Scholarly Works

Resolving the ALJ Quandary

Kent H. Barnett — Wed, 01 May 2013 13:08:02 PDT

Three competing constitutional and practical concerns surround federal administrative law judges (“ALJs”), who preside over all formal adjudications within the executive branch. First, if ALJs are “inferior Officers” (not mere employees), as five current Supreme Court Justices have suggested, the current method of selecting many ALJs likely violates the Appointments Clause. Second, a recent U.S. Supreme Court decision reserved the question whether the statutory protections that prevent ALJs from being fired at will impermissibly impinge upon the President’s supervisory power under Article II. Third, these same protections from removal may, on the other hand, be too limited to satisfy impartiality concerns imposed under the Due Process Clause. Proposed reforms to the structure of administrative adjudication have failed to identify and address the three competing concerns. For instance, granting ALJs more job protection may improve their independence but further impede the President’s removal power. No literature has sought to resolve the quandary that these concerns present.

An elegant solution, however, has hidden itself in plain sight within the Appointments Clause: permit the D.C. Circuit to appoint and discipline ALJs upon the request of agencies and interested parties. An interbranch appointment (i.e., one branch’s appointment of officers for another branch) resolves the three concerns identified here without offending the separation of powers. In particular, this mode of appointment would provide ALJs additional independence without offending the President’s removal power or undermining the D.C. Circuit’s judicial function. In proposing this solution, I offer a clarified analytical framework for Congress’s largely unexplored interbranch-appointment power, an underutilized tool for resolving difficult separation-of-powers problems.

Verify, Then Trust: How to Legalize Off-Label Drug Marketing

Fazal Khan — Mon, 29 Apr 2013 12:20:11 PDT

This article will discuss the current state of off-label medicine, relevant legislation in the area, and a proposal designed to capture the benefits of off-label medicine while limiting its dangers when practiced perniciously. Part II will discuss the regulations in place governing off-label promotion and will detail the practice of ghostwriting and its associated concerns. Part III will analyze the costs and benefits of off-label marketing and practice of medicine, and will utilize a case study to demonstrate the predicament of drug manufacturers. Part IV will set forth a proposal to use the newly created Patient-Centered Outcomes Research Institute to generate unbiased research on off-label uses, which, in turn, would create a safe harbor for drug companies to widely disseminate studies generated through this process to the medical community. Finally, Part V will present concluding thoughts on the overarching policy considerations driving the need for legislative reform.

How Congress Could Defend DOMA in Court (and Why the BLAG Cannot)

Matthew I. Hall — Mon, 29 Apr 2013 12:11:40 PDT

In one of the most closely watched litigation matters in recent years, the Supreme Court will soon consider Edith Windsor's challenge to the Defense of Marriage Act (DOMA). The Court surprised many observers by granting certiorari, not only on the merits of Windsor's equal protection and due process claims, but also on the question whether the defendants — the United States and the Bipartisan Legal Advisory Group of the House of Representatives (the BLAG) — have Article III standing to defend DOMA. The United States has agreed with plaintiffs that DOMA is unconstitutional, prompting the BLAG to intervene for the purpose of defending DOMA’s constitutionality. No lower court has yet addressed whether the BLAG has standing, so the Supreme Court will have the first crack at the issue. But it turns out that the answer is straight-forward: Under settled precedent, the BLAG lacks authority to represent either the United States or Congress, and having claimed no interest of its own, it therefore lacks Article III standing. If the Court so holds — as it should — its decision will have repercussions for Edith Windsor and dozens of other litigants with DOMA cases pending in lower federal courts. And the Court’s handling of the standing question may also have enduring significance for the law of legislative standing and constitutional separation of powers.

