This conversation with Brooklyn Law School Professor David Reiss focuses on his recent article Gorsuch, CFPB and Future of the Administrative State. Prof. Reiss talks about the impact that U.S. Supreme Court nominee Judge Neil Gorsuch would have on the future of administrative law and, in particular, on federal consumer protection enforcement if he is confirmed. Prof. Reiss reviews the case PHH v. Consumer Financial Protection Bureau which the United States Court of Appeals, District of Columbia Circuit decided last year. It is likely the case will be appealed to the Supreme Court. If so, Justice Gorsuch may vote to curtail the independence of the Consumer Financial Protection Bureau and limit its enforcement powers. More generally, Prof. Reiss believes that, given previous rulings by Judge Gorsuch in cases dealing with administrative law, a Justice Gorsuch will be a skeptic of agency action and will support greater judicial review of agency actions.
The new administration in Washington vows to reduce federal regulations and Steve Bannon, the chief White House strategist, argues for a “deconstruction of the administrative state” and the possible dismantling of the New Deal. The argument for this retrenchment of regulatory law is that regulations are unnecessary and costly, detrimental to business and a hindrance to the growth of jobs in the economy. Recently C-SPAN aired the 1982 PBS documentary The Regulators: Our Invisible Government which focused on regulation of air pollution in the national parks. Although dated, the film has current relevance as a teaching tool for law students and others interested in regulatory law as it details the process of turning general language in a 1977 amendment to the Clean Air Act into specific regulations. The 50 minute video tells the behind-the-scenes negotiations and debates between Environmental Protection Agency (EPA) regulators and environmental and industry interests. See video (also available at this link) below.
The Brooklyn Law School Library has in its collection two books with very differing views of the administrative state. The latest, Law’s Abnegation: From Law’s Empire to the Administrative State by Adrian Vermeule (available in print at Call No. KF5425.V47 2016 and electronically via ProQuest Ebook Central), is a theoretically informed and lawyerly interpretation of the law of the modern administrative state. The author demonstrates how legal doctrine really works by using cases familiar to most administrative lawyers. Law’s Abnegation can be read with and compared to Is Administrative Law Unlawful? by Philip Hamburger (Call No. K3400.H253 2014). The two books represent extreme views on the status of administrative law in America. Hamburger answers the title question of his book with a strong affirmative. Vermeule, who reviewed Hamburger’s book in his terse one-word title, No, 93 Texas Law Review 1547 (2015), follows up and expands on his views in his book.
In the past few years, there has been increased discussion of the growth in America’s prison population to more than 2 million Americans incarcerated, many of them drug offenders, for periods that seem far too long. Since the publication in 2010 of Michelle Alexander’s The New Jim Crow: Mass Incarceration in the Age of Colorblindness, there has been more scholarship on the topic of mass incarceration. In a title added last year to the Brooklyn Law School Library collection, From the War on Poverty to the War On Crime: The Making of Mass Incarceration in America by Elizabeth Hinton (Call No. HV9950 .H56 2016), the topic get detailed attention.
The author, an Assistant Professor at Harvard University and urban historian, argues that mass incarceration is not just a conservative backlash to the civil rights movement but an initiative of both of the major political parties. In the book, Hinton traces mass incarceration, often based on assumptions about the cultural inferiority African-Americans, back to the 1960s, from the administrations of John F. Kennedy and Lyndon B. Johnson to that of Ronald Reagan in the 1980s. The Democrats passed the The Juvenile Delinquency and Youth Offenses Control Act of 1961 which portrayed black youth as being in need of repair rather than justice. At the same time when President Johnson’s War on Poverty sought to foster equality and economic opportunity, his administration advanced initiatives rooted in widely shared assumptions about African Americans’ role in urban disorder. Johnson called for a War on Crime in 1965 when he created the Office of Law Enforcement Assistance, which significantly increased federal involvement in militarizing local police. From the late 1960s starting with Richard Nixon’s law and order campaign to the 1980s administration of Ronald Reagan, crime control and incarceration dominated national responses to poverty and inequality as initiatives that were the full realization of the punitive transformation of urban policy implemented by both parties.
