Chevron Meets Youngstown: National Security and the Administrative State

The past several years have witnessed a burst of scholarship at the intersection of national security and administrative law. Many supporters of this approach endorse a heightened, “super-strong” brand of Chevron deference to presidential decisionmaking during times of emergency. Believing that the Executive’s comparative advantage in expertise, access to information, and accountability warrant minimal judicial scrutiny, these Chevron-backers advance an Executive-centric view of national security powers. Other scholars, by contrast, dispute Chevron’s relevance to national security. These Chevron-detractors argue for an interventionist judiciary in national security matters. Both camps criticize the Supreme Court’s scaling of deference to the Executive after 9/11: Chevron-backers argue that the Court failed to accord sufficient deference to the President, while Chevron-detractors argue that the Court failed to clarify the scope of individual liberties. However, neither side appreciates the role that Justice Jackson’s seminal Youngstown concurrence has played in the Court’s resolution of recent national security cases. Youngstown makes congressional legislation – not Executive power or individual rights – the central judicial concern in cases pitting individual liberty against Executive power. The post-9/11 Supreme Court, following Justice Jackson, has used judicial review to catalyze congressional action by remanding to Congress policy questions lacking joint political branch support. This dual-branch theory of governance preserves a critical rule-of-law basis for judicial review of national security decisionmaking that Chevron’s backers and its detractors overlook

Interaction Rescaled: How Monastic Debate Became a Diasporic Pedagogy

Peer Reviewedhttp://deepblue.lib.umich.edu/bitstream/2027.42/92124/1/j.1548-1492.2012.01166.x.pd

Iqbal, al-Kidd and Pleading Past Qualified Immunity: What the Cases Mean and How They Demonstrate a Need to Eliminate the Immunity Doctrines from Constitutional Tort Law

The Supreme Court’s decisions in Ashcroft v. Iqbal and Ashcroft v. al-Kidd contain issue-framing statements indicating that a constitutional tort plaintiff is required to plead facts sufficient to establish the inapplicability of the qualified immunity defense. Yet, framing the issue in this way ignores the Court’s earlier decisions in Gomez v. Toledo and Crawford-El v. Britton and is at odds with the established law of pleading; a plaintiff is not required to anticipate an affirmative defense and negate its applicability in the complaint. These cases thus raise a number of questions—Does the Court really mean what its issue-framing statements suggest? If so, should we construe the obligation to state facts negating the applicability of qualified immunity as being limited to the context of qualified immunity? Or is the Court’s intent a more general shift in the law governing the pleading and proof of affirmative defenses? In this Article, I consider these questions and conclude that, while the Court’s issue-framing statements were likely not accidental, they should not be seen to have implications outside of qualified immunity cases. It is apparent that the Court sees itself on the horns of a dilemma in such cases. On the one hand, the Court wants to see cases doomed to fail on qualified immunity grounds resolved on the pleadings so that public officials will not be put to the burdens of pretrial discovery and thereby be overly deterred in the performance of official duties. On the other hand, the Court does not want courts to impose heightened pleading requirements by judicial fiat. But therein lies the rub. For, if qualified immunity is to remain an affirmative defense, the only way to accomplish the pleadings-based dismissals that the Court desires is to require plaintiffs to plead facts establishing the inapplicability of qualified immunity. And this is heightened pleading. There is a way out of this conundrum. If the Court were to recognize that the individual-capacity claims to which the qualified immunity defense applies are in fact sub-constitutional, it easily could, consistent with precedent, reallocate to plaintiffs pressing such claims the burden of pleading facts sufficient to establish that the defendant violated clearly established constitutional rights. A doctrinal reform of this sort—which would render conceptually unnecessary the qualified and absolute immunity doctrines—would reinforce rule-of-law values and bring much needed clarity to constitutional tort law. Moreover, such a reform could be accomplished in a manner that is sensitive to the problem of “law freezing” which has occupied so much recent scholarly attention. Finally, the regime that would emerge in the wake of such a reform might well prove, in the long run, to be more rights-protective than that which presently governs individual-capacity claims

Protestant letter networks in the reign of Mary I: A quantitative approach

Sebastian E. Ahnert was supported by The Royal Society, UK

Right-Remedy Equilibration and the Asymmetric Entrenchment of Legal Entitlements

Public-law litigation often gives rise to a basic but important asymmetry: claimants wishing to obtain a particular form of redress for a particular legal wrong must satisfy all the relevant procedural, substantive, and remedial prerequisites to the issuance of judicial relief. In contrast, governments wishing to avoid the issuance of that remedy need only demonstrate that a single such requirement operates in their favor. This Article considers the extent to which this asymmetry influences the development of the law. Specifically, this Article hypothesizes that, where the remediation of a right depends on a claimant’s satisfaction of multiple, mutually necessary procedural, substantive, and remedial rules, it will often be easier for courts to achieve and maintain decisions that frustrate the vindication of that right (and thus move the law in an “entitlement-weakening” direction) than to achieve and maintain judicial decisions that promote the vindication of that right (and thus move the law in an “entitlement-strengthening” direction). “Entitlement-strengthening” initiatives, after all, can often be undone by a single, counteractive change to any one of the several rules on which a claimant’s vindication of the right depends. “Entitlement-weakening” initiatives, by contrast, will often be immune to such a simple counterattack. Consequently, an “asymmetric entrenchment of entitlements” is hardwired into the basic architecture of public-law doctrine, rendering “entitlement-strengthening” decisions consistently more vulnerable to down-the-road retrenchment than their “entitlement-weakening” counterparts

