Dec 5, 2023 Angela BanksImmigration
Gun violence remains a serious issue in the United States. The Gun Violence Archive reports that between January 1, 2023, and May 1, 2023 there have been 185 mass shootings that injured 744 people and killed 252 people. In 2008, the United States Supreme Court held that the Second Amendment protects an individual right to possess firearms, separate and apart from militia service in Heller v. District of Columbia. This right is held by “the people.” Yet, the Court has simultaneously held that noncitizens are not part of “the people” guaranteed a right to bear arms. In the Second Amendment context “the people” has been defined as citizens. Pratheepan Gulasekaram’s forthcoming article in the Vanderbilt Law Review explores the Supreme Court’s expansion of individual gun rights while shrinking the Court’s conception of “the people.” Gulasekaram offers a more capacious interpretation of “the people” and his analysis offers an approach for noncitizen inclusion in other core constitutional rights.
The Second Amendment’s “People” Problem begins with a history of federal regulation of gun possession and noncitizens. Gulasekaram demonstrates how the restrictions implemented stemmed from a desire to limit specific ideologies and subversive activities. Noncitizens in this context were viewed as threats to the constitutional order. Under a pre-Heller Second Amendment that focused on organized armed defense of the constitutional order, noncitizens viewed as a threat could not be viewed as “the people” who would protect the constitutional order. In Part II, Gulasekaram demonstrates how Heller’s emphasis on an individual right to self-defense does not lend itself to the same wholesale exclusion of noncitizens from “the people.” Part III presents Gulasekaram’s argument that once the right to bear arms is rooted in an individual right based on self-protection, the rationale for connecting gun rights to citizenship status disappears.
Part I of The Second Amendment’s “People” Problem does an excellent job demonstrating that historical limitations on noncitizen gun ownership were rooted in “baked-in social hierarchies and stereotypes.” (P. 8.) Gulasekaram explores how the initial regulation of gun possession by disfavored groups “either conflated citizenship with race, or traded on the notion that immigrants were the source of anti-American and subversive ideologies.” (Pp. 7-8.) Federal immigration law in the early 1900s reflected concerns about noncitizens and anti-American ideologies. For example, the 1903 Immigration Act prohibited the entry and naturalization of “anarchists.” In 1918, Congress passed the Alien Anarchists Exclusion Act, which banned the entry of individuals who advocated or taught the overthrow of the American government and allowed for their deportation. The growing connection between noncitizens and dangerousness allowed California to enact a law in 1923 banning “unnaturalized foreign-born person[s]” from possessing firearms.”
Another important contribution made in Part I is illustrating the role of the powerful gun lobby in encouraging lawmakers to regulate immigrants rather than firearms. Building on the growing concerns about noncitizens’ anti-American ideology, in the 1920s and 1930s the United States Revolver Association (“USRA”) deployed campaigns arguing that significant gun regulation was anti-American and rooted in foreign ideologies. Advocacy campaigns argued that “[r]ather than regulate firearms, Congress should regulate the source of the true danger: immigrants.” (P. 11.) The National Rifle Association continued these themes, arguing that expansive gun rights should exist for “citizen sportsmen, hunters, and private owners,” and that regulation could and should exist for “undesirable aliens” and “Fifth Columnists.” (P. 12.)
In Part II, Gulasekaram argues that the grounding of the Second Amendment in a right to self-defense invites a new examination of “the people” who are guaranteed the right to bear arms. One important part of the analysis Gulasekaram offers in this section is how the Court’s analysis of “the people” is based on the Court’s 1990 decision in United States v. Verdugo-Urquidez. Construing the Fourth Amendment, the Court defined “the people” as those individuals who are “part of the national community or who have otherwise developed sufficient connection to the country to be considered part of that community.” Gulasekaram notes how in Heller the Court changed “national community” to “political community” and eliminates the alternative approach based on “sufficient connection to the country.” (P. 19.) These modifications make it possible to interpret “the people” as citizens.
Part III offers a new approach to “the people” that is rooted in the justification for an individual right to bear arms offered in Heller and reinforced in New York State Rifle & Pistol Assn v. Bruen. Those cases decouple the right from organized community protection of the state, or from the state, and base it instead on the right to protect individuals from private violence. Based on this approach to the Second Amendment, “the people” are “all those who may need arms for protection of self, loved-ones, or home.” Gulasekaram notes that the rights of citizens and noncitizens are often inextricably linked. Many immigrant families are mixed-status families, and depriving noncitizens of the right to self-defense through firearms will also deprive citizens of their right to self-protection. Gulasekaram does not argue that “the people” has no limitations, or that firearm regulation is impossible. Rather he argues that as a right of self-defense “immigration status bears no relationship either to the need for protection nor the ability to wield a firearm safely, in the way status as a minor or mental-illness might.” (P. 49.) Gulasekaram contends that limitations on Second Amendment rights should “closely track the inability of governments to ensure the safe, non-criminal use of the firearm.” (P. 50.)
The Second Amendment’s “People” Problem does an excellent job of demonstrating the internal tensions within the Court’s jurisprudence defining “the people” for Second Amendment purposes and detailing the history of limitations on noncitizen gun ownership. These insights raise significant questions about the accuracy and wisdom of defining noncitizens out of “the people.” The approach Gulasekaram offers provides a model for rethinking noncitizens’ constitutional rights.
Nov 22, 2023 Tom SimmonsElder Law
David Horton & Reid Kress Weisbord,
The New Undue Influence, __
Utah L. Rev. __ (forthcoming 2024); Rutgers L. Sch. Rsch. Paper, available at
SSRN (February 24, 2023).
In The New Undue Influence, Professors Horton and Weisbord contend that a newfangled sort of undue influence has recently emerged. As a means to challenge testamentary gifts, undue influence has endured its share of critics who claim it often takes the form of prejudiced views of “unnatural” objects of the donor’s bounty—such as same-sex spouses or age-differentiated partners. The popularity of undue influence once seemed to be fading. But the doctrine has now developed new teeth, resulting in a more effective tool for unwinding bequests produced by improper pressures on vulnerable, often elderly, testators.
This reinvigoration of undue influence can be discerned, Horton and Weisbord explain, in three areas. First, undue influence claims have been economically incentivized in some states by means of legislatively authorized fee-shifting as well as double damages (“a punitive makeover”) (P. 33) along with a relaxation of the standing rules governing who can bring a claim. Second, an evidentiary makeover has generated presumptions for claimants when the alleged culprit stood in a confidential relationship with the testator. Third, coupling undue influence with a new cause of action—elder abuse—can enhance the leverage of claimants with more generous statutes of limitation. Tracing these three related developments alone would constitute an important piece of scholarship. But the second half of The New Undue Influence also introduces an empirical analysis of these trends.