A search of the BLS Library OneSearch platform will lead readers to a recent review of Hinton’s book in the February 2017 issue of the American Journal of Public Health (Vol. 107 Issue 2) under the title Reckoning with the Rise of the Carceral State by David H. Cloud. For more on the topic, the BLS Library has ordered for its collection a new title, Locked In: The True Causes of Mass Incarceration—and How to Achieve Real Reform by John F. Pfaff, Professor of Law at Fordham Law School. The book describes a fractured criminal justice system, where many counties do not pay for the people they send to state prisons, and white suburbs set law and order agendas for more-heavily minority cities.
Last year, the Brooklyn Law Library added to its collection The Lawyer’s Guide to Writing Well (3d ed.) by Tom Goldstein and Jethro K. Lieberman (Call No. KF250. G65 2016). This critically acclaimed book “should be in the office of every lawyer” says William Safire of the New York Times. In its 286 pages, the authors demystify legal writing, outline the causes and consequences of poor writing, and prescribe easy-to-apply remedies to improve it. Reflecting changes in law practice over the past decade, this revised edition includes new sections around communicating digitally, getting to the point, and writing persuasively. It also provides an editing checklist, editing exercises with a suggested revision key, usage notes that address common errors, and reference works to further aid your writing. This guide is an invaluable tool for practicing lawyers and law students.
Chapters are: Why Lawyers Write Poorly — Does bad writing really matter? — Don’t make it like it was — The Practice of Writing — Ten steps to writing it down — Of dawdlers and scrawlers, pacers and plungers: getting started and overcoming blocks — The technology of getting it down: from quill pens to computers — Lawyers as publishers: words are your product — Getting to the Point — Writing persuasively for your audience: tell your audience the point — Writing the lead — Revising for Clarity and Luster — Form, structure, and organization — Wrong words, long sentences, and other mister meaners — Revising your prose — Making your writing memorable.
Books and essays about the art of writing well go back a long time. In 1947, English novelist, essayist, journalist, and critic George Orwell (born Eric Arthur Blair 1903 – 1950) and author of Animal Farm: A Fairy Story and Nineteen Eighty-Four, his most famous works, wrote an essay titled Politics and the English Language. Although the essay addresses the decline of language in political and economic contexts, Orwell, in the closing paragraphs, offers rules that cover effective legal writing as well. They are:
- Never use a metaphor, simile, or other figure of speech which you are used to seeing in print.
- Never use a long word where a short one will do.
- If it is possible to cut a word out, always cut it out.
- Never use the passive where you can use the active.
- Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.
- Break any of these rules sooner than say anything outright barbarous.
Article I, Section 9, Clause 8 of the United States Constitution (known as the Emoluments Clause) reads:
“No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”
University of St. Thomas School of Law Associate Professor of Law Robert J. Delahunty’s essay on the Heritage Guide to The Constitution is worth reading for an understanding of this obscure provision Article VI of the Articles of Confederation was the source of the Constitution’s prohibition on federal titles of nobility and the so-called Emoluments Clause. The clause sought to shield the republican character of the United States against corrupting foreign influences.
The prohibition on federal titles of nobility—reinforced by the corresponding prohibition on state titles of nobility in Article I, Section 10, and more generally by the republican Guarantee Clause in Article IV, Section 4—was designed to underpin the republican character of the American government. In the ample sense James Madison gave the term in The Federalist No. 39, a republic was “a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during good behavior.”
Republicanism so understood was the ground of the constitutional edifice. The prohibition on titles of nobility buttressed the structure by precluding the possibility of an aristocracy, whether hereditary or personal, whose members would inevitably assert a right to occupy the leading positions in the state.
Further, the prohibition on titles complemented the prohibition in Article III, Section 3, on the “Corruption of Blood” worked by “Attainder[s] of Treason” (i.e., the prohibition on creating a disability in the posterity of an attained person upon claiming an inheritance as his heir, or as heir to his ancestor). Together these prohibitions ruled out the creation of certain caste-specific legal privileges or disabilities arising solely from the accident of birth.
