The Bounds of Executive Discretion in the Regulatory State
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Cv-14-02052- Tuc-Rm (D
Derek E. Bambauer <[email protected]> 520.621.5411 1201 E. Speedway, Tucson AZ 85721 Teaching Experience University of Arizona, James E. Rogers College of Law, Tucson, AZ. Professor of Law (2013- present). • Associate Professor of Law (2012-2013). • Founder and faculty director, IP and Entrepreneurship Clinic. • Faculty advisor, Arizona Intellectual Property & Cyberlaw Society, Arizona Journal of Emerging Technologies. • Courses taught: Copyright Law, Cyberlaw, Introduction to Intellectual Property, Patent Law, Trade Secrets. Brooklyn Law School, Brooklyn, NY. Associate Professor of Law (2010 – 2012). • Assistant Professor of Law (2008-2010). • Voted Professor of the Year by students in 2008-2009. • Advisor / legal consultant, Brooklyn Law Incubator & Policy Clinic (BLIP). • Courses taught: Current Controversies in Intellectual Property, Information Privacy Law, Internet Law, Introduction to Intellectual Property, Patent Law, Trademark Law. Wayne State University Law School, Detroit, MI. Assistant Professor of Law (2006-2008). • Courses taught: Contracts, Copyright Law, Current Controversies in Intellectual Property, Trademark Law. Education Harvard Law School, Cambridge, MA. J.D., magna cum laude (2004). • Student Research Fellow, OpenNet Initiative, Berkman Center for Internet & Society. • Researcher, Digital Media project, Berkman Center for Internet & Society. • Teaching Assistant, Professor Daniel Meltzer (Criminal Law). Harvard College, Cambridge, MA. B.A., History and Science, summa cum laude (1996). • Phi Beta Kappa. • National Science Scholar (National Science Foundation). • Graduated in 3 years (awarded Advanced Standing). 1 of 10 Derek E. Bambauer Fellowships Berkman Center for Internet & Society, Harvard Law School, Cambridge, MA. Research Fellow (2004-2006). • Led team researching Internet filtering laws, technology, and practices by states worldwide. Analyzed empirical data from testing of countries’ filtering systems. -
Beyond the Bully Pulpit: Presidential Speech in the Courts
SHAW.TOPRINTER (DO NOT DELETE) 11/15/2017 3:32 AM Beyond the Bully Pulpit: Presidential Speech in the Courts Katherine Shaw* Abstract The President’s words play a unique role in American public life. No other figure speaks with the reach, range, or authority of the President. The President speaks to the entire population, about the full range of domestic and international issues we collectively confront, and on behalf of the country to the rest of the world. Speech is also a key tool of presidential governance: For at least a century, Presidents have used the bully pulpit to augment their existing constitutional and statutory authorities. But what sort of impact, if any, should presidential speech have in court, if that speech is plausibly related to the subject matter of a pending case? Curiously, neither judges nor scholars have grappled with that question in any sustained way, though citations to presidential speech appear with some frequency in judicial opinions. Some of the time, these citations are no more than passing references. Other times, presidential statements play a significant role in judicial assessments of the meaning, lawfulness, or constitutionality of either legislation or executive action. This Article is the first systematic examination of presidential speech in the courts. Drawing on a number of cases in both the Supreme Court and the lower federal courts, I first identify the primary modes of judicial reliance on presidential speech. I next ask what light the law of evidence, principles of deference, and internal executive branch dynamics can shed on judicial treatment of presidential speech. -
Common Intellectual Heritage”: Federal and State Courts in Our Federal System
