Authors:Bridget C.E. Dooling et al. Abstract: Agencies do not always write their own rules. Contractors assist agencies in nearly all tasks relating to rulemaking, including reviewing public comments, conducting specialized research, and writing regulatory text. Despite perceptions that contractors’ roles are entirely ministerial, the reality is that contractors fulfill many more functions in the rulemaking process than is commonly understood, including everything right “up to pushing the big red policymaking button,” as one agency employee put it. The use of contractors in rulemaking fits within a broader pattern of increased government reliance on service contractors. Scholars have documented a bevy of governance concerns relating to ethics, capacity, and more, stemming from the fact that contractors are in privity with the government, not the public. This scholarship does not take up the implications of service contracting for rulemaking, the primary mode of executive branch lawmaking, nor does it delineate between types of contracting arrangements, which vary dramatically.This Article takes variation in rulemaking contracting arrangements seriously. We define three types: ministerial contractors, who perform administrative work; expertise contractors, who provide discrete scientific and technical inputs; and regulatory body shops, which are embedded into agencies and function like staff. We argue that while the former two arrangements pose minimal risks to an agency, regulatory body shops are a different story. Not only do they open the door to conflicts of interest that are not adequately addressed under current law, they also threaten the quality of agency reasoning and have the potential to hollow out an agency’s rulemaking apparatus over the long run. Reliance on regulatory body shops has the potential to put an agency’s rules in legal jeopardy by violating the Administrative Procedure Act and diminishing an agency’s claim to Chevron deference. These various risks, which pose challenges for the quality of public decision-making, sit in tension with the reality that some agencies lack adequate resources to staff their rulemakings and turn to regulatory body shops as a pragmatic matter. The Article concludes with reforms to help agencies responsibly manage the risks posed by regulatory body shops. PubDate: Wed, 24 Apr 2024 10:08:30 PDT
Authors:Joshua D. Blank et al. Abstract: When 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. PubDate: Wed, 24 Apr 2024 08:09:56 PDT
Authors:Haiyun Damon-Feng Abstract: Presidential regime change and the federal policy shifts that accompany it raise significant questions concerning continuity, stability, and governance in the administrative state. Presidential policymaking through the administrative state may generate serious reliance interests recognized under administrative law (what this Article calls “administrative reliance”), which agencies must consider prior to enacting policy change. Administrative reliance has developed into a robust form of judicial review over agency action. Administrative reliance has been invoked in highly politicized contexts, such as immigration law, to challenge a sitting administration’s termination of a prior administration’s policies. Despite its powerful and consequential effects, the doctrine of administrative reliance has been underdeveloped by the courts and underexplored in legal scholarship. The resulting confusion allows partisan litigants—including States—to effectively veto federal policy change and allows the judiciary to subsume policymaking power traditionally wielded by the executive branch.This Article fills an important gap in the literature and begins to present a coherent understanding of administrative reliance. It provides the first in-depth account of the doctrine’s development and evolution, and it looks to the doctrine’s history to identify what values administrative reliance seeks to protect. This Article argues that courts should adopt a threshold inquiry to focus administrative reliance–based review in a way that adheres to these values, and that privileges reliance-based claims asserting concrete expectations arising from rights, statuses, or benefits previously granted through agency action. PubDate: Wed, 24 Apr 2024 08:09:56 PDT
Authors:Matt Queen Abstract: State courts wield the authority to elevate state constitutional protections above those afforded by the U.S. Constitution. That power is great—so great that some legislatures have intervened in constitutional adjudication, purportedly to undermine forum shopping and check a single judge’s influence. Accordingly, North Carolina and Tennessee require that three-judge trial courts hear constitutional challenges to state laws. These courts echo twentieth-century congressional efforts to trim federal courts’ equitable jurisdiction. They also present new and familiar drawbacks spawned by their federal ancestors.This Note examines these new constitutional courts through several lenses: their historical context, political development, advantages, and drawbacks. Although both current forms of the three-judge state constitutional court are flawed, this Note argues that safeguarding state constitutional adjudication is a worthy endeavor. Indeed, several reforms to current three-judge courts—including random selection and efficiency measures—could maximize these courts’ advantages and mitigate their shortcomings. But, overall, these courts present a legitimate opportunity to balance the interests of legislatures and litigants in constitutional adjudication. PubDate: Thu, 21 Mar 2024 08:53:39 PDT