It’s in the empirical analyses that the article gets particularly interesting. California was selected as a geographical point of inquiry. California serves as an especially appropriate state for the authors’ assessments since it “is the leader of the undue influence pack” having “adopted the full rainbow of new undue influence laws….” (P. 35.)
The authors sifted nearly 7,000 probate and trust matters from the Alameda and San Francisco Counties to extract and assess some fifty variables. Using this data set, the authors identified 175 cases of undue influence. Of those, only nine (5%) proceeded to a verdict. Of those nine, the undue influence claimant prevailed in only a single case, but the data from settlements is more revealing.
Because California requires judicial approval of most estate settlements, the data set yielded key information concerning undue influence claim settlements. Horton and Weisbord were able to extract a success rate by dividing the settlement sum by the dollar figure the claimant would have recovered had she prevailed at trial. They were further able to compare the success rate for claimants utilizing the new undue influence remedies against those which featured conventional undue influence claims. For claimants relying on the latter, the success rate was 31.5%. But for claimants invoking the new undue influence frameworks, the success rate was 51.9%. Thus, cases with new undue influence allegations are correlated with significantly higher mean success rates. The new undue influence frameworks are working.
The article goes on to statistically disprove the concern of some legal scholars that undue influence protects family bequests at the expense of less traditional donees such as non-relatives and unmarried partners. This “family protection theory” posits that factfinders unfairly penalize “unnatural bequests” to non-family members in undue influence contexts. Statistically speaking, however, that’s simply not the case, the authors explain: claimants “who were members of the testator or settlor’s family did not fare better than those who were not.” (P. 42.)
Indeed, in some cases, alleged wrongdoers qualifying as “family” may have fared worse than unrelated individuals. The authors uncovered four cases in which a spouse of a testator was accused of undue influence and furthermore, the contestants claimed, the union was the product of a sham marriage. “Two of these ‘weddings’ occurred in secret, one took place less than a week before the owner died, and another happened two days before Adult Protective Services found that the settlor lacked mental capacity.” (Pp. 42-43.) Deathbed marriage ceremonies, it seems, can serve to arouse suspicions rather than allay them.
Additional nuggets of interest are peppered throughout this engaging, impressively researched (and copiously footnoted) article. Probate files are particularly well-suited to empirical study since there are so many of them. The future of elder law and estates scholarship will undoubtedly see more and more statistical inquiries. Horton and Weisbord show us how it’s done.
Cite as: Tom Simmons,
Ultramodern Undue Influence, JOTWELL
(November 22, 2023) (reviewing David Horton & Reid Kress Weisbord,
The New Undue Influence, __
Utah L. Rev. __ (forthcoming 2024); Rutgers L. Sch. Rsch. Paper, available at SSRN (February 24, 2023)),
https://lex.jotwell.com/ultramodern-undue-influence/.
Sep 25, 2023 Jill Family
Hundreds of thousands of individuals relied on the Deferred Action for Childhood Arrivals (DACA) policy in making major life decisions, such as where to live and whether to invest in higher education. The policy promised some without legal immigration status a chance to remain in the United States with work authorization. If certain criteria were met, the Department of Homeland Security would consider whether to grant a type of prosecutorial discretion called deferred action. DACA was created through a guidance memorandum. Then Secretary of Homeland Security Janet Napolitano issued a 2012 memo to her department explaining the details of the policy, and then the agency implemented it. In 2017, the Trump administration attempted to end DACA by issuing another memo. In 2020, the Supreme Court concluded that President Trump’s attempt to end DACA was unlawful. The Court reached that conclusion in part because the Trump administration failed to adequately consider the reliance interests of DACA beneficiaries in determining to end the policy.
In her article Administrative Reliance, Professor Damon-Feng dives into the reliance phenomenon in administrative law. One administration develops a policy, many rely on it, and then the next administration changes course. Should reliance interests matter when courts review the change of course? If so, how much, and why? Professor Damon-Feng concludes, based on her examination of the implicated values, that the Supreme Court should adopt a more purposeful and disciplined approach to considering reliance interests.
Administrative law gives regulated entities tools to challenge agency procedures. “APA,” after all, is short for “Administrative Procedure Act”. The APA is less generous, however, with opportunities for regulated parties to challenge policy choices. Courts are not well positioned to review whether a policy shift is a good idea. Instead, courts can review the procedures an agency used to decide to shift the policy. For example, the APA requires agency decisions not be arbitrary and capricious. In claiming arbitrary and capricious agency behavior, parties argue that an agency failed to think about something important or that the agency thought about something in an inappropriate way. If a court agrees, the court can send the policy change back to the agency to think about the issue differently. For example, if an agency is faced with two choices, Policy A and Policy B, and the agency calls a fortune teller to help the agency decide whether to pick Policy A or Policy B, that would be arbitrary and capricious agency action. If an agency fails to adequately consider reliance interests as a part of the deliberation to change policy, that also is arbitrary and capricious.
Professor Damon-Feng is concerned that the claim of inadequate consideration of reliance interests is susceptible to “weaponization and abuse” because the Supreme Court has not developed a robust analysis for courts to apply when parties make this argument. Professor Damon-Feng follows the Supreme Court’s reliance interest thread from State Farm onwards. She concludes that the Supreme Court activates the reliance interests/arbitrary and capricious rationale on a seemingly ad hoc basis, with no classification of which reliance interests should matter and when. According to Professor Damon-Feng, not all reliance interests are the same and not all should be the basis of proclaiming agency action to be arbitrary and capricious.
In the DACA case, the Supreme Court concluded that DACA did create legally recognizable reliance interests. The Court concluded that the Trump administration did not adequately consider these reliance interests when deciding to end the policy. As far as what would constitute adequate consideration, the Court appears to demand little. As Professor Damon-Feng explains, the “potentially sharp teeth of reliance interests may be substantially filed down” if the Court provides easily fulfillable direction to agencies on how to adequately consider reliance interests.
Because President Trump lost the 2020 election, we do not know if a second Trump administration would have succeeded in terminating DACA after complying with the Supreme Court’s direction to consider reliance interests. We have seen, however, how lower courts have used the Supreme Court’s treatment of reliance interests in the DACA case in other contexts. For example, states claimed their reliance interests were not adequately considered in challenging President Biden’s decision to end the Trump administration’s Remain in Mexico program. The Remain in Mexico program required some individuals to wait for their immigration hearings in Mexico. These states were never the subject of the policy (they did not have to wait in Mexico), but the states argued that their reliance interests should matter because the states would be affected by the change in regulation of others.
Professor Damon-Feng thinks that without a more principled framework to guide how courts review agency action that implicate reliance interests there is a risk that claims of administrative reliance will unduly stifle policy change. She identifies agency legitimacy and accountability, stability, and respecting settled expectations as the main values behind administrative reliance. If agencies acknowledge reliance interests but explain why a shift in policy is necessary, that makes the agency more democratically accountable. Consideration of reliance interests also may soften sudden swings in policy and make sure that the agency is considering the effects of upsetting settled expectations.