\\jciprod01\productn\N\NDL\91-5\NDL505.txt unknown Seq: 1 16-SEP-16 13:32 REVISING OUR “COMMON INTELLECTUAL HERITAGE”: FEDERAL AND STATE COURTS IN OUR FEDERAL SYSTEM Judith Resnik* ABSTRACT This Essay pays tribute to Daniel Meltzer’s insight that, to the extent “lawyers have a common intellectual heritage, the federal courts are its primary source.” I do so by analyzing how that heritage is made and remade, as political forces press Congress to deploy federal courts to protect a wide array of interests and state courts absorb the bulk of litigation. The heritage that Meltzer celebrated and to which he contributed was the outcome of twenti- eth-century social movements that focused on the federal courts as hospitable venues, serving as vivid sources of rights and remedies. A competing heritage has since emerged, as the Supreme Court shaped new doctrines constricting judicial powers and rendering courts unavailable and unavailing. Despite the Court’s reluctance to welcome claimants, Congress continues to endow the fed- eral courts with new authority and significant funds. But what the federal government has thus far ignored are the needs of state courts, where 100 million cases are filed annually and states struggle to honor constitutional commitments to open courts and rights to counsel for criminal defendants. Once state courts come into focus, two other and competing understanding of courts come to the fore. One merits the term “enabling courts,” as judges aim to equip litigants with lawyers and resources for conflicts related to families, housing, and health. From “Civil Gideon” move- ments and self-help forms to drug and reentry courts, new initiatives underscore the goals of using courts to be responsive to social needs. -
Bernard D. Meltzer (1914-2007), Nuremberg Prosecutor
Bernard D. Meltzer (1914-2007), Nuremberg prosecutor John Q. Barrett* Copyright © 2007 by John Q. Barrett. All rights reserved. Bernard David Meltzer, who was remembered at a University of Chicago Law School memorial service on February 2, 2007, was 92 years old when he died on January 4th at his home in Chicago. Sixty-one years ago, United States Navy Lieutenant (junior grade) Meltzer served on Justice Robert H. Jackson’s staff in Nuremberg as Assistant Trial Counsel for the United States. Lt. Meltzer was the one of the youngest U.S. prosecutors to address the International Military Tribunal in the case against the principal Nazi war criminals. Bernie Meltzer’s path to Nuremberg was, like all of his highly accomplished life, varied and interesting. Born and raised in Philadelphia and not destined, to his great regret, for a career in professional baseball,1 Bernie first attended Temple University and then transferred to the University of Chicago. He received his A.B. in 1935 and then enrolled at the University of Chicago Law School, graduating first in his class in 1937. During 1937-38, Bernie earned a LL.M. degree at Harvard Law School, where he studied under and became a favorite of Professor Felix Frankfurter. In 1938, Meltzer began to practice law, both public and private. He worked for two years at the Securities and Exchange Commission, first in the general counsel’s office and then as assistant to chairman Jerome N. Frank. After a private practice stint with Mayer, Meyer, Austrian & Platt back in Chicago, Bernie returned to Washington, where he worked at the National Defense Commission on procurement matters and then at the Department of State, first on Lend-Lease matters for assistant secretary Dean Acheson and then as acting chief of the foreign funds control division. -
2017 P&I Program
Table of Contents 2017 NACHC Board of Directors . 2 At-A-Glance Welcome . 5 Education Sessions At-A-Glance . 31 Hotel Maps . 37 General Information Mobile App . 9 Wednesday, March 29 Wi-Fi . 10 Schedule . 41 Registration and Exhibitor/ Opening General Session . 42 Speaker Check-In . 11 Education Sessions . 43 Hotel Information . 12 Thursday, March 30 Shuttle Service . 13 Schedule . 49 3 T (Timely Thirty-Minute Tips) . 15 Education Sessions . 50 Conference Basics . 16 Healthcare Leadership Reception Continuing Education . 18 and Awards . 57 NACHC Certificate in Health Center Friday, March 31 Governance Program for Board Schedule . 61 Members . 20 General Session: Federal Update . 63 NACHC Certificate in Health Center Governance Program for Board Education Sessions . 64 Members Enrollment Form . 21 Conference Networking Social Events and Activities Reception . 78 Visit the NACHC Information Center . 