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Forthcoming

Volume 80:1

Federal Bureaucratic Studies
Author: Jesse Cross

Abstract:

A vast literature has developed on the topic of bureaucratic governance—one that spans administrative law, separation-of-powers law, and presidential scholarship. To date, this literature has focused squarely on the executive branch. Yet a second bureaucracy exists in the federal government: the congressional bureaucracy. Recent legislation scholarship has brought this bureaucracy into focus—documenting its traits, practices, and culture. In so doing, it has created a rich new opportunity for cross-disciplinary dialogue—one where executive-branch studies and legislative studies collaborate toward a larger understanding of how bureaucracy operates, and can operate, in a presidentialist system. To begin that cross-disciplinary conversation, this Article turns to five themes in the executive-branch literature: (1) the dual-allegiance problem, (2) bureaucratic resistance, (3) dual advising-adjudicating roles, (4) agency capture, and (5) comparative understandings of the judiciary. In each case, theories developed in the executive-branch context enrich our understanding of the congressional bureaucracy, while new knowledge about the congressional bureaucracy also forces revisions to those executive-branch theories. In many cases, the congressional bureaucracy also reveals new governance solutions that exist within our tripartite system—solutions that are overlooked when bureaucracy scholarship is confined to studies of a single branch. Through an exploration of these and other lessons, the Article illustrates the many possibilities inherent in a new cross-disciplinary dialogue on the role of bureaucracy in our federal system.


Property and the Right to Enter
Author: Bethany R. Berger

Abstract:

On June 23, 2021, the Supreme Court decided Cedar Point Nursery v. Hassid, holding that laws that authorize entry to land are takings without regard to duration, impact, or the public interest. The decision runs roughshod over precedent, but it does something more. It undermines the important place of rights to enter in preserving the virtues of property itself. This Article examines rights to enter as a matter of theory, history, and constitutional law, arguing that the law has always recognized their essential role. Throughout history, moreover, expansions of legal exclusion have often reflected unjust domination antithetical to property norms. The legal advocacy that led to Cedar Point continues this trend, both undermining protections for vulnerable immigrant workers in this case and succeeding in a decades long effort to use exclusion as a constitutional shield against regulation.


Risk Assessment and Immigration Court
Author: Richard Frankel

Abstract:

Risk assessment and algorithmic tools have become increasingly popular in recent years, particularly with respect to detention and incarceration decisions. The emergence of big data and the increased sophistication of algorithmic design hold the promise of more accurately predicting whether an individual is dangerous or a flight risk, overcoming human bias in decision‑making, and reducing detention without compromising public safety. But these tools also carry the potential to exacerbate racial disparities in incarceration, create a false veneer of objective scientific accuracy, and spawn opaque decision‑making by “black box” computer programs.

While scholars have focused much attention on how judges in criminal cases use risk assessment to inform pretrial detention decisions, they have paid little attention to whether immigration judges should use risk assessment when deciding whether to detain noncitizens. Yet, the federal immigration detention system is one of the largest in the world, incarcerating nearly 400,000 noncitizens a year. Immigration courts contribute to unnecessary detention and deprivation of liberty due to serious structural flaws. Immigration judges are prone to racial bias, they focus on factors unrelated to danger and flight risk, their bond decisions are nontransparent and opaque, and they are subject to undue political influence that encourages judges to err on the side of detention rather than release.

Given the rise of algorithmic decision‑making, the time has come to investigate whether risk assessment has a role to play in immigration court bond decisions. This Article suggests that while there is no easy answer, a well‑designed and transparent risk assessment tool could provide a check against the worst features of the current immigration court bond system. Alternatively, even if risk assessment tools prove to be flawed, the information obtained from using them could provide support for broader reform of immigration detention.


The Prosecutor Lobby
Authors: Carissa Byrne Hessick, Ronald F. Wright, & Jessica Pishko

Abstract:

Prosecutors shape the use of the criminal law at many points during criminal proceedings, but there is also an earlier point in the process where prosecutors have influence: during the legislative process. The conventional wisdom in the legal literature is that prosecutors are powerful and successful lobbyists who routinely support laws that make the criminal law more punitive and oppose criminal justice reform. In this article, we test that narrative with an empirical assessment of prosecutor lobbying in America. Using an original dataset of four years of legislative activity from all 50 states, we analyze how often prosecutors lobbied, the issues on which they lobbied, the positions they took, and how often they succeeded.

