This bibliography comprises scholarly books, book chapters, and journal articles published or accepted for publication by full-time, emeritus, and retired faculty of the Sandra Day O’Connor College of Law between April 1, 2024 and June 30, 2024.
Kenneth W. Abbott & Thomas J. Biersteker eds., Informal Governance in World Politics (Cambridge University Press 2024)
Throughout the nineteenth and twentieth centuries, cooperation among nations was based on international regimes and formal intergovernmental organizations. However, since the 1990s, informal modes of global governance, such as informal intergovernmental organizations and transnational public-private governance initiatives, have proliferated. Even within formal intergovernmental organizations, informal means of influence and informal procedures affect outcomes whilst, around all these institutions, even more informal networks shape agendas. This volume introduces and analyzes these three types of informality in governance: informality of, within, and around institutions. An introductory chapter traces the rise of informal governance and suggests a range of theoretical perspectives and variables that may explain this surge. Empirical chapters then apply these and other explanations to diverse issue areas and cross-cutting issues, often using newly developed datasets or original case study research. The concluding chapter sets out a research agenda on informality in global governance, including its normative implications.
Khaled A. Beydoun, The New Crusades: Islamophobia and the Global War on Muslims (University of California Press 2023)
The New Crusades examines Islamophobia as a global phenomenon, detailing how the American War on Terror has facilitated and intensified the network of anti-Muslim campaigns unfolding across the world. At a juncture when both democratic and authoritarian regimes across the world are vested to persecuting their host Muslim populations, The New Crusades interrogates–through trenchant analysis and direct testimony of Muslims on the ground–how Islamophobia stands as a unifying global thread of both state and societal bigotry. Whether imposed by way of Hijab Bans in democratic France or the network of concentration camps in communist China, The New Crusades reveals–lucidly and luridly–that Islamophobia is not only a global phenomenon, but one of the world’s last bastions of acceptable hate.
Dan Bodansky & Harlan Grant Cohen, Close Relations: International Legal Realism and Cognitive-Behavioral Studies in International Legal Theory and the Cognitive Turn (Anne van Aaken & Moshe Hirsch eds., Oxford University Press) (forthcoming 2024)
Legal realism and cognitive-behavioral studies share an interest in studying empirically how individuals think and behave. For both, focusing on the actual people who practice, argue about, interpret, and implement international law is essential to explaining how international law works. The two approaches can thus mutually enrich one another; marrying legal realism’s empiricism and pragmatism with cognitive-behavioral studies’ rigor can be powerful and seductive.
But in sharpening each other’s focus, legal realism and cognitive-behavioral studies may also amplify each other’s blind spots. Considering related critiques of both legal realist and cognitive scientific approaches to international law that emphasize instrumentalism at the expense of normativity, this chapter reaffirms the importance of legal realism’s characteristic pluralism, openness, and capacity for self-critique. Those values, the chapter argues, can provide a path forward for a partnership between legal realism and cognitive-behavioral studies that remains true to the objectives and values of each.
Karen Bradshaw & Monika Ehrman, Cloud Seeding, Wildfire Smoke Emissions, and Solar Geoengineering: Why is Climate Modification Unregulated?, 35 Georgetown Environmental Law Review 459 (2023)
This Article is the first to identify that companies and agencies systemically modify climatic airspaces through wildfire smoke emissions, weather modification (cloud seeding to cause rain), and solar geoengineering. Climate modification is not a conspiracy theory or a hypothetical: it is happening, and it is changing weather patterns. Yet, climate modification is almost wholly unregulated. Further, it is also not recorded or tracked in systemic ways. That is to say, even government agencies do not have comprehensive records of whether; how often; or how much climate modification is occurring. The data is simply not gathered, aggregated, or stored. As a result, major indicators that rely on climatic conditions–including the Environmental Protection Agency climate accounting–systemically overlook the effects of human-caused climate manipulation when accounting for changes in weather and air quality over time.
This lack of regulation is a serious problem: climate accounting fails to measure virtually unregulated activities undertaken by a mix of public and private actors. Without accurately accounting for these activities, scientists and agencies may be understating the effect of climate change on historical factors, including CO2 emissions levels and rainfall. Such misinformation may lead to dramatic misstatements about the severity of the climate emergency. Inaccuracies in climate accounting stemming from the lack of data about climate modification also blind policymakers to opportunities to slow or reverse anthropocentric climate change through measuring, accounting for, and regulating human manipulation of airspace.
