federal lands. This has produced a predictable backlash among ranching interests, including efforts to roll back the regulations relied on by environmental litigants and aggressive confrontations with federal regulators. But such conflict is not inevitable. Competing demands on these lands can be resolved through voluntary means and positive incentives for conservation practices, as they often are on private lands. On public lands, however, federal law erects substantial barriers to this market approach by imposing use-it-or-lose-it rules on federal grazing permits. In this Article, we discuss those barriers and offer statutory and regulatory reforms that would overcome them while facilitating markets for conservation on federal grazing lands
Religious Liberty, Discriminatory Intent, and the Conservative Constitution
Get PDFThe Supreme Court shocked the world at the end of its 2021–22 term by issuing landmark decisions ending constitutional protection for abortion rights, expanding gun rights, and weakening what remained of the wall between church and state. One thread uniting these cases that captured the public’s attention is the rhetoric common of originalism—a backwards-looking theory of constitutional interpretation focused on founding-era meaning and intent. This Article identifies the discriminatory intent doctrine as another powerful tool the Court is using to protect the social norms and hierarchies of a bygone era, and to build a conservative Constitution.
Discriminatory intent rose to prominence during the Burger and Rehnquist Courts through the development of rules requiring intent, rigidly defining intent, and limiting the evidence relevant to prove intent. Application of these rules in equal protection claims often shielded legal structures from reproach that disadvantage women and people of color. By contrast, today’s Court is revisiting and radically reinterpreting these rules in ways that favor conservative religious adherents in First Amendment claims.
In Free Exercise Clause cases brought by conservative Christians challenging seemingly religiously neutral and generally applicable laws, the Court has credited allegations of discriminatory intent on thin evidentiary records. Additionally, the Court has crafted a new strict rule designed to prevent even the possibility that discriminatory intent could creep into future decision-making—even when no evidence of actual bias presently exists. Meanwhile, the Court in Establishment Clause claims has abandoned longstanding intent rules prohibiting favoritism or hostility towards religion; instead, the sole relevant question is now whether founding-era practices support the government’s religious involvement. These emerging and conflicting roles for discriminatory intent in the Religion Clauses leave religious minorities and non-believers with diminished constitutional protection, while insulating the Christian right from perceived victimization by progressive forces who have sought to stem a global pandemic, promote reproductive rights, and prevent discrimination against LGBTQ individuals