Authors:Sarah Burstein Abstract: It is often said that the standards for patent protection are higher than the standards for copyright protection. Specifically, commentators assert that the copyright requirement of originality is easier to satisfy than the patent requirements of novelty and nonobviousness. And yet, the USPTO regularly grants patents for designs that fall below the low standard of copyright originality set by the Supreme Court in Feist v. Rural. Some may suggest that the existence of these “sub-Feist” design patents is a result of the USPTO abandoning its duty to scrutinize design patent applications. Or they may suggest that it is a result of the Federal Circuit making it more difficult to invalidate designs as anticipated or obvious. This Article argues that sub-Feist designs exist because the standard for “originality” (at least, in the sense of “minimal creativity”) is not really “lower” than novelty or nonobviousness—it’s just different. This has implications for how we think about the law and theory of copyright and patents as well as specific implications for design patent law and practice. Importantly, this suggests that we should take the word “original”—which is also an explicit statutory requirement for design patents—seriously. We should not assume that a design that qualifies, under the Patent Act, as “novel” and “nonobvious” is also “original” under the Feist standard. And if, as the Supreme Court has held, the Feist originality standard is a requirement of the Progress Clause, we should not let applicants use design patents to evade that requirement. PubDate: Thu, 21 Mar 2024 08:53:38 PDT
Authors:Melissa Murray Abstract: Much ink has been spilled on the Roberts Court’s approach to stare decisis and precedent. Such commentary is hardly surprising. In just the last five years, the Court has overruled extant precedents on issues that range from abortion and jury convictions to property rights and public unions. It has also substantially narrowed and limited existing precedents, curbing the reach of earlier decisions in ways that disrupt and distort the jurisprudential landscape.Some view the Court’s uneven approach to precedent as ideologically determined. As these critics maintain, the Court adheres to precedents that are consistent with the views of its six-member conservative supermajority while jettisoning or narrowing those precedents that do not accord with those ideological priors.This Essay takes a different tack. Specifically, it argues for reading the Roberts Court’s approach to precedent and stare decisis through the lens of remedy. That is, the Court’s treatment of precedent might be understood, whether in whole or in part, as animated by a desire to rectify an earlier error or injustice. To be sure, this impulse is not merely corrective—the Court’s approach to stare decisis goes beyond correcting what it views as jurisprudential errors. Instead, the Court’s approach seems marked by an interest in identifying and righting a past wrong. Recent cases like Dobbs v. Jackson Women’s Health Organization, New York State Rifle & Pistol Association, Inc. v. Bruen, and Ramos v. Louisiana accord with this interpretive frame. In these cases, the Court departed from—or overruled—earlier decisions in part to remedy past racial injustices. Likewise, in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, the Court dismissed the extant precedent upholding the limited use of race-conscious admissions policies on the view that “[e]liminating racial discrimination means eliminating all of it.”Viewing the Roberts Court’s approach to stare decisis through a remedial lens is clarifying. It helps us to understand—and better anticipate—the Court’s treatment of earlier decisions. Understanding the Court’s approach to stare decisis as a form of remedy renders more legible the Court’s conception of legal injuries—and, in particular, racialized injuries. As this Essay explains, the Roberts Court’s remedial approach to stare decisis is often deployed to correct what a majority of the Court views as a racial injustice. In some cases, like Ramos v. Louisiana, this remedial impulse focuses on correcting historic injustices wrought by white supremacy and historic acts of racism.But critically, a remedial lens may also render visible a reparative logic that unites a series of recent cases involving religious freedom, gun rights, and affirmative action. Although these cases focus on distinct doctrinal questions, they share a unifying impulse: the Court’s apparent desire to remedy injuries done to Christian conservatives, working-class whites, and, more generally, white people. In this regard, viewing the Court’s decisions through a remedial lens may provide a more coherent account—across legal doctrines—of the Roberts Court’s understanding of discrimination, the injuries it produces, and its apparent victims. PubDate: Thu, 21 Mar 2024 08:53:38 PDT