The central argument of Administrative Reliance is that the Court needs to develop an analysis that lower courts can use to determine if a particular reliance interest should support a finding of arbitrary and capricious agency action. Professor Damon-Feng argues that not all reliance interests are equal. She envisions a framework where claims of administrative reliance are “screened in a way that privileges claims originating in concrete expectations of rights, statuses, or expectations that had been promised by the policy at issue.” (P. 53.) Professor Damon-Feng argues that this filter keeps administrative reliance focused on the expectations of the regulated party, and not consequential effects or where reliance interests are more “attenuated and diffuse.” This approach would allow courts to consider administrative reliance in cases where the government now wants to shift away from a commitment it made to a regulated party (as in the DACA case) but would make it more difficult for interests merely tangential (as in the Remain in Mexico case), where third-parties argue that a change in treatment of regulated parties would affect them.
How hard courts should look at an agency rationale for a policy change, or even require any rationale at all, is a long-standing issue in administrative law. This type of arbitrary and capricious review took on even greater salience during the Trump administration as litigants relied on the argument to challenge extremely controversial shifts in policy. Claims of arbitrary and capricious action are now used against the Biden administration’s attempts to change course. Professor Damon-Feng’s suggestion that the Supreme Court provide better direction is well-taken. Arbitrary and capricious review relies on a tricky balance. Courts understandably demand that agencies explain themselves, but what courts require must not be so intricate and demanding that agency policy change becomes too difficult. Additionally, regulated parties should be able to better predict which agency action will be held to be arbitrary and capricious. Arbitrary and capricious review should not be a political stopgap that allows courts to prevent disfavored policy changes.
Professor Damon-Feng’s proposal that claims of reliance interests in arbitrary and capricious review need to be better screened is intriguing. In this article, she proposes a filter that would limit claims of administrative reliance to those who have directly been regulated. She promises to develop further her theories of administrative reliance in future articles, and it would be interesting to hear her thoughts on the intersection between her proposed filter and standing doctrine. Her research implicates big questions about the role of courts in reviewing agency policy choices, and I am sure administrative law will benefit from her contributions. These questions take on even greater importance given the challenges facing legislative reform and the resulting pressure on the executive branch to take action.
Aug 11, 2023 Kristina NiedringhausLibrarianship and Legal Technology
Any law librarian who works with the public or teaches no- or low-cost legal research, or any attorney or law student using free resources to conduct research understands the wide gap in usability between fee-paid databases and most free, open-access legal resources. Focusing on statutory code research, Professor Darvil’s article, Increasing Access to Justice by Improving Usability of Statutory Code Websites, examines the need not just for access to statutory codes, but providing the information in a way that allows the user to find the law they need. Through the lens of website usability standards, Professor Darvil assesses state code websites and provides recommendations for how those websites can improve usability. Many states have created “Access to Justice” initiatives and commissions aiming to improve citizen access and experience with the legal system. Professor Darvil’s recommendations provide excellent guidance for those interested in improving the research experience and access to the law for everyone, including those without access to fee-based databases such as Lexis or Westlaw.
Inevitably, my legal research students are, at some point in the semester, treated to my soapbox speech about how equitable access to the legal system rests on the ability of any citizen, regardless of means, to access the law they are obligated to live under. If states care about access to justice issues, logically they must care about how they provide access to the law. Professor Darvil’s article provides an excellent discussion of the access to justice issues endemic in a legal system in which, particularly on the civil side, many litigants are self-represented and how those litigants are impacted, frequently negatively, by their inability to find the law.
The unique value of Professor Darvil’s article, however, is her assessment of the usability of state statutory websites and recommendations for improvement. Her evaluation of the state websites uses a standards-based approach. Nearly half the states and the District of Columbia have adopted the Uniform Electronic Legal Materials Act (UELMA), which seems a reasonable place to look for applicable standards. Unfortunately, as Professor Darvil notes, UELMA doesn’t address the usability of electronic legal materials. Lacking usability standards in UELMA, Professor Darvil turns instead to standards developed in the disciplines of human computer interaction (HCI) and user experience (UX). Experts in these fields explore how easily people can navigate a particular website interface and find what they are looking for. There are several sets of standards for assessing website usability and Professor Darvil uses the following standards from the U.S. Department of Health and Human Services (HHS).
Search Guidelines:
- Ensuring usable search results
- Designing search engines to search entire site or clearly communicate what part of the site is searched
- Making upper and lowercase search terms equivalent
- Designing search around user’s terms
Navigation Guidelines:
- Providing navigational options
- Differentiating and grouping navigation elements
- Offering a clickable list of contents
- Providing feedback on user’s location
(P. 133.)
Professor Darvil evaluates the statutory code websites of all 50 states and the District of Columbia hrough an exploration of the features available and some relatively simple searches for state laws and comparing the results to a 50-state survey. She then explains the results using multiple illustrative screenshots from a variety of state websites as well as appendices outlining the results for each guideline above in every jurisdiction.
Finally, Professor Darvil ends with recommendations for states seeking to improve their statutory code websites. These recommendations range from fairly basic to more complex. Suggestions for improving navigation include recommendations such as providing a table of contents, clickable search trails, and navigational buttons. Suggestions for improving searching are more complex and include items such as using a controlled vocabulary, providing context surrounding the search terms by indicating where the researcher is in the code, relevancy rankings, and instructions on how to best search. Professor Darvil points out that many of these recommendations are familiar to librarians and suggests that states should use librarians to help implement many of these suggestions.
This article provides a logical and thorough assessment of state statutory code websites, explains why usability matters for access to justice, and suggests ways that governments can improve usability. As she concludes, “Governments that are based on the rule of law have special duties to their citizens: transparency, accountability, and reasonable access to their laws. […] When state governments do so, they promote access to justice and the rule of law.” (P. 153.)
Jul 13, 2023 Bethany BergerNative Peoples Law
Debates over Founding Era constitutional understandings proliferate in scholarship and litigation. The understandings examined, however, are almost exclusively those of the white men who either drafted the constitution or could vote on its ratification. In We the (Native) People?, Professor Gregory Ablavsky and doctoral candidate Tanner Allread broaden this focus, uncovering what Indigenous people said and thought about the Constitution’s meaning. Like Mary Bilder’s recent article on the influence of Cherokee, Chickasaw, and Choctaw delegations’ visits to the constitutional convention in 1787, and earlier works by Robert Clinton, Maggie Blackhawk, and Ablavsky himself, the article confirms the influence of tribal actions on the Constitution and its interpretation. But in foregrounding Indigenous people’s perspectives, Ablavsky and Allread open a new window on those actions as well as on constitutional history and law.