How is it possible that the leading federal agency accounting for climate change is failing to account for changes to airspace? Law as a whole systemically overlooks and underregulates human manipulation of “invisible” natural resources which are diffuse; invisible to the naked eye (and thus difficult to detect); lacking commercial value; and seemingly outside centralized human control. From pollution to fish populations, underground water sources to oil and gas flares, even the agencies tasked with regulating invisible resources find it nearly impossible to detect, measure, and account for human inputs into natural systems.
These examples illustrate a broader theoretical point: climate and environmental policy analysis and solutions are hamstrung by the limitations inherent in modern Western conceptions of property. This Article demonstrates how an emerging model of multidimensional property–derived from interdisciplinary discussions of overlapping property rights, mismatched property rights, and landscape-level resources–can improve the framing of climate change and other ecological problems, and thus improve the available outcomes.
This Article makes at least three contributions to environmental law, natural resources law, and property law literatures. First, it identifies the crucial problem of climate manipulation, which is currently unregulated and not included in climate accounting. Second, it develops a theory of invisible resources which are difficult to measure, detect, and regulate but nevertheless affect the human environment in vitally important ways. Finally, it demonstrates how a new model of multidimensional property can extend concepts of property rights and regulation into invisible airspaces, making currently unregulated climate mitigation the subject of oversight and regulation.
The real-world importance of addressing this crucial oversight cannot be overstated: Agencies must use all tools at their disposal to understand and address the climate emergency.
Karen Bradshaw & Challie Facemire et al., Animals in the Courtroom, 32 Journal of Law and Policy 1 (2024)
Law centers on the experience of the human species. Yet, emerging scholarly and public conversations advocate for bringing animals into spaces once assumed to be human, a growing field known as animal studies. This Article is the first to experiment with how to integrate the more-than-human experience into the courtroom. It specifically reimagines canonical legal cases from the perspective of the animals involved in them. Through the perspective of the animals at issue, it examines cases in which animal interests were considered by human advocates and decided by human judges. This novel technique of de-centering the human requires developing a wholly new, highly experimental methodological framework for how legal scholars and commentators might expand anthropocentric legal processes (such as adjudicating cases) to consider the perspectives of nonhuman animals. This project rests at the intersection of critical animal studies and the burgeoning fields of animal and biodiversity law. More broadly, this Article considers the potential for law to be used to achieve bold aims. Law school curricula have traditionally emphasized teaching students to “think like a lawyer,”—limiting the creative potential of talented minds to fit the conventionality of the field. This Article presents a different, more innovative approach to legal education and scholarship, in which lawyers and legal scholars reimagine social issues, develop new legal realities, and wield the traditional, time-tested tools of our craft in new ways to reach more desirable social outcomes. We identify and explore how lawyers can use the traditional tools of our field (legislation, regulation, common law, constitutional provisions, and private law) to create positive visions for new ways of more equitably co-existing with nature and nonhuman living beings. We are interested in reforming the law to incorporate principles of interspecies equity, which requires institutional shifts away from assumed anthropocentricity through the development of new tools and techniques to integrate the interests of nonhuman living beings—animals specifically for this work—into the field of law.
Ellen M. Bublick & Jane R. Bambauer, Tort Liability for Physical Harm to Police Arising From Protest: Common-Law Principles for a Politicized World, 73 DePaul Law Review 263 (2024)
When police officers bring tort suits for physical harms suffered during protest, courts must navigate two critically important sets of values—on the one hand, protesters’ rights to free speech and assembly, and on the other, the value of officers’ lives, health, and rights of redress. This year courts, including the United States Supreme Court, must decide who, if anyone, can be held accountable for severe physical harms suffered by police called upon to respond to protest. Two highly visible cases well illustrate the trend. In one, United States Capitol Police officers were injured on January 6, 2021, during organized attempts to overturn the results of the U.S. presidential election. In the other, a Baton Rouge police officer suffered traumatic brain injury when he was hit by an object thrown by an unidentified protester during a Black Lives Matter protest that sought to block a highway in front of police headquarters.
In this article, Professors Bublick and Bambauer argue that courts analyzing common-law liability claims for physical injuries suffered by police in the highly political circumstances of protest, would be well-advised to work through a list of content-neutral questions. Such a list could help courts maximize states’ legitimate interests in officer safety, while minimizing impacts on protestors’ legitimate First Amendment activity. We juxtapose these political contexts to create an analytical framework that recognizes the threats involved, to both speech and safety, without as great a risk of ideological distortion. Courts in both the January 6th case and the Black Lives Matter case have failed to accommodate both physical safety interests and First Amendment issues.
