Department of Justice Litigation: Externalizing Costs and Searching for Subsidies

The ignored questions of Department of Justice compensation, recruitment, and staffing are considered

The Dynamics of Democracy: Travel, Premature Predation, and the Components of Political Identity

Democracy is indeed an elusive concept and any effort to develop the constituent elements of so important a political idea ought to be encouraged. From any number of perspectives it is clear that democracy must include more than simply ratifying the outcomes of either citizen or representative voting., And when a court is asked to set aside the results of a process some describe as democratic, the challenge to enrich the concept becomes even more pressing, particularly when the judicial power is invoked in the name of enhancing democracy. The Supreme Court\u27s decision in Romer v. Evan dramatically poses the problem. The Court there invalidated a state constitutional provision that had been adopted by a direct vote of the citizens of the state of Colorado. For Justice Scalia in dissent, it was inconceivable for the Court to set aside this purest expression of democracy. In her Article, Professor Schacter addresses the challenge posed by Romer, and in doing so seeks to broaden and enrich the concept of democracy. Professor Schacter rejects the narrow, conventional approach that undergirds Justice Kennedy\u27s majority opinion and the Court\u27s general equal protection analysis. Rather than focusing-as the Court does-on the problem of the rights of the minority to be free from majority abuse, Professor Schacter attempts to offer two substantive refinements to the idea of democracy. First, Professor Schacter argues that democracy must include a fundamental right to participate in the political process. Thus, the evil of the law in Romer was not just majority discrimination, but the ultimate disenfranchisement of gays from the political process. With no ability to seek the protection of the government, gays were virtually frozen out of the ordinary give and take of interest group politics. Second, Professor Schacter argues that democracy must include the social dimensions of citizenry and identity. These social dimensions of democracy occur outside of formal law and outside of what is normally considered the political process, at the most basic of citizen-to-citizen relations in society. This world-the non-legal, non- political-is the arena in which norms evolve that define our daily freedoms, where attitudes are formed and roles created, and where the most fundamental structures of human interaction are put in place. Full participation in this social sphere is a central component of what it means to be a citizen in a democracy. For Professor Schacter, these two refinements better explain the result in Romer, and are part of her larger project to develop a broader, more substantively enriched vision of democracy

People\u27s Court

The Supreme Court\u27s opinion in Bowers v. Hardwick\u27 contains the usual cant about the legitimacy of the judicial function. In holding that the due process clause of the fourteenth amendment does not recognize a fundamental right to practice homosexual sodomy, the Court cautioned that [t]he Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution. What exactly did the Court mean? That the public would refuse to obey judicial judgments if the Court were to recognize rights not found in the Constitution? That the public would disregard Court rulings that at least partially reflected the Justices\u27 policy judgments rather than being based on so-called neutral principles? That constitutional law scholars would decry the Court\u27s use of policy analysis in interpretation? All of these consequences are unlikely for a variety of reasons. Throughout history the Court has recognized rights not found in the Constitution without jeopardizing the Court\u27s legitimacy. The public at large is unlikely to know what is or is not in the Constitution. Most people are ignorant about its contents or overtly disagree with some of its contents. Academics may critique the Court\u27s forays into policy analysis. But even this form of scholarly attack is increasingly rare, and no link between scholarly critique and public acceptance of the Court\u27s judgments has been established. If anything did matter to the public it probably would be the result. Judge Robert Bork\u27s failed effort to educate the public on the alleged indefensibility of the reasoning in Griswold v. Connecticut and Bolling v. Sharpe demonstrates that judicial methodology may be of little interest to a citizenry whose everyday lives can be governed by what it considers objectionable results. Unpacking the Court\u27s legitimacy discussion in Bowers v. Hard- wick reveals some preoccupation with the public\u27s vision of law and legal interpretation. Yet it is improbable that the public learns about law only from the opinions of the judiciary. Other sources of information include newspapers, books, television, personal experience, or word of mouth. The public\u27s image of law unquestionably is shaped by what lawyers would describe as extra-legal sources. One such obvious source of knowledge is literature. Law has a way of working itself into literature, both popular and classic.\u27 This raises many interesting questions. Can literature profitably shed light on legal issues or jurisprudential questions? Do readers draw a view of law from works of literature? If so, do they believe what they read? Do authors even care about their portrayals of law in their works of fiction? These provocative questions have generated substantial debate and discussion. \u27 For my purposes, however, I view them as largely irrelevant, or as a given. It is difficult to deny that popular culture plays some role in contributing to the public\u27s perception of law and legal institutions. That being so, what messages do people get about law from works of literature? Do the messages differ from those transmitted through more formal legal channels, like Bowers v. Hardwick? I offer a tentative examination of this topic by examining Scott Turow\u27s recent work The Burden of Proof. The book is a worthwhile subject for a number of reasons. It has widespread popularity among both lawyers and nonlawyers. Turow is a lawyer who writes about the law and legal characters. His work draws extensively on his personal experiences, particularly his tenure as an Assistant United States Attorney (AUSA) in the Northern District of Illinois. Whether intended or not, the book develops a view of law throughout that is of interest not only to lawyers, but any reader with a sense of curiosity about law and legal institutions

