The False Promise of Fiduciary Government

This Article critiques the borrowing of private law concepts to develop doctrines of judicial review in public law. A rising chorus of scholars has argued for a fiduciary theory of government designed to constrain political discretion through judicial review based upon the model of private fiduciary duties. Treating politicians and bureaucrats as fiduciaries, they argue, promises a workable judicial solution to the problem of faction in legislative and administrative decisionmaking. This Article argues the promise of fiduciary government is a false one. There are problems of fit, intent, and function with fiduciary government. Politicians and bureaucrats are not like private fiduciaries because they do not serve discrete classes of beneficiaries and are not subject to demands that can be distilled into a discrete maximand. Fiduciary government cannot be founded in the intent of the Founders or of Congress. Moreover, fiduciary government has not functioned well where courts have experimented with it. Either the analogy to fiduciary law operates at such a high level of generality that it simply restates public law problems in different terms, or it imports freestanding fiduciary principles that yield unworkable constraints on political decisionmaking. The failure of fiduciary government is instructive, however, on the promises and potential pitfalls of translating between public and private law

Standing Doctrine\u27s State Action Problem

Something surprising happened in the 2013 marriage equality cases that did not involve striking down the Defense of Marriage Act. The Supreme Court discovered standing doctrine’s state action problem. In standing doctrine, as elsewhere, the law distinguishes private from governmental action. There are, simply put, different standing rules for state actors than for private litigants. How should the law sort state actors from private litigants for the purposes of standing? In Hollingsworth v. Perry, the Court held that Article III limits government standing to common law agents who owe fiduciary duties to the state. The Perry Court’s apparent concern was the risk of abuse of the power to stand for the government in federal court. This Article critiques the Court’s newfound agency rule, offering an alternative way to address standing’s state action problem. The reasons for limiting who may stand for the government in court have to do with keeping government power constitutionally accountable, not with Article III’s case or controversy requirement. This constitutional accountability principle sounds in due process and the separation of powers. Abuse of the power of government standing offends constitutional principles that protect life, liberty, and property against arbitrary enforcement. These principles cannot be applied mechanically because due process also supports a right to one’s day in court and a system of remedies to right wrongs. Focusing upon constitutional accountability provides a framework for identifying when standing presents a constitutionally troublesome risk of abuse of government power and determining who may exercise that power under what circumstances. Constitutional accountability presumptively requires public control over government standing. This presumption may be overcome where private law, procedural controls, or auxiliary mechanisms are adequate to ensure private litigants do not abuse their power to stand for the government. The adequacy of these constraints on enforcement discretion in any particular case depends upon the government interest at stake. Thus, the solution to standing’s state action problem varies with different government interests and the limits in place to reduce the risk of abuse of the power of government standing

The Private Rights of Public Governments

This Essay charts the analytical and doctrinal confusion arising from the category of “proprietary” interests in state standing law. This category might be taken literally to include only the ownership of property and interests that stem from it. It might refer to interests that are analogous to those that a private corporation might litigate, or instead to any type of financial injury a state might suffer. Other possibilities would limit “proprietary” interests to those interests recognized under the common law, or only those interests recognized under private law. Perhaps the most that can be said is that “proprietary” interests should be understood to refer to any interests that are analogous to those of private parties. In addition to this definitional puzzle, there is confusion among courts about how to treat “proprietary” interests in the standing analysis. In many recent cases, states have tried to clear the standing hurdle by combining “proprietary” interests with “sovereign” and “quasi-sovereign” interests. In some cases, moreover, states have argued that they are due “special solicitude” under Massachusetts v. EPA even when they sue to vindicate a proprietary interest. Together, these analytical and doctrinal questions make up a complex puzzle involving Article III, separation of powers, federalism, and the enforcement of rights. But this puzzle need not and should not be solved in every case. To bring greater analytical clarity, this Essay proposes a sequence of decisionmaking in state standing cases. Its thesis is that the starting point of analysis of state standing in any particular case should be whether the state has standing under the typical Article III and prudential rules. If a state would have standing under the typical rules applicable to private parties, then the only question is whether there is some reason to show special disfavor to the state. Courts should address questions about special solicitude only in those cases where a state would lack standing under the rules applicable to private parties. This standing analysis should look to the merits of the dispute and the relief the state seeks, and ask whether the state is seeking to enforce its own rights or the rights of a third party and whether the rights it is seeking to enforce are private rights or public rights. The Essay proceeds in three Parts. Part I parses the interests of states under the modern doctrine. Part II explores the puzzle that these doctrinal distinctions create. Part III lays out an order of battle to help clarify the grounds of debate about state standing in any particular case, and considers the costs and benefits of this order of decisionmaking

