University of Wisconsin Law Professor Miriam Seifter believes “state agencies are, on the whole, less transparent than their federal counterparts, less closely followed by watchdog groups, and less tracked by the shrinking state-level media.” This adds up to her conclusion that “[s]tate bureaucracy does not operate in a fishbowl,” which combined with its tremendous and growing power makes it “a largely unguarded giant.”
I believe there are serious counterexamples to her claims. In fact, my experience after six years working in senior roles in a governor’s office convinces me that state-level administrations, though not perfect, vindicate the framers’ vision that the states “do a lion’s share of governance affecting people’s day-to-day lives.”
The Sisk-Leiter rankings of scholarly impact use a Westlaw search to determine a scholar’s citation count. However, the search does not review the citations to determine if they actually are citations to a scholar’s work rather than other hits such as blog posts (whether authored by the scholar or by another on the scholar’s eponymous blog), citations to works by others in books that the scholar edited, citations to the work of other scholars who only mention the scholar under study (such as a citation in a work to the work of a scholar that had reviewed the book of the scholar under study), media mentions, or author acknowledgements for comments not eliminated by the search term, such as those that appear in footnotes or the body of the article. I use citations to Brian Leiter’s work to show that the Sisk-Leiter Westlaw citation count is overstated by about 40% in Leiter’s case, with 398 of 557 attributed cites being to citations to Leiter’s academic work. While Leiter’s case may be more upwardly biased than others because of his popular industry blog, the fact is that media mentions, citations to the works of others in edited volumes, and citations to works that discuss the scholar under study but are not cites directly to that work have an unknown bias that cannot be assumed away easily. Moreover, by ignoring cites in judicial opinions to scholarly work, the method as applied by Sisk undervalues the impact of scholars in some fields of more practical importance and, therefore, likely the scholarly impact and ranking of faculties with strong scholars in antitrust, bankruptcy, corporate and securities law. A combination of Westlaw (with judicial citations) and Google Scholar would provide more reliable results.
In his article, Scott Cummings proposes that there existed an “old canon” concerning how to be a lawyer for progressive social justice causes, which has been replaced by a different “new canon” that envisions the role of movement lawyers quite differently. According to Cummings, old canon lawyering places courts “at the heart of the canonical stories.” New canon lawyering, on the other hand, involves using legal institutions other than courts and focuses on the intersection between law and politics. Cummings gives examples of the old and new ways of lawyering and also draws conclusions about what causes the momentum of social movements to slow. One of Cummings’ central arguments is that the critique of what he calls old canon lawyering is in many respects misplaced.
I wholeheartedly agree with Cummings’ thesis that much of the critique of the “old” way of engaging in social movement lawyering is misplaced; here I offer some additional or alternative reasons why. To sum up my argument, I do not believe there is much of a difference between old versus new perspectives on the range of appropriate strategies for social movement lawyering. Historically as today, social movement lawyers understood that sometimes courts are useful but sometimes they are not. Looking in the long view, so-called “old canon” lawyers have understood this just as “new canon” lawyers do. Instead, the most significant difference between the lawyering styles Cummings labels “old” versus “new” canon involves lawyers’ heightened sensitivity to the ethical problems that arise in social movement lawyering. I briefly develop these arguments below.
Not to pile on, but for a high visibility organization, the National Collegiate Athletic Association (NCAA) is truly unique in what it continues to get away with. The Association is so bold that it has normalized behavior that was deemed anachronistic centuries ago. 2 As March Madness fades from memory and the NFL draft looms on the horizon, it seems as good a time as any to remind ourselves of the many ways in which the NCAA is based on deeply troubling foundations. Sometimes by focusing on the low hanging fruit we miss some of the more bothersome and egregious injustices of the college system that disproportionately disfavors those who are most talented, poor, and of color.
This Essay argues that the NCAA’s surveillance of the family and enforcement of its rules amount to a sumptuary restraint on the families of talented NCAA athletes. In order to keep its cartel in place, the NCAA must bar not only the athlete but everyone in his family from extracting any value from his talent. Luxury purchases are in effect barred for poor families. This is where the NCAA’s enforcement and investigative arms step in. Disproportionately, the families of black athletes are put on notice that any signs of extravagant consumption (that is, beyond the level they should be able to afford) will lead to investigations and potential suspensions. At the moment when these families should be happiest, they have to worry lest they give off any appearance of living beyond their means. I argue that the NCAA’s rules disproportionately disadvantage poor individuals of color. This underscores the inherently unjust nature of the college sports system and the complicity required to keep it in place.