23 Saturday, April 1/Sunday, April 2 Become a Health Center Advocate . 23 Schedule . 81 Social Media and Twitter Contest . 24 General Session . 82 Healthcare Leadership Reception Education Sessions . 83 and Awards . 25 Committee Meetings . 87 Conference Networking Reception . 26 EXPO Board Members CONNECT! Health Schedule . 91 Center Board Members Networking Community Health Ventures Row . 94 Event . 26 Exhibitor Profiles . 98 National LGBT Primary Care Alliance Reception . 26 Exhibitor Index by Name and Number . 112 EXPO Floorplan . 113 New Member Welcome Reception . 26 Young Professional Leadership Key to Moderators and Presenters . 117 Exchange Reception . 26 Commonly Used Acronyms in the Young Professional Leadership Health Center Industry . 120 Exchange Track . 27 #NACHCpi17 NACHC 2017 POLICY & ISSUES FORUM 1 2017 NACHC Board of Directors EXECUTIVE COMMITTEE Chair of the Board Secretary J. -
Remedial Convergence and Collapse
Remedial Convergence and Collapse Leah Litman* ABSTRACT This Article describes and interrogates a phenomenon of spillovers across remedies—how the legal standards governing the availability of remedies in cases regarding executive violations of individuals’ constitutional rights, particularly in the area of policing, have converged around similar ideas that narrow the availability of several different remedies. A similar set of limits restricts the availability of writs of habeas corpus to challenge criminal convictions, damages against government officials, the exclusion of evidence in criminal trials, and causes of action to sue federal officials for damages. The convergence results in considerable tension in the doctrine and notable effects in practice. For example, courts frequently deny one remedy on the ground that another remedy is available and preferable to the remedy that a party has sought. But when the same standard governs the availability of remedies that are supposed to substitute for one another, courts eliminate all remedies when they deny one of them. The remedial doctrines discussed in this Article primarily address executive violations of constitutional rights, particularly violations that occur in the course of policing. Denying the availability of remedies in cases that involve policing and executive power replicates the racialized effects of policing in the federal courts and forsakes oversight and accountability in an area where it might be particularly needed. DOI: https://doi.org/10.15779/Z382V2C96D Copyright © 2018 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. * Assistant Professor of Law, University of California Irvine School of Law. -
Hereby Neutering—The Doctrines That Serve to Subject Administrative Agencies to the Rule of Law
HARVARD JOURNAL of LAW & PUBLIC POLICY VOLUME 42, NUMBER 3 SUMMER 2019 ARTICLES MASTERPIECE CAKESHOP AND THE FUTURE OF RELIGIOUS FREEDOM Mark L. Movsesian ................................................................. 711 THE SICKNESS UNTO DEATH OF THE FIRST AMENDMENT Marc O. DeGirolami ................................................................ 750 YAKUS AND THE ADMINISTRATIVE STATE James R. Conde & Michael S. Greve. ....................................... 807 CORPUS LINGUISTICS AND “OFFICERS OF THE UNITED STATES” James C. Phillips, Benjamin Lee & Jacob Crump. ................... 871 NOTES GIVE VETERANS THE BENEFIT OF THE DOUBT: CHEVRON, AUER, AND THE VETERANS CANON Chadwick J. Harper .................................................................. 931 THE ORIGINAL MEANING AND SIGNIFICANCE OF EARLY STATE PROVISOS TO THE FREE EXERCISE OF RELIGION Branton J. Nestor ..................................................................... 971 HARVARD JOURNAL of LAW & PUBLIC POLICY Editor-in-Chief RYAN PROCTOR Deputy Editor-in-Chief Articles Editors CHADWICK HARPER Managing Editors HAYLEY EVANS BRAD BARBER DANIEL JOHNSON WILL COURTNEY Executive Editors KEES THOMPSON ANNIKA BOONE GRAHAM CARNEY Deputy Managing Editors Assistant Articles Editors RYAN FOLIO NICOLE BAADE NICK AQUART CHANSLOR GALLENSTEIN CHASE BROWNDORF AARON HSU JORDAN GREENE HUGH DANILACK PARKER KNIGHT III KEVIN KOLJACK Articles Board VINCENT LI BEN FLESHMAN GRANT NEWMAN Notes Editors ANASTASIA FRANE DAVID RICHTER AARON GYDE JOSHUA HA SAM WILLIAMS BRANTON NESTOR JAMES -
