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Loving v. Virginia and White Supremacy

Peggy Cooper Davis

Professor Davis examines a neglected but potentially important aspect of the Supreme Court’s opinion in Loving: the Court acknowledged, for the first and only time, the social construction of white supremacy.

Toward an Intra-Agency Separation of Powers

Bijal Shah

In Response to: Of Constitutional Custodians and Regulatory Rivals: An Account of the Old and New Separation of Powers

This Essay responds to Jon Michaels’s argument for a form of agency fragmentation called the new “administrative separation of powers,” a structure consisting of three fundamental sets of actors: agency heads, civil society, and the civil service. According to Michaels, his thought-provoking idea has roots in the traditional separation of powers among the branches of government. Michaels also claims that these three intra-agency actors are able to maintain a “self-regulating ecosystem” that allows agencies to improve their functions similarly to the way that the constitutional checks and balances sharpen the operation of the political branches.

For Michaels’s tripartite agency to be legitimately characterized as a form of separation of powers, however, there must be a meaningful connection between the two frameworks. As of now, the analogy is hindered by some essentials aspects in which Michaels’s agency players do not reflect the three branches of government. These include, for example, each administrative stakeholder’s relative inability to protect its own jurisdiction from encroachment by the others and constraints on agencies’ capacity to further rule of law values. These limitations render constitutional separation of powers principles less valuable to the development of Michaels’s theory, because they reduce the extent to which the tripartite agency might, in fact, behave like the political branches.

In addition, both the use of Michaels’s model for executive-checking purposes and the ultimate success of his theory’s overall execution depend on the extent to which they
are grounded in the concrete characteristics of agencies and the polity. Additional substantiation of Michaels’s tripartite could be furthered by analysis of the diversity
among agency heads and civil servants across the executive branch and of the weaknesses in civil society’s ability to leverage its interests vis-à-vis government officials. Those seeking to realize the promise of Michaels’s model should also consider the impact of differences in administrative, political and societal structures, orientations and incentives on Michaels’s framework.

Bijal Shah, Toward An Intra-Agency Separation of Powers​, 92 N.Y.U. L. Rev. Online 101 (2017).

Complementary Separations of Power

Miriam Seifter

In Response to: Of Constitutional Custodians and Regulatory Rivals: An Account of the Old and New Separation of Powers

This Essay responds to Jon Michaels’s claim, insightfully developed in his recent Article, that the administrative realm functions as a self-regulating ecosystem. Michaels’s claim rests on his description of a trio of administrative rivals that mirror the constitutional branches: The civil service manifests key rule-of-law qualities of the judiciary, agency heads mimic the partisan leadership of the presidency, and—of greatest interest here—civil society plays the “popular, deliberative” role of Congress. Michaels argues that this “administrative separation of powers” legitimates and appropriately constrains agency action. Further intervention by the constitutional branches, in his view, is generally unnecessary and destabilizing.

Michaels’s intriguing comparison between civil society and Congress raises important questions about the oversight function of each institution. I argue that substituting civil society for Congress runs the risk of replicating—and likely exacerbating—pathologies of inequality and exclusion that undermine oversight’s democratic value. Both Congress and civil society are prone to elitism and representational failures that fall short of constitutional ideals. Yet because their respective mandates, structures, and capacities differ, the two institutions are likely to perform better oversight in tandem than civil society could alone. Congressional oversight, I argue, may channel a different and somewhat more inclusive perspective than civil society alone. At the same time, civil society has advantages over Congress: It can give voice to political minorities, act more swiftly and decisively, and engage with agencies more consistently over time. Taking account of the flaws and attributes of each institution thus points toward a reorientation of Michaels’s model. Rather than casting the administrative sphere as self-regulating in isolation, we should focus on the complementary nature of the administrative and constitutional rivals.

Miriam Seifter, Complementary Separations of Power, 91 N.Y.U. L. Rev. Online 186 (2016).