The first contribution of the article is to identify pre-constitutional tribal-settler diplomacy as an important backdrop against which the Constitution was drafted and understood. As scholars like Robert Williams and Colin Calloway have shown, established rules, shaped by both Indigenous and English traditions, governed this diplomacy. These practices included both accepted rituals and norms of negotiation, reciprocity, and ongoing relationships that the English violated at their peril. Ablavsky and Allread dub this body of rules the “diplomatic constitution,” invoking the times’ definition of constitution as the practices, institutions, and discourses that disciplined governmental power. Influential founders, they show, like George Washington, Ben Franklin, James Madison, James Monroe, and Thomas Jefferson, would all have been familiar with this diplomatic constitution from their own experiences at negotiations with tribal nations.
Although the early documents of the fledgling United States seemed to continue these rules of diplomacy, white settlers, states, and loosely organized militias defied its precepts, refusing negotiation and clear channels of communication. In response, tribal leaders repeatedly invoked the diplomatic constitution and chided the federal government on its inability to control its subjects. As Chickasaw leaders informed Congress, “We are told that you are the head Chief of a grand Council which is above these Thirteen Councils…[I]f so, why have we not had talks from you? We are head Men and Chiefs and Warriors also, and I have always been accustomed to speak with great Chiefs and Warriors.” (P. 265.) At the time, federal officials were torn on whether to maintain the diplomatic constitution or to treat tribal nations as conquered peoples to whom no further concessions need be made. Tribal influence pushed these officials to restore existing norms.
Ablavsky and Allread also show that Native people were an important external audience for the U.S. Constitution. Federal actors had drafted the Constitution with tribal demands in mind, and “aggressively sold and promoted the new document to Native audiences as a restoration of the core principles of the diplomatic constitution.” (P. 269.) As officials informed the Muscogee, “Our Unions, which was a child, is grown up to manhood[]….One great council is established, with full powers to promote the public good,” and ensure “that justice shall be done to the nations of Indians….” Native leaders were congratulatory but pointed in their official responses. The Haudenosaunee observed that it had always been the custom of their confederacy to “have one Great Council fire kept Burning…and there to do all the public business which respected the five Nations in General,” while the Cherokee Nation complimented Congress on having “become strong,” but expressed its hope that “whatever is done hereafter by the great council will no more be destroyed and made small by any state.” (P. 273.)
Discussions between Indigenous observers were less hopeful. The Mohican sachem Hendrick Aupaumut accepted a federal commission to convince a confederacy of tribal nations that the new government would honor its promises and restrain its citizens. His audience, already suffering under unrestrained settler incursions, doubted his claims. Some tribal nations responded to violations of the diplomatic constitution by warring against those expropriating their land. Others invoked it to secure favorable treaties for their people. The United States violated the faith of the latter, demanding new land concessions and removal instead of preventing illegal settlement.
Ablavsky and Allread present the landmark Cherokee cases as a continuation of Indigenous assertions that the U.S. Constitution incorporated the diplomatic constitution. Even before appealing to the U.S. Supreme Court in Cherokee Nation v. Georgia, 30 U.S. 1 (1831), and Worcester v. Georgia, 31 U.S. 515 (1832), Cherokee and Choctaw delegations made constitutional arguments in response to southern states’ claimed authority over their lands. Their testimonials asserted that the Constitution did not control tribal sovereignty, but their “treaties of relationship are based on the principles of the federal constitution.” The Commerce Clause prohibited states from interfering with those relationships, and those treaties were the “supreme law of the land.” When Congress and the Executive proved unresponsive, the Cherokee Nation brought its arguments to the Supreme Court.
And in Worcester v. Georgia, they succeeded. Chief Justice Marshall’s opinion affirmed tribal sovereignty, federal exclusive authority, and that state actions in violation of these principles were “repugnant to the Constitution, laws, and treaties of the United States.” President Jackson, of course, failed to enforce the decision, and the United States later forcibly removed the Cherokee people under a false treaty. And although Worcester v. Georgia powerfully sustained legal recognition of tribal sovereignty, over time federal law forcibly absorbed tribal governments within the constitutional order.
So how should this history influence our understanding of the Constitution today? Ablavsky and Allread offer their history as a general call for founding histories to look beyond the exclusive (white, male, propertied) group who could formally assent to its ratification. Native peoples, they show, were both an important audience for the Constitution and had an meaningful influence on its implementation. Further, they argue, the diplomatic constitution should be understood, like the works of William Blackstone, as part of the common law backdrop that informs constitutional meaning.
What light might the understandings of enslaved people, free people of color, or white women shed on constitutional meaning? Recovering understanding or influence would not mitigate the original exclusion or manufacture metaphorical consent. As Ablavsky and Allread show, Native nations refused consent and yet were incorporated anyway. But it would broaden the search for understanding and influence beyond the few whose claimed the power to consent on behalf of the many, and allow formally excluded people to claim their role as co-creators of constitutional law. And the results may be as illuminating as those We the (Native) People provide.
Editor’s note: For another review of this article, also published today, see Allison Brownell Tirres, Constitutional History in the Middle Ground and Beyond: Indigenous Perspectives, JOTWELL (July 12, 2023).
Cite as: Bethany Berger,
Expanding the Constitutional Lens, JOTWELL
(July 13, 2023) (reviewing Gregory Ablavsky & W. Tanner Allread,
We the (Native) People?: How Indigenous Peoples Debated the Constitution, 123
Colum. L. Rev. 243 (2023)),
https://lex.jotwell.com/expanding-the-constitutional-lens/.
Jun 29, 2023 Ezra RosserPoverty Law
Michelle Wilde Anderson’s The Fight to Save the Town: Reimagining Discarded America is worth reading for its optimistic approach to the challenges facing poor communities. Governments in such communities are often beset by significant legal and structural limitations that make it hard for them to provide even basic services to poor residents. With government programs related to poverty largely forced into retreat since the War on Poverty, the Affordable Care Act being the notable exception, it is easy for those who care about how the government responds to poverty to fall into despair. Poverty law offers little solace. The promise of Goldberg v. Kelly having long since faded, poverty law scholars are left searching for reasons for hope. The Fight to Save the Town provides glimmers of hope despite the legal and structural limitations facing struggling communities.
Anderson explains in the introduction that she aligns herself with the “‘call in,’ rather than ‘call out,’ tradition of social change,” (P. 31) which captures the book’s tone and approach. Portraits of community leaders and community organizations fighting back against urban decay and government decline form the heart of the book. But for all the heroism depicted in The Fight to Save the Town, readers are left—as they arguably should be—simultaneously inspired by the many examples of communities coming together and horrified by the fact that anti-government and anti-poor sentiment has been so effective in gutting these same communities for so long.