Ellen M. Bublick, What We Talk About When We Talk About the Duty of Care in Negligence Law: The Utah Supreme Court Sets an Example in Boynton v. Kennecott Utah Copper, 16 Journal of Tort Law 231 (2023)
Every day, state common law courts define the duty of care in negligence law. There is no formula for how courts should determine duty. Yet when judges are charged with important decisions about whether to open or shut the courthouse doors to whole categories of claimants, judges need some framework for decision. This article commends as an exemplar, the Utah Supreme Court’s decision in Boynton v. Kennecott Utah Copper, a take-home asbestos exposure case. The power of Boynton is not only the answer it provides, but also the coherent framework for analysis that Justice Constandinos Himonas’ opinion sets forth. The opinion’s framework incorporates established principles as well as important tort policies such as harm prevention. Boynton’s structure at once provides the stability and consistency of precedent befitting common law adjudication while also incorporating the public policy and pragmatic concerns that have long guided tort law’s development. Boynton’s framework achieves a similar result to the one in the Third Restatement—creating duty and no-duty rules with possibility of exception based on principle and policy factors. However, Boynton does so through traditional terminology that has acquired meaning through repeated historical application. Courts, scholars and students would be well advised to examine the Utah Supreme Court’s approach to duty analysis.
Charles F. Capps, Rethinking Accomplice Liability, 56 Arizona State Law Journal 1 (2024)
In every American jurisdiction, accomplice liability is “derivative” in the sense that the accomplice is punished not for her own acts of aiding or abetting but for the acts of the principal whom she aids or abets. The derivative character of accomplice liability has created problems in cases where the principal and the accomplice have different affirmative defenses or mental states as well as cases where the principal’s conduct is causally efficacious but the accomplice’s is not.
American law has partially corrected for these problems by walking back the extent to which accomplice liability is derivative. Although at common law the accessory’s liability was wholly derivative of the principal’s, now most jurisdictions judge the accomplice by her own affirmative defenses and mens rea. But no jurisdiction has taken the final step of eliminating derivative liability for accomplices altogether and judging the accomplice by her own actus reus.
This Article urges the law to complete the process of doctrinal evolution by abolishing derivative liability for accomplices. In some cases, judging the accomplice by her own actus reus and mens rea would not change the outcome because the accomplice’s actus reus and mens rea constitute the same type of crime as the principal’s. In the remaining cases, judging the accomplice by her own actus reus and mens rea would change the outcome for the better.
Susan Chesler & Karen J. Sneddon, Raising the Bar: The NextGen Bar Exam and Contract Drafting, 25 Transactions: The Tennessee Journal of Business Law 843 (2024)
Set to debut in July 2026, the NextGen Bar Exam will test a broad range of foundational lawyering skills needed in today’s practice of law, including contract interpretation, drafting, and revising. According to the National Conference of Bar Examiners (“NCBE”), this exam is designed “to balance the skills and knowledge needed in litigation and transactional legal practice.” More specifically, the foundational skills that will be tested include drafting and revising contract provisions consistent with the facts, the law, and the client’s objectives, interests, and constraints. The NCBE has indicated that the examinees’ knowledge of the doctrinal subject matter topics, like Contracts, will be tested using these, and other, foundational skills. Bar takers will therefore be required to perform these lawyering skills as a way of proving their knowledge on topics such as contract formation, contract modification, interpretation, breach, and remedies. For the first time, in order to succeed on the bar exam, every law student will need to know how to draft and revise contract provisions.
This article discusses and dissects the content scope for the NextGen Bar Exam, outlining the areas of legal knowledge, practical skills, and abilities that will be covered. As this overview illustrates, law schools can no longer ignore contract drafting skills or relegate the teaching of contract drafting to an elective, upper-level legal writing course of 20 students or less. To facilitate incorporation of contract drafting skills into a range of courses, this article presents examples of a wide variety of in-class and out-of-class exercises and assignments along with possible assessment methods that law professors can integrate into their existing courses, whether that course is a first-year required course, an upper-level doctrinal subject-matter course, a skills course, or a clinic. This article will then present an in-depth analysis of simulated NextGen-style prompts and questions based upon a single hypothetical that allows students to complete a number of client-centered lawyering tasks. Transactional skills are finally getting the recognition they deserve. This article provides concrete guidance to ensure that law schools and law students are ready for it.