David Williams II, In Memoriam 1948-2019

On February 15, 2019, hundreds of people gathered at the Temple Church in Nashville to celebrate the life and impact of David Williams II

Monitoring Governmental Disposition of Assets: Fashioning Regulatory Substitutes for Market Controls

Each year, the government sells and leases public assets worth billions of dollars. FCC auctions to allocate rights to electromagnetic spectrum generated over twenty billion dollars within a three-year period, and proceeds from mineral leases, timber sales, and disposition of real estate from defaulting thrifts have surpassed several billion dollars annually. From the taxpayer\u27s perspective, however, government sales and leases have been deplorable. The government has donated valuable resources to preferred claimants, allocated scarce broadcast and oil rights resources by lottery, and sold both public land and mineral rights to private parties at a fraction of the market price. Although the government in disposing assets may have legitimate programmatic, distributional, and social preservationist objectives unrelated to any financial maximization goal, our analysis of three particular disposition schemes-mining claims, grazing fees, and allocation of the electromagnetic spectrum-suggests that those aims too often have masked inefficiency or graft. Existing oversight of agency disposition programs is woefully deficient, and we trace the historical, conceptual, and political roots of the regulatory failure. For a mixture of reasons, Congress exempted asset dispositions from the APA\u27s rulemaking provisions; judicially imposed justiciability requirements have limited participation in adjudications affecting governmental disposition programs; and agencies themselves have declined to permit third parties to question the propriety of various asset dispositions. The inadequate monitoring exacerbates the absence of any market-type discipline as in the private sector. Accordingly, we argue that Congress and agencies should adopt, where possible, schemes to maximize return on assets sold or leased, minimizing the need for external monitoring. Given that the government will still pursue non-financial objectives, we propose that the APA rulemaking exemption for asset disposition be rescinded. We also suggest that courts and agencies permit greater participation in adjudications over transfer of public assets. In light of the shortcomings of judicial review as a monitoring mechanism, however, we recommend amending Executive Order 12,866 to include government disposition of assets within the scope of agency action subject to cost-benefit analysis. The change would help ensure both that agencies justify their departure from financial maximization principles and that they use the most cost-effective means of structuring divestiture programs. Similarly, Congress should amend the Small Business Regulatory Enforcement Fairness Act to permit Congress time to study all major agency disposition initiatives-as with other significant agency rules-before they go into effect. Finally, we also suggest revising the pay-as-you go or PAYGO budget mechanism to include below-market asset sales and leases within the direct spending that must be matched by additional revenue measures. These measures would help promote greater accountability in the disposition of government assets, ultimately resulting in greater return to the Treasury and more effective pursuit of non- monetary goals

2007 Symposium on the Future of Legal Education

Like the proverbial elephant, law school appears different when perceived from different perspectives. During my twenty years as a law professor, I saw law school as a professional training program, a legal research institute, and a wonderful group of academic colleagues. The articles in this Symposium on the Future of Legal Education, based on a conference held at Vanderbilt in spring of 2006, generally view law school from a similar perspective. Now that I\u27m a Provost, my perspective is different. This raises some new issues, but it also underscores the basic theme of the Symposium. Law schools, like business schools, public policy schools and undergraduate programs, are largely tuition- supported institutions, although supplemented in essential ways by private donations. This is possible because their students are capable of paying the steadily increasing tuition (often with the help of federal loans, of course), and neither the teaching nor the faculty research relies on the extensive use of technology or large empirical data sets. Medical and engineering schools also have tuition-paying students, but the technological demands of both the teaching and research means that their tuition and donation revenue must be heavily supplemented by grants. In graduate programs, the students generally don\u27t (and often simply can\u27t) pay the tuition, and some fields are subject to technological and empirical demands as well; consequently, these programs must be subsidized by other sources, including grants and related support

Judicial Review of Agency Action: The Problems of Commitment, Non-Contractibility, and the Proper Incentives

Despite the already extensive treatment of Chevron, Professors Shapiro and Levy manage to add significantly to the understanding and discussion of scope of review. The author\u27s misgivings about their project stem almost entirely from three central points. First, he believes that Shapiro and Levy move too quickly in asserting the determinacy of the Chevron two-step. Second, Shapiro and Levy seem to argue that determinacy of doctrine and deference are directly related. In fact, however, the relationship they posit is not inevitable. Finally, although usefully broadening our understanding of Chevron to include judicial incentives, Shapiro and Levy ignore other incentives and institutional arrangements