West Virginia v. EPA: Maybe A Big Deal, But Maybe Not

(Excerpt) In West Virginia v. EPA, the Supreme Court held that the Environmental Protection Agency (“EPA”) lacked statutory authority to enact the Clean Power Plan, an EPA rule that encouraged coal-fired power plants to use non-coal sources of energy. The Court’s decision relied on the “major questions doctrine.” Under this doctrine, even if an unclear statute does not directly prohibit an administrative agency’s action, courts will reject an agency’s action when it is “asserting highly consequential power beyond what Congress could reasonably be understood to have granted.” Because the major questions doctrine is itself unclear, a variety of commentators suggested that the Court’s decision radically limits environmental regulation or even the administrative state generally. The West Virginia v. EPA majority opinion, however, is quite narrowly written. By emphasizing the unique facts of the case, the Court gave itself ample discretion to distinguish its decision in future cases. It logically follows that the Court’s decision is not the end of greenhouse gas regulation or environmental regulation generally—at least not yet. Part I of this Essay briefly summarizes the West Virginia case. Part II focuses on the details of the majority opinion of that case, showing how the Court emphasized the unique facts of the case. Part III suggests that federal jurisprudence under the Takings Clause of the Fifth Amendment is analogous

Guaranteeing the Press

A vibrant press is vital to meaningful self-government. Indeed, the indispensability of investigative journalism to democracy raises the stakes of the news industry’s ongoing collapse. Many of the country’s most prominent outlets are shedding jobs as local operations shutter entirely. The downstream effects of this market contraction frustrate the informed exercise of popular sovereignty. Because journalism is a public good in the economic sense, the state must intervene to provision it. To this end, scholars have generally endorsed one of two legal bases for government action. The first argues that the First Amendment can constitutionalize press-favoring market interventions. The second champions legislative action standing alone. Though both approaches have their conceptual merits, neither properly accounts for the reality of an aggrandized and deregulatory Supreme Court. All told, the Court would almost certainly reject the First Amendment arguments press reformers have made while potentially viewing even straightforward legislative action with hostility. More generally, the outsized role of the Court in our system of constitutional governance, much like the decline of journalism, works a harm to democratic self-determination. This Article connects these heretofore separate issues by arguing that the Guarantee Clause of Article IV offers a more promising constitutional basis for government intervention than the First Amendment. The Guarantee Clause commands the United States to provide each state a “Republican Form of Government.” Because the absence of a vibrant press hamstrings republican government, the Clause’s text contemplates the political concerns raised by journalism’s demise. The Clause also provides a grant of constitutional power that has long been interpreted and applied by Congress rather than the Court. This institutional settlement positions the Clause to not only empower press reformers but to resist the entrenchment of juristocracy. The health of democracy—of our republican form of government—would be well served by both

Protecting the Anti-Oppression Legacy of Obergefell After Dobbs

(Excerpt) This Article contributes to the task of revitalizing Justice Kennedy’s analysis after its absence from Dobbs by explaining the inadequacies not only of the Glucksberg substantive due process test, but also of the Court’s interpretation of the Equal Protection Clause. The flaws in equal protection doctrine include the Court’s overly narrow view of which groups are entitled to protection as “suspect classifications” and its failure to address unintentional government support of systemic discrimination. When these gaps in equal protection doctrine are viewed together with the gaps in the Glucksberg test for substantive due process, the need for Justice Kennedy’s anti-oppression approach becomes even more clear than an isolated consideration of due process would suggest. The Article also adds specificity to Justice Kennedy’s approach by proposing a new framework for its application that is built on precedent and that seals the gaps in Fourteenth Amendment jurisprudence without spilling over into the wild west of judicial policymaking of concern to conservatives. Its third contribution is to ground Justice Kennedy’s approach in textual and originalist arguments of the type that several Justices sitting on the Court currently seem to favor. Part I of the Article covers the Glucksberg test and uses Bowers v. Hardwick, the Court’s since-reversed opinion upholding anti-sodomy laws, and the recent opinion in Dobbs to identify the problematic aspects of the test’s focus on historical analysis of rights. Part II explains why equal protection doctrine fails as a possible alternative to substantive due process that could adequately protect identity groups from government-supported oppression. Part III explains the promising new path that Justice Kennedy’s opinion in Obergefell laid out to address the gaps in the Glucksberg test and equal protection doctrine. It also explains the failure of the majority opinion in Dobbs to apply Obergefell’s analysis. Part IV defends Obergefell’s anti-oppression approach to due process by grounding it in textualist and originalist arguments regarding the Fourteenth Amendment. Part V attempts to remedy the lack of a specific framework for Obergefell’s approach that can respond to conservative criticisms by using Obergefell and other Court opinions to derive boundaries. Part VI establishes that despite its silent repudiation of Obergefell’s analysis, Dobbs leaves room for the proposed framework. It also explains the relevance of the framework to recent legislative initiatives affecting the queer community

Who Gets the Short End of the Stick?: The Impact of the 2023 Merger Guidelines on Companies, Workers, and the Labor Market

(Excerpt) This Note argues that although the introduction of additional criteria of analysis of a merger on the labor market is positive for consumers, workers, employees, and the overall public, the 2023 Guidelines insufficiently balance the effects of a merger for both workers and consumers and fail to consider all relevant factors within the labor market, such as inflation rates and distinguishing between wage and non-wage benefits. Instead, the 2023 Guidelines should balance the implications for each interested group to provide a more accurate decision as to the merits of a merger. Part I of this Note will provide background on the Merger Guidelines generally. Specifically, this Part will address key merger legislation, the ends each statute sought to address, and how case law like Brown Shoe Co. v. United States provided an outline for the first Merger Guidelines in 1968. Part II will detail the evolution of the Merger Guidelines, closely considering societal and political influences, in addition to historical precedent. Part III will address the relevant criteria under the 2023 Merger Guidelines by the Biden Administration and how that has differed from past versions. Part IV will consider the impact of the 2023 Guidelines on the labor market. Finally, Part V of this Note will argue that the 2023 Guidelines fail to consider all interested parties to a merger and, instead, place an unequal emphasis on the labor market while failing to include all relevant factors in their analysis of this market. Instead, a balancing test considering non-wage benefits, inflation, and other market-related factors that are not included in the 2023 Guidelines, as well as the relation to the negative effects of the labor market, should be weighed against the potential procompetitive benefits for all markets

Barred From the Profession, Mischaracterized as Unfit by Law

(Excerpt) There is growing recognition that the bar examination can have racial and social effects when determining who can be an admitted and barred attorney in the United States. This Essay explores the history and current racialized issues with the other portion of bar admission—the character and fitness process. The simultaneously rigid and fluid definition and subjective enforcement of “good moral character” is only one example of how the law continues to reproduce and maintain racial and class hierarchy by creating barriers to entry. This Essay does not come to any direct conclusions or specific solutions. This Essay is a discussion on whether or how mechanisms such as moral character investigations, background checks, credit score inquiries and other entry requirements to professions reproduce racial hierarchy even when the mechanism may appear neutral. Becoming a lawyer is often a gateway to positions of power in the U.S. political system. Beyond the judiciary, lawyers make up a significant percentage of governors, congressional committees, and legislative staff at both the state and federal level. Critically examining the ways in which barriers to a profession that serves as a pathway to power have been constructed to keep the profession White and upper class is central to understanding how the law has operated in the creation and maintenance of racial and social hierarchy