Authors:Deepa Das Acevedo Abstract: Originalism’s critics have failed to block its rise. For many jurists and legal scholars, the question is no longer whether to espouse originalism but how to espouse it. This Article argues that critics have ceded too much ground by focusing on discrediting originalism as either bad history or shoddy linguistics. To disrupt the cycle of endless “methodological” refinements and effectively address originalism’s continued popularity, critics must do two things: identify a better disciplinary analogue for originalist interpretation and advance an argument that moves beyond methods.Anthropology can assist with both tasks. Both anthropological analysis and originalist interpretation are premised on the goal of cultural translation—that is, on rendering holistic worldviews from another time-place intelligible to the translator’s own context. Likewise, both anthropology and originalism often rely on a particular interpretive device—the Reasonable Man (or Reader)—to achieve their translational goals. This Article is the first to recognize the true goal of originalism as applied cultural translation.But analogizing to anthropology also reveals that originalism’s greatest weakness is political and ethical rather than methodological. Pressing cultural translation into the service of state power is an inextricably colonialist endeavor: it does violence to those against whom translational insights are applied by taming and supplanting their worldviews based on racialized and gendered disparities of power. Nineteenth- and twentieth-century colonizing powers often literally used anthropological research to buttress their authority over colonized peoples. Today, originalist jurisprudence intentionally reinforces the political oppression of historically marginalized groups within the United States by magnifying the views of their historical oppressors. But whereas anthropology can exist independent of its use by political powers, originalism is inseparable from statecraft. By drawing on lessons learned in anthropology, this Article demonstrates that originalist analysis—however methodologically sound—is problematic because it uses the past as a colonialist resource. PubDate: Thu, 21 Mar 2024 08:53:37 PDT
Authors:Darrell A. H. Miller Abstract: The Supreme Court has turned ever more to analogical reasoning from history and tradition to decide significant matters of public policy. Nowhere is this phenomenon more evident than in the Court’s 2022 decision in New York State Rifle and Pistol Association v. Bruen.The Court’s crafting of a Second Amendment test that turns almost entirely on the strength of analogies—and on a topic of such intense public salience—has thrust analogical reasoning to the forefront of judicial and academic debate. While many have questioned the workability of Bruen’s focus on historical analogs, this Essay is less concerned about the pragmatics of Bruen and more focused on the ethical implications of this type of reasoning. In sum, if the Supreme Court is going to decide constitutional cases through historical analogies, it should do so in a way that is functional as law and is intelligible to the three hundred million people for whom it rules.After outlining the role morality of reason-giving by judicial officers in our system of judicial review, this Essay provides an overview of the psychology of reasoning by analogy by both lawyers and lay persons and the role of generality, systematicity, and rules of relevance in constructing such analogies.It then identifies three hazards confronting courts attempting to apply Bruen’s analogical method: reliance on surface rather than structural similarities; analogs that lack any stable or discernable rule of relevance; and finally, use of analogs so unmoored from public intuition and experience that they appear unreasonable or contrived.Using Second Amendment litigation as an example, the Essay concludes by showing how the Court can articulate a system of analogical reasoning from history and tradition that avoids these pitfalls and is consonant with the role morality of judicial officers who must offer intelligible legal reasons for their decisions. PubDate: Mon, 18 Mar 2024 12:05:59 PDT
Authors:Andrew Willinger Abstract: In its most recent major Second Amendment decision, New York State Rifle & Pistol Association v. Bruen, the Supreme Court suggested that historical laws “rarely subject to judicial scrutiny” are not especially illuminating because “we do not know the basis of their perceived legality.” Legal scholars have defended Bruen’s approach to historical evidence in part by arguing that the decision requires merely an artificially-limited historical inquiry into internal legal sources to discern overarching principles accepted across the country in the Founding Era. But modern-day lawyers and judges actually know far less than they might believe about whether certain laws were subject to judicial scrutiny during crucial eras of American history because many court decisions—especially from the Founding Era—were simply never recorded for posterity. Those omissions were not random, and they do not represent merely what we today would consider insignificant holdings. Rather, omissions from the surviving record of decisional law are the product of curation by early court reporters, newspaper editors, and other actors often motivated by profit or partisan bias. Therefore, it is often perilous to extrapolate “the general law” from the extant, unrepresentative caselaw that happens to be preserved today.This Essay examines how the non-legal choices and preferences of those who recorded early American case law prior to the gradual emergence of more consistent reporting of judicial decisions in the late