Articles

This Article contends that the current law governing judicial review of agency inaction, though consistent with the prevailing theory of agency legitimacy, is inconsistent with the founding principles of the administrative state. The Supreme Court’s reluctance to allow judicial review of agency inaction reflects the popular view that agency decisionmaking should be subject foremost to the scrutiny of politically accountable officials. The difficulty is that even scholars who generally support this view of agency decisionmaking reject the Court’s treatment of agency inaction. Yet these scholars have failed to appreciate the reason. The reason is that the founding principles of the administrative state are dedicated not only to promoting political accountability, but also to preventing administrative arbitrariness–and reserve a role for judicial review toward that end. This Article shows that agency inaction raises a concern for administrative arbitrariness because it is susceptible to the same narrow influences that derail agency action from public purposes. Agency inaction that reflects such influences, though often rational from a political standpoint, nonetheless is arbitrary and objectionable from a democratic perspective.

This Article therefore suggests that courts eschew any special prohibitions on judicial review of agency inaction, and instead subject agency inaction to the same principles of judicial review that apply to agency action. It proposes changes to the two doctrines that most frequently block judicial review of agency inaction: nonreviewability and standing. Furthermore, it recommends that courts carve any exceptions to judicial review for agency inaction from established constitutional law principles. It argues that nonreviewability should be understood as an analogue to political question doctrine, precluding courts from policing conduct committed to the unfettered discretion of administrative officials. Similarly, it argues that standing should be understood as an analogue to non delegation doctrine, precluding Congress through citizen-suit provisions from effectively delegating policymaking power to private parties. More broadly, this Article argues that both nonreviewability and standing should be viewed as links to separation of powers doctrine, barring courts from hearing challenges to the generalized manner in which agencies perform their jobs. In offering these analogies, this Article credits the Supreme Court’s intuition that important constitutional values place some enforcement discretion beyond the reach of judicial review-even if Congress disagrees. But it recommends using established separation of powers principles to constrain this intuition from producing doctrines that subvert the prevention of arbitrary agency decisionmaking.

This Article examines the No Child Left Behind Act, which may be the most important federal education law in our nation’s history. The Act is supposed to increase academic achievement in schools across the nation, raise the performance of disadvantaged students to the level of their more affluent counterparts, and attract qualified professionals to teach in every classroom. These goals are obviously laudable. As Professor Ryan explains, however, the Act creates incentives that actually work against their achievement. Specifically, the Act unintentionally encourages states to lower their academic standards, promotes school segregation and the pushing out of poor and minority students, and discourages good teachers from taking jobs in challenging classrooms. Should any or all of these effects occur, achieving the Act’s goals will be more difficult, not less. Professor Ryan goes on to suggest a solution, albeit a partial one, to the problems created by the No Child Left Behind Act. Rather than focus on absolute achievement levels as the basis for school accountability, Ryan argues that the federal government and states should focus on rates of growth. Doing so would not only give a more accurate picture of school quality, and thus provide a fairer basis for school accountability; it would also diminish or eliminate the perverse incentives created by the No Child Left Behind Act. The Article concludes with a brief discussion of what the No Child Left Behind Act can teach us about the proper role of the federal government in education law and policy.

In its Fourteenth Amendment jurisprudence, the Supreme Court regards intentional discrimination as the principal source of racial injury in the United States. In this Article, R.A. Lenhardt argues that racial stigma, not intentional discrimination, constitutes the main source of racial harm and that courts must take the social science insight that most racialized conduct or thought is unconscious, rather than intentional, into account in their constitutional analyses of acts or policies challenged on the grounds of race. Drawing on the social science work of Erving Goffmanbreaking work of Charles H. Lawrence, Professor Lenhardt argues that courts should reframe the constitutional inquiry to account for the risk or evidence of stigmatic harm to racial minorities. Professor Lenhardt explains that stigmatic harm occurs when a given act or policy sends the message that racial difference renders a person or a group inferior to Whites, the category constructed as the racial norm. This stigma imposes what Professor Lenhardt calls citizenship harms, which prevent members of racial minorities from participating fully in society in a variety of contexts. Professor Lenhardthistorical context of the challenged act or policy. Third, they should evaluate the current context of the act or policy, including consideration of a possible disparate impact on members of racial minorites. Finally, courts should consider the probable future effects of the act or policy in terms of its likely citizenship effects on members of racial minorities. Professor Lenhardt argues that, while the use of this test will not eliminate racial harms altogether, it will enable courts and policymakers to engage in a disciplined and systematic analysis of racial harm which will ultimately provide the basis for more effective means of addressing racial stigma and persistent racial inequalities in the United States.

