Presidents frequently attempt to use emergencies to push through controversial rules. We argue that the law surrounding “notice and comment” for proposed rules should be altered to reduce the risk that Presidents will exploit emergencies to entrench rules without adequate public input. Specifically, we argue that the comment periods for proposed rules should be extended during emergencies and that courts should admit extrarecord evidence in subsequent administrative litigation when agencies refuse to afford the public reasonable extensions in the comment periods.
Michael Barsa is a Professor of Practice, and David Dana is the Kirkland & Ellis Professor of Law at Northwestern Pritzker School of Law. We would like to thank Zachary Clopton and Nadav Shoked for helpful suggestions.
Copyright 2021 by Michael Barsa & David Dana
Cite as: Michael Barsa & David Dana, Regulating During Emergencies, 116 Nw. U. L. Rev. Online 223 (2021), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1317&context=nulr_online.
In Facebook, Inc. v. Duguid, a near-unanimous Supreme Court forcefully applied the so-called series-qualifier canon, which posits (among other things) how postpositive modifiers normally attach to certain antecedents. With this canon, the Court identified a presumptive natural reading of the statute at issue, and that presumption framed the rest of the Court’s analysis. Concurring only in the judgment, Justice Alito agreed with the Court’s interpretation but expressed concern over the majority’s heavy reliance on the canon. In Justice Alito’s view, the majority used the canon too much like a rule, despite intuitive reasons to doubt its force.
Justice Alito’s intuitions were exactly right. The so-called series-qualifier canon is an unjustified revision to a principle from a single case in the 1920s—a case that itself materially distorted the real series-qualifier principle that America borrowed from England. This Essay tells that story. Drawing on formal linguistics and interpretive history, I explain that a series-qualifier principle initially served a much smaller role than the contemporary series-qualifier canon, a supposed “rule” that does not necessarily describe ordinary English usage or processing. By relying on this contemporary misstatement and not on the true series-qualifier principle, the Court in Facebook committed a serious process error and potentially set up lower courts to approach interpretation in a way that will undermine textualism’s core commitments and goals.
Appellate Counsel, Federal Communications Commission. Thanks to the Northwestern University Law Review Online staff for excellent work on this Essay, which I dedicate to the memory of Dr. Patricia S. Burton, Ph.D. All views are my own and do not necessarily represent the views of the United States, my agency employer, or any individual FCC commissioner.
Copyright 2021 by Adam G. Crews
Cite as: Adam G. Crews, The So-Called Series-Qualifier Canon, 116 Nw. U. L. Rev. Online 198 (2021), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1316&context=nulr_online.
Many disabled students exercise their First Amendment right to choose to attend a private religious school only to learn that the school will not provide reasonable accommodations crucial to their academic success. Because private religious schools are exempt from Title III of the Americans with Disabilities Act and its reasonable accommodation mandate, disabled students that choose such schools may be forced to find a more welcoming learning environment elsewhere. As a result, disabled students are currently unable to enjoy their Free Exercise Clause right to choose to enroll in their ideal private religious schools to the same extent as their nonhandicapped peers.
This inequality can be reduced by an expansive application of the Vocational Rehabilitation Act of 1973, which is known as the Rehab Act and covers entities that receive federal financial assistance. The Rehab Act is a key statute for disabled students in private religious schools since there is no religious exemption from its requirement that reasonable accommodations be made for the disabled. However, the Rehab Act will achieve maximum potency only if private religious schools that hold tax-exempt status, or indirectly benefit from federal programs via a parent entity, are classified as recipients of federal financial assistance for Rehab Act purposes. Also, a Rehab Act regulation that allows private religious schools to charge disabled students for reasonable accommodations should be limited so cost-shifting is only possible if the school genuinely cannot afford the accommodations at issue. And this approach to the problems disabled students face at private religious schools would not infringe upon these schools’ First Amendment right to the free exercise of religion.
University of Virginia School of Law J.D. 2018; Rutgers University B.A. 2015. I also want to specially thank the Northwestern University Law Review Online staff, especially HanByul Chang, Allison Clark, Olga Cosme Toledo, Tyler Dallas, Julia McCartney, Emily Starbuck, Leah Beukelman, Negassi Tesfamichael, and Samuel Young for their invaluable contributions to this Essay and their exemplary editorial assistance.