While some readers of the book will likely accuse it of being too optimistic—being so celebratory of minor wins that can only do so much in the face of major structural barriers—Anderson begins each community profile by explaining the roots of today’s citywide poverty in the four towns profiled. Anderson is not the first author working on local communities to structure a book in this way. William Julius Wilson and Richard P. Taub’s excellent work, There Goes the Neighborhood: Racial, Ethnic, and Class Tensions in Four Chicago Neighborhoods and Their Meaning for America (2006), for example, has a similar structure. What makes Anderson’s book stand out is her ability to show the commonalities across four cities and areas that initially seem so distinct. On the surface, Stockton, California; Josephine County, Oregon; Lawrence, Massachusetts; and Detroit, Michigan are quite different in terms of scale, economics, racial composition, and politics. Such differences, Anderson shows, matter–and shape everything from what the community values to what sort of work is needed to make improvements. But The Fight to Save the Town is as much about the people working to help others find jobs, ensure the public library stays open, or make an area safe again, as it is about the distinct places. Anderson’s book is both a portrait of ground-up activism and a portrait of communities hoping for a better future.
The themes tackled by The Fight to Save the Town are not easy ones and, Anderson is careful to note, are not the issues that impact all communities. Because each town has its own history and own struggles, the book is not a how-to manual for community activists. But Stockton, Josephine County, Lawrence, and Detroit are going through things that many struggling places are going through. Hit hard by deindustrialization and tax rebellions that leave local governments unable to collect enough revenue to fund basic services, residents see their livelihoods collapse—even as they find themselves unable to rely upon government services that, in earlier periods, were taken for granted. Mistrust of government is a common feeling in such places, whether the politics in the area lean blue or red. Community activists are forced to do the best that they can to improve things, whether that means building up networks outside of government or finding ways to convince taxpayers to agree to be taxed in order for the government to rebuild.
Before tackling the most challenging part of the book, it is worth pausing to give Anderson credit for being a very talented writer. The Fight to Save the Town flows beautifully. The town histories and the portraits of community activists and politicians are written in such a way that they draw the reader in, making one care about these places and people. Like most breakout books on poverty, Anderson’s choice to write a people-centered book allows her to connect with readers in a way that cannot be achieved through wonky policy-centered approaches.
It is also worth acknowledging that, for many readers, the hardest part of The Fight to Save the Town to deal with is likely Anderson’s relentless optimism. I suspect that all law faculties have colleagues whose modus operandi is to be positive. You see them in the hall, where every day is the best day ever, and in faculty meetings, where they think every idea is a great one, even if the issue really demands they take a stance. I cannot say that I hate such people, that is way too strong a claim. But, admittedly, they do annoy me. Let’s be realistic—some days suck and some choices are bad ones. Anderson can come off as too positive. Fortunately, she knows it and spends time in the introduction defending her choice to “celebrate and support a new generation of people-centered leadership.” (P. 32.) As Anderson observes, “eulogistic writing records memories of a place, as though it is already lost,” (P. 25) even though places that Anderson calls “discarded America” still are home to large numbers of poor people. And those poor people have agency, attachment to place, and hopes and dreams that should not be written off.
My view is that there is value in both the “call in” and the “call out” traditions of social change. There must be works such as Matthew Desmond’s Evicted: Poverty and Profit in the American City (2016) and Barbara Ehrenreich’s Nickel and Dimed: On (Not) Getting By in America (2001) that call out the gross inequalities that the country tolerates and the hardships that the poor endure. Such works speak to some readers and can force the upper and middle classes to recognize the humanity (and the suffering) of the poor. But, there is also a need for more optimistic takes. Works like this show readers that people living in poor places should be not only listened to, but that through their leadership and example are already providing a path forward for these struggling communities.
Jun 15, 2023 Juliet StumpfImmigration
Keeping secrets is so middle school.
When the secret is law, though, the problems mature and proliferate. Faiza Sayed’s The Immigration Shadow Docket uncovers a nest of secret law in the Board of Immigration Appeals (BIA)’s practice of deciding almost 100% of its cases as unpublished, nonprecedential decisions. These decisions are available to government lawyers but not to immigrants or their lawyers, and that makes steam come out of my head.
The BIA decides about 30,000 cases each year, but publishes only 30 of them. Those published decisions are authored either by three-member panels, or by the Board en banc, and they lay out the legal reasoning and findings of the Board. The few published decisions are accessible to the public and citable.
The remaining tens of thousands of decisions of immigration cases are issued by single members of the Board. Sayed calls this the “immigration shadow docket.” The vast majority are summary affirmances and orders, and they cannot be cited as precedent—at least, not by advocates for immigrants. In practice, however, government attorneys and immigration judges access them and cite them in briefs and decisions. Thus, the steam.
Sayed describes one gesture that the BIA has made towards public access to some unpublished decisions, which sounds like a law librarian’s nightmare. A sliver—less than 6%—of the unpublished decisions are publicly accessible. They’re accessible, that is, only to members of the public willing to travel to the room where they reside (in hard copy only) in Falls Church, Virginia. Once there, the visitor discovers that the decisions are organized solely by month and year. There is no index nor topical filing system. As Sayed notes, “The only way to find decisions on a particular topic was to leaf through them, one by one.” (P. 911.) One imagines her there, leafing metronomically, sharing a table with bleary-eyed immigration lawyers with beards down to their toes.
Electronic versions of unpublished decisions reside on the internal BIA case database and some other immigration court locations where government counsel and immigration judges can find them. Although FOIA litigation has resulted in a settlement allowing for staggered disclosure of certain past and future unpublished decisions, many categories remain undisclosed and individual FOIA requests are often denied. Because of the inequality in access to Board decisions, the government and the adjudicator can tap into the secret law while it remains hidden from the public. The unpublished decisions are not minor procedural issues or ministerial decisions. They are adjudications of whether an individual may stay or must go. They are determinations that impact the future of individuals and families. At that volume, they are decisions about who will compose our communities.
Other courts, most famously the Supreme Court, also have shadow dockets—categories of orders, affirmances, and denials that are non-precedential but impact a significant volume of cases. These shadow dockets have been the subject of critique and efforts at reform. Sayed describes these in the article and relies on some of them in her suggestions for BIA reform.
But the BIA’s practice takes the shadow docket to a new height. In contrast to publication practices of the Supreme Court and federal appellate courts, almost 100% of the BIA’s decisions are on the shadow docket. The difference between the federal courts’ shadow dockets and the BIA’s body of secret law is that nearly all of the Board’s decisions are unpublished, and the federal courts have responded to critique by enacting reforms.
Having a secret body of immigration law calls into question the legitimacy of the immigration adjudication system. The article brings to light the existence of inconsistent outcomes in cases that should have the same result, such as two cases that determined both that a specific organization was a terrorist group and that it was not, resulting in a removal determination for one non-citizen but not the other. Sayed also points out that the nature of the shadow docket encourages “low-quality opinions that are thinly reasoned or lack reasoning entirely” and “error-prone decision-making.” (P. 920.)