Laura Coordes & Joan N. Feeney, The History of Bankruptcy Venue Choices and the Evolution of Magnet Courts for Chapter 11 Cases, 36 California Bankruptcy Journal 333 (2024)
Bankruptcy forum shopping is a controversial topic prompting hotly debated questions: is it a race to the bottom or to the top? Should the venue rules be changed to prohibit forum shopping, or does the status quo give debtors the flexibility they need to succeed in a bankruptcy case? How did forum shopping become so ubiquitous in the first place?
Many scholars and commentators have wrestled with these questions. This article contributes to the ongoing debates by shedding light on the last of these questions. Its central claim is that, at bottom, the history of bankruptcy forum shopping is really a story of the rise and fall of various magnet courts, where a “magnet court” is one of a handful of United States bankruptcy courts that attracts an inordinate number of large chapter 11 cases.
Our study of magnet courts reveals that the sustained popularity of any one magnet court is not guaranteed. Indeed, recent months provide a prime example of the shift in popularity among the magnet courts. A comparison of data from the final quarter of 2022 to the final quarter of 2023 reveals that a new magnet court, the Bankruptcy Court for the District of New Jersey, is on the rise. Further, a once-popular magnet court, the Bankruptcy Court for the Southern District of Texas, may be on the decline as a result of a well-publicized scandal involving one of its judges.
Although our views on forum shopping in bankruptcy are known, we do not seek to weigh in on the forum shopping debate directly in this article. Rather, our goal is to document how the statutory venue provisions in bankruptcy, as used by debtors’ attorneys, have contributed to the development and evolution of magnet courts. As we describe below, in addition to the trend of consolidation of large reorganization cases in a handful of districts, recent years have seen a shift in preferred venues for large chapter 11 cases. Although the District of Delaware and the Southern District of New York are still preferred venues, other districts have become popular for large cases. These new magnet courts have infringed on New York’s and Delaware’s command of magnet court status. As filing trends fluctuate, the status of certain courts as magnet courts is subject to change.
A discussion of bankruptcy’s magnet courts is relevant to bankruptcy practitioners throughout the country. Yet it may have special salience in California, where the Bankruptcy Court for the Central District of California recently adopted a general order establishing filing procedures in complex chapter 11 cases. This move seems designed to appeal to debtors with complex cases, although it is arguably too early to tell whether it will attract more complex cases to the district.
Jamie Grischkan, Regulating Bank Mergers: Past and Present, 2024 University of Illinois Law Review 557 (2024)
For the first time in nearly half a century, bank merger policy stands at a crossroads. Amidst a new and wide-ranging antimonopoly movement, concerns regarding concentrated financial power and the structure of the American banking system have taken center stage. Following calls for public comment on revising the 1995 Bank Merger Competitive Review Guidelines by the Department of Justice, internal discord over reform efforts at the FDIC, and the failure of numerous regional banks, a fundamental reassessment of the law governing bank mergers and acquisitions is firmly underway. While some policymakers and scholars have argued that antitrust law should play a larger role in preventing consolidation in the financial sector, this Article employs the methodology of legal history to emphasize the limits of reviving antitrust in banking.
Excavating the origins and evolution of the Bank Holding Company Act (the “BHCA”) and the Bank Merger Act (the “BMA”), which govern regulatory oversight of bank mergers, reveals that an expansive conception of the public interest extending well beyond the bounds of antitrust doctrine guided the bank merger regime in its formative early years. By retracing the legislative, administrative, and judicial interpretations of the public interest approach to bank mergers, this Article foregrounds an alternative, and historically potent, mechanism through which to combat banking consolidation. Ultimately, the complex history of the BHCA and BMA provides an important reminder that while antitrust has long served as a critical weapon in the battle against concentrated economic power, it has not been the only weapon. As the future of bank merger policy hangs in the balance, a turn to the past may therefore yield a more promising way forward.
James G. Hodge, Jr., Erica N. White & Jennifer L. Piatt et al., Assessing Impacts of ‘Anti-Equity’ Legislation on Health Care and Public Health Services, 52 Journal of Law, Medicine & Ethics 172 (2024)
A deluge of state “anti-equity” legislative bills seek to reverse prevailing trends in diversity, equity, and inclusiveness; withdraw protections of LGBTQ+ communities; and deny access to gender-based care for trans minors and adults. While the political and constitutional fate of these acts is undetermined, profound impacts on patients and their providers are already affecting the delivery of health care and public health services.
