Seven words stand between the President and the heads of over a dozen “independent agencies”: inefficiency, neglect of duty, and malfeasance in office (INM). The President can remove the heads of these agencies for INM and only INM. But neither Congress nor the courts have defined INM and hence the extent of agency independence. Stepping into this void, some proponents of presidential power argue...
Issue Archives
In Georgia v. Public.Resource.Org, Inc., the Supreme Court resurrected a nineteenth-century copyright doctrine—the government edicts doctrine—and applied it to statutory annotations prepared by a legislative agency. While the substance of the decision has serious implications for due process and the rule of law, the Court’s treatment of the doctrine recognized an invigorated role for courts in the development of copyright law through...
In the Nicomachean Ethics, Aristotle defined “equity” as the process that intervenes when law fails because of its generality. Equity is largely assumed to be the province of courts and framed primarily as the domain of judges: Should the court apply a general law when its application results in unforeseen or unfortunate consequences? But equity operates outside the courts also. Within legislatures and administrative agencies,...
Peeking under the tent of our nation’s largest and often most impactful cases reveals that judges often act like ringmasters: They delegate their authority to a wide array of magistrate judges, special masters, and settlement administrators. Some, like the American Bar Association, see this as a plus that promotes efficiency and cost savings. Critics, however, contend that delegating judicial power, especially to private citizens, removes...
Incarcerated transgender individuals with gender dysphoria have increasingly turned to the courts to seek medical relief in the form of gender confirmation surgery (GCS). These claims generally allege that prison officials’ denials of GCS amount to deliberate indifference, which is forbidden under the cruel and unusual punishment provision of the Eighth Amendment. To date, the First, Fifth, and Ninth Circuits have been the primary federal appellate...
The Health Information Technology for Economic and Clinical Health Act (HITECH) successfully encouraged widespread adoption of electronic health records (EHR). Their suitability for “big data” analysis make EHR data immensely valuable for secondary research, which could help scientists develop new drugs, medical devices, and public-health knowledge. Thus far, EHR data have not been widely available to academic medical scientists in quantities...
Dating back to the Founding, theorists have touted the checking value of the press in exposing government corruption and abuse. Pretextual arrests targeting professional and citizen journalists raise significant First Amendment concerns. Even a brief, “catch-and-release” detainment may altogether prevent a newsgatherer from capturing images or disseminating timely news updates from an event. In this sense, arrests of newsgatherers pose similar...
Business corporations long ago rejected the idea of unaccountable directors running firms with only their consciences to keep them in check. Yet unaccountable boards are the norm in the nonprofit sector. This need not be the case. The laws of all fifty states and the District of Columbia provide a template for accountability in nonprofit governance: membership statutes. These statutes define the roles and responsibilities of nonprofit members,...
In Borrowing Equality, Professor Atkinson deftly demonstrates Congress’s nonsensical bifurcation of the twin concepts of “credit” and “debt,” whereby it celebrates and encourages the former and regulates and punishes the latter. She then shows that, in refusing to acknowledge the harmful consequences of indebtedness while legislating credit-based solutions to inequality, these credit policies in fact entrench the very hierarchies...
During her twenty-five-year tenure on the Supreme Court, Justice Sandra Day O’Connor became one of the most admired figures in American public life. A recent biography by historian and journalist Evan Thomas chronicles her extraordinary personal qualities, remarkable professional journey, and constructive brand of patriotism. In this Book Review, a former O’Connor clerk describes a legacy in three parts: a lived example of how to thrive in...