American Public Law Research Articles

Epistemic Communities in American Public Law

Epistemic Communities in American Public Law

The Splintering of American Public Law

The Splintering of American Public Law

Workarounds in American Public Law

Workarounds in American Public Law

Administrative Law: A Public Casebook for the American Public Law System

Administrative Law: A Public Casebook for the American Public Law System

Mass claims in international investment arbitration

Following the economic crisis in Argentina international investment tribunals faced a new challenge: mass claims characterized with multiple claimants bringing the significant amount of homogeneous investment protection claims against the host state. Neither the 1965 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, nor applicable bilateral investment treaties cover the tribunals’ power to resolve mass claims. They are silent on crucial questions of jurisdiction and consent and do not address important procedural issues either. In these circumstances arbitral tribunals face the inevitablegap-filling process, which boils down to the critically important question of legal nature of mass claims. If mass claims are nothing more than a mere variety of “ordinary” claims, than the issues of special or “secondary” consent are irrelevant, since the general consent for arbitration will suffice for the tribunal to find itself competent to resolve the dispute. By contrast, if mass claims are different in their legal nature from “ordinary” bi- or multiparty arbitration, they cannot “fit” into the scope of parties’ general consent. In controversial Abaclat decision the majority ruled that the questions of tribunal’s powers to decide on mass claim brought by Italian investors against Argentina pertain to the sphere of admissibility rather than jurisdiction. This analysis was not accepted by dissenting arbitrator G. Abi-Saab. Interestingly, other multi-party “Argentinian” awards followed the line of argument which significantly differed from both the majority opinion in Abaclat and G. Abi-Saab’s dissent. This only highlights the controversial nature of mass claims in international investment arbitration. This article is dedicated to analysis of jurisdictional issues raised in the course of “Argentinian” arbitrations. Since this analysis is strongly intertwined with two other systems of resolution of mass claims, namely American class arbitration and public international law mechanisms dealing with the compensations for states’ international wrongdoings, these two mechanisms are also explored to provide better context and understanding.

The value of official equality: structuring the execution of democratic law

ABSTRACT The executive branch is often conceptualised as a hierarchy in which one official has ultimate authority to carry out the law. In American public law, this is referred to as the ‘unitary’ theory of the executive. That theory is often defended on democratic grounds. However, there are countervailing democratic reasons to give several officials equal authority to implement the law. First, such a condition of ‘official equality’ can remedy the imperfect information about citizens’ judgments any one official holds. Second, official equality respects the plurality of norms that a democratic legal system tends to generate. Third, it gives private persons reason to structure their own relationships on equal terms in ways that support the social foundations of democracy. Fourth, it exhibits the democratic virtues of legislative processes when the implementation of law requires action that is legislative in nature. These reasons together constitute the value of official equality. The value of official equality ought to impact the structures and practices of executive offices within the democratic state.

Public interest litigation in comparative perspective

At this conference on comparative perspectives on public interest litigation, I speak to you today as someone whose primary focus has been on the American public interest law system, and my comment...

How the House Sues

The House of Representatives is suing, more than ever before. But how does the House actually initiate lawsuits? For decades, the House authorized litigation through full chamber votes. Yet recently the House has delegated to its Bipartisan Legal Advisory Group (BLAG) — a five-member body composed of the Speaker, Majority Leader and Whip, and Minority Leader and Whip — authority to initiate suit on the House’s behalf. That delegation raises novel questions at the intersection of Articles I and III, and all of the House’s currently-pending, BLAG-initiated suits rest on its legality. It is also entirely unstudied. This Article is the first to analyze the history, practice, and lawfulness of the House’s delegation of litigating authority to BLAG. It finds BLAG is likely constitutional under Article I’s Rulemaking Clause. And in any event, it concludes that BLAG’s constitutionality may pose a nonjusticiable political question. In so doing, this Article aims to open a dialogue over this critical, overlooked actor in American public law.