James G. Hodge, Jr., Jennifer L. Piatt & Erica N. White et al., Supreme Court Impacts in Public Health Law: 2023-2024, Journal of Law, Medicine & Ethics (forthcoming 2024)
In a “mixed bag” 2023-2024 session, the U.S. Supreme Court issued a series of decisions both favorable and antithetical to public health and safety. Taking on tough constitutional issues implicating gun control, misinformation, and homelessness, the Court also avoided substantive reviews in favor of procedural dismissals in key cases involving reproductive rights and government censorship. Ultimately, SCOTUS upended major precedent (as per prior recent sessions) in rewriting administrative law, with public health impacts likely extending for decades.
Kimberly Holst, Rebellions Are Built on Hope…but a Little Kairos Can’t Hurt in Star Wars and Conflict Resolution II: My Negotiations Will Not Fail (Jen Reynolds & Noam Ebner eds., DRI Press 2024)
Using examples from Rogue One: A Star Wars Story, this chapter examines two aspects of Kairos and explains how Kairos is an essential tool for negotiation. First, we consider the skills that allow us to recognize and take advantage of Kairic moments. Throughout history, Kairos has been referred to as an opening, a shot, or an alignment of circumstances where an actor can successfully accomplish her goal. But merely taking an opening or a shot when it presents itself is not enough to be Kairic. The actor must also be prepared. She needs to have been practicing her aim with a blaster or mastering her control of the Force if she wants to make the best use of that moment. In this way, Kairos is properly understood as the combination of timing and preparation that allows the moment to be ripe for the actor’s taking. What’s more, skillful preparation may make it possible to manufacture Kairos in some situations. By putting actions in motion so that an opportunity is more likely to arise in the future when the actor has the information, skills, and other tools at the ready, the actor has positioned herself to capitalize on a Kairic moment.
Second, we consider the rhetorical or persuasive dimension of Kairos. Negotiators and others can use Kairos as a tool to make an appeal or create space for negotiated agreement. Not only can a negotiator be on the lookout for his own Kairic moments, but he can also be looking for Kairic moments that may appeal to the opposing party and, ideally, use those Kairic moments to convince the other party to choose the course of action that the negotiator desires.
Esther Hong, The Age of Creativity and Crime, Arizona State University Sandra Day O’Connor College of Law Research Paper No. 4818374 (May 7, 2024)
Creativity and crime may seem like worlds apart, but they have much more in common than intuition may suggest. Criminal and juvenile legal scholars have largely overlooked the connections that exist between the two. This Article brings them to the forefront and considers the legal implications of their overlap in spaces where creativity and crime collide.
In many instances, the line that separates creative acts from criminal ones is thin and arbitrarily drawn, shaped by the discretion and biases of various decision-makers, including police, prosecutors, and juries. Creative acts are mischaracterized as criminal ones. Creative expressions are used as evidence of one’s criminality or dangerousness. These misconstructions are generally harmful, but they cause distinct harm when implemented against adolescents and emerging adults. These young people have developmental traits that naturally heighten their associations with creativity and crime, and also have a developmental need to engage in creativity. That young people, and particularly young people of color, have their creativity criminalized or limited imposes an additional and distinctive developmental harm.
These considerations invite the application of an increasingly influential legal framework for young people called the developmental framework. Implementing this framework in a manner that protects and prioritizes young people’s creativity requires changes in the prosecution and punishment of crime, continued dismantling of the school-to-prison pipeline, and increased opportunities for creativity. Making such changes will not only further young people’s well-being but also help pave the way for systemic changes for all.
Esther Hong, Prosecutors and the Child Wellbeing Framework, 92 University of Chicago Law Review Online 1 (2024)
The importance of initial prosecutorial decisions in juvenile outcomes is well-studied, but recent developments in the law, including the Supreme Court’s decision in McGirt v. Oklahoma; new laws and proposed legislation pertaining to youth being tried in juvenile or criminal court; and the forthcoming adoption of the Children’s Restatement require that we reexamine their significance.