Copyright 2021 by Campbell Sode
Cite as: Campbell Sode, Unlocking Accommodations for Disabled Students in Private Religious Schools, 116 Nw. U. L. Rev. Online 171 (2021), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1315&context=nulr_online.
Long controversial, the doctrine of qualified immunity provides a civil liability shield for police officers and other executive branch officials. Scholars have questioned the doctrine, in part on the basis that it lacks support in the common law rules of official liability that were in place in the nineteenth century when Section 1983 became law. In a recently published article, Scott Keller defends the doctrine’s legality by arguing that the common law did indeed recognize forms of qualified immunity.
This Essay suggests that the authorities on which Keller relies comprise a body of administrative law, defining zones of official discretion, rather than a body of qualified immunity law. Many of the doctrines Keller identifies operate much the way Chief Justice Marshall’s account of judicial review operated in Marbury v. Madison. Chief Justice Marshall acknowledged that matters lawfully assigned to the discretion of the executive branch were beyond the scope of judicial review. But where an official’s lawful discretion ended and legal boundaries were transgressed, the common law was available (indeed obliged, according to Chief Justice Marshall) to supply a remedy. In much of what Keller points to, common law courts were deferring to executive action taken within the zones of their lawful discretion. But the common law did not confer a qualified immunity when executive officials transgressed those boundaries and violated protected rights.
Owen L. Coon Professor of Law, Northwestern University Pritzker School of Law. Thanks to Will Baude, Henry Monaghan, Jide Nzelibe, Alex Reinert, and Joanna Schwartz for thoughtful and comprehensive comments, suggestions, and spreadsheets. Thanks to HanByul Chang and the editors of Northwestern Law Review Online for close reads and excellent editorial suggestions.
Copyright 2021 by James E. Pfander.
Cite as: James E. Pfander, Zones of Discretion at Common Law, 116 Nw. U. L. Rev. Online 148 (2021), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1314&context=nulr_online.
The racial wealth gap is stunning. The net worth of an average White family is nearly ten times greater than that of an African-American family. A 2017 Prosperity Now report finds that for African-Americans, today’s economy is an extractive one; if existing trends continue, the median African-American family will have a net worth of zero by the middle of the twenty-first century. This Essay examines these trends in terms of the relationship between race, property, and citizenship. American democracy has long celebrated economic independence as a desired element of citizenship, forging reciprocal bonds between state efforts to promote and protect property ownership and property owners’ greater investment in community and political stability. African-Americans have long been excluded from these benefits and, in the process, have never fully enjoyed the benefits of American citizenship that comes with political clout. The result creates increased vulnerability, not just to White supremacy, but to economic exploitation. The lack of political clout contributes to lax regulation and enforcement of lending laws, which allow racially motivated predators to act with impunity, undermining the rule of law and perpetuating racial subordination. In the modern era, this predation has made home ownership, higher education loans, and marriage—the traditional pathways into middle-class status—dramatically riskier for African-Americans than for Whites.
Eleanor Brown is a Professor of Law and International Affairs, Associate Dean for External Affairs and Corporate Partnerships, Senior Scientist in the Rock Ethics Institute, The Pennsylvania State University, Conference Co-Host and Fundraising Chair, 2019 Lutie Lytle Black Women Law Faculty Writing Conference. June Carbone is the Robina Chair in Law, Science and Technology, University of Minnesota Law School.
Copyright 2021 by Eleanor Brown & June Carbone
Cite as: Eleanor Brown & June Carbone, Race, Property, and Citizenship, 116 Nw. U. L. Rev. Online 120 (2021), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1313&context=nulr_online.
Courts rarely question the racial identity claims made by parties litigating employment discrimination disputes. But what if this kind of identity claim is itself at the core of a dispute? A recent cluster of “reverse passing” scandals featured individuals—Rachel Dolezal and Jessica Krug among them—who were born white, yet who were revealed to have lived as members of Black, Indigenous, or Person of Color (BIPOC) communities. These incidents suggest that courts will soon have to make determinations of racial identity as a threshold matter in disputes over employment discrimination and contract termination. More specifically, courts will have to decide whether racial identity can change.