Sayed’s long list of concerns about the existence of the shadow docket is compelling. She notes the high stakes of BIA decisions when removal orders mean banishment from the United States. Because of the severe restrictions on federal court review and jurisdiction, the BIA is essentially the Supreme Court for most immigration cases. Lack of a right to appointed counsel, among other barriers, means that the odds are stacked against the indigent non-citizen in immigration court. Even with counsel, how well can an attorney represent a client when the law is inaccessible to her? How is the public to comply with the law, or advocate for changes in law, if the law itself is secret?
But her larger point is the takeaway here. Secret immigration law stunts the development of immigration law itself. The Board is tasked with providing guidance about the meaning of immigration law and effecting uniformity in immigration law nationally. This is an impossible task when only 30 of those 30,000 decisions are published. As Sayed concludes: “shadow docket decision-making defies important principles of administrative governance, including notice, justification, coherence, and procedural fairness, and undermines political accountability and judicial review.” (P. 898.)
May 16, 2023 Caprice RobertsRemedies
Katherine Mims Crocker,
Constitutional Rights, Remedies & Transsubstantivity, 110
Va. L. Rev. __(forthcoming 2024), available at
SSRN.
Faith in judicial decision-making is waning to say the least. Intense skepticism and criticism reign the day. Charges of unbridled power grabs abound, whether one decries the erosion of stare decisis or applauds perceived course corrections in constitutional law and remedies. All recognize victories may be fleeting as we increasingly unmoor from judicial norms and doctrines of restraint. Perceptions of more overt partisanship and consequential decision-making do not uplift the role of Article III judges or align with judicial independence. Is all hope lost? If one wishes to understand and improve the judiciary, Professor Katherine Mims Crocker’s article, Constitutional Rights, Remedies & Transsubstantivity, is for you.
Professor Crocker argues that federal courts should provide comparable options for securing remedies for discrete constitutional wrongs. The promotion of generality and neutrality to foster consistent application across distinct substantive areas is part of the transsubstantivity paradigm. The article’s focus is constitutional remedies—specifically, doctrines for preventing or punishing encroachments of constitutional rights or, when proper, remedies effectuating constitutional rights. And this moment in history poses an ideal opportunity to recenter on the transsubstantivity paradigm given its apolitical nature.
Judicial vacillation on constitutional rights and remedies is destabilizing. It is anxiety- inducing. Crucial remedies are no longer available. Inconsistency exists on whether and the extent remedies are available for gun rights, abortion rights, and religious rights. The public’s constitutional priorities show deep division across the country, and recent Supreme Court rulings deepen the divide. Though the modern Court trend is relatively consistent in narrowing access to and the extent of remedies for most constitutional rights (except Free Exercise claims), the Court is inconsistent in treatment of remedial doctrines in constitutional rights cases. Professor Crocker’s article is necessary because it provides systematic scholarly criticism and recommendations for enhanced consideration of transsubstantivity for constitutional remedies.
To improve performance and perception of the federal judiciary, Professor Crocker provides a descriptive framework and normative lessons for enhancing the judiciary’s approach to remedial transsubstantivity. The article offers rich definitional aids as well as a novel framework to classify various instances of non-transsubstantivity. As a fresh descriptive analysis, for example, Professor Crocker shows that existing judicial reasoning on remedies principles is sometimes transparent, but other times, “translucent” only shedding partial light without details or “opaque” only providing cloudy and questionable rationales. (Pp. 22 & 29.) Whether translucent or opaque, courts are failing to sufficiently acknowledge and explain doctrinal inconsistencies in constitutional remedies. Normatively, the article shows how increased transparency of judicial reasons for departure in all constitutional-remedies cases will improve judicial craft and enhance accountability. Assessing judicial analysis occurs both at the time of the opinion and to future applications. Courts and critics will evaluate the soundness of the justifications for departure. Professor Crocker also contributes value with concrete examples throughout the work. Notably, this article does not promote one interpretive methodology over any other. Rather, according to Professor Crocker all conventional methods allow for “generality and neutrality” in constitutional remedies doctrines where reasonable minds may disagree on the best interpretative method to resolve questions not clearly answered by existing law. (P. 39.) Consistency, with room for reasoned deviation, is the name of the game. Specifically, the article advances consistency in the approach and availability of remedies in constitutional cases.
The emphasis on consistency is not intended as a rigid stricture. Here, Professor Crocker maintains that we are wise to examine the extent to which federal courts do and should offer similar opportunities for securing relief for violations of constitutional rights. The article provides examples showing how the Supreme Court has departed from the transsubstantivity paradigm in constitutional remedies cases. For example, Professor Crocker analyzes indeterminate remedial standards including the political question doctrine for justiciability and the plan-of-the Convention doctrine in state sovereign immunity cases. From Baker v. Carr to Rucho v. Common Cause and from Hans v. Louisiana to Central Virginia Community College v. Katz and many more cases, Professor Crocker shows the Court’s missteps in using indeterminate tests. Overall, Professor Crocker delivers in-depth analysis of inconsistencies and faulty logic. The article’s insightful commentary advances the scholarly dialogue. And deeper theoretical and doctrinal treatments of remedies law like Professor Crocker’s work warrant serious attention.
A key justification for the transsubstantivity paradigm is that greater overarching principles across remedies issues would reduce politics and the perception of playing favorites in constitutional decisions. Even where variation of doctrines is preferable or necessary, greater transparency in judicial reasons for any departure will aid judicial, public, and scholarly debate on the validity of judicial approaches and reasoning. In a more normative stance, Professor Crocker presents recommendations with the goal of a providing increased ability to debate and assess judicial legitimacy. All proposals include emphasis on viewing transsubstantivity in constitutional remedies decision-making as vital, though not absolute.
Professor Crocker offers four specific suggestions for how courts could improve their approach to constitutional remedies, with special focus on the Supreme Court: (1) enhance attention to “transsubstantivity in the constitutional-remedies context by spotlighting occasions for adherence and emphasizing the importance of explaining departures,” (2) increasing transparency where lacking by having judges explain any disconnect between a doctrine’s rationale and the method of application (the “range”), (3) decreasing overdetermination, which is where judges provide multiple lines of reasoning that are sometimes unnecessary and unjustified, and (4) reconsidering foundations where the Supreme Court makes context-specific distinctions and exceptions. (Pp. 39, 42, 45, 48.) Each of the four improvements is worth serious dialogue and, at least the first two, worth immediate adoption.
