Toward Separation of Powers Realism

Many wonder if the separation of powers is going to be reinvigorated by the new appointees to the federal judiciary. But that doctrine in practice means that occasionally alarming, but exceedingly rare, doctrinal innovations— finding venerable parts of the administrative state or portions of high-profile congressional statutes to be unconstitutional, for example—make no real-world difference because of the modest remedies paired with those innovations. This Article shows how weak the separation of powers doctrines have become; explains how, in the rare case that the doctrines require a remedy, the remedy is almost never what the plaintiff seeks or a constraint on the administrative state; and analyzes why judges of every ideological stripe have turned away from the doctrine. It adds a comprehensive study of the past two decades of practice by the Supreme Court and D.C. Circuit to the existing literature and argues that we would be better off abandoning efforts to reinvigorate the functional versions of the doctrines

Tennessee Value-Added Dairy: State of the Industry, Consumer Perceptions, and Investment Opportunities

Value-added dairy enterprises (VAD) may increase profits and supplement a dairy farmer’s income. Three studies were developed to assess Tennessee (TN) VAD, describe the VAD product consumer market, and assist current (C) and prospective (P) VAD with decisions before entering or expanding an operation. A 50-question in-person survey was administered to C and P VAD (n = 9 and n = 7, respectively) from June 2020 to September 2021. Surveys results showed that fluid products (n = 17) and cheeses (n = 13) were the most common. Most C and P VAD were financially sound (\u3c 40% debt to asset ratio), with four making a profit, and three not breaking even. Most C VAD income came from farming activities, while most P VAD income came from off-farm. To assess consumer familiarity and attitudes toward purchasing farmstead milk (FSM), a 90-question online consumer survey was distributed through Qualtrics from March to May 2021 to adult Tennessee residents who at least occasionally consumed dairy products and were a primary household food shopper. 817 completed surveys were obtained. Respondent age and local foods purchase frequency impacted FSM familiarity and purchase likelihood. Other impacts were farm background, marriage, locations, gender, and dairy foods budget. Younger respondents with a local foods preference were more likely to be familiar with and purchase FSM. An excel-based decision-making tool to gauge initial investment, processing time, and a profitability timeline for a VAD enterprise was designed and validated using seven scenarios against four equipment options. Scenarios tested change in herd size (69, 462, and 690 cows), average daily production per cow (22, 28, and 33 kg), and herd percentage processed (7, 61, 100%). Nine of 28 options had \u3c 8 hr processing time and ≤ 20 yr profitable timeline. Scenarios with 69 head or 7% of herd used were not profitable. A profitable projected timeline for feasible scenarios was 5.13 ± 2.10 yr and net-present value was $1,964,448 ± 1,128,623. This study provided information about TN VAD enterprises, consumer familiarity and preferences for FSM, and a financial feasibility analysis tool for those entrepreneurs interested in a TN VAD

Composing Women: Intersections of Transatlantic Modernist Literature and Visual Media

This dissertation explores transatlantic modernist literature’s methods of representing the material female mind and body in light of photographic and cinematic composition and analysis. The ongoing and often concurrent transatlantic development of photographic and cinematic technology invites a broad historical trajectory: from stop-motion photography to cinematography to the transition from silent to sound film. As photography and film manipulate time and space by halting and resuming perpetual motion, so my investigation crosses time and space, freezing provocative moments and posing enlightening encounters. Through interdisciplinary associations, I aim to reframe and reanimate our critical perception of the multiplicitous modernist scene. Each chapter thus views literary works from the primary era of cinematic development, the 1920s and ’30s, through the proverbial lens of visual media works or analyses, such as stop-motion photograph series or feminist film theories. Rather than attributing a literary method to a media technique, or vice versa, I investigate their various intersections and deviations, their various possibilities and limitations. These explorations ultimately discover the potential of modernist narratives to engage the compositional methods and subjects of photography and film in the expression of otherwise unsanctioned, unseen, and unspoken female identity

Sovereignty Mismatch and the New Administrative Law

In the United States, making international policymaking work with domestic administrative law poses one of the thorniest of modern legal problems—the problem of sovereignty mismatch. Purely domestic regulation, which is a bureaucratic exercise of sovereignty, cannot solve the most challenging issues that regulators now face, and so agencies have started cooperating with their foreign counterparts, which is a negotiated form of sovereignty. But the way they cooperate threatens to undermine all of the values that domestic administrative law, especially its American variant, stands for. International and domestic regulation differ in almost every important way: procedural requirements, substantive remits, method of legitimation, and even in basic policy goals. Even worse, the delegation of power away from the United States is something that our constitutional, international, and administrative law traditions all look upon with great suspicion. The resulting effort to merge international and domestic regulatory styles has been uneven at best. As the globalization of policymaking is the likely future of environmental, business conduct, and consumer protection regulation—and the new paradigm-setting present of financial regulation—the sovereignty mismatch problem must be addressed; this Article shows how Congress can do so

Regulating Banking Ethics: A Toolkit

There is little doubt that culture matters for institutions—entities ranging from economics departments to soccer teams spend plenty of time thinking about the cultures they hope to foster—and that culture is also exceedingly hard to measure or define. Regulators now have had a decade since the financial crisis to operationalize their approach to guiding and improving the ethics and culture of the banks they oversee. Understanding what they have chosen to do makes it easier to assess the value of the effort to make cultural transformation an important part of a regulatory program. It also offers lessons to the broader world of public administration, where some agencies, such as environmental regulators, have not made a culture of compliance a priority, while others—securities regulators come to mind—have tried to do more to make certain values stic

Modernizing the Bank Charter

The banking charter—the license a bank needs to obtain before it can open—has become the centerpiece of an argument about what finance should do for the rest of the economy, both in academia and at the banking agencies. Some advocates have proposed using the charter to pursue industrial policy or to end shadow banking. Some regulators have proposed giving financial technology firms bank charters, potentially breaking down the traditionally high walls between banking and commerce. An empirical survey of chartering decisions by the Office of the Comptroller of the Currency suggests that chartering is best understood as an ultracautious licensing regime for “fit and proper” applicants. It would not and probably should not be easily adapted to realize the policies the advocates propose, or to mix banking with big business. The modern charter should be paired with more transparent administration by agencies and more standard review by courts. These policies could appropriately be paired with the careful and narrow fintech chartering program that regulators have created

Personal Liability as Administrative Law

Administrative Law has almost exclusively concerned itself with Lawsuits against agencies as collective entities, under the auspices of the Administrative Procedure Act. In light of the growing number and prominence ofsuits by war on terror plaintiffs against senior government officials, this Article considers the use ofpersonal liability to discipline government officials and assesses it as an alternative to traditional administrative Law. It compares the civil suits to criminal prosecutions of these officials and compares both of them to lessobviously Law related scandal campaigns. Personal sanctions--of which Bivens complaints are a principal example-are worth more attention. These mechanisms, and the constitutional tort in particular, are case studies of the popular inclination to decentralize government, of the value ofsymbolic Laws, and, increasingly, of the personalization of Law and politics. Solving some of the problems ofpersonal liability, as it works today, might best be done not by enhancing the bite of the always-challenged Lawsuits and prosecutions, but by making sure that the Law makes it more possible for political cases to be made against government officials, rather than legal ones