This Essay offers a framework for thinking about the legal disputes that will arise from accusations of reverse passing. It makes a normative sociological statement about how we should understand changes in racial identity, as well as a positive doctrinal statement about what that means for law. Social science and theory have long questioned the claim that race is a stable identity marker such that there can be a fixed, objective, and observable truth. Law, conversely, has generally rejected the possibility of racial transformation even as it grapples with the mutability of other seemingly immutable traits.
I show that, particularly in light of the Supreme Court’s 2020 decision in Bostock v. Clayton County, social science and law are not as far apart as we may think. The doctrinal foundations needed to account for racial identity transformation already exist, and the analytic means of doing so are largely there as well. What is left for courts to do is to cultivate attentiveness to race in a way that realizes these legal principles and social science insights. The Essay concludes with suggestions for how courts can cultivate a greater attentiveness to the ways in which race is performed and experienced: a kind of analysis that courts already conduct but could conduct better.
Assistant Professor, University of Alabama School of Law. J.D., PhD, The University of Chicago. My thanks to Anya Bernstein, Richard Delgado, Dave Hoffman, Ron Krotoszynski, Daiquiri Steele, Jean Stefancic, Riaz Tejani, and Ari Tolman, as well as to Alana K. Cammack, J.D. ’21, for superb research assistance.
Copyright 2021 by Deepa Das Acevedo
Cite as: Deepa Das Acevedo, (Im)mutable Race?, 116 Nw. U. L. Rev. Online 88 (2021), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1312&context=nulr_online.
Expungement law has made great strides over the past two decades, with state-level reforms broadening the types of criminal records eligible for expungement. Further, expungement has been extended beyond arrestees to those who have been convicted, thereby promising to alleviate some of the burdens of reentry. Nevertheless, expungement remedies only touch officially held information or public data possessed by different branches of government. This means that private actors, if they possess the information, are beyond the reach of expungement law. Such actors, whether individuals, background check companies, newspapers, or other firms, enjoy the ability to continue to hold and use such information. This results in a whack-a-mole problem for the successful expungement petitioner who has achieved the relief that the state allows, only to see its efficacy thwarted by private activity with the same information. Recently, one private actor, newspapers, has begun to set up processes that resemble formal expungement. Newspaper editors have responded to the limits of formal expungement by constructing their own procedures for evaluating whether to erase, seal, or alter information that is damaging to the reputation of those who have encountered the criminal justice system. This development has occurred on the heels of the right to be forgotten movement in Europe, which has gained little traction in the United States. This Essay contextualizes the phenomenon of newspaper expungement, situating it within a larger legal backdrop, before describing the stated activities and aspirations of some of the newspapers themselves. It concludes by charting how such practices relate to broader critiques and goals of criminal justice reform.
Associate Professor of Law, Seton Hall University School of Law. I would like to thank the Honorable Stephanos Bibas for encouraging me to study expungement from various angles, my former colleagues at Community Legal Services of Philadelphia for introducing me to expungement law, and participants at CrimFest 2020 for providing feedback on the ideas that generated this article. Thank you to Hayley Mclaughlin, my former student, for research assistance. I would also like to thank my wife, Katherine, for her continuous support, and my children, Elizabeth, Eleanor, George, John, and Lucy, for their inspiring curiosity, endless questions, sense of wonder, and zealous love for life.
Copyright 2021 by Brian M. Murray
Cite as: Brian M. Murray, Newspaper Expungement, 116 Nw. U. L. Rev. Online 68 (2021), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1311&context=nulr_online.
COVID-19’s economic impact has been catastrophic for state and local governments. By Federal Reserve estimates, income and sales revenues will have declined by over $50 billion in fiscal year 2020 and may decline by as much as $137 billion in 2021. Pandemics are, of course, not the only catastrophic risks we may face in coming years. Financial crises, natural disasters, social justice crises, and climate change-related catastrophes all present serious risks, and often have a compounding effect on one another. These risks are especially salient for state and local governments, which are at the forefront of crisis response. A government’s legitimacy is tested and measured by its ability to respond to these challenges, but existing state and local financial frameworks have proven too thin and brittle to absorb shocks like COVID-19 or the Financial Crisis of 2007. This Essay describes how a national resilience fund, with subaccounts created for each state and territory, would strengthen the ability of state and local governments to respond to crises that will likely arise in the coming years. A national resilience fund could be based on a familiar, flexible structure that has been used for decades: the Unemployment Trust Fund. Such a structure would help insulate the resilience fund from local political pressures yet would have the financial strength to help state and local governments absorb the costs associated with severe crises such as pandemics and natural disasters, thereby helping to preserve the government’s legitimacy in times of severe social stress.