How the Poor Got Cut Out of Banking

Mehrsa Baradaran — Mon, 29 Apr 2013 11:58:44 PDT

The United States currently has two banking systems — one for the rich, one for the poor. It wasn’t always this way. Throughout U.S. history, the government has enlisted certain banking institutions to serve the needs of the poor and offer low cost credit to enable low-income Americans to escape poverty. Credit unions, savings and loans and Morris Banks are three prominent examples of government-supported institutions with a specific focus of helping the poor. Unfortunately, these institutions are no longer fulfilling their missions and high-cost, usurious, and sometimes predatory check-cashers and payday lenders have quickly filled the void. These fringe banks do not provide the poor with useful credit and further bury them in debt.

This article tracks the neglected history of government sponsored institutions designed to offer credit to the poor and explains how each abandoned its initial purpose. In doing so, the article highlights the shifts in modern banking that rapidly increased competition among banks and caused homogenization in form. Alternative banking institutions could not survive deregulation and were forced to assimilate and operate like mainstream banks with heightened profits as their sole objective. The poor were the victims.

This article proposes to re-establish government-sponsored banks to serve the poor. Options include redesigning existing government measures as well as a novel proposal to use the existing postal service branches to offer low-cost, short-term credit to the poor. Such proposals have strong historic roots and could allow millions of low-income Americans the opportunity to escape poverty.

International Law’s Erie Moment

Harlan G. Cohen — Mon, 29 Apr 2013 11:39:15 PDT

Who fills international law’s gaps? Whether over the meaning of bilateral investment treaties, the standards regarding detainee transfer, or the rules of non-international armed conflict, courts and states are increasingly in conflict over the authority to say what the law is. With international law’s increased judicialization, two competing visions of international law have emerged: One, a gap-filled international law, in which law is developed slowly through custom, argument, and negotiation, and a second, gap-less, in which disputes are resolved through a form of common law adjudication.

Drawing on growing literature on the law outside of courts, particularly out-of-court settlements, the social norms of specialized business communities, and constitutional separation-of-powers, along with traditional customary international law, this paper demonstrates that the conflict between these two visions is much deeper than previously assumed. What emerges from these literatures are two radically different models of lawmaking, “negotiated law” and “adjudicated law,” that look different, act differently, rely on different sources of authority and legitimacy, and are to some extent in conflict with one another. Contrary to conventional wisdom, gap-filling by states and gap-filling by courts are not interchangeable.

The unrecognized differences between these two competing models of modern international law lie at the heart of longstanding doctrinal tensions over the nature/sources of customary international law and provide unseen inspiration for the brewing conflicts between courts and states for interpretative supremacy. International law has essentially reached its Erie moment. Only by recognizing the true nature of the conflict, only by recognizing the very different sources of judicial and state authority, only by forcing courts and states to justify their claims to interpretive authority, can we begin to resolve the tensions between these two models and discern the proper roles of courts and states on a modern international law.

Error Costs & IP Law

Joseph S. Miller — Wed, 03 Apr 2013 06:53:45 PDT

A court in doubt about an ip statute’s scope can err in two ways. It can wrongly narrow the ip right’s reach, or wrongly broaden it. The latter error, however, is worse: A wrongly broadened ip statute effectively creates new property. To correct erroneous broadening, unlike erroneous narrowing, the legislature must thus eliminate a now-established property right. And that is very hard to do. Courts cannot, of course, avoid making at least some mistakes. Courts can, however, prefer the mistakes that are easier, not harder, for the legislature to correct. This essay explores this error-cost-based approach to ip statutes, as well as the more productive judicial-legislative dialogue that the approach promotes. The time is ripe for more effective interbranch dialogue on ip law, for the America Invents Act of 2011—comprising some of the most significant changes to patent law since the 1952 Patent Act—comes fully into force in March 2013.