I begin with great thanks to the Wisconsin Law Review for the opportunity to be a part of this timely and important conversation about executive power and administrative governance. I have been invited here to share my work on negotiated federalism, which explores the way that good multiscalar governance is often the product of intergovernmental bargaining among decision makers at various levels of government. As I have described in this work, negotiations are sometimes conducted purposefully, in statutorily prescribed ways, and elsewhere more serendipitously or even inadvertently, as a byproduct of the wider political process. The privileged constitutional status of the federal and state governments brings special attention to the negotiations that take place among state and federal actors, but similar dynamics apply in negotiations involving local, regional, national, and international actors. And while all three branches of government participate in different forms of negotiated governance (some more and less obvious), the executive branch features especially prominently in these efforts.
For this symposium, I would like to distill a few important points from my research about the need for negotiated governance and the options for accomplishing it.
Mary H. Hansel
In a matter of weeks, the International Criminal Court (ICC) is expected to open a full-fledged investigation into the “war crimes of torture and related ill-treatment, by United States military forces deployed to Afghanistan and in secret detention facilities operated by the Central Intelligence Agency.” Pursuant to the principle of complementarity, the ICC cannot take the case if the United States has conducted its own investigation and decided against prosecution “unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute.”
Michael D. Ramsey
In his essay, The 1790 Naturalization Act and the Original Meaning of the Natural Born Citizen Clause: A Short Primer on Historical Method and the Limits of Originalism, Professor Saul Cornell uses the debate over the Constitution’s natural born citizen clause to illustrate what he regards as the shortcomings of originalist methodology. He makes three main points: (1) that historians’ methodology is different from and superior to the approach of originalist legal scholars; (2) that originalist scholars have reached an erroneously broad reading of the 1790 Naturalization Act; and (3) that, as a result, originalist scholars have misread the natural born citizen clause. I believe each of these points is mistaken. This response addresses them in turn.
In Bond v. Floyd, the United States Supreme Court held that members of the Georgia Assembly could not deny civil rights activist Julian Bond his oath of office based on his antiwar statements. Bond, duly elected by his constituency, enjoyed “the widest latitude to express [his] views on issues of policy.” Bond’s right to speak was not merely an individual right; rather, his freedom of speech enabled his constituents to “be represented in governmental debates by the person they have elected to represent them.”
Long viewed in a doctrinal silo, Bond in fact dovetails with a maturing opprobrium of the partisan gerrymander. For it seems odd to forbid the state to silence a representative of the people but to permit the state to deprive the people of representation in the first place through the partisan gerrymander. If the First Amendment secured Bond’s speech from censure both in his individual and representative capacity, it makes little sense to permit the state, by use of the partisan gerrymander, to do at an earlier juncture in the electoral process what it could not do after Bond was elected.
Richard L. Hasen
In theory, softening of voter identification laws through litigation is a positive development aimed at avoiding disenfranchisement of both voters who face special burdens obtaining an acceptable government-issued identification necessary to vote and of those voters who face confusion or administrative error. In practice, however, softening may do less to alleviate the actual burdens of voter identification laws than to make judges feel better about their Solomonic rulings. In fact, softening devices still leave an uncertain number of voters disenfranchised. These burdens might be justified if there were evidence that state voter identification laws solve a serious problem, but there is no such evidence.
During the 2016 Presidential election a number of constitutional scholars debated Ted Cruz’s eligibility to be President. This was not the first time in recent American history that the meaning of the Constitution’s “natural born citizen” clause was a live issue in American law. The answer to this legal question depends on the particular theory of constitutional interpretation one favors. There has been a good deal of speculation on this issue by scholars of different methodological commitments. Much of the debate focuses on the meaning of the 1790 Naturalization Act, which raises deeper questions about the evolving debate over the legitimacy of originalism as a constitutional theory. Rather than approach the meaning of eighteenth-century constitutional and legal texts in a genuinely historical fashion, originalists have adopted a method plagued by anachronism, which invariably leads to distortion.