Robert J. Watkins/Procter & Gamble Professor of Law, Ohio State University Moritz College of Law. Thanks to Sam Mallory for excellent research assistance and to Cinnamon Carlarne and Diego Lopez for helpful comments on an earlier draft. Thanks also to the Northwestern University Law Review Online staff for their outstanding editorial work.
Copyright 2021 by Paul Rose
Cite as: Paul Rose, Toward a National Resilience Fund, 116 Nw. U. L. Rev. Online 41 (2021), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1310&context=nulr_online.
Congress recently instructed the National Oceanic and Atmospheric Administration (NOAA) to investigate stratospheric aerosols, materials that could be injected in the atmosphere as a means of solar climate intervention. This action has been widely interpreted as the first-ever federal research project into solar geoengineering—proposals to slightly “dim the sun” to limit the harms of climate change. This Essay argues that NOAA should use its discretion to conduct a programmatic environmental assessment under the National Environmental Policy Act (NEPA) as an initial step in governing this research program. Federal research into solar geoengineering is an extraordinary and highly controversial policy. The agency should carefully consider the environmental, social, and political impacts that may come with this undertaking. Further, the public deserves an opportunity to weigh in on the matter and to be apprised of its potential benefits and risks. NEPA provides a rigorous framework for doing just that.
Emmett Climate Engineering Fellow in Environmental Law and Policy, Emmett Institute, UCLA School of Law 2019–2021. My thanks to Holly Buck, Leilani Doktor, Sean Hecht, Ted Parson, Jesse Reynolds, Shuchi Talati, and Daniele Visioni for their comments and assistance. This Essay builds on an analysis published in a blog post on Legal Planet in February 2020.
Copyright 2021 by Charles R. Corbett
Cite as: Charles R. Corbett, “Extraordinary” and “Highly Controversial”: Federal Research of Solar Geoengineering Under NEPA, 115 Nw. U. L. Rev. Online 240 (2021), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1307&context=nulr_online.
The Supreme Court’s Bostock v. Clayton County opinion, affirming that Title VII’s sex discrimination protections extend to “gay and transgender” employees, is an opinion emphatically grounded in a textualism-based analysis. It is also an opinion that does not once mention bisexuals in its text.
The bisexual erasure in the opinion is not unusual; in the nearly quarter century leading up to Bostock, the Supreme Court has repeatedly failed to explicitly acknowledge the existence or equal rights of bisexuals. While bi erasure in Supreme Court cases is not new, in the case of Bostock, the problematic nature of omitting bisexuals from the text of the opinion takes on an additional and ironic dimension: Those seeking to apply Bostock’s holding to bisexuals must contend with a unique tension between the majority opinion’s textualism emphasis and the need to read beyond the literal text of the holding’s limited “gay and transgender” language to ensure that it applies to bisexuals as well.
Along with calling for greater bi inclusivity, this Essay offers an interpretive guide to ensuring Bostock’s precedent, textualist emphasis notwithstanding, is extended to bisexuals. While resolving such tensions, the Essay also describes how systemic bi erasure in LGBTQ rights cases beyond Bostock remains a significant problem. In doing so, it explains the reciprocal benefits of being bi-inclusive, including the role bisexuals can play in illustrating that sexual orientation discrimination is a form of sex discrimination.
Attorney in Southern California and cofounder of BiLaw, the first national organization of bisexual lawyers, law professors, and law students. I am grateful to Ezra Young for his invaluable feedback and for his own leadership and advocacy for positive and meaningful “BT” inclusion in LGBT rights advocacy.