Nondelegation in the States: Separated Powers & Sovereignty

American public law is on the precipice of a nondelegation revival. Yet scholars have largely ignored the greatest wellspring of American nondelegation law: that of the states. As a result, the nondelegation literature is badly in need of a broad and deep examination of state nondelegation. This article takes up that task by describing the kaleidoscope of contexts in which states apply the nondelegation doctrine. Significantly, state nondelegation reaches deep into public law and covers far more than the legislature-to-agency delegations that preoccupy the discussion at the federal level. This article analyzes this mess of state nondelegation jurisprudence, arguing that it can be explained coherently by two theories underlying nondelegation: the separation of powers and sovereignty. While these theories overlap to an extent, each supplies a distinct logic to nondelegation, thus motivating the doctrine’s disparate and varied applications. Finally, the article argues affirmatively that the Supreme Court ought to consult state nondelegation jurisprudence when it revives the federal nondelegation doctrine. The states’ experience counsels important lessons for the federal doctrine. For nondelegation supporters, state nondelegation indicates that a strong doctrine may require revising vast expanses of public law, especially the separation of powers. As a result, a revived doctrine may prove difficult to administer, though in a way few have recognized. Fortunately, where the nondelegation doctrine might overreach into other areas of public law, relatively straightforward doctrinal guardrails can be established so that a strong doctrine doesn’t prove to be an obstacle to effective governance.

The President's Two Bodies

The President has “two bodies.” One body is personal, temporary, and singular. The other is impersonal, continuous, and composite. American public law reveals different perspectives on how to manage—but cannot escape—this central paradox. Our major disagreements and confusions about presidential power track what we might think of as the fault lines between these two bodies. An array of seemingly disparate debates on topics ranging from presidential impeachment, to the ownership of presidential papers, to the availability of executive privilege, to a presidential duty to defend statutes in court, to the legal status of presidential tweets, to the role of the White House counsel, to the nature of presidential intent, to the legal remedies available for presidential misconduct reflect this longstanding, ongoing ambivalence about the nature of the presidential office. The goal of this article is to make the President’s two bodies central to American public law. Recognizing the two bodies provides analytical coherence to the structure of presidential power. It illuminates both our contestations over, and the constituted reality of the constitutional presidency. The President’s duality brings into view traces of a personal, charismatic authority simultaneously in deep tension with and fundamentally constitutive of the institutional presidency. It reconstructs seemingly far-flung aspects of American public law (ranging in form from Founding-era debates, to judicial decisions, to statutory enactments, to presidential norms) as a shared effort to negotiate the President’s two bodies. And it illuminates what is at stake—for presidential legitimacy, for governmental capacity, for checks and balances, and for our substantive constitutional commitments—in how public law handles this defining ambiguity. Ultimately, the legal lines connecting the two bodies cannot emerge from the duality itself. Rather, it is a normative project of public law to construct them—and to do so in furtherance of articulated substantive commitments. Even as the two-bodies prism reveals a crucial role for public law in constituting the office of the President, it shows as well the limits of law and legal methods in managing its central tension. Presidential charisma is both inseparable from American constitutionalism and itself governed—incompletely and provisionally—by choices that lawyers and jurists make about how to construct the President’s duality.

Jerry Mashaw and the Public Law Curriculum

Written for a Yale Festschrift celebrating Professor Jerry Mashaw’s extraordinary life of scholarship, this essay takes his first published teaching materials as the jumping off place for an essay on the impact of early choices about the teaching of public law courses on the materials and issues our students see, and the changes that might be in the wind as new materials on Legislation and the Regulatory State emerge. With Richard Merrill, Jerry 40 years ago designed “The American Public Law System” for the first year of law school, treating legislation and administrative action as subjects worthy of serious study, side by side. It and a few other sets of materials (including, notably, Hart and Sacks’ “The Legal Process”) sought to depart from the strict diet of cases that had characterized American public law teaching from the beginning of the 20th Century, thanks in large part to the dominance of Christopher Columbus Langdell’s Socratic Method, which treated cases as the necessary – and virtually exclusive – medium of classroom instruction.To what extent might students in these new courses now be invited to view legislatures and agencies, both as institutions and through their work, through other than judicial eyes? The law school curriculum endlessly invites attention to courts and the means by which they settle (that is to say, make) law. To be sure, its students do not often see the attending lawyers’ work by which judicial action is usually (one might say preferably) shaped, but the typical first-year curriculum includes not only Civil Procedure and much discussion of the strengths and weaknesses of common law processes, but also an exercise in brief writing, moot court. Has the Langdellian imperative to use cases only as the primary materials of law study been overcome in these new courses? Do they invite similar direct attention to these other institutions and their ways, before which today’s lawyers may so often have to appear? Or do public law and its institutions still appear primarily through the eyes of judges in decided cases, looking backwards over some particular, completed piece of work?After some attention to teaching materials of the 20th Century, the essay turns to an assessment of the more recent works on Legislation and the Regulatory State, finding signs of change in some, but not all of them. The first year of law school remains wedded to the common law and to judges; and these new courses could require understanding of the real world of today’s law. If, of course, they are taught outside the Langdellian model.

