Judicial interpretation of regulatory standards generally relies on the presumption that agencies are politically accountable and democratically “appointed” actors. As a result, courts defer to reasonable agency interpretations of ambiguous statutory language. This presumption, however, is severely outdated. The regulatory arena is replete with the privatization of regulatory decision making, which puts the current approach to agency deference in question. This Note seeks to address the changing nature of the regulatory framework by suggesting a modification of agency deference doctrine that accounts for the increasingly active role played by private parties in public governance. In proposing a new framework for agency deference in cases of private delegation, the Note explores parallels between agency deference and the non-delegation doctrine, addresses the relationship of agency deference to the separation of powers and the fragmentation of the political branches, and seeks to reinstate the judiciary as a primary expositor of statutory meaning in the private delegation context.
Free Enterprise Fund v. Public Company Accounting Oversight Board outlines a modest proposal for abolishing agency independence. The Supreme Court’s decision creates a framework for challenging the constitutionality of agency independence and the restrictions on removal that shield the heads of independent agencies from presidential oversight. In the course of assessing the constitutionality of the Public Company Accounting Oversight Board (PCAOB or Board), the Court provides the reasoning for undermining most forms of agency independence. Yet the potential scope of the decision has gone largely unnoticed. Most commentators have pronounced the decision insignificant for presidential authority. This Article questions the conventional interpretation and demonstrates that the structure of the Court’s argument logically calls into question the constitutionality of agency independence. Moreover, the Court’s remedy of severing invalid for-cause removal limits provides a workable approach for future cases – eliminating agency independence without eliminating the independent agencies.
Chief Justice John Roberts’ opinion sets out an ambitious proof that establishes several principles that follow from separation of powers: (1) accountability for faithful execution of the laws requires presidential oversight and control of executive branch officers; (2) presidential oversight and control require the capacity to remove such officers; (3) Congress cannot restrict the President’s removal power. The principles apply uneasily to the facts of Free Enterprise Fund, which ultimately leaves the Securities and Exchange Commission, an independent agency, responsible for the Board. But the principles logically apply to the first layer of agency independence and suggest that for-cause removal protections for the heads of independent agencies are unconstitutional. The Court makes clear that the President’s removal power is a constitutional requirement, but limitations on the removal power were created by the Court – opening up the possibility that the Court will reevaluate precedents such as Humphrey’s Executor in a future case.
Ruthann Robson (CUNY School of Law) has posted Lesbians and Abortions (New York University Review of Law & Social Change, Vol. 35, No. 1, 2011) on SSRN. Here is the abstract:
While there are doctrinal and theoretical connections, the arguments for women’s freedom to be a lesbian or to have an abortion are usually articulated independently from each other. At one time, the abortion right seemed more secure than lesbian rights, but recently lesbianism seems to be accorded more legal protection than abortions. This article argues that lesbians have an important stake in the legal recognition of abortion rights.
The article rehearses the doctrinal linkages, distinctions, and relative strength of the rights of lesbians and the right to abortion in American jurisprudence. The remainder of the article discusses the specific overlaps between lesbians and abortion as lived realities and as subject to legal regimes. For example, the article considers the availability of reproductive choice after the choicelessness of rape committed against lesbians, including a discussing of hate crimes against lesbians involving rape and of the erratic "rape exception" to abortion regulations. The next section examines the difficulties lesbians, especially young lesbians, face as what might be called "reproductive amateurs" who can become pregnant. As minors, they may be legally forced to interact with parents or judges hostile to their sexuality as well as to their desire to terminate pregnancy. As both minors and adults, they may be less likely to discover their pregnancy early, and thus they may be more likely to encounter strict time limits in abortion statutes.
The final section considers the construction of lesbians and of women who have abortions as "independent" or as "man-hating" women. It argues that the paternalism of the law and specific statutes that seek to remove certain choices from women express male anxiety about the power of women, including, perhaps paradoxically, sex selection.
This article argues that civil marriage and democracy are inherently incompatible, whether they are assessed from a trans-cultural perspective that reduces them to their most universal aspects, or from a culturally situated perspective that accounts for their uniquely American elaborations. Across virtually all cultures, civil marriage privileges sexual partners by offering them exclusive access to highly desirable government benefits, while democracy presupposes liberty and equality. When governments privilege sexual partners, they effectively deprive their citizens of liberty by encouraging them to enter sexual partnerships rather than self-determining based on their own preferences; they effectively deprive their citizens of equality by establishing an insidious status hierarchy. While some deprivations of liberty and equality are justified – for example, those that promote social welfare – this article argues that those resulting from civil marriage are emphatically unjustified. The incompatibility that exists on a trans-cultural level is magnified when one considers civil marriage and democracy in their American elaborations. American civil marriage privileges not only sexual partners but also religious, patriarchal, and heterosexist ideologies, while American democracy presupposes respect for the Due Process, Equal Protection, Establishment, and Free Speech Clauses.