Copyright 2020 by Nancy C. Marcus
Cite as: Nancy C. Marcus, Bostock v. Clayton County and the Problem of Bisexual Erasure, 115 Nw. U. L. Rev. Online 223 (2020), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1297&context=nulr_online&preview_mode=1&z=1604287569.
In response to Twitter’s decision to label one of the President’s tweets misleading, the Trump White House issued an executive order to limit the scope of Section 230 of the Communications Decency Act via agency rulemaking. In the Order, Trump calls for the Federal Communications Commission (FCC) to “interpret” Section 230 in a manner that curtails websites’ ability to remove and restrict user speech. This Essay analyzes the Order and concludes that the President’s effort to limit Section 230 will fail. First, the FCC does not have rulemaking authority to issue the proposed rules. Second, the proposed rules cannot be issued because they are inconsistent with the statute. Finally, this Essay will discuss the policy implications of the proposed rules and argue that they would lead to less speech and engagement on the Internet, not more of it.
General Counsel of Vimeo, Inc. and adjunct faculty at the University of Miami School of Law. A big thank you to my colleague Erika Barros Sierra Cordera at Vimeo for help in researching and editing, Professor Caroline Mala Corbin at the University of Miami School of Law for her excellent feedback, and the Northwestern University Law Review for their diligent and timely work in shepherding this Essay to publication.
Copyright 2020 by Michael A. Cheah
Cite as: Michael A. Cheah, Section 230 and the Twitter Presidency, 115 Nw. U. L. Rev. Online 192 (2020), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1296&context=nulr_online&preview_mode=1&z=1604096045.
In August 2019, then-Chairwoman of the U.S. Election Assistance Commission publicly argued that automatic voter registration (AVR) is a form of compelled political speech that violates the First Amendment. This Essay undergoes the worthwhile, and as of yet unperformed, task of evaluating a hypothetical First Amendment challenge to AVR. In considering the merits of such a challenge, this Essay examines how the Roberts Court’s recent First Amendment jurisprudence might complicate this analysis by undermining the traditional frameworks used to evaluate incidental First Amendment harms caused by otherwise permissible election regulations.
J.D., Yale Law School ’20. I am grateful to Francesca Procaccini, Robert Post, and Floyd Abrams for their generous feedback. Special thanks to Samantha Greenky and the editors of the Northwestern University Law Review for their diligent work.
Copyright 2020 by Jacob van Leer
Cite as: Jacob van Leer, The Roberts Court, Compelled Speech, and a Constitutional Defense of Automatic Voter Registration, 115 Nw. U. L. Rev. Online 169 (2020), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1295&context=nulr_online&preview_mode=1&z=1603143580.
On February 24, 2020, just as the Trump Administration began taking significant action to prepare for an outbreak of COVID-19 in the United States, it also began implementing its new public charge rule. Public charge is an immigration law that restricts the admission of certain noncitizens based on the likelihood that they will become dependent on the government for support. A major effect of the new rule is to chill noncitizens from enrolling in public benefits, including Medicaid, out of fear of negative immigration consequences. These chilling effects have persisted during the pandemic. When noncitizens are afraid to (1) seek treatment or testing for COVID-19 or (2) access public benefits in order to comply with stay-at- home guidance, it impedes efforts to slow the spread of COVID-19, contributing to the strain on the health care system.
This Essay describes how the pandemic has exposed the folly of the public charge rule: Discouraging noncitizens from accessing public benefits to support their health and well- being is, and always has been, unwise from a public health perspective. The pandemic merely magnifies the negative consequences of this policy.
This Essay contributes to scholarly conversations about how immigration law and policy have framed the United States’ response to the COVID-19 pandemic. Specifically, it provides an in-depth analysis of the negative public health consequences of the new public charge rule during the pandemic.
Medha D. Makhlouf is an Assistant Professor and Director of the Medical-Legal Partnership Clinic at Penn State Dickinson Law, and an Assistant Professor in the Department of Public Health Sciences at Penn State College of Medicine. Jasmine Sandhu received her J.D. from Penn State Dickinson Law, where she worked as a Student Attorney at the Medical-Legal Partnership Clinic. She has a B.S. in Community and Regional Development from University of California, Davis. The authors are grateful to Christian Sweger for his excellent research assistance and to the staff of the Northwestern University Law Review for their incisive editing.
