The Challenges of Fiduciary Administration

Article published in the Tex. Law Review See Also

Introduction to Symposium on Administrative Statutory Interpretation

Article published in the Michigan State Law Review

Rejecting the Myth of Popular Sovereignty and Applying an Agency Model to Direct Democracy

The use of direct democracy is at its highest level in more than one hundred years.\u27 The direct initiative, which is the primary focus of this Article, allows private citizens to bypass the traditional legislative process and make binding laws, often in highly contentious areas of public policy. The 2000 elections, for example, placed directly before voters the issues of school vouchers, physician-assisted suicide, same- sex marriage and other gay and lesbian rights, gun control, campaign finance reform, bilingual education, gambling, medical use of marijuana, and sentencing for drug offenders, as well as some of the perennial favorites-tax reform and environmental policy. The prominence of direct democracy in American government is likely to increase in the foreseeable future as a result of widespread public support for the process, as well as technological innovations, like the Internet, that promise virtually instant access to voters\u27 preferences. Not surprisingly, as the use of direct democracy has come to play a more prominent role in the formulation of public policy, this type of lawmaking has also received closer scrutiny from legal scholars, governmental commissions, and the media. Although direct democracy undoubtedly has its supporters among these ranks, a number of commentators have criticized initiative lawmaking on a variety of theoretical and practical grounds. Some advocate the outright abolition of initiative lawmaking on constitutional grounds

Reason-Giving and Accountability

Article published in the Minnesota Law Review

Justice by Means of the Administrative State

A review of Justice by Means of Democracy. By Danielle Allen

Using Agency Principles for Guidance in Finding Employer Liability for a Supervisor\u27s Hostile Work Environment Sexual Harassment

Title VII of the Civil Rights Act of 1964, as amended \u27Title VII, prohibits sexual harassment in the workplace.\u27 The courts have created two categories of sexual harassment. The first, quid pro quo sexual harassment, occurs when a supervisor requires sexual consideration from an employee in exchange for job benefits. The second, hostile work environment sexual harassment, occurs when an employee is subjected to unwelcome sexual harassment that affects a term, condition, or privilege of employment. The victim must prove that the harassment is sufficiently severe or pervasive to alter the conditions of hers employment and create an abusive working environment. Any victim of sexual harassment seeking redress for the wrong committed against her must establish that sexual harassment occurred. This showing, however, may not resolve the issue in the victim\u27s favor. For the victim to receive full recovery, the court must hold the employer liable for the sexual harassment. If the court refuses to make this finding, the victim\u27s relief may be substantially diminished or even eviscerated by the fact that individual supervisors are not as well-situated as are their employers to provide the make- whole relief contemplated by Title VII. Employer liability, thus, becomes the heart of a sexual harassment claim.? In addressing the issue of employer liability, courts uniformly hold employers strictly liable for quid pro quo sexual harassment., The employer is directly liable and the plaintiff need not prove an agency relationship. The rationale supporting this rule recognizes that when the employer gives its supervisors the authority to fire employees, it must also accept responsibility to remedy the harm caused by the supervisors\u27 unlawful exercise of that authority

A Deliberative Democratic Theory of Precedent

Stare decisis is widely regarded as a vital mechanism for promoting the rule of law. Yet high courts can always overrule prior decisions with a special justification, and different justices will inevitably have different perspectives on when such a justification exists. Moreover, when courts rely on stare decisis to follow a mistaken or unjustified decision, they arguably undermine the rule of law. Stare decisis therefore does not, and probably cannot, reliably promote a formal conception of the rule of law. While this reality might lead us to conclude that we should give up on horizontal stare decisis, presumptive deference to precedent may serve other worthwhile functions. This Article argues that rather than providing a binding legal constraint, presumptive deference to precedent is best understood as a mechanism for promoting the democratic legitimacy of a constitutional regime by facilitating reasoned deliberation within the judiciary regarding the most justifiable understanding of the Constitution and generating sustained constitutional dialogue of a deliberative and agonistic nature outside the federal courts. This Article thus contends that deliberation is the governing value that should be used to evaluate and implement stare decisis in practice. This Article explores what a deliberative democratic vision of precedent would entail and concludes that by shifting our focus from law to democracy we can develop a coherent and normatively attractive grand unifying theory of precedent that comports with the best understanding of American legal practice. This theory also provides a normative framework to critique the approach of the current Court and a descriptive lens that may offer potential hope for the future