Environmental Law, Eleventh Circuit Review

Travis M. Trimble — Mon, 01 Apr 2013 12:23:12 PDT

In 2011, the United States Court of Appeals for the Eleventh Circuit held that the intervenors lacked standing to challenge on appeal a consent decree entered into by the main parties and approved by the

district court in a Clean Water Act case. The United States District Court for the Northern District of Alabama, in a Clean Air Act case, excluded on Daubert grounds testimony of the government’s experts

purporting to establish that repair and replacement projects at several power plants in Alabama had in fact been major modifications to the plants that resulted in increased air pollutant emissions, which would

have required the plants’ operators to obtain pre-construction permits prior to undertaking the projects. Finally, the United States District Court for the Southern District of Alabama, in one of what will surely be many lawsuits arising out of the Deepwater Horizon oil rig explosion and spill, dismissed as moot parts of an environmental group’s complaint challenging a federal agency’s continued sale of leases for deepwater oil and gas drilling in the Gulf based on inadequate environmental safeguards, but let stand a portion of the case related to ongoing sales and approval of leases following the Deepwater Horizon disaster in reliance on an Environmental Impact Statement prepared in 2007.

Prosecutorial Discretion and the Neglect of Juvenile Shielding Statutes

Andrea L. Dennis — Mon, 01 Apr 2013 10:06:40 PDT

When legislatures enact statutes, furtherance of legislative intent depends on the behavior of actors in the executive and judicial branches of government. In the criminal justice system, prosecutors may frustrate legislative intent when they exercise prosecutorial discretion. This Article examines an instance in which prosecutors’ choices work to the detriment of children.

This Article reviews the failure of juvenile shielding statutes to take hold in the prosecution of cases involving child witnesses because of prosecutors’ discretionary decisions not to use these statutes. The Article investigates prosecutors’ pragmatic and doctrinal justifications for not utilizing juvenile shielding statutes and concludes that the proffered reasons are legitimate. Building on these insights, the Article concludes by offering legislative reform designed to revitalize juvenile shielding statutes.

Governing Securities Class Actions

Elizabeth Chamblee Burch — Mon, 01 Apr 2013 09:56:05 PDT

This short essay, written for a symposium on The Principles and Politics of Aggregate Litigation: CAFA, PSLRA, and Beyond, decouples due process from a proceduralist’s intuition and explains why it matters in securities class actions. It begins by exploring several analytical models that shed light on the representative relationship in class actions, including a public law analogy to the administrative state, a private law analogy to corporate law, and another, more modern public law analogy to political governance. After finding that the political-governance model best addresses both sources of inadequate representation in securities class actions — rifts between class members and class counsel, and between class members and their lead plaintiff — this Essay argues that incorporating qualified class members into securities class action governance will improve due process and legitimacy in securities litigation just as it does in the political sphere.

Toward a Functional Approach to Sovereign Equality

Peter B. Rutledge — Thu, 21 Mar 2013 08:10:10 PDT

Under the principle of sovereign equality of nations, nation states are entitled to equal dignity (evidenced by conventions like their voting rights in the United Nations), have the identical capacity to contract (evidenced by their ability to enter into treaties), and are not subject to a superior sovereign (evidenced by the lack of a global leviathan). This principle also has had an important effect in the field of international civil litigation, in areas such as judicial jurisdiction or sovereign immunity. As that principle has weakened over the twentieth century, risks of aggravation to comity have risen, resulting in the development of other doctrines to re-enforce comity values. Yet ironically, to the extent these comity reenforcing doctrines invite (or require) courts of one state to sit in judgment of another state’s court or legal system they have the potential to undermine the very values they seek to promote. This Article offers a fresh approach to harnessing the advantages of those doctrines while avoiding the pitfalls they can entail for comity and the sovereign equality principle.