While scholars have engaged in considerable debate about the continued viability of confidentiality in delinquency proceedings, much of that debate has focused on the media’s First Amendment right to access those proceedings. Now, with crime prevention at the forefront of many political agendas, policymakers are reframing the confidentiality debate as a question of public safety and accountability, and juvenile records are being disseminated, both lawfully and unlawfully, to agencies and institutions responsible for the protection, supervision, and care of children. Most state legislatures have rewritten confidentiality statutes to grant multiple exceptions to general rules protecting confidentiality; some states even require law enforcement officials to notify schools when students have been arrested.

In this Article, Professor Henning examines how schools and public housing authorities obtain juvenile records and explains how these institutions may use the records to exclude children and their families from the basic benefits of education and housing. Drawing on recent research in the field of developmental psychology, Professor Henning reevaluates early assumptions about adolescents’ amenability to treatment and the impact of stigma on children and explores the practical implications of sharing records with schools and public housing authorities, questioning whether new confidentiality exceptions actually will yield the expected benefits of improved public safety. She concludes that legislators should deny public housing authorities access to juvenile records but allow schools limited access to records through a series of school liaisons. These liaisons should attempt to accommodate, on a case-by-case basis, the often competing values of preserving safety in schools while enabling the rehabilitation of children in the juvenile justice system.

Standing doctrine serves the important function of ensuring that plaintiffs are the proper parties to bring suits in federal courts, but it has long been the subject of criticism. Scholars have labeled it an incoherent and unstable area of the law and declared that standing decisions are primarily influenced by the political ideologies of judges. Several existing empirical studies have analyzed standing in the federal courts and supported the claim that standing decisions are rooted primarily in individual politics and not legal doctrine. Spurred by this widespread criticism as well as the empirical support, several well-known scholars have proposed reforms of the standing doctrine in an effort to hinder political decisionmaking or at least to bring more candor to the decisionmaking process.

In this Article, Professor Nancy Staudt undertakes rigorous empirical analyses to test the underlying claim that all standing decisions are politically motivated. Improving upon the prior standing studies that have a range of limitations and possible flaws, Professor Staudt’s study focuses on standing decisions in one area of the law-taxpayer challenges to government spending-and analyzes the results up and down the federal judicial hierarchy. Using statistical models, she finds that judges render law-abiding and predictable decisions where clear precedent and effective judicial oversight exist; where these variables are absent, however, standing decisions are more likely to be based on judges’ personal ideologies. Professor Staudt then applies her findings to the proposed standing reforms and determines that they address some of the problems in the standing doctrine but ignore the importance of the judicial hierarchy. The reform proposals, she argues, are destined to fail unless they consider institutional factors such as the level of oversight and monitoring in the judicial hierarchy.

Information gaps and uncertainties lie at the heart of many persistent pollution and natural resource management problems. This article develops a taxonomy of these gaps and argues that the emerging technologies of the Information Age will create new gap-filling options and thus expand the range of environmental protection strategies. Remote sensing technologies, modern telecommunications systems, the Internet, and computers all promise to make it much easier to identify harms, track pollution flows and resource consumption, and measure the resulting impacts. These developments will make possible a new structure of institutional responses to environmental problems including a more robust market in environmental property rights, expanded use of economic incentives and market-based regulatory strategies, improved command-and-control regulation, and redefined social norms of environmental stewardship. Likewise, the degree to which policies are designed to promote information generation will determine whether and how quickly new institutional approaches emerge. While some potential downsides to Information Age environmental protection remain, the promise of a more refined, individually tailored, and precise approach to pollution control and natural resource management looks to be significant.