Caitlin Millat, Race, Religion, and the Antiparallel, American Journal of Law and Equality (forthcoming)
The Supreme Court last Term issued its monumental decision in Students for Fair Admissions v. Harvard, which struck down a pair of race-conscious admissions policies as unconstitutional, upending a half-century of affirmative-action precedent. But importantly, SFFA did more than simply outlaw the universities’ schemes. Rather, it reshaped entirely the doctrine and narrative set forth in the Court’s earlier affirmative-action cases, offering a diametrically opposite view on the role of race – and racial discrimination – in modern America. On SFFA’s telling, an explicit consideration of race in schooling, even one meant to benefit racial minorities, was itself discrimination, an impermissible violation of the Equal Protection Clause’s mandate of total “colorblindness.” In this way, the Court told a story of a new, post-racial America, one in which racial classification may be more pernicious than racial remedy.
Critically, though, this sea change has not been the only such shift in the Court’s recent education jurisprudence. Across the same period, the Court also has transformed its approach to evaluating the role of religion in schooling, from religious exercise in educational institutions to state funding of religious activity. Indeed, for the better part of the 20th century, the Court consistently deployed the First Amendment’s Religion Clauses to enforce a “wall of separation” between church and state – or, church and public school. With the advent of the Roberts Court, however, this view changed, as the Court inverted its Religion Clause jurisprudence in the religious-schools context. Over this time, for example, the Court would issue a series of decisions that, bit by bit, permitted religion to creep into the public educational space: upholding voucher programs that siphoned funds to religious schools; permitting public funds to flow directly to sectarian institutions; and requiring districts to allow state officials to engage in public prayer.
But these race and religion shifts in the Court’s education jurisprudence have not occurred in isolation. As I argue in this reflection, one cannot properly consider the impact of Students for Fair Admissions, and the post-racial change it portends, without taking account of the Court’s increasing allegiance to and protection of religious – primarily Christian evangelical – interests. Instead, examining these movements together reveals that while these changes have taken place in chronological parallel, they have moved in opposite, or antiparallel, substantive directions. Put differently: on one hand, the Court has used its religious-schools shift to carve out increasing protections for religious exercise, crafting a narrative that the true minority in American life is the religious observer. On the other, the Court has used its race-consciousness jurisprudence to shrink protections for racial minorities, crafting a counter-narrative that attempts to erase “race” entirely.
Troy A. Rule, Preserving Sacred Sites and Property Law, 2024 Wisconsin Law Review 129 (2024)
Should courts have the power to order the federal government to give land rights to particular groups based solely on their religious beliefs? Calls for legal rules requiring such effectual transfers have grown in recent years as Americans have started to confront the country’s history of mistreatment of Native nations and other disadvantaged groups. Most recently, Indigenous claimants in a pending Ninth Circuit case want the court to interpret the Religious Freedom Restoration Act of 1993 to entitle them to a remedy resembling a perpetual easement on certain federal land. This would prohibit development on the land to protect a sacred site.
At first glance, a law requiring the federal government to give the equivalent of an easement in public land to a singled-out religious party might seem like an appealing way to further important reparative justice or religious freedom goals. However, legal rules requiring such uncompensated property transfers on the basis of religion would also contravene bedrock principles of constitutional and property law and threaten crucial climate change mitigation efforts. This Article is the first to rigorously examine the broader consequences of embracing rules that would compel governments to effectively forfeit public land rights to advance vital reparative justice or religious liberty objectives. It then outlines an alternative approach to preserving Indigenous sacred sites that would respect federal land rights and give Native nations a much stronger voice in site protection decisions.
Jennifer Selin & Paul R. Verkuil, The Importance of Removal Restrictions in a Schedule F World, 13 The Regulatory Review in Depth 1 (2024)
Terms of service and protections from removal for political reasons are important tools to promote nonpartisan, expert administration informed by experience. Most discussions about restrictions on removal of government officials center on agency heads or quasi-adjudicative administrative officials, such as administrative law judges, where removal protections serve compelling due process functions by promoting objectivity in decision-making. But protections from political influence extend beyond adjudicative positions and far into the hierarchy of federal agencies. We explore the importance of these positions for insuring that federal administrative agencies carry out their delegated functions on the basis of expertise and experience.