For the first point, enhancing attention to transsubstantivity in the constitutional-remedies context, Professor Crocker showcases instances for adherence to remedial doctrines, but also defends certain instance of deviation. Variation may make sense where warranted and well-explained. Professor Crocker explains that, in the wake of cases like Dobbs v. Jackson Women’s Health Organization, now is an ideal moment for increased attention on transsubstantivity given its apolitical nature. Further, Professor Crocker compares Professor Zach Price’s article advancing a theory of symmetric constitutionalism to show how the transsubstantivity doctrine for constitutional remedies can align with the ends sought with symmetrically constitutional rights, but not the preferred means. For example, if indeterminacy remains, Professor Price suggests consideration of partisan consequences whereas Professor Crocker prefers inclusion of political considerations only as an output rather than an input of the presumption of remedial transsubstantivity.
The second point aims to enhance judicial candor and democratic accountability. Here, Professor Crocker identifies Miranda v. Arizona, as an example of helpful transparency about non-transsubstantive decision-making. The justiciability analysis in Los Angeles v. Lyons, is illustrative of insufficient clarity of analysis as it failed to adequately distinguish relevant doctrines. Two specific failings, for example, are that the Court never mentioned the plaintiff was Black or that most who had died from police chokeholds were Black. With more complete explanation, courts could better grapple with application of these remedial doctrines in future cases.
For her third normative recommendation, Professor Crocker critiques the judicial method of giving multiple rationales, which places transsubstantivity at risk. To be sure, a court providing several reasons can be a good thing. It is transparent, which is good. Providing multiple reasons may show the court took litigants’ arguments seriously and may also help on appeal as alternative bases for upholding the ruling where one justification fails. Accordingly, Professor Crocker focuses on negative consequences that can occur where overdetermination includes unnecessary reasons. As a quintessential example, the article provides the special-solicitude rationale in Massachusetts v. EPA, because the rationale is unclear and unnecessary. In fact, three other doctrines justify the opinion: proprietary standing, sovereign standing, and quasi-sovereign standing. Another example provided is the unnecessary ticking-time bomb language in Grutter v. Bollinger, in which the Court indicated that in 25 years, racial preferences shouldn’t be necessary. If the Court’s statement amounts an expiration date, then the doctrine at issue is non-transsubstantive rather than a principle that should endure.
Last, the article suggests reconsidering, though not necessarily rejecting, foundational doctrines that become less transsubstantive due to excessive exceptions and debatable distinctions. This subsection focuses on cases like Seminole Tribe of Florida v. Florida, where the Court triggered a revolution in sovereign immunity jurisprudence by concluding that Congress cannot abrogate state sovereign immunity via Article I authority. The reasoning was opaque yet repeated by the Court as canonical until recently when the Court began whittling away at it. This pattern may make Seminole Tribe ripe for reconsideration.
This is not a time to surrender on core principles such as expecting judges to provide clear rationales for departures from doctrines and precedent. It’s a time to double down on meaningful principles. A time to refocus, reexamine, and reassert ideals. No doubt, “transsubstantive decision-making about constitutional remedies seems less and less common but more and more crucial.” (P. 50.) We must continue to debate proper judicial decision-making and reach for ideals that will enhance judicial reasoning. If the federal judiciary listens to Professor Crocker, it will do a better job of applying consistent approaches to constitutional remedies across types of constitutional rights. As Professor Crocker notes, “Courts, and especially the Supreme Court, can do better.” (P. 4.) Then perception and reality will align to bolster the legitimacy of the federal judiciary and, vitally, restore faith in the Supreme Court.
Apr 12, 2023 Jaya Ramji-NogalesImmigration
Scholarly examinations of sanctuary for immigrants tend to focus on destination states in the Global North, where the concept implicates support for the immediate needs of immigrants in a specific location—such as a church, or throughout a city—and in some cases policy advocacy efforts. Few scholars writing in the Global North have explored how this concept translates to the Global South, where most migration and transit occurs, and where a substantial amount of work is happening to support migrants despite the more profound costs to those residing in countries with more limited resources. Alexandra Délano Alonso offers the reader a shift in the epistemology of migration, taking us to locations in the Global South where this work is taking place. In Sanctuary in Countries of Origin: A Transnational Perspectives, she investigates the concept of sanctuary through a case study of her home country of Mexico, determining that the term is an uneasy fit and that the practice of sanctuary is more transformative in the Mexican context.
Délano begins with an examination of historical sanctuary practices in Mexico, noting that, much like in the United States, the main actors have been migrant shelters, churches, and community organizations, but that Mexicans are more likely to use the terms hospitality, shelter, and welcome to describe the support offered to migrants. Given that the Spanish definition of sanctuary tends to focus narrowly on religious spaces, she questions its political power in popular discourse. Délano also asks the key question about sanctuary that Mexicans raised in response to the Central American caravans in 2018, namely, whether sanctuary can exist in a location that is unsafe and under-resourced even for locals. She also explores the complexity and contradiction in the political discourse around these caravans, noting an about-face between governments, from a discourse of hospitality for asylum seekers to the assertion just a few months later that Mexico is not a sanctuary or a “country of open doors” by the administration of Andrés Manuel López Obrador.
The article offers three case studies to explore the discourse and practice of the sanctuary in Mexico. It begins with a description of Mexico City’s efforts, in conjunction with cities such as Chicago and Los Angeles, to respond to returning citizens and resist the anti-immigrant actions of the Trump administration by labeling itself a sanctuary city. Délano explains that the term sanctuary was not politically effective in this setting and that Mexico City eventually relabeled itself, becoming instead a city of hospitality and human mobility.
The article next explores the richest of the three case studies, namely the migrant shelters in Mexico that seek to offer hospitality with dignity. This approach, which includes basic needs such as food and shelter, is distinguishable from sanctuary as practiced in the Global North in that it views “integration as a process of liberation and mutual recognition.” (P. 91.) In other words, dialogue around the structural discrimination, violence, and poverty that affect both locals and migrants is baked into the hospitality process. The goal of this practice is to create political consciousness, enabling migrants to leave behind the status of victim and instead become “protagonists of their own liberation.” (P. 91.) Sanctuary thus becomes encounter and solidarity leading to mutual transformation rather than a practice of citizens bestowing charity upon migrants.
The final case study examines post-deportation sanctuary. Like the first case study, this is an interesting application of the concept to citizens who require assistance to successfully reintegrate into their native country. Délano describes the stigma that attaches to deportees and explains the role that community organizations play in offering support for their immediate as well as medium and long-term needs. She labels these practices “holistic accompaniment”; in addition to food and clothing upon arrival, the groups help to find employment, offer mental and emotional health care, and create community spaces. This is a much longer-term approach than government services that are provided only at arrival. Similar to the migrant shelters described in the prior case study, groups such as Otros Dreams en Acción engage in the praxis of mutual aid, solidarity, and advocacy to dismantle a range of inequalities–economic, social, and political inequality–that harm not only returnees but also their communities. The actors in this final case study were more comfortable deploying the concept of sanctuary, likely because of the time they had spent in the United States.