In addition to upholding republicanism in a political sense, the prohibition on titles also pointed to a durable American social ideal. This is the ideal of equality; it is what David Ramsey, the eighteenth-century historian of the American Revolution, called the “life and soul” of republicanism. The particular conception of equality denied a place in American life for hereditary distinctions of caste—slavery being the most glaring exception. At the same time, however, it also allowed free play for the “diversity in the faculties of men,” the protection of which, as Madison insisted in The Federalist No. 10, was “the first object of government.” The republican system established by the Founders, in other words, envisaged a society in which distinctions flowed from the unequal uses that its members made of equal opportunities: a society led by a natural aristocracy based on talent, virtue, and accomplishment, not by an hereditary aristocracy based on birth. “Capacity, Spirit and Zeal in the Cause,” as John Adams said, would “supply the Place of Fortune, Family, and every other Consideration, which used to have Weight with Mankind.” Or as the Jeffersonian St. George Tucker put it in 1803: “A Franklin, or a Washington, need not the pageantry of honours, the glare of titles, nor the pre-eminence of station to distinguish them….Equality of rights…precludes not that distinction which superiority of virtue introduces among the citizens of a republic.”
Similarly, the Framers intended the Emoluments Clause to protect the republican character of American political institutions. “One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.” The Federalist No. 22 (Alexander Hamilton). The delegates at the Constitutional Convention specifically designed the clause as an antidote to potentially corrupting foreign practices of a kind that the Framers had observed during the period of the Confederation. Louis XVI had the custom of presenting expensive gifts to departing ministers who had signed treaties with France, including American diplomats. In 1780, the King gave Arthur Lee a portrait of the King set in diamonds above a gold snuff box; and in 1785, he gave Benjamin Franklin a similar miniature portrait, also set in diamonds. Likewise, the King of Spain presented John Jay (during negotiations with Spain) with the gift of a horse. All these gifts were reported to Congress, which in each case accorded permission to the recipients to accept them. Wary, however, of the possibility that such gestures might unduly influence American officials in their dealings with foreign states, the Framers institutionalized the practice of requiring the consent of Congress before one could accept “any present, Emolument, Office, or Title, of any kind whatever, from…[a] foreign State.”
Like several other provisions of the Constitution, the Emoluments Clause also embodies the memory of the epochal constitutional struggles in seventeenth-century Britain between the forces of Parliament and the Stuart dynasty. St. George Tucker’s explanation of the clause noted that “in the reign of Charles the [S]econd of England, that prince, and almost all his officers of state were either actual pensioners of the court of France, or supposed to be under its influence, directly, or indirectly, from that cause. The reign of that monarch has been, accordingly, proverbially disgraceful to his memory.” As these remarks imply, the clause was directed not merely at American diplomats serving abroad, but more generally at officials throughout the federal government.
The Emoluments Clause has apparently never been litigated, but it has been interpreted and enforced through a long series of opinions of the Attorneys General and by less-frequent opinions of the Comptrollers General. Congress has also exercised its power of “Consent” under the clause by enacting the Foreign Gifts and Decorations Act, which authorizes federal employees to accept foreign governmental benefits of various kinds in specific circumstances.
Another fascinating read on the Emoluments Clause is the December 2016 Brookings Institute study titled The Emoluments Clause: Its Text, Meaning, and Application to Donald J. Trump co-authored by Norman L. Eisen, Richard Painter, and Laurence H. Tribe.
As the holiday season approaches, law librarians (including this writer), faculty, students and staff at Brooklyn Law School and elsewhere look forward to the end of final exams so they can travel and join family and friends in celebration of the December holidays. From Christmas to New Year’s Day, from Hannukah to Eid Milad-un-Nabi or the Winter Solstice, many of us will celebrate according to our own tradition. Not all of us will be so fortunate as many people will be working during the holidays to keep the world running while we celebrate the holidays: cab drivers, garage assistants, healthcare workers, carers, police men and women, airline staff, members of the armed forces. All of these people deserve a massive thank you for keeping things going while we sit at home enjoying holiday cooking. So take a minute away from your family and friends and reach out to someone who is working on Christmas Eve, Christmas Day, New Year’s Eve and New Year’s Day. All of us can use a random act of kindness not only during the holidays but every day.
An article in a recent issue of The New Yorker features Brooklyn Law School alum Carrie Goldberg, Class of 2007, as a leader in the crusade against non-consensual pornography, also called “revenge porn.” A founder of the Brooklyn firm C.A. Goldberg, PLLC, she is at the forefront of a movement to use both new and existing laws to penalize individuals who share compromising photos and videos of others without their consent. From her practice not far from the Law School, Goldberg assists clients like Norma, whose story of harassment by a former partner who shared explicit photos of her on the internet is chronicled in the article. Author Margaret Talbot calls Goldberg “a new kind of privacy champion,” detailing Goldberg’s many accomplishments in this new field, from successful prosecutions of revenge porn perpetrators to a major role in an activist campaign to get social media platforms and search engines to ban revenge porn. The article notes Goldberg’s recent hire of a fellow Brooklyn Law School graduate, Lindsay Lieberman, Class of 2011. Earlier this year, Goldberg spoke at the White House to members of the Task Force to Protect Students from Sexual Assault about sexual assault in k-12 with the crew at SurvJustice, a national not-for-profit organization that increases the prospect of justice for survivors by holding both perpetrators and enablers of sexual violence accountable.
