Copyright (c) 2009 Ohio State University Moritz College of Law All rights reserved. http://law.bepress.com/osulwps Recent documents in The Ohio State University Moritz College of Law Working Paper Series en-us Tue, 03 Nov 2009 09:37:07 PST 3600 http://law.bepress.com/osulwps/moritzlaw/art19 http://law.bepress.com/osulwps/moritzlaw/art19 Thu, 26 May 2005 08:11:15 PDT When decided, both Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984), and United States v. Mead, 533 U.S. 218 (2001) were trumpeted, whether by supporters or critics, as marking substantial changes in the law governing judicial review of agency statutory interpretation. This essay argues that what the Court actually decided in each case was entirely consistent with the fabric of the law of judicial review of administrative action as woven during earlier decades. Unfortunately, however, the Court's rhetoric in both opinions is confusing and unhelpful at key points, creating impressions of substantial changes in the law when none was being made. As a result, agencies, judges, and lawyers are better served by focusing less on what Chevron and Mead say and more on what they decided, and treating both decisions as elaborating a fairly straightforward approach based on (a) judicial reaction to the clarity of the statute and (b) whether the statute at issue is intended to create an opportunity for genuine agency policy making. In particular, a reviewing judge should first determine whether the statute in question is susceptible to more than one plausible legal reading, and, if only one plausible legal reading is available, the judge should bind the agency to it. If, however, more than one plausible reading is available, the judge should then ask whether the ambiguity in the statute signals an occasion for policy making. In other words, is the agency, in filling the statutory gap at issue, intended to balance expert judgment and relevant political values in order to accommodate the competing interests that need to be taken into account in order to further Congress's objectives in enacting the statute? If so, then, so long as the agency has rationally identified any plausible statutory reading, the judge should consider herself duty-bound to defer to it. If the statute does not contemplate significant agency policy making in its interpretation, then the court should ask itself a third question: Of the plausible readings available, does any appear to the court to be plainly more attractive than its competitors? If not, then the court should likewise defer to an agency choice of any rational interpretation because the agency is the primary policy maker, and the court has no legal ground to prefer any alternative reading to the agency's own. If, however, the court initially finds one plausible reading most compelling, then it retains the authority to impose that reading on the agency. Before doing so, however, the court should pause, open-mindedly. It should consider, if the agency has an alternative preference, whether the agency's reasoning is not in fact sufficient to make its alternative at least as attractive as the court's initial view. In such a case, notwithstanding its own initial view, the court should deem itself persuaded by the agency's statutory reading. This approach, which is guided by the judicial sense of statutory clarity and does not speak of ambiguities or certainties inherent in the statutory texts themselves, is the most straightforward reconciliation of Chevron and Mead. Peter M. Shane Administrative Law http://law.bepress.com/osulwps/moritzlaw/art18 http://law.bepress.com/osulwps/moritzlaw/art18 Thu, 26 May 2005 08:05:58 PDT Empowered Participatory Governance, or EPG, is a model of governance developed by Archon Fung and Erik Olin Wright that seeks to connect a set of normative commitments for strengthening democracy with a set of institutional design prescriptions intended to meet that objective. It is derived partly from democratic theory and partly from the study of real-world attempts to institutionalize transformative strategies for democratizing social and political decision making. This paper reviews Fung and Wright's recent volume, Deepening Democracy: Institutional Innovations in Empowered Participatory Governance, and considers the relevance of the authors' and other contributors' insights for the future of a phenomenon called "electronic rulemaking." Electronic rulemaking is a species of government on-line deliberation, which I call "GOLD," that seeks to facilitate greater citizen involvement in the formal processes of elaborating administrative rules to implement federal law. Although the volume hardly mentions information and communications technologies at all, there readily appears an extraordinary fit between the capacities of new ICTs and the needs of EPG, in terms of both accomplishing a supportive context and actually implementing the recommended institutional