Social Proposals Under Rule 14a-8: A Fall-Back Remedy in an Era of Congressional Inaction

Margaret V. Sachs — Thu, 24 Jan 2013 08:57:38 PST

More than a decade ago, institutional investors, notably labor unions and pension plans, began using shareholder proposals as a vehicle for advancing progressive social causes. These proposals have recently garnered heightened levels of shareholder support. While even majority support for a proposal does not insure its adoption by the board of directors, appreciable (even if not majority) support can nonetheless sometimes precipitate adoption, or at least negotiation (which can lead to adoption). This Essay argues, first, that with Congress now largely dysfunctional, social proposals have acquired a whole new role—that of a company-by-company, fall-back mechanism for solving social problems that Congress has failed to address. Second, a new dynamic may be just over the horizon. Once the legal community becomes fully cognizant of the successes of social proposals, it is probably only a matter of time before wealthy conservative activists identify the proposals as a mechanism that they may be able to co-opt. When that happens, boardrooms will, as never before, become important battlegrounds in the culture wars.

Civil Recourse, Damages-As-Redress, and Constitutional Torts

Michael Wells — Fri, 30 Nov 2012 13:50:50 PST

In Torts as Wrongs, Professors John Goldberg and Benjamin Zipursky discuss the connection between "tortious wrongdoing" and "civil recourse." Their civil recourse theory "sees tort law as a means for empowering individuals to seek redress against those who have wronged them." Goldberg and Zipursky show that modern tort theory is dominated by "loss allocation," which uses liability and damages as instruments for assigning losses to deter unwanted behavior and to compensate the plaintiff. Under loss allocation, the central principle of damages is full compensation that is, to make the plaintiff whole. The core component of damages, though not the only one, is out-of-pocket expenses. Under civil recourse, by contrast, the aim is to redress the wrong through fair compensation, "requir[ing] of the fact-finder an overtly normative determination based on consideration not only of the losses suffered by the victim, but also of the character of the defendant's conduct,. . . and the power dynamic between the parties."

This Article examines the implications of these distinctions between loss allocation and civil recourse and between damages as indemnification (i.e., full compensation) and damages-as redress (i.e., fair compensation) in the context of constitutional torts. The distinctive feature of this type of litigation is that plaintiffs typically seek retrospective relief rather than injunctions or declaratory judgments aimed at ensuring future compliance with constitutional norms. Typical fact patterns include false arrest, excessive force by the police, mistreatment of prisoners, malicious prosecution, wrongful confinement, illegal searches and seizures, retaliation for speech that displeases officials, arbitrary interference with property rights, dismissals from government jobs without due process, and restrictions on the speech of public employees and students.

At the very least, the civil recourse approach stands in contrast to the loss allocation approach, thus offering a fresh perspective worthy of attention. This Article hopes to show that examining constitutional tort doctrine from the perspective of civil recourse enhances one's understanding of what is at stake in these cases and provides a new set of standards for evaluating the Court's work. Over a broad range of issues, a civil recourse approach holds the promise of shifting the terms of the debate in such a way that a stronger showing is needed to justify rules that foreclose plaintiffs from obtaining vindication of their rights, even if that vindication takes only the form of nominal damages. Part II of this Article distinguishes the civil recourse approach to constitutional torts from the Court's focus on compensation and deterrence and shows that civil recourse is a plausible alternative. Part III identifies the sharpest and most consequential difference between these two approaches-namely, their distinctive means of calculating damages; in particular, while the Court's loss allocation approach to damages aims to make the plaintiff whole, the civil recourse approach focuses on providing appropriate redress. Part IV explores the implications of moving from the "make the plaintiff whole" principle to "damages-as-redress" across a range of remedial issues, including presumed damages, punitive damages, and nominal damages. Part V identifies ways in which conceiving of damages as a means of redress, rather than as a means of indemnification, may enable plaintiffs to vindicate constitutional rights that now go entirely unremedied due to official immunity defenses. Part VI discusses important issues related to the recovery of attorney's fees awards in constitutional tort cases under the Civil Rights Attorney's Fees Awards Act of 1976. Finally, Part VII identifies, and counters, two major objections to importing civil recourse theory into constitutional torts law.