Material Adverse Effects as Buyer-Friendly Standard

Y. Carson Zhou

Commentators often remark that Material Adverse Effects (MAE) Clauses are difficult to successfully invoke. Indeed, the Delaware Court of Chancery stated in Hexion that “Delaware courts have never found a material adverse effect to have occurred in the context of a merger agreement.” But commentators’ preoccupation with the high legal hurdle for establishing an MAE at trial understates the ways in which the existing case law favors buyers during pretrial motions and settlement negotiations. This Article argues that the Delaware standard for establishing an MAE favors buyers at the pretrial phase by making it easier for buyers to drag out litigation in order to force sellers to agree to a renegotiated deal price. The Article then discusses the implications for dealmakers.

Y. Carson Zhou, Material Adverse Effects as Buyer-Friendly Standard, 91 N.Y.U. L. Rev. Online 171 (2016).

Judicial Challenges to the Collateral Impact of Criminal Convictions: Is True Change in the Offing?

Nora V. Demleitner

In Response to: Return of the JRAD

Judicial opposition to disproportionate sentences and the long-term impact of criminal records is growing, at least in the Eastern District of New York. With the proliferation and harshness of collateral consequences and the hurdles in overcoming a criminal record, judges have asked for greater proportionality and improved chances for past offenders to get a fresh start. The combined impact of punitiveness and a criminal record is not only debilitating to the individual but also to their families and communities. A criminal case against a noncitizen who will be subject to deportation and a decade-long ban on reentry and three different requests for expungement will demonstrate how three federal judges struggled with the long-term effects of the current sentencing and collateral consequences regime. These cases exemplify both judicial creativity and judicial impotence, as the courts have to call upon the support of other actors within the executive and legislative branches for change, in these individual cases and systemically.

These judicial critics of the current approach argue within an emerging normative framework that is coming to dominate the societal discourse on punishment. Increasingly some offenders are deemed “worthy” of receiving our assistance in reintegration. They are generally nonviolent first offenders, those with an unblemished record save for the offense of conviction, those who have been gainfully employed or desperately want to work, and those who have cared for their children. They present no danger to the community, and their continued punishment may negatively impact them, their surroundings, and ultimately the country. On the other hand, those labeled violent or sex offenders or terrorists are being considered dangerous, unredeemable, and deserving of the harshness the criminal justice system has brought to bear on them. The specific categorization of offenses, the definitions of terms, and the categorization of offenders remain fluid, contingent, and subject to constant revision. Still, these judicial efforts expand on the incipient efforts at full reintegration of some of those with a criminal record. Whether their challenges will resonate with their colleagues and in other branches of government remains to be seen.

Nora V. Demleitner, Judicial Challenges to the Collateral Impact of Criminal Convictions: Is True Change in the Offing?, 91 N.Y.U. L. Rev. Online 150 (2016).

A New Hope: Bringing Justice Back into Removal Proceedings

Jennifer M. Chacón

In Response to: Return of the JRAD

In his article, Return of the JRAD, Professor Jason Cade makes a strong and viable case that the Department of Homeland Security (DHS) can and should take into account nonstatutory Judicial Recommendations Against Deportation (JRADs) and other criminal justice signals of diminished criminal culpability when deciding whether or not to charge a noncitizen with deportability. Professor Cade’s proposal is a good one. The overall effects of his proposal will be modest. It can neither eliminate racial disparities in the criminal justice system and deportations nor end capricious distinctions between similarly situated criminal defendants in removal proceedings. On the other hand, it has no notable downsides and some significant potential upsides. Part I explains why exercising discretion along the lines that Cade proposes is firmly within DHS’s discretion and why such modest and rational exercises of discretion are unlikely to spark political backlash. Part II elaborates upon the potential benefits of Cade’s proposal. First, by encouraging criminal sentencing judges to issue nonstatutory JRADs, the Cade proposal promises to provide DHS with useful information otherwise unavailable at the charging stage, thus increasing charging fairness. At the same time, his proposal would make a positive change in the way that at least some criminal sentencing judges think about immigration consequences in criminal sentencing. Ultimately, it might even change the way that we talk, think, and write about the nexus of immigration and criminal law—better exposing the common failings and the interconnections of these systems to scholars and practitioners other than those who routinely work at their intersection.