The Brooklyn Law School Library collection included Hate Crimes in Cyberspace by Danielle Keats Citron (Call No. HV6773.15.C92 C57 2014). The book covers the subject of trolling or aggressive, foul-mouthed posts designed to elicit angry responses in a site’s comments. The author exposes the startling extent of personal cyber-attacks and proposes practical, lawful ways to prevent and punish online harassment. Persistent online attacks disproportionately target women and frequently include detailed fantasies of rape as well as reputation-ruining lies and sexually explicit photographs. And if dealing with a single attacker’s “revenge porn” were not enough, harassing posts that make their way onto social media sites often feed on one another, turning lone instigators into cyber-mobs. The book rejects the view of the Internet as an anarchic Wild West, where those who venture online must be thick-skinned enough to endure all manner of verbal assault in the name of free speech protection, no matter how distasteful or abusive. Cyber-harassment is a matter of civil rights law, Citron contends, and legal precedents as well as social norms of decency and civility must be leveraged to stop it.
Election Day 2016 is not the first where a candidate for president won the most electoral votes, thus winning the presidency, but failed to win the popular vote. The unique American system provides no direct election of President and Vice-President. Since 1789, Electors chose successful candidates for those seats. The process is directed by the legislature of each state, either by popular vote or some other selection process. On the first Monday after the second Wednesday in December (which occurs this year on December 19, 2016), the electors meet in their respective States to cast their votes for President and Vice President of the United States. Article II, Section 1, clause 2 reads: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress”.
The Electoral College decides how the nation’s Chief Executive is chosen. It dates back to the Federalist Papers. See Federalist 68, The Mode of Electing the President by Alexander Hamilton dated March 14, 1788. The pro-slavery influences of the electoral college surrounded the debate on the mode of electing the president. James Wilson proposed to a direct election by the people, but gained no support and it was decided the president was to be elected by Congress. When the constitution was considered, Gouverneur Morris brought the debate back up and decided he too wanted the people to choose the president. James Madison agreed that election of the people at large is the best way to go about electing the president, but knew that the slave states would not be influential with such a system, and so he backed the electoral college.
Instances in the nation’s history when popular vote totals for president differed from the elector count are:
- The 1824 election was a four-man race. The top two candidates were Andrew Jackson and John Quincy Adams who won despite losing both the popular vote and the electoral vote. Andrew Jackson won 151,271 popular votes (41.4%) to Adams’ 113,122 votes (30.9%), roughly 38,000 fewer popular votes than Jackson who also defeated Adams in the electoral vote by 99 to 84. Neither candidate reached the majority 131 electoral votes so the House of Representatives met to select Adams.
- The highly contentious 1876 election showed Democratic New York governor Samuel Tilden winning the popular vote over Republican Ohio governor Rutherford B. Hayes with 4,284,020 (51%) to Hayes’s 4,036,572 (48%), a margin of less than 250,000. The electoral vote was Tilden 184 (one short of a majority) and Hayes 165 (20 ballots short). The remaining electoral votes were in dispute over voter fraud, mostly in three Southern states with Reconstruction governments: Florida, Louisiana, and South Carolina. Congress set up a special electoral 15-member commission of congressmen and Supreme Court justices. Two days before inauguration, on an 8-7 party line vote, the commission gave the disputed electoral votes to Hayes, who won by one electoral vote.
- In 1888, Benjamin Harrison won the presidency with 233 electoral votes to Grover Cleveland’s 168. Harrison lost the popular vote by more than 90,000 votes winning 5,443,892 (47.8%). Cleveland’s vote total was 5,534,488 (48.6%).
- The 2000 contest between the Republican George W. Bush and the Democrat Al Gore saw the popular vote winner lose because of the electoral vote count. Gore got 50,999,897 (48.4%) compared to Bush who had 50,456,002 votes (47.9%). The election hinged on the close vote in Florida, which prompted a mandatory recount. Litigation reached the US Supreme Court which ruled on December 12, 2000 in the 5–4 decision Bush v. Gore, ending the recounts, effectively awarding Florida’s votes to Bush. Bush won the electoral vote, 271 to 266.