designs. Whether electronic rulemaking will prove a significant way station towards EPG is uncertain, but, given the promise of the EPG experimental agenda and the need to enlarge opportunities for meaningful citizen participation in decisions that affect their lives, EPG proponents should give more active consideration to the potential role of GOLD initiatives in achieving EPG aims. Peter M. Shane Administrative Law General Law Law and Society Law and Technology Politics Public Law and Legal Theory Science and Technology http://law.bepress.com/osulwps/moritzlaw/art17 http://law.bepress.com/osulwps/moritzlaw/art17 Thu, 26 May 2005 08:01:47 PDT This essay discusses the predicament of women law professors in an era when the representation of women on law faculties has reached a "critical mass." It explores three mechanisms for reproducing gender inequality: (1) self-fulfilling stereotypes, (2) gender-specific comparison groups, and (3) the accumulation of small disadvantages. Chamallas uses stories from her own and colleagues' experiences to illustrate contemporary forms of bias. Martha Chamallas Legal Education Women http://law.bepress.com/osulwps/moritzlaw/art16 http://law.bepress.com/osulwps/moritzlaw/art16 Thu, 26 May 2005 07:59:37 PDT This article explores race and sex bias in the computation of damages for loss of future earning capacity, an important component of economic loss in personal injury cases. It analyzes recent cases in the United States and in Canada which reject the use of race and sex-based tables to determine awards for female and minority plaintiffs and explains the method used by the special master in the September 11th Compensation Fund. Chamallas explores objections to reform -- from both the "right" and the "left" -- and makes the case for connecting civil rights principles to civil litigation. Martha Chamallas Civil Rights Remedies Torts Women http://law.bepress.com/osulwps/moritzlaw/art15 http://law.bepress.com/osulwps/moritzlaw/art15 Thu, 26 May 2005 07:56:25 PDT Lucky: The Sequel is a review essay based on Alice Sebold's 1999 memoir Lucky in which Sebold describes her own rape as a college student, her experiences as a rape victim and her navigation of the legal system. Chamallas uses Sebold's rape narrative to explore themes of particular interest to feminist legal scholars. She discusses the intersection of race and rape, the continuing controversy surrounding the categorization of rape as a crime of violence versus a sex crime and the usefulness of considering the social and cultural dimensions of the trauma of rape. Martha Chamallas Arts and Literature Civil Rights Sexuality and the Law Women http://law.bepress.com/osulwps/moritzlaw/art14 http://law.bepress.com/osulwps/moritzlaw/art14 Thu, 05 May 2005 13:35:30 PDT The Supreme Court's landmark decision in Blakely v. Washington and its federal follow-up United States v. Booker are formally about the meaning and reach of the Sixth Amendment's right to a jury trial. But these decisions implicate and reflect, both expressly and implicitly, a much broader array of constitutional provisions and principles, in particular, the Due Process Clause of the Fifth and Fourteenth Amendments and the notice provision of the Sixth Amendment. And the future structure and operation of modern sentencing systems may greatly depend on how courts and others approach the due process provisions and principles which lurk in the unexplored shadows of the Supreme Court's decisions in Blakely and Booker.In this foreword, I explain why an important enduring question which emerges from the Supreme Court's recent sentencing jurisprudence concerns whether, when and how procedural issues other than the Sixth Amendment's jury trial right will be addressed after Blakely and Booker. In Part I, I provide a brief account of modern sentencing reform and its neglect of an array of procedural issues. Part II focuses upon the Supreme Court's past and present jurisprudential struggles with procedural rights at sentencing. Part III sketches considerations for courts and other key sentencing actors and institutions as they explore what process is due in modern sentencing systems.Part III concludes by suggesting that the pitched battle over the rights and results in Blakely and Booker reflect competing visions of what procedural concepts and norms will take center-stage as the Supreme Court considers the applicable constitutional rules for modern sentencing decision-making. Justice Stevens leads a faction of the Court concerned about safeguarding procedural rights for defendants at sentencing, while Justice Breyer leads a faction of the Court concerned about ensuring that applicable procedures at sentencing serve the goal of sentencing uniformity. But, with Justice Ginsburg having allied herself with both of these competing factions in Booker, the schizophrenic Booker ruling further obscures which principles should