Jennifer M. Chacón, A New Hope: Bringing Justice Back into Removal Proceedings, 91 N.Y.U. L. Rev. Online 132 (2016).

Back to the Future? Returning Discretion to Crime-Based Removal Decisions

Kevin R. Johnson

In Response to: Return of the JRAD

Jason A. Cade has powerfully advocated for returning greater discretion to the courts and agencies in making and reviewing Executive Branch decisions to remove noncitizens from the United States. His latest Article, Return of the JRAD, calls for a revival of a now-discarded procedural device of allowing courts sentencing noncitizen criminal defendants to make a “Judicial Recommendation Against Deportation” (JRAD) that would bar the Executive Branch from removing a noncitizen from the United States. Congress eliminated the JRAD from the immigration laws in 1990. In calling for its comeback, Cade points to a ruling by revered federal district court judge Jack Weinstein. In United States v. Aguilar, Judge Weinstein issued a sentencing order that, despite the fact that Congress abolished the JRAD a quarter century ago, resembled the old recommendations against deportation. The court thus went beyond the law on the books to advocate against the removal from the United States of a one-time, non-violent criminal offender with U.S. citizen children. One might dismiss Judge Weinstein’s recommendation as dicta. However, Jason Cade views the order as a much-needed sign of judicial resistance to the harsh criminal removal provisions of the modern U.S. immigration laws. He advocates the return of discretionary authority to the courts to ensure greater proportionality and reasonableness to contemporary removal decisions.

Kevin R. Johnson, Back to the Future? Returning Discretion to Crime-Based Removal Decisions, 91 N.Y.U. L. Rev. Online 115 (2016).

The Garland Affair: What History and the Constitution Really Say About President Obama’s Powers to Appoint a Replacement for Justice Scalia

Robin Bradley Kar, Jason Mazzone

After Justice Antonin Scalia’s death, politicians wasted no time before teeing up a political battle over his replacement. Republican Senators—led by Senate Majority Leader Mitch McConnell—immediately announced that they would not consider or vote on any replacement nominees from President Barack Obama. Instead, Senate Republicans deliberately seek to transfer President Obama’s power to appoint Justice Scalia’s replacement to the next elected President. This plan has generated substantial debate, but the debates have yet to engage with some of the most important historic, pragmatic, and constitutional risks of the plan. With Judge Merrick Garland’s nomination to the U.S. Supreme Court pending and Donald Trump, the presumptive nominee of the Republican Party, announcing his alternative list of nominees if elected, this Article seeks to bring greater attention to these risks.

We begin with history and show a striking fact that has not yet been recognized: There have been 103 prior cases in which—like the case of President Obama’s nomination of Judge Garland—an elected President has faced an actual vacancy on the Supreme Court and began an appointment process prior to the election of a successor. In all 103 cases, the President was able to both nominate and appoint a replacement Justice, by and with the advice and consent of the Senate. This is true even of all eight such cases where the nomination process began during an election year. By contrast, there have been only six prior cases in which the Senate pursued a course of action that—like the current Republican Plan—deliberately sought to transfer a sitting President’s Supreme Court appointment power to a successor. In all six such cases, there were, however, contemporaneous questions, not present here, about the status of the nominating President as the most recently elected President. The historical rule that best accounts for senatorial practices over the entirety of U.S. history is thus the following: While the Senate has the constitutional power to provide advice and consent with respect to particular Supreme Court nominees and reject (or resist) particular candidates on a broad range of grounds, the Senate may only use this power to deliberately transfer a sitting President’s Supreme Court appointment powers to a successor in the highly unusual circumstance where the President’s status as the most recently elected President is in doubt.

Given this more than two-century long tradition, the Senate Republicans’ current plan marks a much greater departure from historical precedent than has thus far been recognized. There is, however, still a further question whether the historical rule we uncover reflects a mere senatorial tradition, which should govern internal senatorial practices of fair dealing, or has further ripened into a constitutional rule that should inform the best interpretation of constitutional text and structure. In either case, the consequences of the plan are far more serious than its architects could have originally understood. After describing both possibilities, we suggest that Senate Republicans should rethink their plan so as to avoid these newly exposed historical, pragmatic and constitutional risks. Instead of continuing forward, the Senate should do what it has always done in similar past circumstances. It should proceed to full Senate consideration of Judge Garland or any other nominees that President Obama submits in a timely manner.