This thoughtful article looks to the Global South to offer a “more dynamic, self-critical, expansive, and transformative practice of sanctuary.” (P. 95.) In Mexico, we can see practices of hospitality and solidarity that aim to create new forms of community that can alter systems in ways that improve the well-being of migrants and locals alike. Stepping away from the framework of sanctuary in the United States (in which citizens offer aid and non-citizens are victims and recipients of assistance) a turn to the Global South as a site of knowledge production enables a more radical approach that offers the promise of emancipating all of us, citizens and non-citizens alike.
Mar 5, 2023 Steve GoldEnvironmental Law
“It’s obvious” is one of the all-time putdowns of a paper at a workshop. But like many putdowns, this one comes with a ready-made riposte: “If it’s so obvious,” the author might ask, “why hasn’t anyone said it before?”
Dave Owen willingly invites this exchange in the opening of The Negotiable Implementation of Environmental Law. The article begins with a hypothetical factory-siting scenario that to “many practicing environmental lawyers…would sound routine.” (P. 3.) What makes this familiar scenario interesting? The fact that negotiation helps define at least some of the legal obligations imposed by each of numerous implicated facets of environmental law. That fact, Owen persuasively argues, is under-appreciated in environmental law teaching, scholarship–and reform proposals.
In a broad yet specific survey of canonical environmental statutes, Owen describes the central role negotiation plays. He identifies statutory provisions that permit or encourage negotiation (such as CERCLA’s detailed provisions for Superfund remedial action agreements) as well as statutory gaps that might be filled by regulatory edict but leave room for possible negotiation (such as the Endangered Species Act’s requirement that an acceptable habitat conservation plan be included in incidental take permits). But he goes beyond the letter of the law to explain how negotiation affects environmental law in practice. For this, Owen relies heavily on snippets taken from 42 interviews with a range of environmental law practitioners. The interview methodology adds considerable credence to Owen’s description. Because the interviews are so important to his thesis, it is a bit frustrating, though understandable, that they are anonymous and labeled only with generic descriptions of the interviewees’ jobs. Nevertheless, the quotes from the interviews ring true, at least to this former government attorney.
The central role of negotiation, Owen argues, is absent from or misunderstood by two opposing critiques of the main body of federal environmental law. He labels these the “command and control” critique and the “slippage” critique.
Owen’s piece is at its zestful best when he uses the centrality of negotiation to take down major portions of the “command and control” critique–the familiar argument that environmental law is excessively rigid, directive and (therefore) inefficient. The pervasiveness of negotiation in implementing environmental law, Owen shows, provides opportunities for much of the flexibility and tailoring that are touted advantages of replacing existing federal regulatory frameworks with privately-operated, market-driven, or less-centralized ones.
Yet, Owen notes, the same view that environmental law mandates are fundamentally inflexible underlies the “slippage” critique, which sees rigidity and directiveness as features, not bugs. “Slippage” argues that when environmental regulators negotiate, they have only one direction to go: down from the strict requirements of the letter of the law. But this misses what Owen calls the “constitutive role” of negotiation in defining “what compliance is” rather than allowing deviation from compliance obligations. (Pp. 4-5.) Sometimes, Owen contends, negotiation produces better environmental protection than…whatever the alternative is.
Owen is careful not to over-claim. He does not contend that exponents of the command and control critique or the slippage critique entirely ignore the existence of negotiation in implementing environmental law. Rather, he convincingly argues that both critiques underestimate the role of, and undercount the benefits of, negotiation in environmental law.
Nor does Owen contend that these critiques are entirely wrong; he merely insists that they should engage with the implementation of environmental law as it exists rather than as it is modeled (or caricatured). By failing to do so, the command and control critique overstates the flaws of existing environmental law and the benefits of reform proposals the critics support. The slippage critique, for its part, understates the beneficial role of negotiation and consequently misses opportunities for improving environmental law implementation by enhancing regulators’ performance in negotiation.
Owen’s sympathy for the slippage critics’ goals, if not their prescriptions, shines through his suggestions for improvements negotiating implementation of environmental law. These suggestions aim primarily at making the government or “pro-environment” side of negotiations work better. Owen suggests that the role of negotiation in regulatory decision-making should be made more transparent; that the responsible government staff should be trained to be more effective negotiators; and that the negotiation process should be made more equitable for interested parties with fewer resources, such as community groups and smaller regulated entities. These ideas are not developed in any detail, but they raise many implementation questions.
For example, it is understandable, that Owen would argue that regulators should be clear with the public and the regulated community about “what they are willing to negotiate, what they are not willing to negotiate, [and] what general goals the agency seeks to achieve in its negotiations.” (Pp. 49-50.) Transparency is a generally accepted norm for government action. But an elementary principle of effective negotiating is that in a negotiation, information is power. To be transparent in a way that is more than uselessly generic but less than strategically destructive is no easy feat. Owen acknowledges that confidentiality may be important in negotiations, but he only begins to suggest how agencies can walk that tightrope.
Similarly, it is easy to suggest that resources be allocated to making government negotiators more effective and to bolster the equitable participation of disadvantaged communities and small businesses in the negotiation process. No doubt, as Owen suggests, formal training in negotiation would help some government officials achieve better outcomes (even while reducing frustration among others at the negotiating table). But this proposal hardly would alleviate the general lack of resources in environmental agencies that Owen also documents, or the policy- and politics- driven directions and limits imposed from above on many government negotiators. As to increasing equity in environmental law negotiations, resources surely are necessary, but it is hard to know if they will be sufficient. Technical Assistance Grants and Community Advisory Groups in Superfund are perhaps the best-known efforts to provide such resources. The literature is full of laudatory references to them, but includes little analysis of how well they have worked or how scalable they may be.
To say that we need to know more about Owen’s proposals for improvement, however, is not to criticize his article but to praise it for one of its great strengths: identifying future research needs. Owen’s compelling demonstration of the centrality of negotiation to environmental law invites study of how, and how well, those negotiations work. Consider CERCLA, the statute Owen holds up as exceptionally explicit about negotiation. The statute, the National Contingency Plan, and reams of guidance documents seem to say what is not negotiable, what is, and to what ends. But in nearly two decades working on Superfund cases, I saw things negotiated that were not negotiable and negotiable things that were not. Perhaps idiosyncratic, site-specific considerations drove those results. But perhaps there are patterns that could be uncovered through systematic assessment. The same is true of every piece of environmental law in Owen’s opening hypothetical.
As Owen himself stresses, a deeper dive into any aspect of the negotiable implementation of environmental law will be hard. He shows that negotiation’s role is often evanescent; it is the epigenetic factors that control the expression of statutory and regulatory DNA code. Sequencing DNA is much easier than figuring out how gene expression is controlled, but we really can’t understand biology without doing both. Owen reminds us that to understand environmental law, we have to understand how it is negotiated.
“This Article should not be novel,” Dave Owen wrote. (P. 49.) But it is, it is.
