1,730 research outputs found
The Proposed Separation of Powers Restoration Act Goes Too Far
No full textIf passed, the Separation of Powers Restoration Act would require federal courts conducting judicial review of agency action to decide “de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions and rules.” Although I have long been highly critical of Chevron, see, e.g., Jack M. Beermann, End the Failed Chevron Experiment Now: How Chevron Has Failed and Why It Can and Should be Overruled, 42 Conn. L. Rev. 9 (2010), and also have misgivings about Auer deference, I fear that the proposed Act goes too far in completely eliminating deference to agency legal determinations
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Research Report on Federal Agency ALJ Hiring after Lucia and Executive Order 13843
No full textThis draft report examines federal agency hiring practices for administrative law judges ( ALJs ), who preside over formal agency hearings, in light of the Supreme Court\u27s determination that ALJs are constitutional officers and President Trump\u27s executive order to exempt ALJs from certain statutory competitive-service hiring requirements. The report also provides recommendations for best agency hiring practices. Professors Jack Beermann and Jennifer Mascott co-authored this initial draft report. After Professor Mascott stepped down from the Administrative Conference of the United States to work in the Department of Justice\u27s Office of Legal Counsel, Professor Beermann edited the report and produced its final May 2019 version, which is available here: https://www.acus.gov/sites/default/files/documents/Submitted%20final%20draft%20JB.pd
Research Report on Federal Agency ALJ Hiring after Lucia and Executive Order 13843
No full textThis draft report examines federal agency hiring practices for administrative law judges ( ALJs ), who preside over formal agency hearings, in light of the Supreme Court\u27s determination that ALJs are constitutional officers and President Trump\u27s executive order to exempt ALJs from certain statutory competitive-service hiring requirements. The report also provides recommendations for best agency hiring practices. Professors Jack Beermann and Jennifer Mascott co-authored this initial draft report. After Professor Mascott stepped down from the Administrative Conference of the United States to work in the Department of Justice\u27s Office of Legal Counsel, Professor Beermann edited the report and produced its final May 2019 version, which is available here: https://www.acus.gov/sites/default/files/documents/Submitted%20final%20draft%20JB.pd
Stephanie Mathson interviews poet and author Jack Ridl
No full textPoet and author Jack Ridl explains how he began writing, the writer series at Hope College, his coach poems, his chapbook "Against elegies," how working and living in Michigan shapes his work, and works in progress. Ridl is interviewed by Stephanie Mathson of the Michigan State University Libraries. Part of the MSU Libraries' Michigan Writers Series
Administrative-Law-Like Obligations on Private[ized] Entities
No full textPrivatization is often promoted as a cure for many of the problems of government. In this Article, Professor Beermann argues that the effect of privatization is likely to be muted by the fact that several related phenomena have, in recent years, reduced the differences between government and the private sector, especially when privatization is involved. First, private entities are often compelled to make public or provide to government a great deal of information about themselves, much as the Freedom of Information Act and related statutes require transparency in government. Second, discovery in litigation subjects a great deal of private information to disclosure, a fact that has become more important in recent years as the bases of potential liability have increased. Third, the amount of regulation of private entities has increased markedly, which subjects a great deal of previously private activity to government scrutiny and examination in litigation. Fourth, regulation is often enhanced when privatization is involved. Privatization and deregulation usually come with strings attached under which private entities are required to comply with governmentally prescribed standards of various forms and degrees of stringency. The lesson Professor Beermann urges to be drawn from these factors is that absent significant across-the-board deregulation, privatization is unlikely to achieve the significant effects promised by its advocates
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Administrative-Law-Like Obligations on Private[ized] Entities
No full textPrivatization is often promoted as a cure for many of the problems of government. In this Article, Professor Beermann argues that the effect of privatization is likely to be muted by the fact that several related phenomena have, in recent years, reduced the differences between government and the private sector, especially when privatization is involved. First, private entities are often compelled to make public or provide to government a great deal of information about themselves, much as the Freedom of Information Act and related statutes require transparency in government. Second, discovery in litigation subjects a great deal of private information to disclosure, a fact that has become more important in recent years as the bases of potential liability have increased. Third, the amount of regulation of private entities has increased markedly, which subjects a great deal of previously private activity to government scrutiny and examination in litigation. Fourth, regulation is often enhanced when privatization is involved. Privatization and deregulation usually come with strings attached under which private entities are required to comply with governmentally prescribed standards of various forms and degrees of stringency. The lesson Professor Beermann urges to be drawn from these factors is that absent significant across-the-board deregulation, privatization is unlikely to achieve the significant effects promised by its advocates
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The Journey to Separate but Equal: Madame DeCuir\u27s Quest for Racial Justice in the Reconstruction Era
No full textIn The Journey to Separate but Equal: Madame Decuir’s Quest for Racial Justice in the Reconstruction Era, Jack Beermann tells the story of how, in Hall v. Decuir, the post–Civil War US Supreme Court took its first step toward perpetuating the subjugation of the non-White population of the United States by actively preventing a Southern state from prohibiting segregation on a riverboat in the coasting trade on the Mississippi River. The Journey to Separate but Equal offers the first complete exploration of Hall v. Decuir, with an in-depth look at the case’s record; the lives of the parties, lawyers, and judges; and the case’s social context in 1870s Louisiana. The book centers around the remarkable story of Madame Josephine Decuir and the lawsuit she pursued because she had been illegally barred from the cabin reserved for White women on the Governor Allen riverboat.