The Spirit of Serrano: Past, Present and Future

Anne Dupre et al. — Fri, 30 Nov 2012 12:51:31 PST

A decades-long school funding revolution continues in the United States. The litigation sparked by the Supreme Court of California's 1971 decision in Serrano v. Priest continues to reshape the legal, political, and educational landscape in the United States, affecting the lives of children, parents, educators, and taxpayers throughout the nation. Serrano-inspired lawsuits have transformed school funding policies nationwide, resulting in billions of dollars in new funding and a notable redistribution of resources among school districts. Serrano-inspired litigation has changed public schools in many states to a degree second only to the transformation that followed Brown v. Board of Education. To understand school funding litigation in the present and to better anticipate future developments, a review of the past, present, and likely future of school funding litigation is invaluable. This article briefly reviews and discusses the past, present and likely future of Serrano-inspired school funding litigation.

Discovery, Judicial Assistance and Arbitration: A New Tool for Cases Involving U.S. Entities?

Peter B. Rutledge — Fri, 30 Nov 2012 11:09:29 PST

Limited discovery is one of the regularly cited advantages of international arbitration, as opposed to international litigation, particularly in contrast to litigation in the US. courts. Recent decisions by US. courts, however, have threatened to upend this comparative advantage. Invoking a little known US. law, 28 U.S.C. section 1782, these courts have permitted parties in an arbitration to petition for subpoenas issued by US. courts against their adversaries or third parties. Bucking the trend in the academic literature, which largely supports this development, this article opposes reading section 1782 to authorize subpoenas in support of an arbitration. Not only does this undermine the sensible limits on discovery in arbitration, it risks undermining the entire arbitral process by creating an asymmetrical tactical device that systematically disfavors US. companies:foreign parties can use section 1782 petitions as a tool both to extract information from their US. adversaries and to bolster their settlement position. To avoid these deleterious results, section 1782 should be interpreted not to encompass international arbitral tribinals.

Education Finance Litigation: A Review of Recent High Court Decisions and their Likely Impact on Future Litigation

Anne Dupre et al. — Fri, 30 Nov 2012 10:59:06 PST

This article addresses the impact that school funding litigation has had in shaping public schools across the United States. It serves as an update to a 2001 article titled Serrano and It’s Progeny: An Analysis of 30 Years of School Funding Litigation, which reviewed school funding litigation since the Serrano v. Priest decision. This article updates that research by providing brief reviews of the most recent and significant school funding litigation decisions, including the most recent decisions in Claremont v. Governor, James v. Alabama Coalition for Equality, Tennessee Small School Systems v. McWhorter, Lake View v. Huckabee, DeRolph v. State, and Campaign for Fiscal Equity (CFE) v. State. The article concludes by discussing possible future directions in this litigation, based on an analysis of these recent state high court cases and the litigation since Serrano v. Priest.

Equal Protection of the Laws: Recent Judicial Decisions and their Implications for Public Educational Institutions

Anne Dupre et al. — Fri, 30 Nov 2012 10:47:05 PST

This article reviews recent judicial decisions concerning the Equal Protection Clause and provides an analysis of their implications for public educational institutions. The article begins by giving a brief historical overview of the Equal Protection Clause, its application to the states, and describes the three-tiered approach to challenges alleging government denial of equal protection of the laws. Recent applications of each tier are addressed by discussing Adarand v. Pena, Hopwood v. Texas, U.S. v. Virginia, and Romer v. Evans. The article concludes by noting that these recent cases have added to uncertainty concerning the Court’s interpretation of the Equal Protection Clause and that these cases obscure the lines between the tree traditional tests, resulting in increased instability in equal protection jurisprudence.

