Digital Commons Network^™

Enhancing Public Access To Agency Law, Cary Coglianese, Bernard W. Bell, Michael Herz, Margaret Kwoka, Orly Lobel

Articles

"A just, democratic society governed by the rule of law requires that the law be available, not hidden. This principle extends to legal materials produced by administrative agencies, all of which should be made widely accessible to the public. Federal agencies in the United States do disclose online many legal documents—sometimes voluntarily, sometimes in compliance with statutory requirements. But the scope and consistency of these disclosures leaves considerable room for improvement. After conducting a year-long study for the Administrative Conference of the United States, we identified seventeen possible statutory amendments that would improve proactive online disclosure of agency legal materials. …

Partisanship Creep, Kate Shaw

Articles

It was once well settled and uncontroversial—reflected in legislative enactments, Executive Branch practice, judicial doctrine, and the broader constitutional culture—that the Constitution imposed limits on government partisanship. This principle was one instantiation of a broader set of rule of law principles: that law is not merely an instrument of political power; that government resources should not be used to further partisan interests, or to damage partisan adversaries.

For at least a century, each branch of the federal government has participated in the development and articulation of this nonpartisanship principle. In the legislative realm, federal statutes beginning with the 1883 Pendleton …

Overseeing The Administrative State, Jill Fisch

Articles

"In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A HISTORY OF SECURITIES LAW IN THE SUPREME COURT, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance …

Toward Abolitionist Remedies: Police (Non)Reform Litigation After The 2020 Uprisings, Cara Mcclellan, Jamelia N. Morgan

Articles

In the summer of 2020, across the country, Americans took to the street in protest of Mr. George Floyd’s murder and the police killings of countless other Black people. In too many cases, police responded to protesters with excessive force and the very brutality that had led people to protest police in the first place. In the wake of these horrific displays of force, over 40 lawsuits were filed nationwide that challenged police conduct at protests. Smith v. City of Philadelphia, one of the lawsuits brought on behalf of residents and protesters in Philadelphia, was unique because the tragic underlying …

Chaotic Childhoods, Stephanos Bibas

Articles

Rob Henderson’s breakout memoir, Troubled, gives us a window on troubled youth. Henderson, a brilliant young psychologist, illumines how harmful childhood instability is by reflecting on his own experience. He never knew his father, was abandoned by his drug-addicted mother, and bounced around foster care. After squandering much of his early education and drowning his rage in alcohol, drugs, fights, and vandalism, he made his way through the Air Force to Yale and now Cambridge. But few of his friends escaped the wounds from their childhoods; many wound up unemployed, in prison, or dead. As an outsider to the elites …

Democracy's Bureaucracy: The Complicated Case Of Voter Registration Lists, Michael Morse

Articles

This Article calls attention to the development and derailment of a novel cross-governmental bureaucracy for voter registration. It focuses specifically on voter registration lists as the vulnerable backbone of election administration. In short, the constitutional allocation of election authority has left a mobile electorate scattered across fifty different state registration lists. The result is more than a tenth of the electorate likely registered in their former jurisdiction and more than a third not registered at all. The solution, in the vocabulary of election officials, has become “list maintenance”—or, identifying when voters, previously registered at one address, subsequently move or die, …

Standing Back And Standing Down: Citizen Non-Cooperation And Police Non-Intervention As Causes Of Justice Failure And Crime, Paul H. Robinson, Jeffrey Seaman, Muhammad Sarahne

Articles

The article discusses the failures of the American justice system to find and punish offenders for the majority of serious crimes. It highlight the low clearance and conviction rates for crimes such as murder, rape, and assault. It further argues that these failures of justice have practical consequences on crime rates and also disproportionately affect racial minorities and low-income communities.

Gender And Deception: Moral Perceptions And Legal Responses, Gregory Klass, Tess Wilkinson-Ryan

Articles

Decades of social science research has shown that the identity of the parties in a legal action can affect case outcomes. Parties’ race, gender, class, and age all affect decisions of prosecutors, judges, juries, and other actors in a criminal prosecution or civil litigation. Less studied has been how identity might affect other forms of legal regulation. This Essay begins to explore perceptions of deceptive behavior—i.e., how wrongful it is, and the extent to which it should be regulated or punished—and the relationship of those perceptions to the gender of the actors. We hypothesize that ordinary people tend to perceive …