Print Archive

The project of bolstering the administrative state’s perceived legitimacy is central to administrative law. Despite the pitch of debate in elite legal circles, however, little is known about the views of ordinary citizens—the very people whose beliefs constitute popular legitimacy. This Article provides evidence of Americans’ actual views concerning what features contribute to agencies’ perceived legitimacy. It presents the results of a set of experiments in which each participant views a policy vignette with varied information concerning the structures and procedures involved in generating the policy. Participants are then asked to assess, by their own lights, the policy’s legitimacy. The results support the century-old idea that empowering politically insulated, expert decision-makers legitimizes agencies. This finding implies that, for proponents of a robust administrative state, an independent and technocratic civil service is worth defending. There also is some evidence that public participation in agency decision-making bolsters agencies’ perceived legitimacy. By contrast, the theory that greater presidential involvement enhances legitimacy receives no support.

The appropriate scope of the right to exclude is among the most contentious topics in property theory. In recent years, scholars who favor exclusion have developed novel arguments to support it by focusing on the information costs of property. Because everyone must respect property rights, those rights must be simple enough for everyone to understand their content. And the right to exclude, which requires everyone to keep off property unless the owner allows them on, is simple enough to be understood easily by those who must respect it. This Article defends an alternative analysis of how the information costs of property bear on the proper scope of exclusion. Legal rules generate two kinds of information costs: the costs of learning rules and the costs of applying them. While simpler rules may be easier to learn, they need not be easier to apply. Instead, a rule is easy to apply if individuals can easily determine whether a particular action would violate it. Once the costs of applying the right to exclude are considered, I claim, the law sometimes reduces information costs not by respecting exclusion but rather by restricting it. Information costs do not uniformly support greater exclusion, then, as exclusion’s defenders have argued; rather, those costs sometimes favor restricting it.

Under the Judicial Conduct and Disability Act of 1980, it falls to federal judges in each circuit to investigate and redress complaints about their colleagues’ behavior. A controversial provision of the Act authorizes the temporary suspension of misbehaving judges from new case assignments. Judges suspended under the Act have argued that this amounts to effectively removing them from office without impeachment, violating constitutional protections of judicial tenure and independence. This Comment develops and defends a bright-line rule for conceptualizing effective removal. When a case-suspension sanction even temporarily has the effect of disqualifying a judge who lacks assigned cases from further assignments, it unconstitutionally removes the judge from office. After crystallizing this concept, the Comment attends to non-merits-related reasons that courts are unlikely to accept this challenge to the JCDA; assesses the risk that the Act’s case-suspension provision could be abused; and proposes an amendment that would foreclose effective removal.

The mail and wire fraud statutes are the “first line of defense” against fraudulent activities. Adaptable and broadly written, they are go-to tools in the white-collar prosecutor’s arsenal. But this flexibility has also raised concern about their expansive and indeterminate scope. Unfortunately, the vagueness of the traditional property interests test has resulted in a confusing morass of inconsistent judgments. With limited guidance from the Supreme Court on how to conduct such an inquiry, lower courts have struggled to consistently determine whether alleged property interests are covered by these statutes. This has led to overturned convictions in high-profile mail and wire fraud cases. This Comment aims to aid courts conducting the traditional property interest analysis by synthesizing the Supreme Court’s property-based case law and proposing a hallmarks-of-property test.

Federal law authorizes the reinstatement of a prior removal order when a noncitizen “reenter[s] the United States without authorization after having already been removed.” The question whether a noncitizen is removable is thus definitively settled immediately upon reinstatement. But the question to where the noncitizen will be removed is less certain. This is because noncitizens subject to reinstated orders of removal retain the right to pursue “withholding-only” relief, which precludes removal to the noncitizen’s home country when extreme dangers await them there. This lag—between when removability, on one hand, and the country of removal, on the other, are determined—has exposed an ambiguity in the statute providing for judicial review of a “final order of removal,” 8 U.S.C. § 1252. Specifically, § 1252(b)(1) requires that a noncitizen file a petition for review within thirty days of the final order of removal. But when does a reinstated order of removal become final? Specifically, does finality attach when the prior removal order is reinstated (such that removability is determined) or when the administrative process for adjudicating claims for withholding-only relief has concluded (such that the country of removal is determined)? This Comment contends that the soundest construction of § 1252 deems reinstated orders of removal final when withholding-relief proceedings conclude.

