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Articles 1 - 9 of 9
Full-Text Articles in Law
The Major Questions Doctrine At The Boundaries Of Interpretive Law, Daniel E. Walters
The Major Questions Doctrine At The Boundaries Of Interpretive Law, Daniel E. Walters
Faculty Scholarship
The Supreme Court’s apparent transformation of the major questions doctrine into a clear statement rule demanding clear congressional authorization for “major” agency actions has already had, and will continue to have, wide-ranging impacts on American public law. Not the least of these is the impact it will have on the enterprise of statutory interpretation. Indeed, while it is easy to focus on the policy repercussions of a newly constrained Congress and newly hamstrung administrative state, this Article argues that equally important is the novel precedent that is set in this particular formulation of a clear statement rule, which stands almost …
Ethical Quagmires For Government Lawyers: Lessons For Legal Education, Susan Saab Fortney
Ethical Quagmires For Government Lawyers: Lessons For Legal Education, Susan Saab Fortney
Faculty Scholarship
Each presidential administration faces its own challenges related to the ethics of government officials and lawyers. What distinguished the Trump presidency was the steady stream of news reports that related to controversies involving government lawyers. In examining various controversies, this Essay argues that the ethical standards applicable to government lawyers are often thorny and debatable. Fortney discusses how controversies involving alleged misconduct by government lawyers reveal the range and complexity of ethical dilemmas that government lawyers encounter. This Essay asserts that legal educators should do more to empower government lawyers to deal with such ethics issues. To highlight key ethics …
Sheriffs, State Troopers, And The Spillover Effects Of Immigration Policing, Huyen Pham, Pham Hoang Van
Sheriffs, State Troopers, And The Spillover Effects Of Immigration Policing, Huyen Pham, Pham Hoang Van
Faculty Scholarship
As the Biden Administration decides whether to continue the 287(g) program (the controversial program deputizing local law enforcement officers to enforce federal immigration laws), our research shows that the program has broader negative effects on policing behavior than previously identified. To date, debate about the 287(g) program has focused exclusively on the policing behavior of law enforcement agencies like sheriff’s offices that sign the agreements, and on concerns that these signatory local enforcement agencies (“LEAs”) engage in racial profiling. Our research shows that the agreements also negatively affect the behavior of nearby, nonsignatory law enforcement agencies. Using 18 million traffic …
Latinxs Reshaping Law & Policy In The U.S. South, Luz E. Herrera, Pilar M. Hernández-Escontrías
Latinxs Reshaping Law & Policy In The U.S. South, Luz E. Herrera, Pilar M. Hernández-Escontrías
Faculty Scholarship
This article addresses the key law and policy levers affecting Latinxs in what the U.S. Census Bureau designates as the South. Since the rise of the Latinx population from the 1980s onward, few legal scholars and researchers have participated in a sustained dialogue about how law and policy affects Latinxs living in the South. In response to this gap in legal research, this article provides an overview of the major law and policy challenges and opportunities for Latinxs in this U.S. region. Part II examines the geopolitical landscape of the South with special focus on the enduring legacy of Jim …
Dreamers Interrupted: The Case Of The Rescission Of The Program Of Deferred Action For Childhood Arrivals, Rachel F. Moran
Dreamers Interrupted: The Case Of The Rescission Of The Program Of Deferred Action For Childhood Arrivals, Rachel F. Moran
Faculty Scholarship
In 1994, California voters went to the polls to pass Proposition 187, a measure designed to deter unauthorized immigration by denying a range of public benefits to the undocumented. Twenty-five years later, undocumented immigration remains a deeply polarizing issue in our country. But if the political discourse seems similar, the civil rights toolkit is not. In an earlier era, equal protection arguments had pride of place, but today, advocates rely heavily on structural and institutional arguments to constrain official discretion.
In 1982, the United States Supreme Court’s decision in Plyler v. Doe declared unconstitutional a Texas statute that denied undocumented …
Executive Overreaching In Immigration Adjudication, Fatma Marouf
Executive Overreaching In Immigration Adjudication, Fatma Marouf
Faculty Scholarship
While Presidents have broad powers over immigration, they have traditionally shown restraint when it comes to influencing the adjudication of individual cases. The Trump Administration, however, has pushed past such conventional constraints. This Article examines executive overreaching in immigration adjudication by analyzing three types of interference. First, the Article discusses political interference with immigration adjudicators, including politicized appointments of judges, politicized performance metrics, and politicized training materials. Second, the Article addresses executive interference with the process of adjudication, examining how recent immigration decisions by former Attorney General Jeff Sessions curtail noncitizens’ procedural rights instead of making policy choices and promote …
"Enemy Of The People": Negotiating News At The White House, Carol Pauli
"Enemy Of The People": Negotiating News At The White House, Carol Pauli
Faculty Scholarship
How can the press serve as a check on executive power when the president calls it “fake” and the White House denies facts? As journalists debate the right response, this article offers advice from the perspective of a journalist who is now in the legal academy. Drawing on legal scholarship in the field of conflict resolution — as well as literature in journalism and political science — this article analyzes the White House press briefing as a negotiation over both the content of news and the relationship of the press and president. It aims to help the press fulfill the …
The Judicial Role In Constraining Presidential Non-Enforcement Discretion: The Virtues Of An Apa Approach, Daniel E. Walters
The Judicial Role In Constraining Presidential Non-Enforcement Discretion: The Virtues Of An Apa Approach, Daniel E. Walters
Faculty Scholarship
Scholars, lawyers, and, indeed, the public at large increasingly worry about what purposive presidential inaction in enforcing statutory programs means for the rule of law and how such discretionary inaction can fit within a constitutional structure that compels Presidents to "take Care that the Laws be faithfully executed." Yet those who have recognized the problem have been hesitant to assign a role for the court in policing the constitutional limits they articulate, mostly because of the strain on judicial capacity that any formulation of Take Care Clause review would cause. In this Article, I argue that courts still can and …
Loyal Lieutenant, Able Advocate: The Role Of Robert H. Jackson In Franklin D. Roosevelt's Battle With The Supreme Court, Stephen R. Alton
Loyal Lieutenant, Able Advocate: The Role Of Robert H. Jackson In Franklin D. Roosevelt's Battle With The Supreme Court, Stephen R. Alton
Faculty Scholarship
This Article presents a chronological, narrative account of Jackson's participation in the court fight over Roosevelt's so-called "court packing plan." The larger history of that campaign and its players also are presented in order to illuminate Jackson's role. Although a number of secondary works-both old and new-review the history of the fight, the main purpose here is to relate Jackson's part in this larger history, drawing on. those secondary works only to the extent that they are helpful. This Article first recounts the historical background of the tension between the New Deal and the Supreme Court as well as the …