Robin Bradley Kar & Jason Mazzone, The Garland Affair: What History and the Constitution Really Say About President Obama’s Powers to Appoint a Replacement for Justice Scalia, 91 N.Y.U. L. Rev. Online 53 (2016).

Political Paralysis and Timing Rules

Frank Fagan

In Response to: Make Me Democratic, But Not Yet

This Essay builds on the framework of Daniel Herz-Roiphe and David Singh Grewal for overcoming political paralysis with timing rules as set forth in their recent article, “Make Me Democratic, But Not Yet: Sunrise Lawmaking and Democratic Constitutionalism.” They suggest that delayed implementation of controversial policies with sunrise rules increases the likelihood that those policies will become law. Lawmakers may not agree to a difficult reform that takes effect today, but they may agree to a difficult reform that takes effect tomorrow.

In addition to sunrise rules, I suggest that a different species of timing rule can help overcome gridlock, i.e. stabilization rules. Stabilization rules facilitate agreements differently from sunrise rules in one important respect: Instead of expanding the space for agreement by leveraging time, they do so by creating multiple versions of the same policy that apply conditionally. For example, suppose that climatologists desire a carbon tax and that skeptics oppose it. Setting aside who has the better evidence, climatologists and skeptics both justify their positions on the basis of scientific claims. To facilitate compromise, lawmakers can counterintuitively ignore the evidence altogether and instead create a stabilization rule. That rule implements a tax only when a conditional event occurs, say, when average annual temperature is increased by 1.2 degrees over pre-industrial levels or some other threshold. Otherwise, the tax is not placed into effect. This form of lawmaking recognizes that a current generation may be willing to reduce consumption for a future one, so long as it is certain that its reduction will achieve its desired effect. By expanding the space for sacrifice, stabilization rules can satisfy the normative framework of Herz-Roiphe and Grewal and its deep connection with Kantian principles of guardianship.

The Essay examines federal budget law along the same lines and offers some comments on Herz-Roiphe and Grewal’s discussion of using sunrise amendments to reform the Electoral College and representation in the Senate.

Frank Fagan, Political Paralysis and Timing Rules, 91 N.Y.U. L. Rev. Online 43 (2016).

Pleading Standards: The Hidden Threat to Actavis

Michael A. Carrier

In FTC v. Actavis, the Supreme Court issued one of the most important antitrust decisions in the modern era. It held that a brand drug company’s payment to a generic firm to settle patent litigation and delay entering the market could violate the antitrust laws. Since the decision, courts have analyzed several issues, including causation, the role of the patent merits, and whether “payment” is limited to cash. But one issue—the pleading requirements imposed on plaintiffs—has slipped under the radar. This issue has the potential to undercut antitrust law, particularly because settlements with payment and delayed entry today typically do not take the form of cash. The complexity of non-cash conveyances increases the importance of the pleading stage.

For that reason, it is concerning that courts recently have imposed unprecedented hurdles. For example, the district court in In re Effexor XR Antitrust Litigation failed to credit allegations that a generic delayed entering the market because a brand promised not to introduce its own authorized generic that would have dramatically reduced the true generic’s revenues. The same judge, in In re Lipitor Antitrust Litigation, dismissed a complaint despite allegations that the generic delayed entry in return for the brand’s forgiveness of hundreds of millions of dollars in potential damages in separate litigation. This Essay first introduces the Supreme Court’s Actavis decision. It then discusses the pleading standards articulated by the Court in Bell Atlantic v. Twombly and Ashcroft v. Iqbal. Turning to the cases that applied excessively high pleading requirements, it focuses on the Effexor and Lipitor cases. Finally, it analyzes the settlement cases that applied a more justifiable analysis.

Michael A. Carrier, Pleading Standards: The Hidden Threat to Actavis, 91 N.Y.U. L. Rev. Online 31 (2016).