Copyright 2020 by Medha D. Makhlouf & Jasmine Sandhu
Cite as: Medha D. Makhlouf & Jasmine Sandhu, Immigrants and Interdependence: How the COVID-19 Pandemic Exposes the Folly of the New Public Charge Rule, 115 Nw. U. L. Rev. Online 146 (2020), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1294&context=nulr_online&preview_mode=1&z=1602732122.
Competition is the key to low prices in the pharmaceutical industry. For decades, Americans have benefitted from affordable generic versions of brand-name drugs. But now, we stand poised on the wave of a revolution. Biologics, which include lifesaving, cancer-treating drugs, can cost hundreds of thousands of dollars per year and are forecast to be the “fastest growing segment of drug spending” in coming years.
The hope, then, is that just like generic drugs, competition from follow-on products known as biosimilars will lower prices. But the fear is that they will not. Why? One main reason is disparagement.
Biosimilars are nearly the same as biologics. In fact, they are required to be “highly similar” to, and have “no clinically meaningful differences” from, biologics. Despite this, biologic manufacturers have raised ominous warnings that biosimilars are not the same as biologics but have differences that pose grave safety consequences. Doctors are getting the message loud and clear and are refusing to prescribe appropriate—and more affordable—biosimilars. It thus comes as no surprise that government agencies have serious concerns about the behavior of biologic companies.
This Essay addresses biologic manufacturers’ disparagement of biosimilars. It sketches the background of the industry and introduces the unique regulatory setting. It then sets forth the caselaw and explains how disparagement can violate antitrust law.
Distinguished Professor, Rutgers Law School. I would like to thank Tom Cotter, Shubha Ghosh, Elizabeth Jex, Carl Minniti, and Rebecca Tushnet for their helpful comments.
Copyright 2020 by Michael A. Carrier
Cite as: Michael A. Carrier, Don’t Die! How Biosimilar Disparagement Violates Antitrust Law, 115 Nw. U. L. Rev. Online 119 (2020), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1293&context=nulr_online&preview_mode=1&z=1602032071.
A gratifying feature of recent scholarship on administrative power is the resurgence of interest in the Founding. Even the defenders of administrative power hark back to the Constitution’s early history—most frequently to justify delegations of legislative power. But the past offers cold comfort for such delegation.
A case in point is Delegation at the Founding by Professors Julian Davis Mortenson and Nicholas Bagley. Not content to defend the Supreme Court’s current nondelegation doctrine, the article employs history to challenge the doctrine—arguing that the Constitution does not limit Congress’s delegation of legislative power. But the article’s most central historical claims are mistaken. For example, when quoting key eighteenth- century authors, the article makes errors of omission and commission— leaving out passages that contradict its position and misunderstanding the passages it recites. The initial goal of this Essay is therefore to explain the evidentiary mistakes in the attack on nondelegation.
This Essay’s broader aim, however, is conceptual: it points out two basic principles that have thus far received insufficient attention from both the defenders and opponents of administrative power.
First, the delegation problem can be understood more specifically as a question of vesting. To be sure, the nondelegation doctrine should be put aside—not on the grounds offered by Professors Mortenson and Bagley, but because the Constitution speaks instead in stronger terms about vesting. Thus, what are generically depicted as questions of delegation can be understood more specifically in terms of vesting and divesting. It thereby becomes apparent that Congress cannot vest in others, or divest itself of, any power that the Constitution vests in it.
Second, it is necessary to draw attention to a much-neglected idea of executive power. Recent scholarship has debated widely different conceptions of executive power—Mortenson’s view, now echoed by Bagley, being that executive power is an “empty vessel.” But all such scholarship tends to ignore another conception of executive power: that it involves the nation’s action, strength, or force. This understanding of executive power has foundations in eighteenth-century thought—as revealed even by the authors quoted by Mortenson and Bagley. Indeed, it is the conception asserted by Federalist Number 78 and evident in the Constitution itself.
A narrow historical inquiry thus points to broad conceptual lessons. Both delegation and executive power need to be reconsidered on the basis of the Constitution and its history.
Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School, and President of the New Civil Liberties Alliance.