No Law to Apply”: Uniting the Current Court in the Context of Apa Reviewability
BEYOND “NO LAW TO APPLY”: UNITING THE CURRENT COURT IN THE CONTEXT OF APA REVIEWABILITY In back-to-back Supreme Court Terms, § 701(a)(2) of the Administrative Procedure Act1 (APA) has returned to the forefront. While the APA generally allows anyone “adversely affected or aggrieved by agency action” to seek judicial review,2 the APA makes agency action unreviewable under § 701(a)(1) if the organic statute “preclude[s] judicial review,”3 or under § 701(a)(2) if the “agency action is committed to agency discretion by law.”4 Two recent cases, Department of Commerce v. New York5 and Department of Homeland Security v. Regents of the University of California,6 featured a divide between Chief Justice Roberts, who held that the relevant agency actions were unlawful be- cause they were “arbitrary and capricious” under § 706 of the APA, and Justice Alito, who contended that the agency actions were not reviewa- ble at all because of § 701(a)(2).7 The now-recurring dispute between Chief Justice Roberts and Justice Alito on the scope of § 701(a)(2) exemplifies broader divisions on the Court. While some scholars have claimed that the “conservative” Justices share a unified approach that achieves conservative political victories,8 such analysis ignores meaningful differences among the Justices in their understandings of the proper role of the judiciary. Specifically, Professor Adrian Vermeule has helpfully distinguished “Ar- ticle II conservatives” from “Article III conservatives.”9 On Vermeule’s view, Article II conservatives are generally “deferential to presidential ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 1 5 U.S.C. §§ 551, 553–559, 701–706. -
The John M. Olin Fellowships and the Advancement of Conservatism in Legal Academia
THE JOHN M. OLIN FELLOWSHIPS AND THE ADVANCEMENT OF CONSERVATISM IN LEGAL ACADEMIA “[I]t is merely a question of time until the views now held by the intellectuals become the governing force of politics.”1—F.A. Hayek INTRODUCTION In his 2008 book The Rise of the Conservative Legal Movement, Johns Hopkins Professor Steven M. Teles stated, “It is still too early to tell whether the [John M.] Olin Fellows2 program has been effective, and in any case it is very difficult to disentangle the impact of the program from the influence of a changed le- gal culture or greater willingness of law schools to consider hir- ing conservatives.”3 The fellowship program, which provides conservatives or moderates interested in entering the legal academy with a one to two year, fully-funded position at a law school,4 is a joint venture of sorts between the Federalist Society and the John M. Olin Foundation, an organization better known in law schools for its advancement of law and econom- ics programs. Since 1997, the John M. Olin Fellowship has sought to encourage and assist conservatives and libertarians in becoming law professors.5 In investigating the theory that a changed legal culture at least partially explained the John M. Olin Fellows’ placement success- es in the academy, Professor Teles looked to Harvard Law School and cited then-Dean Elena Kagan’s hiring of three con- servatives to the law school faculty—Professors John F. Man- ning, Jack Goldsmith, and Adrian Vermeule.6 During her tenure, 1. F.A. Hayek, The Intellectuals and Socialism, in THE INTELLECTUALS: A CONTRO- VERSIAL PORTRAIT 371 (George B. -
Cv-14-02052- Tuc-Rm (D
Derek E. Bambauer <[email protected]> 520.621.5411 1201 E. Speedway, Tucson AZ 85721 Teaching Experience University of Arizona, James E. Rogers College of Law, Tucson, AZ. Professor of Law (2013- present). • Associate Professor of Law (2012-2013). • Founder and faculty director, IP and Entrepreneurship Clinic. • Faculty advisor, Arizona Intellectual Property & Cyberlaw Society, Arizona Journal of Emerging Technologies. • Courses taught: Copyright Law, Cyberlaw, Introduction to Intellectual Property, Patent Law, Trade Secrets. Brooklyn Law School, Brooklyn, NY. Associate Professor of Law (2010 – 2012). • Assistant Professor of Law (2008-2010). • Voted Professor of the Year by students in 2008-2009. • Advisor / legal consultant, Brooklyn Law Incubator & Policy Clinic (BLIP). • Courses taught: Current Controversies in Intellectual Property, Information Privacy Law, Internet Law, Introduction to Intellectual Property, Patent Law, Trademark Law. Wayne State University Law School, Detroit, MI. Assistant Professor of Law (2006-2008). • Courses taught: Contracts, Copyright Law, Current Controversies in Intellectual Property, Trademark Law. Education Harvard Law School, Cambridge, MA. J.D., magna cum laude (2004). • Student Research Fellow, OpenNet Initiative, Berkman Center for Internet & Society. • Researcher, Digital Media project, Berkman Center for Internet & Society. • Teaching Assistant, Professor Daniel Meltzer (Criminal Law). Harvard College, Cambridge, MA. B.A., History and Science, summa cum laude (1996). • Phi Beta Kappa. • National Science Scholar (National Science Foundation). • Graduated in 3 years (awarded Advanced Standing). 1 of 11 Derek E. Bambauer Fellowships Berkman Center for Internet & Society, Harvard Law School, Cambridge, MA. Research Fellow (2004-2006). • Led team researching Internet filtering laws, technology, and practices by states worldwide. Analyzed empirical data from testing of countries’ filtering systems. -
The Death of Judicial Conservatism
University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 2009 The Death of Judicial Conservatism David A. Strauss Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation David A. Strauss, "The Death of Judicial Conservatism," 4 Duke Journal of Constitutional Law and Public Policy 1 (2009). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. THE DEATH OF JUDICIAL CONSERVATISM DAVID A. STRAUSS* If we are talking about what happened during the Bush Administration, 'The Death of Judicial Conservatism" looks like it is either a misprint or the deluded ramblings of a liberal who did not get the memo. But I think it is fair to say that one of the lessons we have learned in the wake of the Bush Administration's appointments to the Supreme Court is that judicial conservatism no longer exists in any significant form. Or at least so I argue here. To say that judicial conservatism has died is not to say that its opposite, judicial liberalism or progressivism, has flourished. It is clearer than ever that people who hoped for the revival of the Warren Court-a court that had an agenda to be at the forefront of what it considered to be social reform in a generally liberal direction-had better give up that hope for at least a generation. -
The Credible Executive
University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 2007 The Credible Executive Eric A. Posner Adrian Vermeule Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Eric Posner & Adrian Vermeule, "The Credible Executive," 74 University of Chicago Law Review 865 (2007). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. The Credible Executive Eric A. Posnert andAdrian Vermeulett Legal and constitutional theory has focused chiefly on the risk that voters and legislators will trust an ill-motivated executive. This Article addresses the risk that voters and legislators will fail to trust a well-motivated executive. Absent some credible signal of benign motivations, voters will be unable to distinguish good from bad executives and will thus withhold authority that they would have preferred to grant, making all concerned worse off We suggest several mechanisms with which a well-motivated executive can credibly signal his type, including independent commis- sions within the executive branch; bipartisanshipin appointments to the executive branch,or more broadly the creation of domestic coalitions of the willing; the related tactic of counterpartisanship, or choosing policies that run against the preferences of the president's own party; commitments to multilateralaction in foreign policy; increasingthe transparency of the executive's decisionmaking processes; and a regime of strict liability for executive abuses. The main tradeoff or cost is that increasingcredibility tends to diminish the President'scontrol; in light of this tradeoff we examine the conditions under which these mechanisms succeed or fail, with historicalexamples.