The Triumph of Fault in Public Law

Federal criminal law and constitutional remedies might seem distinct bodies of law. In the closing decades of the twentieth century, however, parallel transformations swept both domains. In each field, the Supreme Court demonstrated increasing unwillingness to impose individualized legal consequences simply because a defendant committed the discrete acts that comprised a crime or constitutional violation. Instead, it insisted on a showing of individualized “fault” to establish liability. This Article first documents this triumph of fault as a common regulatory principle across disparate domains of American public law. This doctrinal change, we demonstrate, has important implications for federal and state regulatory agendas. Intermittent use of a fault threshold for criminal or constitutional liability has shaped the relative cost profile of different regulatory tools. Fault, that is, makes some kinds of coercive regulation less costly even as it imposes an inhibiting tax on other species of state intervention. The triumph of fault in public law hence changes the occasions and populations that are subjected most routinely to state coercion. Rather than diagnosing fault’s ascendency as an endogenous product of legal reasoning, we situate it within a broader historical and intellectual context and argue that what the triumph of fault reflects, and potentially even reinforces, broader changes in the relationship between state and society.

Obama's AUMF Legacy

Despite massive changes in the geographical scope of the conflict that began on 9/11, the strategy and tactics employed, and the identity of the enemy, the 2001 Authorization for Use of Military Force (“AUMF”) remains the principal legal foundation under U.S. domestic law for the President to use force against and detain members of terrorist organizations. For many years, President Obama proclaimed that he wanted to repeal the AUMF and end the AUMF-authorized conflict. By the closing year of his presidency, however, his administration had established the AUMF as the legal foundation for an indefinite conflict against Al Qaeda and associated groups and extended that foundation to cover a significant new conflict against the Islamic State. This transformation of the AUMF is one of the most remarkable legal developments in American public law in the still-young twenty-first century, and it will stand as one of President Obama’s primary legal legacies. In addition to establishing this descriptive claim, this Essay considers how the Obama administration has invoked international law in making arguments about the scope of the AUMF. As the Essay explains, although the Obama administration often maintained that international law was an important constraint on its actions, on a range of issues where international law was unsettled it interpreted it in ways that supported presidential discretion and flexibility under the AUMF.

Immigration as Invasion: Sovereignty, Security, and the Origins of the Federal Immigration Power

This Article offers a new interpretation of the modern federal immigration power. At the end of the nineteenth century, the Supreme Court and Congress fundamentally transformed the federal government’s authority to regulate immigration, from a species of commercial regulation firmly grounded in Congress’ commerce authority, into a power that was unmoored from the Constitution, derived from the nation’s “inherent sovereignty,” and subject to extraordinary judicial deference. This framework, which is commonly referred to as the “plenary power doctrine,” has stood for more than a century as an anomaly within American public law. The principal legal and rhetorical rationale for the plenary power doctrine was and remains the supposition that the regulation of immigration is always inherently related to the conduct of foreign affairs, and, especially, to national security.By situating this radical yet extremely durable doctrinal transformation within its appropriate intellectual and political context, this Article seeks to denaturalize the “national security rationale” for immigration exceptionalism. It argues that the plenary power doctrine was borne of an urgent sense of national peril, the basic terms of which most contemporary policymakers, judges, and scholars would emphatically reject. Although the doctrine made its judicial debut in the Chinese Exclusion Case, its historical origins in fact lie largely beyond Chinese exclusion in a much broader contemporaneous critique of (mostly European) immigration. The late nineteenth-century architects of the plenary power doctrine believed that the unchecked immigration of economically degraded, politically inassimilable, and racially unfit immigrants had created a virtual state of national emergency. In response, the Court fashioned an immigration power adapted not to the regulation of labor, or economic dependency, or crime - issues that, then as now, characterize most immigration lawmaking - but rather to the defense of the nation against foreign aggression.Although the immigrants upon whom this power was exercised were citizens of ostensibly “friendly” nations, policymakers and judges re-imagined them as enemy aliens. Through this process, the Court in effect invented the “immigrant” as a distinct, and distinctly consequential, legal construct.