Copyright 2020 by Philip Hamburger
Cite as: Philip Hamburger, Delegating or Divesting?, 115 Nw. U. L. Rev. Online 88 (2020), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1292&context=nulr_online&preview_mode=1&z=1601481946.
COVID-19 has shone a light on the preexisting flaws in the criminal justice system. This Essay focuses on one of the challenges the criminal justice system faces in light of COVID-19: that of a pretrial detention system that falls more harshly on poor and minority defendants, swells local jail populations, is fraught with bias, produces unnecessarily high rates of detention, and carries a myriad of downstream consequences, both for the accused and the community at large. Long before the first confirmed case, United States’ jails were particularly susceptible to contagions. The COVID-19 crisis exacerbates this problem creating an acute threat to the health of those in custody and those who staff our jails. The pandemic reveals that even during “ordinary times” the pretrial detention system fundamentally miscalculates public safety interests to the detriment of both detainees and the communities they leave behind. Simply put, current pretrial detention models fail to account for the risks defendants face while incarcerated and pit defendants’ interests against the very communities that depend on them.
Wiggins, Childs, Quinn & Pantazis Professor of Law, University of Alabama School of Law. Thank you to Adam Steinman, Ronald Krotoszkynski, Brandon Garrett, Lauryn Gouldin, Megan Stevenson, Jessica Eaglin, Sandy Mayson, Lee Kovarsky, Justin Murray, Benjamin Levin, Anna Roberts, Valena Beety, Thomas Frampton, Aaron Littman, Alice Ristroph, Andrew Ferguson, and Jocelyn Simonson. Thanks also to all those who participated in the inaugural Duke Law Center for Science and Justice Criminal Works in Progress meeting and the Arizona State University Sandra Day O’Connor College of Law Criminal Justice Center Workshop. Finally, this piece would not have been possible without the hard work and faith of Samantha Greenky and the diligent editing of the Northwestern University Law Review Online.
Copyright 2020 by Jenny E. Carroll
Cite as: Jenny E. Carroll, Pretrial Detention in the Time of COVID-19, 115 Nw. U. L. Rev. Online 59 (2020), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1291&context=nulr_online&preview_mode=1&z=1596157754.
As the United States grapples with how best to manage a global pandemic, bankruptcy courts are bracing for the inevitable fallout from COVID-19. As we saw in the wake of the 2008 financial crisis, hard-hit businesses will need to reorganize to adjust to new conditions, while out-of-work consumers will need debt relief options. But there will be a new twist for this impending wave of bankruptcies: how should bankruptcy courts deal with crypto assets like Bitcoin? This Essay argues that the rise of cryptocurrency investments over the last decade poses serious complications for the next round of consumer and business bankruptcies. Although legislative solutions may be necessary to adequately address these complications, at the very least, greater awareness of these issues will help ensure that courts and stakeholders are better prepared to address this looming crisis.
Lecturer and Honorary Fellow in the Institute for Legal Studies, University of Wisconsin School of Law. Early versions of this paper were presented at the 2019 National Business Law Scholars Conference at University of California, Berkeley School of Law and the Second International Comparative Insolvency Symposium at the University of Miami School of Law. I am grateful to my fellow panelists and attendees for their questions, comments, and suggestions.
Copyright 2020 by Megan McDermott
Cite as: Megan McDermott, The Crypto Quandary: Is Bankruptcy Ready?, 115 Nw. U.L. Rev. Online 24 (2020), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1288&context=nulr_online&preview_mode=1&z=1593875445.