nineteenth century shaped the historical record of early decisional law that exists today. Part I chronicles the largely inconsistent and at times chaotic practice of court reporting at and after the Founding and explores how judicial decisions were preserved and published during that time. Part II addresses how modern originalist theories should approach and appreciate the “curated” nature of legal history from that time. I argue that the record of early American decisional law has been profoundly influenced by various actors (legal and non-legal) according to considerations other than preserving an accurate, comprehensive snapshot of “general law” at the time—namely, based on motives including profit and partisanship. This reality, I suggest, means that it is crucial to expand the universe of historical sources when possible to capture what may be missing from the universe of preserved decisional law. PubDate: Fri, 08 Mar 2024 08:05:51 PST
Authors:Benjamin R. Lukas Abstract: Environmental, social, and governance (“ESG”) funds enable earnest investors to align their money with their values. Some believe that ESG funds can promote a more sustainable and just economy by encouraging companies to adopt better practices and by divesting from those that do not. Others expect that funds with limited carbon exposure will outperform as climate change imposes regulatory and financial risks on carbon-intensive industries. Research suggests that younger investors overwhelmingly support the idea behind ESG investing; one-third even report a willingness to forgo 10 percent or more of their retirement savings to protect the environment.Unfortunately, ESG products also stoke cynicism. While some funds may live up to their name, others may co-opt trendy labels as a marketing ploy to charge higher fees—a tactic now commonly referred to as “greenwashing.” In addition to misleading investors, greenwashing has the power to erode faith in the ESG movement. Legitimate offerings can quickly become contaminated by those seeking to make a quick buck. To address this harm, in May 2022, the Securities and Exchange Commission (“SEC”) set forth two proposals to enhance transparency in registered funds using ESG-like branding: an enhanced disclosure rule and an amendment to the “Names Rule.” The latter proposal, adopted in September 2023, requires ESG funds to invest 80 percent of their assets “in accordance with the investment focus that the fund’s name suggests.” This Note takes the position that the Names Rule amendment furthers the SEC’s mission of investor protection but requires additional guardrails to adapt adequately to the complexities of ESG funds. PubDate: Thu, 22 Feb 2024 11:22:10 PST
Authors:Aneil Kovvali Abstract: Companies are increasingly expected to publicly report on not only their traditional financial results, but also environmental, social, and governance (“ESG”) issues. Trillions of dollars are being invested with ESG considerations in mind, and boosters urge that ESG investing can address environmental and social impacts that are normally ignored by managers focused on share prices. This raises the question of how companies should be punished if they lie about ESG matters. How should the traditional elements of securities fraud map onto the novel ESG context' Commentators have vigorously debated ESG’s relationship to the materiality element of securities fraud. But the literature has largely overlooked the reliance element. Securities class action plaintiffs normally show reliance using the presumption introduced by the Supreme Court’s decision in Basic Inc. v. Levinson. If a plaintiff can show that a company’s shares trade in an efficient market, share prices are presumed to reflect all publicly available material information about the company. As a result, a material misstatement operates as a “fraud on the market,” and anyone who traded the company’s shares at the market price is presumed to have relied on the misstatement. This presumption makes securities class actions possible by dispensing with the need to prove that every individual plaintiff actually relied on the false information. As ESG disclosures expand, a new wave of litigation powered by Basic is developing.This Article explores the reliance element of securities fraud and identifies a deep tension between the premises of the ESG movement and the premises of Basic. The advocates who urge corporations to do better on environmental and social matters largely—and justifiably—believe that share prices do not properly reflect corporate performance on those fronts. That belief is difficult to reconcile with Basic’s assumption that material information about a company is reflected in its share price. The Basic presumption could also chill valuable experimentation and voluntary disclosures by companies, and it could absolve institutional investors of the need to actually review and act on ESG disclosures. Counterintuitively, requiring plaintiffs who attack an ESG disclosure to show reliance without using Basic may help advance the goals of the ESG movement, particularly if other enforcers such as the Securities and Exchange Commission step up. These points suggest the need to proactively consider how the Basic presumption should work for ESG misstatements, along with the development of new and creative approaches. By shifting the conversation on ESG disclosures from its current emphasis on materiality to a proper focus on investor reliance and enforcement, this analysis generates fresh and actionable insights. PubDate: Thu, 22 Feb 2024 11:22:09 PST