Our data tell a complex story of partial success for the prosecutor lobby. Prosecutors are less successful than expected when lobbying against bills, and they are most successful when lobbying in favor of criminal justice reform. By analyzing not only national data, but also data from each state, we document that prosecutorial success is correlated with Republican control of the state legislature. We further conclude that perceived expertise does not drive prosecutorial lobbying success, and that legislatures in some contexts respond to the prosecutor lobby much as they would to any other self interested rent seeking lobbyists.


Learning from Mistakes
Author: Irene Oritseqeyinmi Joe

Abstract:

Much of the attention following the reversal of a defendant’s wrongful conviction focuses on the role the police or the prosecutor played in perpetuating the injustice. To the extent that the public defender institution’s role is considered, it is often limited to its failure to provide the effective assistance of counsel. This Article challenges the conventional wisdom that the public defender institution’s role in addressing a wrongful conviction is limited to ineffective assistance of counsel claims and ends once a wrongful conviction is reversed. At minimum, the legal profession’s mandate for competent representation requires the public defender, and the institution that houses them, to learn from any performance that proved to permit a wrongful result so that it can limit the possibility such an error would occur again.

The medical, military, and aviation sectors have adopted sentinel event reviews to broadly examine the behaviors and actions that took part in any event that leads to loss of life or physical harm. Perhaps due to its adversarial underpinnings, the criminal justice system has yet to adopt similar large‑scale reviews. In the absence of a similarly expansive review of how each component of the criminal process failed to uphold systemic integrity for any client found to be wrongfully convicted, the public defender institution should engage its own comprehensive learning process. Such a process would include more direct involvement by the trial attorneys in appellate work, greater action by public defender institutional leadership to address the official misconduct of other government actors, and a more formalized review by independent evaluators to consider whether there has been any failure to abide by professional licensing standards. By adopting such methods of review, the public defender would more clearly mirror other entities tasked with protecting the public from significant harm and reduce the systemic brittleness that permits repeat failures in the criminal justice system.


Looking a Gift Horse in the Mouth: Working Students Under the Fair Labor Standards Act
Author: Lara Morris

Abstract:

Internships have skyrocketed in popularity as they become the new entry‑level position for professional careers across the country. Despite their popularity, the legality of internships falls in a gray area left by a vague statute and a flexible, factor‑based judicial test. The Fair Labor Standards Act (FLSA), which regulates employment relationships and importantly mandates a minimum wage and hour requirements, was written long before internships became commonplace and provides little direction for how to regulate these positions. In this void, both the Department of Labor and federal courts have developed guidance—the ultimate culmination of which is the modern primary beneficiary test.

Working students are the interns of the equestrian industry but their positions did not arise in the same Petrie dish or era as many internships. Instead, this type of internship is an ages old derivative of the barter economy and apprenticeships. In short, a young, developing equestrian exchanges her labor for benefits such as training and housing—but, notably, not FLSA‑complaint wages—with a professional equestrian. This position is seen both as a rite of passage into a career as an equestrian but also an opportunity to test the waters of the industry. Working students work long hours, take on physically intensive tasks, and are often fully immersed in the industry and their positions. The position is defended tooth‑and‑nail by many in the industry, including those who have been working students. Ultimately, the position is critical to the industry but is beginning to draw attention for various employment issues.

Do these positions pass the modern primary beneficiary test? This Note applies the factors of the test to the facts of the working student position and asserts that, for many working students, the answer is ‘no.’ This analysis is largely based on an extensive survey and interviews with working students, which were compiled by the author and further explained within. Finally, this Note suggests solutions that will preserve the significant benefits of the working student position while bringing the equestrian industry into compliance.


Supported Decision Making and Merciful Health Care Access: Respecting Autonomy at End of Life for Individuals with Cognitive Disabilities Standards Act
Author: Brenna M. Rosen

Abstract:

Forthcoming

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