Commentary: Grades- Achievement, Attendance, or Attitude

Anne Dupre et al. — Fri, 30 Nov 2012 10:36:49 PST

This article addresses the impact that grades can have on the lives of students and discusses what grades actually represent in terms of student achievement. It also addresses disputes involving grading policies that allowed non-academic factors in decisions on grades or academic credit. The article includes a brief summary of the history and legal theories related to grading challenges and then provides a review of the relevant case law including Board of Curators of the University of Missouri v. Horowitz, Barnard v. Inhabitants of Shelburne, Tinker v. Des Moines, Goss v. Lopez, Knight v. Board of education, Gutierrez v. School District, and Fisher v. Burkburnett independent School District. The article concludes with a discussion of judicial treatment of these issues and the lessons these cases teach for establishing and administering a legally sound grading policy. In order to avoid successful challenges to their grading policies the authors recommend that school officials focus primarily on academic evaluations, respect students’ due process rights, and comply with applicable state and federal laws.

Protecting Children From the Dark Side of the Internet

Anne Dupre et al. — Fri, 30 Nov 2012 10:34:08 PST

This article examines the history of judicial and legislative responses to the issue of consumption of pornography and other harmful materials over the Internet by children. The article begins by giving a brief overview of free speech law in the US. Next, summaries of relevant U.S. legislation and corresponding litigation on Internet free speech are given. Highlighted are: 1) the Communications Decency Act (CDA) and the U.S. Supreme Court’s response in Reno v. ACLU; 2) The Child Pornography Prevention Act (CPPA) and Ashcroft v. Free Speech Coalition; 3) the Children’s Internet Protection Act (CIPA) and United States v. American Library Association; and 4) the Child online Protection Act (COPA) and Ashcroft v. ACLU. The article concludes with an analysis of the issues raised by the legislation and litigation, and comes to the conclusion that the best way to currently protect both children and freedom of speech is to use technology to help control the problems of technology and to use government resources to help empower parents and educators to better protect and supervise children when they use the Internet.

Extending the Sales Tax to Services: Notes from Florida, 1987

Walter Hellerstein — Fri, 30 Nov 2012 09:32:01 PST

This special report is based on the Legal Study of Florida’s Sales Tax on Services prepared by Professor Hellerstein, Prentiss Wilson, Jr., and Morrison & Foerster for the Florida Department of Revenue. This special report deals with the issues arising from Florida’s extension of the sales tax to cover services. The report first discusses the issue of pyramiding of taxes and explores the question of how that issue should be treated in the context of sales services in light of the pre-existing treatment of the issue in the context of sales of tangible personal property. Next, the problem of defining a taxable service is considered and a justification for excluding interest, insurance premiums, and receipts from other intangibles from the service definition is given. For services performed partly inside and partly outside Florida, the report discusses the decision to adopt an all-or-nothing approach to taxability rather than adopting a rule of apportionment for such sales of services. The report also examines the concept of a use tax on services and analyzes the constitutional objections that may be leveled against such a tax. The report concludes that the Legal Study should be viewed as an initial attempt to come to grips with the critical questions raised by Florida’s sales tax on services and should serve as a vehicle for further consideration of these issues.

Primer on Florida's Sales Tax on Services

Walter Hellerstein — Fri, 30 Nov 2012 09:24:33 PST

This special report describes the basic structure and operation of the Florida sales tax as adopted in its final form by the Florida Legislature on June 6, 1987 in order to clear up confusion about the tax. It begins by addressing the amount of controversy that the recently enacted sales and use tax on services has created and states that much of the controversy is based on confusion over what the law actually says and how it works. Next, the report goes into the operation of the statute and stresses that the tax applies only to services that are consumed in the state. The report acknowledges that a state may not impose a tax, or the obligation to collect a tax, upon one with whom the state lacks a sufficient nexus. It then addresses the collection of the tax and goes in depth into the two exemptions to the tax. Next, the report discusses particularized treatment of special industries by primarily focusing on advertising services furnished by the media. The report then addresses savings provisions that ensure that the sales and use tax is construed to comply with constitutional constraints. The report concludes by stating that a more in-depth analysis of the sales tax with be conducted in the future and emphasizing that this report is only an initial summary of the law and its possible effects.