Editors’ Note

Editors’ Note

The Origins of Judicial Deference to Executive Interpretation

Judicial deference to executive statutory interpretation — a doctrine now commonly associated with the Supreme Court’s decision in Chevron v. Natural Resources Defense Council — is one of the central jurisprudential principles in modern American public law. Despite its significance, however, the doctrine’s origins and development are poorly understood. The Court in Chevron claimed that judicial deference’s roots stem back to statutory-interpretation cases from the early Nineteenth Century. Others, by contrast, have sought to locate Chevron’s doctrinal roots in judicial review’s origins in the writ of mandamus. According to the standard narrative, courts in the pre-Chevron era followed a multi-factor and ad hoc approach to issues of judicial deference; there was little theory that explained the body of cases; and the holdings and reasoning of the cases were often contradictory and difficult to rationalize. This Article challenges the standard account. It argues that the Supreme Court in Chevron, and scholarly commentators since, have misidentified Nineteenth Century statutory-interpretation cases applying canons of construction “respecting” contemporaneous and customary interpretation as cases deferring to executive interpretation as such. It further argues that, although the standard for obtaining a writ of mandamus was central to judicial review in the early Republic, statutory developments in the latter half of the Nineteenth Century (significantly, the enactment of general federal-question jurisdiction in 1875) ultimately mooted the relevance of that standard. Finally, it discusses the intellectual challenges to the traditional interpretive framework in the early Twentieth Century; the Supreme Court’s embrace of these intellectual challenges in the early 1940s; and Congress’s attempt in the Administrative Procedure Act’s standard-of-review provision to reject the Court’s interpretive experimentation and corresponding deviation from the traditional canons. The Article thus seeks to establish — contrary to the suggestion in Chevron and recent cases — that there was no rule of statutory construction requiring judicial deference to executive interpretation qua executive interpretation in the early American Republic. And it contends that the governing statute of administrative law — the APA — was intended to codify the traditional interpretive approach and to reject the experimentation of the 1940s Court. Taken together, these conclusions cast doubt on much of the received wisdom on the doctrinal basis for the rule announced in Chevron.

Ebola, quarantine, and the law.

AbstractJudged by the key measures of morbidity and mortality, the United States has been very fortunate in the Ebola outbreak so far. We have had a limited number of cases and only a few fatalities. As of this writing, all of the health care workers who became infected in the United States have recovered, and none of the other nonhealth care contacts of Ebola patients has become infected. Yet by almost any other measure, the response to Ebola in the United States has been a disaster. Among other things, there has been a wealth of misinformation, politicization of public health, public panic, and unnecessary quarantine. There is plenty of blame to go around. But one often overlooked factor that complicated the response to Ebola is American public health law.

Converting the Future of Public Academic Law Libraries

This article focuses on the current predicament in which American public academic law libraries find themselves given the budgetary and space constraints that have been passed down to them over time. By examining the current standards and future possibilities that govern these particular libraries, this article seeks to assist acquisitions librarians within these libraries with a way to examine, maintain, and purchase a collection that will take their library forward, prove their value and worth, and stay within their constantly dwindling budgets while remaining true to the library's core mission and obligation of providing services and support to the law school's faculty and student body.

Illegal migrations and the Huckleberry Finn problem

Part I STATUS AND ILLEGALITY IN AMERICAN PUBLIC LAW AND CULTURE 1 The Huckleberry Finn Problem 2 Race, Law, and Personhood in Huckleberry Finn Part II THE COMPANY OF OTHERS 3 Slavery and Wage Slavery 4 Illegal Workers 5 Immigrant Activism in the Shadow of Law Part III GETTING AN EDUCATION 6 The Bread of Knowledge 7 Race, Immigration, and the Promise of Equality 8 Undocumented and Unafraid Part IV UNLAWFUL MIGRATIONS IN AMERICAN LAW AND SOCIETY 9 Utopian Visions and the Unlawful Other Acknowledgments Notes Selected Books Cited Index

The Government as Fiduciary: A Practical Demonstration from the Reign of Trajan

The Roman Emperor Trajan is justly celebrated as an author of several modern civil rights, such as the right to confront one's accusers. But he is most aptly remembered as the ruler who proved that fiduciary government was possible. Following the example of Trajan's reign could improve greatly the standards of American public law.