Even if American civil marriage could be stripped of its religious, patriarchal, and heterosexist aspects, it would remain an essentially undemocratic institution due to its inherent privileging of sexual partners. Inasmuch as American civil marriage cannot be democratized, this article argues that it should be abolished. It does not, however, propose (as some have) that American civil marriage be replaced by a relatively analogous “civil union” regime. It instead proposes that states remove themselves entirely from the business of affirming sexual partnerships. It explains that abolishing civil marriage would not only enhance American democracy, but also enable states to reallocate their resources away from sexual partners and toward individual providers. While sexual partners do not necessarily deserve government benefits, individuals who provide for dependents do – yet they are often denied such benefits under our current system. It should be emphasized that this article applies only to civil marriage, and does not propose to limit the ability of sexual partners to celebrate their commitments through private ceremonies or to dissolve their relationships according to the terms of private contracts.
This Article examines the question of what role international law should play in domestic courts through the lens of the Alien Tort Statute ("ATS") and points to the next battlegrounds for transnational litigation under state and foreign law. The Article provides clarity as to why federal appellate courts have limited ATS cases. In light of federal retrenchment, this Article uniquely explores the potential for a new wave of international law litigation under state and foreign law and the potential for that wave to reach state courts. The Article analyzes forthcoming issues of federalism, choice of law, preemption, and due process that will arise as part of the next wave of international law litigation. After critically evaluating these areas, the Article provides a scholarly agenda for further study related to the question of international law in domestic courts. The Article seeks to apply the rich academic literature produced to date by such eminent scholars as Curtis Bradley, Jack Goldsmith, Harold Koh, and others to this new wave of transnational litigation. In so doing, it creates a new legal and normative framework for further studies regarding the role of international law in U.S. courts. The Article concludes by proposing a congressional fix that uses the Class Action Fairness Act of 2005 as a model for alleviating federalism concerns that exist when international law cases are brought in domestic courts.
Using a recent book chronicling the final illness of Chief Justice Rehnquist as a point of departure, this essay explores an overlooked aspect of the recent debates concerning proposals to modify the institutional architecture of the Supreme Court and the Justices’ terms of service. Our piece bridges two strands of that debate. One subset of the literature has explored the phenomenon of lifetime tenure enabling Justices to continue to serve beyond their ability to do so, while another has examined the implications of and concerns arising from the wide range of administrative responsibility that has accrued to the Chief Justice. Our research reveals that Chief Justices are more likely to die in office than Associate Justices. This in turn suggests that there is a greater potential for a Chief Justice to continue to serve despite an inability to do the job (as was unquestionably true during much of Chief Justice Rehnquist’s final term on the Court). This may be a product of an added allure arising from the vast array of the Chief Justice’s administrative responsibilities, or, perhaps more likely, of the lack of anyone with formal responsibility to nudge a Chief Justice toward retirement. Either way, our examination of the history of Chief Justices “at the end” provides further support for many of the proposed reforms.
Thomas Hobbes, while no friend of democracy, thought a great deal about it. He simply could not see the point in it. And his objections to democracy still challenge us to think hard about our own constitutional structures. What kind of democratic or popular government do we have? What role do our constitutional structures envision for “the people,” and how are the people to fulfill that role? How active a role are the people to play? If the role of the people is to be relatively passive, their need for information may not be great or immediate. If the people are to be actively involved in government, however, they will need information, some of which may be accessible only through the government, and they will need it on a timely basis. But government cannot function entirely in the round. How can political and legal systems most effectively ensure citizens with access to the information they need, while also protecting the effectiveness of government? Government secrecy presents a critical set of issues for representative government.
This essay addresses the relationship between the Constitution and Bill of Rights and the concept of economic liberty. It calls into question the famous quip of Justice Holmes in Lochner v. New York (1905) that the Constitution was not intended “to embody a particular economic theory.” The essay contends that the framers of the Constitution clearly envisioned a constitutional order grounded on private property and a market economy. To this end, many provisions of the Constitution pertain to property interests and economic activity. It concludes that, although the Constitution does not endorse a laissez-faire regime, Holmes was wrong to suggest that the Constitution was entirely neutral with respect to economic policy. In fact, the framers favored a free market and sought to protect property and contractual rights.