- The 1800 election had no records of popular votes as electors were chosen by state legislatures. Thomas Jefferson won 73 electoral votes to John Adams who won 69. Jefferson’s margin of victory came from electoral votes created by counting slaves for purposes of representation, which led to a greater number of electors for each state. States that Jefferson carried had fewer voters. If the election were decided by popular votes, Adams would have won.
Calls for reform of electoral reform are likely after this election as they were in earlier ones. See in the Brooklyn Law School Library, Electoral College Reform: Challenges and Possibilities by Gary Bugh who says the Electoral College system was last updated by the Twelfth Amendment in 1804, despite public opinion polls showing a majority of Americans are in favor of changing or outright abolishing it. The book has essays examining all aspects of the debate, including the reasons for reform, the issues surrounding a constitutional amendment, the effect of the Electoral College on political campaigns and the possibilities for extra-constitutional avenues to change. The authors consider both the Federalists’ vision of balanced representation and a more democratic and equality-based ideal. The volume explores the potential for changing a system that many contend is long overdue. After the 2000 election, Professor Paul Finkelman’s article The Proslavery Origins of the Electoral College was published at 23 Cardozo Law Review 1145 (2002). Another article worth reading is by S.M. Sheppard titled A Case for the Electoral College and for Its Faithless Elector, published in the 2015 Wisconsin Law Review Online.
To learn about the Reform the Electoral College movement so the electoral vote reflects the nationwide popular vote for President, see the website of the National Popular Vote.
On Monday, October 31, the Supreme Court will hear oral argument in Fry v. Napoleon Community Schools, an appeal by a 12-year-old Michigan girl with cerebral palsy who was not allowed to bring her service dog to school. The Court will consider whether Ehlena Fry’s family can sue the school district for violations of federal disability laws. Fry’s family obtained a goldendoodle, Wonder, to help her open doors and retrieve items. Her school district initially refused to allow Wonder at school. Officials relented a bit in 2010, but they placed many restrictions on Wonder. Ehlena and her dog later transferred to another school.
The family sued the school district in the US District Court for the Eastern District of Michigan for violations of the Americans with Disabilities Act (ADA) and the Rehabilitation Act. In January 2014, the court in EF ex rel. Fry v. Napoleon Community Schools, 2014 WL 106624 (subscription required) granted the defendant’s motion to dismiss the complaint ruling that the plaintiffs first had to seek an administrative hearing. In June 2015, the 6th Circuit Court of Appeals in Fry v. Napoleon Community Schools, 788 F. 3d 622 upheld that decision 2-1. The American Civil Liberties Union is representing the family. School districts around the country have repeatedly denied children with disabilities their right to bring service dogs to school often claiming the service animals are not necessary and that the schools can help the children through other means. The ACLU wants the justices to declare that children prevented from using service animals at school can proceed directly to court without having to go through administrative hearings that can be costly, time consuming and burdensome. The ACLU Petition for Certiorari is available here. See also Ehlena and Wonder the Service Dog’s Incredible Journey to the Supreme Court and the video that the ACLU posted about her.
The school argues that exhausting administrative remedies encourages parents and schools to work together to determine the best plan for each child and are a cheaper way to resolve educational disputes. The Obama administration has backed the Fry family, saying the appeals court’s decision was wrong and “leads to unsound results.” The government said when the lawsuit was filed, Ehlena had already moved to a new school district and there was no ongoing dispute to compromise. Requiring her to go through administrative proceedings “would waste time and resources without offering any chance of resolving their actual dispute,” the Justice Department said in a brief to the court.
On the subject of service pets, SARA, the Brooklyn Law School Library catalog links to an online resource by the Office of the New York State Attorney General Civil Rights Bureau titled Freedom on Four Legs: Service Animals, Individuals with Disabilities, and the Law.
This is an update of the September 23, 2016 post Episode 098 – Conversation BLS Alumni Greg Zamfotis and John Rudikoff. The update adds a video of the conversation to the audio linked in the earlier post. Additionally, John Mackin, Public Relations Manager at Brooklyn Law School, wrote a summary of the conversation which is available by clicking this link.