Saving Disgorgement from Itself: SEC Enforcement After Kokesh v. SEC

Disgorgement is under threat. In Kokesh v. SEC , the Supreme Court held that disgorgement—a routine remedy that allows the SEC to recoup ill-gotten gains from financial wrongdoers—is subject to a 5-year statute of limitations because it functions as a “penalty.” This ruling threatens to upend the traditional conception of disgorgement as an ancillary remedy granted by the court’s equity power, because there are no penalties at equity. With the possibility that Kokesh’s penalty reasoning could be adopted beyond the statute of limitations context, the future of disgorgement in federal court is in doubt. This Note proposes a way forward that allows for disgorgement’s continued viability. The SEC should moderate its use of disgorgement for three reasons: because of a trend of suspicion toward strong government enforcement power by the Supreme Court, because it has been improperly used punitively, and because the rise of other statutory schemes has displaced disgorgement’s original justification. At the same time, disgorgement should be saved because of the uncertain future of administrative disgorgement proceedings, the intuitive notion of recovering money from wrongdoers, and the much-needed ability to compensate victims. To save disgorgement, the SEC should limit its use only to restoring the status quo of injured investors, thereby ensuring a remedial—not penal—purpose

Saving Disgorgement from Itself: SEC Enforcement After Kokesh v. SEC

Disgorgement is under threat. In Kokesh v. SEC , the Supreme Court held that disgorgement—a routine remedy that allows the SEC to recoup ill-gotten gains from financial wrongdoers—is subject to a 5-year statute of limitations because it functions as a “penalty.” This ruling threatens to upend the traditional conception of disgorgement as an ancillary remedy granted by the court’s equity power, because there are no penalties at equity. With the possibility that Kokesh’s penalty reasoning could be adopted beyond the statute of limitations context, the future of disgorgement in federal court is in doubt. This Note proposes a way forward that allows for disgorgement’s continued viability. The SEC should moderate its use of disgorgement for three reasons: because of a trend of suspicion toward strong government enforcement power by the Supreme Court, because it has been improperly used punitively, and because the rise of other statutory schemes has displaced disgorgement’s original justification. At the same time, disgorgement should be saved because of the uncertain future of administrative disgorgement proceedings, the intuitive notion of recovering money from wrongdoers, and the much-needed ability to compensate victims. To save disgorgement, the SEC should limit its use only to restoring the status quo of injured investors, thereby ensuring a remedial—not penal—purpose

Contracts Ex Machina

Smart contracts are self-executing digital transactions using decentralized cryptographic mechanisms for enforcement. They were theorized more than twenty years ago, but the recent development of Bitcoin and blockchain technologies has rekindled excitement about their potential among technologists and industry. Startup companies and major enterprises alike are now developing smart contract solutions for an array of markets, purporting to offer a digital bypass around traditional contract law. For legal scholars, smart contracts pose a significant question: Do smart contracts offer a superior solution to the problems that contract law addresses? In this article, we aim to understand both the potential and the limitations of smart contracts. We conclude that smart contracts offer novel possibilities, may significantly alter the commercial world, and will demand new legal responses. But smart contracts will not displace contract law. Understanding why not brings into focus the essential role of contract law as a remedial institution. In this way, smart contracts actually illuminate the role of contract law more than they obviate it

Problem of Equality in Takings, The

The Supreme Court is finally beginning to bring clarity to the law of regulatory takings and in the process is bringing to the fore a previously submerged theme in the jurisprudence: regulatory takings as a question of distributional justice and horizontal equity. This Article argues that this equality dimension is fundamentally problematic. On a theoretical level, privileging norms of equality engrafts political process rationales for heightened scrutiny onto groups defined solely by the differential burden of a regulation, an exercise in circularity. Equally troubling is the inverted political economy of regulatory takings claims that is likely to result: the greatest judicial protection is provided to those most able to navigate the political system. And from a doctrinal perspective, an overly robust equality inquiry housed in the Takings Clause is inherently indeterminate, warping not only the fabric of takings but also of equal protection jurisprudence. Accordingly, this Article argues that concerns about the uneven distribution of regulatory burdens should sound not under the Takings Clause but rather under the Equal Protection Clause, with its deferential standards for the review of ordinary economic and social regulation. Excising the equality dimension of regulatory takings would properly leave the Takings Clause as a guard against those rare regulatory actions that are functionally equivalent to the direct exercise of eminent domain. The result would be a simpler, clearer, and ultimately more egalitarian law of takings