Tribalism and Democracy

Americans have long talked about “tribalism” as a way of talking about their democracy. In recent years, for example, commentators have pointed to “political tribalism” as what ails American democracy. According to this commentary, tribalism is incompatible with democracy. Some commentators have cited Indian Tribes as evidence to support this incompatibility thesis, and the thesis has surfaced within federal Indian law and policy in various guises up to the present day with disastrous consequences for Indian Tribes. Yet much of the talk about tribalism and democracy—within federal Indian law, and also without it—has had little to do with actual tribes. Looking at the histories and practices of Indian Tribes calls the premises of the incompatibility thesis into question. Indeed, many examples of Indian Tribalism reflect the democratic practices that critics of “political tribalism” praise. First, Indian Tribal self-government safeguards democracy by ensuring that Indians not only are governed (by the federal and state governments), but also have the opportunity to govern. Second, Indian Tribal governance is compatible with democracy because it depends in no small measure upon discourse and negotiation, not upon coercion and zero-sum gaming. And third, the persistence of Indian Tribes in the face of the coercion and violence of colonialism challenges Americans to honor the democratic ideal of consent of the governed. In all three ways, Indian Tribalism and American democracy are compatible

State Standing for Equality

The article discusses the U.S. Supreme Court\u27s ruling in Alfred L. Snapp & Son Inc. v. Puerto Rico ex rel. Barez and offers a reading of the case as an equality law case in order to take stock of state standing for equality

Watching the hands of the Arabidopsis biological clock

Oligonucleotide and cDNA microarrays have been used to analyse the mRNA levels of 8,000 genes in Arabidopsis thaliana throughout the day/night cycle. Genes involved in signal transduction and in various metabolic pathways were found to be coordinately regulated by circadian rhythms and/or by light

Fierce: Black Queer Literacies of Survival

Influenced by Black feminist and queer scholars, my dissertation focuses on how Black and queer people have made interventions through language and performance to survive larger racist and homophobic forces. Despite critical scholarship on the literacies of both Black and queer communities, there has been limited research that brings together these two perspectives and bodies of research. The foundation of my study is based on audio/video interviews and participant observation: I interviewed participants from 2013 Washington, DC, Black Gay Pride and 2017 Harlem Pride, focusing specifically on their understanding of three terms: “reading,” “throwing shade,” and “pullin’ trade.” The central questions guiding this study are: In what ways do Black queer people rework language to create community? How and why do they engage in language practices such as reading and throwing shade? To what extent do such practices function as a rite of passage in the Black queer community? How do participants use narrative to explain a range of language practices central to Black queer people? I argue that Black queer people practice what I call “fierce literacies”—that is, a type of oppositional consciousness that allows Black queer people to riff off of static ideas of language and literacy to both communicate with and create community amongst friends. Throughout this dissertation, I contextualize fierce literacies within a Black oral tradition. I place research participants in conversation with other Black queer and femme voices in popular culture in order to illustrate these practices as a part of a distinct literacy in the Black queer community. I see fierce literacies as an umbrella term to conceptualize the various ways Black queer people have had to reread and refashion literacy in order to navigate a system that regularly oppresses, silences, and erases their knowledges, histories, and lived experiences. Finally, my research contributes to understandings of how Black queer people use diverse language practices in order to survive

Using MinION nanopore sequencing to generate a de novo eukaryotic draft genome: preliminary physiological and genomic description of the extremophilic red alga Galdieria sulphuraria strain SAG 107.79

We report here the de novo assembly of a eukaryotic genome using only MinION nanopore DNA sequence data by examining a novel Galdieria sulphuraria genome: strain SAG 107.79. This extremophilic red alga was targeted for full genome sequencing as we found that it could grow on a wide variety of carbon sources and could uptake several precious and rare-earth metals, which places it as an interesting biological target for disparate industrial biotechnological uses. Phylogenetic analysis clearly places this as a species of G. sulphuraria. Here we additionally show that the genome assembly generated via nanopore long read data was of a high quality with regards to low total number of contiguous DNA sequences and long length of assemblies. Collectively, the MinION platform looks to rival other competing approaches for de novo genome acquisition with available informatics tools for assembly. The genome assembly is publically released as NCBI BioProject PRJNA330791. Further work is needed to reduce small insertion-deletion errors, relative to short-read assemblies