The Changing Discourse of the Supreme Court

[Excerpt] “Academics, judges, and other commentators complain that, for the past few decades, the Justices on the Supreme Court have been increasingly writing opinions that are unreadable for most American citizens. Those critics complain that the opinions are too long and too complex, riddled with incomprehensible multi-part tests. They also attack the style of the opinions and assert that recent opinions are more likely to be written in a technocratic, rather than persuasive, style. There seems to be little consensus among the critics regarding why the Justices are writing opinions that are increasingly unreadable. Some attribute it to the increasing complexity of issues that the Court is considering. Others suggest that the shift could be attributable to the lack of trial court experience among Justices. Some also speculate that a greater reliance on law clerks might be fueling a shift. Regardless of the reason for the shift, if such a shift is truly occurring, it could have important repercussions, depending on how one views the purposes of the Supreme Court’s opinions and the audiences to whom they are directed. If, as some academics assert, Supreme Court opinions are directed, at least in part, toward the public and are designed, at least in part, to advise the public about legal rights and responsibilities and to build public confidence in the rule of law by demonstrating a rational and transparent decision-making process, then unreadable Supreme Court opinions undermine those goals. If, however, Supreme Court opinions are simply directed to the parties before the court, other courts and agencies, lawyers, and law students, the shift is less problematic.

Sue and Settle: Demonizing the Environmental Citizen Suit

In the spring of 2013, industry groups and states began a concerted lobbying effort to oppose citizen enforcement of the federal environmental laws. The United States Chamber of Commerce and lobbyists for states created a catch-phrase—“sue and settle”—to demonize citizen enforcement and the federal government’s practice of settling lawsuits it is destined to lose in court. The Chamber alleged that the federal government, by settling lawsuits brought by citizens groups rather than defending them in court, was colluding with those non-governmental organizations and excluding other affected parties to reallocate the agencies’ priorities and obligations. Federal environmental laws establish a central role for citizens in enforcement of the laws, and citizens will continue to sue the EPA and other federal agencies when the agencies fail to meet statutory deadlines or carry out their duties under the laws, regardless of whether Congress adopts the proposed reforms. The reforms will simply make settlement of those lawsuits much more difficult, resulting in a longer litigation process that imposes higher costs on the government. To the extent that reforms are necessary, much more modest proposals would suffice. This Article considers the features and history of rulemaking settlement controversies and proposes modest, sensible proposals for systemic improvement

Deregulation: Too Big for One Branch, But Maybe Not for Two

When President Trump took office in 2017, he pursued a deregulatory agenda that exceeded even that of President Reagan. Environmental rules and policies were a major target of the Administration. The President deployed a mix of traditional tools, such as executive orders, guidance documents and policies, and rulemaking to suspend or reverse longstanding regulations and policies of the Environmental Protection Agency (EPA), the Department of the Interior, and other environmental agencies. The Administration also utilized the Congressional Review Act as it had not been used before and aggressively sought abeyances in litigation challenging disfavored rules and policies to advance its deregulatory agenda. In the short-term, its substantive deregulatory record was impressive

In Defense of the Short Cut

This is the published version