Students for Fair Admissions (SFFA) v. Harvard—a case alleging racial discrimination against Asian applicants in undergraduate admissions on appeal to the First Circuit—is one of the most notable recent equal protection challenges to be advanced almost exclusively on the basis of statistical evidence. The case could well end affirmative action in higher education and beyond if it winds up at the Supreme Court. However, the central issue in this case is not an evidentiary question about what is probative of discrimination; it is a substantive question about what constitutes discrimination. The plaintiffs SFFA put forward a substantive definition of racial nondiscrimination—group-based conditional parity—under which equal protection is denied if applicants grouped by race do not face similar likelihood of admission conditional on having similar credentials. Neither Harvard, in defending their affirmative action practices, nor the trial judge, in ostensibly favoring Harvard’s expert findings, meaningfully countered SFFA’s definition of discrimination. This Essay argues that there is no good normative reason to accept this definition of what equal protection demands in the context of higher education admissions because it will be violated whenever groups sit in some relation of social and material inequality to each other. Furthermore, it is at odds with the Supreme Court’s line of cases allowing universities to value racial diversity and the graded scrutiny scale in the equal protection doctrine. Before to debating the content of a substantive principle of nondiscrimination/equal protection with respect to a particular form of groupness, we must first define what constitutes that form of social groupness. A relation of equality and fairness proposed by a principle of ‘nondiscrimination’ or ‘equal protection’ is only valid in light of what makes the social grouping what it is under current conditions.
Professor of Law & Sociology, Yale University. I am very grateful to Lily Hu, Moritz Hardt, Robert Post, Gideon Yaffe, Elise C. Boddie, Sharad Goel, and Josh Cohen for generous and helpful feedback, and to the editorial board of the Northwestern University Law Review for their dedicated work on the piece. A special thanks to Arjun Mody for excellent and patient RA work over the past year. And to Katie, for endless patience over countless dinners with DAGs on napkins and doctrinal debates . . . thank you and love you.
Copyright 2020 by Issa Kohler-Hausmann
Cite as: Issa Kohler-Hausmann, What’s the Point of Parity? Harvard, Groupness, and the Equal Protection Clause, 115 Nw. U.L. Rev. Online 1 (2020), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1287&context=nulr_online&preview_mode=1&z=1588965302.
The big surprise on the U.S. Supreme Court during the October 2018 term was how often the Court’s newest members disagreed with each other. In cases with at least one dissent, Justice Neil Gorsuch and Justice Brett Kavanaugh were on opposite sides 49% of the time. Frequently, one or the other joined with the Court’s four Democratic appointees, resulting in liberal victories in cases involving federal business regulation and federal criminal law.
There is a pattern to the disagreements between the new appointees— the two Justices have profoundly different attitudes toward the federal government. Justice Kavanaugh has a positive view of the federal government. As a result, he tends to resolve ambiguities in favor of the government and the exercise of federal power. Justice Gorsuch, on the other hand, has a skeptical attitude toward federal power. He resolves doubts against the government and the exercise of federal power. As a practical matter, this means that Justice Kavanaugh is a potential liberal ally in federal regulatory cases and Justice Gorsuch is a likely ally in federal criminal cases.
Adjunct Professor of Agency Law, Chicago-Kent College of Law.
Copyright 2020 by Daniel Harris
Cite as: Daniel Harris, The New Swing Votes on the U.S. Supreme Court, 114 Nw. U.L. Rev. Online 258 (2020), https://scholarlycommons.law.northwestern.edu/cgi/editor.cgi?window=abstract&article=1286&context=nulr_online.
The revival of the nondelegation doctrine, foreshadowed last term in Gundy v. United States, signals the end of a distinctive style of legal and political thought. The doctrine’s apparent demise after the 1930s facilitated the development of a methodological approach that embodied what Lon Fuller once called “the spirit of the Federalist Papers”: an open-ended engagement with the problem of designing democracy and controlling public power. At its best, this discourse was critical and propulsive, with each purported solution generating more questions than it answered. The turn against congressional delegations will likely bring to a close this period of open and self-critical experimentation. In its place, we are likely to see the emergence of warring visions of the administrative state, each claiming legitimacy—neither credibly—according to its own comprehensive normative doctrine.
Acting Assistant Professor of Lawyering, New York University School of Law. Many thanks to Edith Beerdsen, Dominic Budetti, Harlan Cohen, Michael Pollack, David Simson, Richard B. Stewart, Thomas Streinz, and David Zaring for helpful comments and discussions, and thanks to Danielle Berkowsky and the staff of the Northwestern University Law Review for careful and conscientious editing.
Copyright 2020 by J. Benton Heath.
Cite as: J. Benton Heath, From the Spirit of the Federalist Papers to the End of Legitimacy: Reflections on Gundy v. United States, 114 Nw. U. L. Rev. Online 250, https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1285&context=nulr_online&preview_mode=1&z=1582655976.