The drama of Madame Decuir’s fight against segregation’s denial of her dignity as a human and particularly as a woman enriches our understanding of the Reconstruction era, especially in Louisiana, including political and legal changes that occurred during that time and the plight of people of color who were freed from slavery but denied their dignity and rights as American citizens. Hall v. Decuir spanned the pivotal period of 1872–1878, during which White segregationist Democrats “redeemed” the South from Republican control. The Supreme Court’s ruling in Hall overturned the application of an 1869 Louisiana statute prohibiting racial segregation in Madame Decuirs case because of the status of the Mississippi River as a mode of interstate commerce. The decision represents a crucial precedent that established the legal groundwork for the entrenchment of Jim Crow in the law of the United States, leading directly to the Courts adoption of separate but equal in Plessy v. Ferguson.https://scholarship.law.bu.edu/books/1140/thumbnail.jp
The Journey to Separate but Equal: Madame DeCuir\u27s Quest for Racial Justice in the Reconstruction Era
No full textIn The Journey to Separate but Equal: Madame Decuir’s Quest for Racial Justice in the Reconstruction Era, Jack Beermann tells the story of how, in Hall v. Decuir, the post–Civil War US Supreme Court took its first step toward perpetuating the subjugation of the non-White population of the United States by actively preventing a Southern state from prohibiting segregation on a riverboat in the coasting trade on the Mississippi River. The Journey to Separate but Equal offers the first complete exploration of Hall v. Decuir, with an in-depth look at the case’s record; the lives of the parties, lawyers, and judges; and the case’s social context in 1870s Louisiana. The book centers around the remarkable story of Madame Josephine Decuir and the lawsuit she pursued because she had been illegally barred from the cabin reserved for White women on the Governor Allen riverboat.
The drama of Madame Decuir’s fight against segregation’s denial of her dignity as a human and particularly as a woman enriches our understanding of the Reconstruction era, especially in Louisiana, including political and legal changes that occurred during that time and the plight of people of color who were freed from slavery but denied their dignity and rights as American citizens. Hall v. Decuir spanned the pivotal period of 1872–1878, during which White segregationist Democrats “redeemed” the South from Republican control. The Supreme Court’s ruling in Hall overturned the application of an 1869 Louisiana statute prohibiting racial segregation in Madame Decuirs case because of the status of the Mississippi River as a mode of interstate commerce. The decision represents a crucial precedent that established the legal groundwork for the entrenchment of Jim Crow in the law of the United States, leading directly to the Courts adoption of separate but equal in Plessy v. Ferguson.https://scholarship.law.bu.edu/books/1140/thumbnail.jp
Congressional Meddling In Presidential Elections: Still Unconstitutional After All These Years; A Comment On Sunstein
No full textIn a prior article, see Jack Beermann & Gary Lawson, The Electoral Count Mess: The Electoral Count Act of 1887 Is Unconstitutional, and Other Fun Facts (Plus a Few Random Academic Speculations) about Counting Electoral Votes, 16 FIU L. REV. 297 (2022), we argued that much of the 1877 Electoral Count Act unconstitutionally gave Congress a role in counting and certifying electoral votes. In 2022, Congress amended the statute to make it marginally more constitutional in some respects and significantly less constitutional in others. In response to a forthcoming article by Cass Sunstein defending the new Electoral Count Reform Act on policy grounds, we explore how the ECRA reduces the opportunities for members of Congress unconstitutionally to object to electoral votes but in other respects compounds the constitutional problems of its century-and-a-half old predecessor by (a) trying to allocate authority over presidential elections to people, such as congressionally appointed tellers, who cannot receive such authority, (b) trying to restrict the discretion of actors, such as the Vice President, in whom the Constitution vests a small measure of discretion, and (c) trying to issue orders to people, such as state legislators, over whom Congress has no authority
Congressional Meddling In Presidential Elections: Still Unconstitutional After All These Years; A Comment On Sunstein
No full textIn a prior article, see Jack Beermann & Gary Lawson, The Electoral Count Mess: The Electoral Count Act of 1887 Is Unconstitutional, and Other Fun Facts (Plus a Few Random Academic Speculations) about Counting Electoral Votes, 16 FIU L. REV. 297 (2022), we argued that much of the 1877 Electoral Count Act unconstitutionally gave Congress a role in counting and certifying electoral votes. In 2022, Congress amended the statute to make it marginally more constitutional in some respects and significantly less constitutional in others. In response to a forthcoming article by Cass Sunstein defending the new Electoral Count Reform Act on policy grounds, we explore how the ECRA reduces the opportunities for members of Congress unconstitutionally to object to electoral votes but in other respects compounds the constitutional problems of its century-and-a-half old predecessor by (a) trying to allocate authority over presidential elections to people, such as congressionally appointed tellers, who cannot receive such authority, (b) trying to restrict the discretion of actors, such as the Vice President, in whom the Constitution vests a small measure of discretion, and (c) trying to issue orders to people, such as state legislators, over whom Congress has no authority
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