Authors:Emma Kilroy Abstract: In 2005, the Protection of Lawful Commerce in Arms Act (“PLCAA”) put a stop to most civil litigation against the firearms industry. In the nineteen years since, victims of gun violence have attempted to bring claims against members of the firearms industry, with varying degrees of success, using an exception to PLCAA known as the predicate exception. Recently, states have begun to pass legislation creating a right of action for plaintiffs to take advantage of the predicate exception. Whether the new legislation will be successful, however, remains to be seen.This Note examines all of the available cases considering the predicate exception, revealing areas where the current regulatory framework fails plaintiffs and the distinguishing characteristics of successful cases. In light of this analysis, Part III discusses recent state legislation, identifies gaps in the legislation, identifies areas for improvement, and forecasts challenges to the legislation. The Appendix contains a chart organizing the cases that consider the predicate exception by whether they were successful and the predicate statute considered by the court in each case. PubDate: Thu, 22 Feb 2024 11:22:09 PST
Authors:Jenia I. Turner et al. Abstract: In recent decades, many states have expanded discovery in criminal cases. These reforms were designed to make the criminal process fairer and more efficient. The success of these changes, however, depends on whether defense attorneys actually use the new discovery opportunities to represent their clients more effectively. Records from digital evidence platforms reveal that defense attorneys sometimes fail to carry out their professional duty to review discovery.Analyzing a novel dataset we obtained from digital evidence platforms used in Texas, we found that defense attorneys never accessed any available electronic discovery in a substantial number of felony cases between 2018 and 2020. We also found that the access rate varied by county, year, offense type, attorney category, attorney experience, and file type.To better understand when and why attorneys neglect the available discovery, we supplemented the analysis of digital platform data with interviews of more than three dozen Texas criminal defense attorneys. We learned that defense attorneys were aware that many of their peers fail to review discovery in felony criminal cases. Our interviewees identified several explanations for the failure to access evidence. These include a lack of technological skills and support; the overwhelming volume of digital discovery; the client’s desire for fast resolution of the case; the lesser gravity of some cases; high caseloads; low compensation; and, in some cases, simple lack of diligence. We consider the implications of these attorney practices for ineffective assistance of counsel litigation, effective supervision of defense attorneys, and criminal law reform. PubDate: Thu, 22 Feb 2024 11:22:08 PST
Authors:Thomas R. Lee et al. Abstract: Moore v. United States raises the question whether unrealized gains, such as an increase in property value or a stock portfolio, constitute “incomes, from whatever source derived” under the original meaning of the Sixteenth Amendment. Moore is widely viewed as the most important tax case to reach the United States Supreme Court in decades. It is also an opportunity for the Court to refine its theory and method of finding original meaning.We focus here on the original public meaning of the Sixteenth Amendment—the ordinary, common meaning attributed to its text by the general public in 1913. So far, the parties and amici have relied on contemporaneous dictionaries to argue over such meaning. But the cited dictionaries do not establish the ordinary meaning of “incomes, from whatever source derived”; instead, they highlight a key ambiguity in the very terms of the definitions presented.This article fills important gaps in the original public meaning analysis in Moore. More broadly, it also charts a path for refining the theory and methodology of the originalist inquiry more generally. At the theoretical level, it introduces principles of the philosophy of language and theoretical linguistics that align with—and help refine—strands of the Court’s originalist inquiry. And as to method, it introduces evidence from corpus linguistic analysis to provide a transparent, replicable basis for assessing the ordinary public meaning of the Sixteenth Amendment’s relevant terms.We use the Corpus of Historical American English (“COHA”) to analyze the ordinary public meaning of the constitutional language at the time of ratification of the Sixteenth Amendment. At the “words-to-meaning” level, we show that “income(s)” was always used in 1900-1912 to refer to realized gains. We also perform a “meaning-to-words” analysis, showing that unrealized gains were always referred to using terms other than “income(s).”Our corpus linguistic analysis reveals that the original public meaning of “incomes, from whatever source derived” almost certainly only covers realized gains. And it charts a path for greater transparency, objectivity, and replicability than more traditional tools of originalism. PubDate: Fri, 16 Feb 2024 07:35:49 PST
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