Constitutional scholars have long construed the Equal Protection Clause as containing two dueling visions: anticlassification and antisubordination. On no issue have these competing perspectives clashed more intensely than affirmative action. This Article challenges that conventional account by demonstrating that antisubordination’s career has been far more protean, complex, and—above all—strange than scholars typically allow. This Article contends neither that antisubordination must be abandoned nor that affirmative action should have been invalidated. To the contrary, it explores arguments designed to shore up antisubordination and to provide alternate grounds for affirmative action’s constitutionality. It will no longer do, however, simply to ignore antisubordination’s considerable complexity. By tracing the winding, peculiar path of antisubordination, this Article not only recasts Justice Clarence Thomas’s much-debated jurisprudence but also clarifies our nation’s garbled constitutional discourse.

Privacy laws are traditionally associated with democracy. Yet autocracies increasingly have them. Why do governments that repress their citizens also protect their privacy? This Article answers this question through a study of China. China is a leading autocracy and the architect of a massive surveillance state. But China is also a major player in data protection, having enacted and enforced a number of laws on information privacy. Central to China’s privacy turn is the party-state’s use of privacy law to shore up its legitimacy amid rampant digital abuse. Through privacy law, China’s leaders have sought to interpose themselves as benevolent guardians of privacy rights against other intrusive actors—individuals, firms, and even state agencies and local governments. So framed, privacy law can enhance perceptions of state performance and potentially soften criticism of the center’s own intrusions. This Article adds to our understanding of privacy law, complicates the relationship between privacy and democracy, and points toward a general theory of authoritarian privacy.

This Article analyzes the complex relationship between property and placemaking. Because property theory has not been fully transparent about many of these placemaking effects, our property choices often result in outcomes that are unequal, inconsistent, and opaque, prioritizing some existing place relations while ignoring or rejecting others. By building a more comprehensive placemaking account—with examples from Indigenous pipeline protestors to the absent and now-urban heirs of family farms and the emergence of new build-to-rent suburban housing divisions—this Article introduces a new taxonomy for evaluating the relative protection we afford to various place and place-attachment claims. This new framework separates the individual, collective, and ecological benefits of positive place relations from the risks of either overprotected place attachments (as in the case of hereditary land dynasties and exclusionary wealth) or land ownership without any attachment at all (as in the transformation of land and housing into asset classes for commodification and financialized capture). This clearer focus on placemaking also puts property law—and land tenure—at the center of core social, economic, and climate challenges. It also forces us to confront property’s ongoing role in the dispossession of groups, cultures, and communities that are not (or are no longer) recognized as legal owners and our repeated failure to accommodate the access needs of individuals not born into hereditary land or wealth.

In her latest book, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms, Professor Alison LaCroix suggests that the period between 1815 and 1861 in the United States has too often been treated as “the flyover country of constitutional history.” She asserts that this time should be the subject of greater consideration because this “period . . . witnessed a transformation in American constitutional law and politics.” Contrary to “the conventional story,” it was a “foundational era of both constitutional crisis and self-conscious creativity.”

The Interbellum Constitution reminds us of the important insights that have helped transform the historiography of the early American Republic, of slavery, and of relations between European settlers and Indigenous Peoples. Historians and other scholars during the latter half of the twentieth century discovered the importance of moving beyond “great man” history to tell a richer and more truthful story about the past. The story LaCroix tells is not entirely unknown, but her signal contribution is to look beyond the “great man,” “great case” perspective on the years after the War of 1812 and before the Civil War. By mining the archive for information, she expands our understanding of the range of ideas about union, federalism, and sovereignty.