guide lower courts in considering the broad range of procedural issues beyond jury trial rights that follow in the wake of Blakely and Booker. Douglas A. Berman Constitutional Law Criminal Law and Procedure http://law.bepress.com/osulwps/moritzlaw/art13 http://law.bepress.com/osulwps/moritzlaw/art13 Wed, 04 May 2005 08:13:21 PDT We attempt to articulate a vision of federalism, particularly the Rehnquist version of federalism. We find that there is little consistent thought on the role of the judiciary in protecting federalism. This lack of consensus makes it difficult to predict the decisions federalists might make, but we attempt to outline Chief Justice Rehnquist's contributions to understanding the role courts should play in protecting federalism. We then attempt to assess if Rehnquist adheres to his own vision of federalism. Using his votes since his elevation to Chief Justice in 1986, we test several hypotheses designed to determine if Chief Justice Rehnquist demonstrates the respect for the balance between state and federal governments which he has articulated in so many of his opinions. We generally find support for the proposition that Chief Justice Rehnquist adheres to the tenets of federalism. We conclude that, while there is an ideological component to Chief Justice Rehnquist's jurisprudence, there also appears to be evidence of a sincere commitment to the protection of the line between national and state governments. Ruth Colker Constitutional Law Judges Public Law and Legal Theory State and Local Government Law http://law.bepress.com/osulwps/moritzlaw/art12 http://law.bepress.com/osulwps/moritzlaw/art12 Tue, 26 Apr 2005 08:59:12 PDT The SEC is currently holding hearings on sweeping changes to the micro-structure of the country's securities trading markets - modifying the trade through rule, for example. Professor Oesterle argues that the SEC should not be in the business of so structuring the country's securities markets in the first place. In the piece he chronicles the SEC's expansive interpretation of its power under Congress's 1975 National Market System Amendments to the 1934 Securities and Exchange Act and questions whether Congress intended to grant the SEC such a mandate. Dale A. Oesterle Corporations Securities Law http://law.bepress.com/osulwps/moritzlaw/art11 http://law.bepress.com/osulwps/moritzlaw/art11 Tue, 26 Apr 2005 08:43:40 PDT This Article discusses the recent Supreme Court decision Illinois v. Caballes, which held that the Fourth Amendment does not bar the use of drug-detection dogs, even in the absence of reasonable suspicion. It argues that the Caballes case paves the way for widespread and indiscriminant use of a new type of surveillance known as a binary search. A binary search is defined as a search which provides the law enforcement official with no information about the subject other than whether or not illegal activity is present. Drug-detection dogs are one example of a binary search, but there are many others which are being developed, such as portable gun detectors or software protocols that sift through all e-mails passing through an internet service provider looking for child pornography. Since the Caballes case did very little in the way of defining binary searches and discussing the appropriate limitations (if any) on their use, the Article seeks provide some guidance to courts in evaluating the constitutionality of binary searches in the future. The Article begins by discussing the history of the binary search doctrine, focusing on its application to drug-detection dogs, which up until now have been the most common form of binary search in use. The Article then analyzes the Caballes decision itself, examining what it does and does not resolve about the constitutionality of binary searches. Finally, the Article attempt to resolve the important unanswered questions in Caballes: first, how accurate does a surveillance technique have to be in order to be considered a binary search, and second, how does the Fourth Amendment prohibition against unreasonable seizures limit or prevent the widespread use of binary searches? Ric Simmons Criminal Law and Procedure http://law.bepress.com/osulwps/moritzlaw/art10 http://law.bepress.com/osulwps/moritzlaw/art10 Fri, 25 Mar 2005 12:10:58 PST Brown v. Board of Education marked a turning point for both civil rights and judicial activism. During the half century since Brown, social activists of all kinds have sought policy changes from the courts rather than legislatures. That trend has produced social benefits but, over time, it has also shifted political power to elites. This essay explores the possibility of retaining Brown's promise for racial equality while reinvigorating an electoral politics that would better represent many of the people Brown intended to benefit. Deborah Jones Merritt Civil Rights Law and Society Politics Public Law and Legal Theory Remedies Social Welfare