Jennifer Selin & Jordan M. Butcher, How Free is Information? Transparency in State Government, NYU Journal of Legislation & Public Policy (forthcoming)
How transparent are state governments in the United States? This Article explores the functioning of important, but often underappreciated, actors in the American constitutional system-state administrative agencies-and examines variation in the existence and implementation of transparency regimes across and within all 50 states. This Article first highlights differences that exist among state freedom of information (FOI) laws, focusing on three components: who can submit requests; the requirements for and exemptions to public release; and the process for appeal of agency decisions not to disclose information. Because FOI laws require the public to request access to information and permit state agencies to refuse release of records, these laws constitute “passive” transparency and have little effect without a strong administrative apparatus to facilitate implementation. Simply, FOI laws rely on administrators to interpret statutory language in ways that provide access to government information. Because passive transparency regimes like state FOI laws require high-quality administration in order to be effective, this Article presents a novel exploratory field experiment of administrative performance across all 50 states. Specifically, the Article evaluates state implementation of FOI laws using an original empirical study of 248 state agencies’ fulfillment of the same FOI request. This study illustrates that agency-level factors such as administrative function, policy mission, and leadership influence information disclosure.
Jennifer Selin & Pamela J. Clouser McCann, Constraining the Executive Branch: Congressional Use of the Courts in the Administrative State, Northwestern Law Review (forthcoming)
While scholarship examining the relationship between Congress, federal agencies, and the judiciary reveals variation in the statutory details that affect administrative and judicial decision-making, few studies explore how Congress can utilize the judiciary as a check on the executive branch. Using a focal case study of federal energy policy from the 93rd to 110th Congresses, this Article highlights the interactions between political coalitions, agencies, and courts during the legislative process. Based on the findings of this case study, the Article develops a new theoretical account of legislative choices over executive branch exposure to the federal judiciary. This Article then presents an empirical examination of significant legislation from the passage of the Administrative Procedure Act through 2016 to assess the factors that influence legislative choices regarding agency exposure to the judiciary.
In doing so, this Article makes several important contributions. First, the Article enhances scholarly understanding of delegation by providing a theoretical and empirical account of the circumstances under which Congress manipulates federal agency exposure to the court system. Ironically, increasing an agency’s exposure to the unelected federal judiciary can increase the democratic accountability of the administrative state. In addition, the Article offers a more complete explanation of how variation in agency structure influences the content of statutory and administrative law. Broadening scholarly discussions of agency design, delegation, and administrative responsiveness to elected officials, the Article illustrates underappreciated factors – including political volatility, technical uncertainty, and administrative structure – influence the parameters under which Congress delegates. Along with agency independence, political coalitions strategically adjust judicial review to account for the practical realities of governance. Specifically, political coalitions increase administrative exposure to the courts as political volatility increases and the autonomy of agency leadership increases. Political coalitions decrease agency exposure to the courts as the complexity of the administrative policy arena increases and as the availability of political review decreases.
Considered in its entirety, this Article suggests that legislative decisions regarding judicial exposure can enhance or diminish the effectiveness of other statutory and constitutional tools of democratic accountability such as administrative procedures or oversight. Simply, the level of administrative exposure to the judiciary has profound implications for the American separation of powers system of governance.
Justin Weinstein-Tull, The Experience of Structure, 55 Arizona State Law Journal 1513 (2023)
How do we experience constitutional structure? We understand structure—federalism and the separation of powers—as the ordering of governmental bodies. Rarely, however, do we ask how those structures affect our daily lives. Courts treat this question abstractly. They assert that federalism and separation of powers create “liberty” for individuals without specifying what that liberty looks like and who enjoys it. They speculate about the values of federalism and the normative virtues of the separation of powers. This is structural reasoning that sounds in human experience, but it is empty, based on little more than conjecture. The consequence is a faulty jurisprudential logic that permits courts to diminish federal rights for specific individuals in favor of uncertain, speculative, and generalized structural benefits that only some enjoy.
In this Article, I make the case for centering a broad base of human experience in structural constitutional law and provide a methodology for doing so. I argue that we experience constitutional structure as a calibration of the role and degree of federal and state governments in our lives. Since we all experience government differently—in ways that often relate to race and wealth—so too do we experience constitutional structure differently. I call this variability experiential pluralism and argue that engaging with this pluralism is essential to the constitutional project of equality. Reasoning from experience, rather than abstract normative theory, requires us to broaden our structural logic so that human experience becomes its primary epistemic source. Doing so both provides the intellectual foundations for a progressive, inclusive structural constitutional law and generates new perspectives on otherwise stalled structural issues like state sovereignty and criminal justice.