The Restatement of Children and the Law is scheduled for formal adoption by the American Law Institute in 2024. When this project was first proposed, it was met with some skepticism, on the view that the regulation of children was not a coherent field of law. But after eight years of work on this Restatement, the Reporters have produced a comprehensive account of the law’s treatment of children and clarified that it is, indeed, an integrated and coherent area of law. Our work has uncovered a deep structure and logic that shapes the legal regulation of children in the family, in school, in the justice system, and in the larger society. And it has clarified that the core principle and goal of the law affecting children across these domains is to promote their wellbeing. This Child Wellbeing framework is embodied in the Restatement. It can be discerned most clearly in youth crime regulation, but it also shapes state intervention in families and parental rights, as well as children’s rights in school and in society. The Child Wellbeing framework bears some similarity to the principles driving the Progressive era reforms, which also elevated the welfare of children—and which ultimately fell short of attaining the reformers’ goals. But the Restatement’s contemporary approach embodies three features that distinguish it from that of the earlier period. First, regulation today increasingly is based on research on child and adolescent development, as well as studies on the effectiveness of policy interventions. This empirical evidence provides a sturdier basis for doctrine and policy than the naive and intuitive approach of Progressive lawmakers, and a growing number of courts and legislatures rely on this research. Second, today’s lawmakers increasingly recognize the broader social welfare benefits of regulation that promotes the wellbeing of children, increasing its political viability. And third, acknowledgement by courts of the ways in which embedded racial and class bias has affected the law’s relationship to children and families has led to tentative steps to ameliorate these pernicious influences. This Essay elaborates on the Child Wellbeing framework, using various Restatement rules as examples of its implementation. It first focuses on the regulation of children in the justice system as the prime example. It then turns to the regulation of the parent-child relationship, explaining that the Restatement’s strong protection of parental rights is solidly grounded in the Child Wellbeing principle. Finally, the Essay examines children’s rights, clarifying that the Child Wellbeing principle is at work in lawmakers’ decisions to extend or withhold autonomy-based rights, or to maintain or create paternalistic protections.

Part 3 of the Restatement of Children and the Law, “Children in the Justice System,” reflects recent dramatic reform in juvenile law and practice. The reform recognizes that kids are different, requiring special attention to protecting due process when the justice system must make decisions in delinquency cases. The Restatement’s analyses use neuroscientific and psychosocial developmental research that has improved our understanding of children’s and adolescents’ immature decision-making capacities and psychosocial vulnerability compared to adults. This developmental perspective has led to extensive reform of laws and practices that seek to better protect juveniles’ due process rights when in custody of the juvenile justice system. Analyzing established law and progressive trends, the Restatement offers guidance for the legal system and process, highlighting the need for continued changes in courts and legislatures not yet in step with prevailing trends in juvenile law. This commentary examines two topics in Part 3 of the Restatement: Chapter 15, § 15.30 on “Adjudicative Competence in Delinquency Proceedings,” and Chapter 14, § 14-2 on “Interrogations and the Admissibility of Statements.” For both areas, the commentary examines the present state of law, policy, and practice trends identified by the Restatement, with special attention to needs for further reform. What evidence do we have that states are adopting, or are slow to adopt, important trends in juvenile law identified in the Restatement’s approach to juvenile adjudicative competence and pretrial custodial interrogations? Where is there still work to be done to promote changes in law highlighted by the Restatement, and what factors challenge that work?

The ALI launched the Restatement of Children and the Law to bring clarity and coherence to the increasingly complex and uncertain landscape of the juvenile court and the law related to children. As the Restatement surveys the courts’ growing respect for the developmental plasticity and potential of children, it is crucial that the law afford all youth—regardless of race and class—the full benefits of the developmental research and enhanced procedural protections. Despite the limitations of any project that seeks primarily to recite existing law, this Restatement has great potential to advance racial equity in the care and regulation of youth. The Restatement should tell a complete story, including information to help readers understand how youth of color are impacted by the law. By painstakingly locating and embracing judicial opinions that acknowledge the role of race in juvenile, criminal, and family law, and by incorporating relevant history, data, research, and analysis, the Restatement can serve a crucial role in educating readers on the sources of and remedy for racial inequities in the various legal systems that affect children.