Existing economic analyses generally frame copyright as presenting a conflict between promoting efficient levels of access to creative works on the one hand and providing sufficient incentives to support their creation on the other. The supposed irreconcilability of the access-incentives tradeoff has led most scholars to regard copyright as a necessary evil and to advocate limiting copyright protection to the lowest level still sufficient to support creation of the work. In this Article, Professor Christopher Yoo breaks with the conventional wisdom and proposes a new approach to copyright law based on the economics of product differentiation. This differentiated products approach provides an explanation for market features that appear to be internal contradictions under the traditional approach. It also surpasses prior work by providing a basis for formalizing the incentives side of the tradeoff. In so doing, it underscores the importance of an alternative means for promoting access that has largely been ignored in the current literature: facilitating entry by close substitutes for existing works and allowing the ensuing competition to increase access by lowering prices. Focusing on this alternative means for promoting access further demonstrates that the access-incentives tradeoff may not be as intractable as generally believed, since facilitatingentry can promote both considerations simultaneously. The differentiated products approach also assigns the government responsibilities that are better suited to its institutional capabilities than does the traditional approach. Equally importantly, it isolates the impact of three different dimensions of copyright protection, rather than depicting all aspects of copyrightprotectionwith a single variable in the manner of previous analyses. The more nuanced analysis made possible by the differentiated products approach suggests that economic welfare would best be promoted if copyright were strengthened along two of these dimensions and weakened along the third.

The Hague Convention on the Civil Aspects of Child Abduction, implemented in the United States through the International Child Abduction Remedies Act, represents a global effort to stem the harmful practice of parents resorting to abduction across national borders to circumvent adverse custody rulings. The Abduction Convention is a mutual agreement to return wrongfully abducted children to their nations of habitual residence for all further custodial proceedings, thereby restoring the status quo prior to the abduction and removing a major incentive for this harmful practice. Congress expressly provided for original and concurrent federal jurisdiction over these petitions for return. In recent years, however, a number of federal district courts have been abstaining from hearing such claims where there is already a custody proceeding ongoing. This practice has the effect of forcing a plaintiff, usually a foreigner, to litigate these sensitive matters in a potentially hostile state forum. In this Note, Ion Hazzikostas argues that district courts have erred in their abstention in most such cases, to the detriment of the same children the Abduction Convention was enacted to protect. A more nuanced standard would better serve the interests of the Convention by removing needless barriers to return, while still limiting the potential for either party to gain an unfair advantage through jurisdictional manipulation.

In Gibbons v. Ogden, the first Supreme Court decision to discuss the Commerce Clause, Chief Justice John Marshall endorsed the notion of a Dormant Commerce Clause but refused to adopt it as constitutional principle. In this article, Professor Norman Williams answers why Marshall hedged on the Dormant Commerce Clause. First, Marshall apprehended the need to provide a comprehensive articulation of the scope of Congress’s affirmative regulatory power under the Commerce Clause. Second, Marshall was wary of inserting the judiciary into another battle regarding the constitutional scope of state authority. This reassessment resolves an otherwise inadequately explained historical puzzle regarding the Marshall Court and sheds light upon contemporary debates regarding popular constitutionalism and the interpretive role of the Supreme Court.

Cash-assistance programs have long been a focus of both liberal and conservative efforts to make symbolic statements. In this regard, the 1996 dismantlement of federal entitlement to cash assistance was nothing new. Although the 1996 welfare law also made deep cuts to in-kind programs, such as food stamps, these programs had less symbolic significance and hence were lessoften the target of public attacks. This lower political profile gave the Food Stamp Program room to find positive ways to adapt to the key themes that drove the enactment of the 1996 welfare law.

In the 1996 welfare law’s wake, the Food Stamp Program might have emulated the transformation of cash-assistance programs. Alternatively, it might have adopted a defensive posture. Instead, its supporters transformed it from an adjunct to discredited cash welfare programs into a stable support for low-wage workers. This both helped meet a crucial need of low-income families and improved the program’s political appeal. It also demonstrated that the goals of promoting work, devolving authority to states, and safeguarding program integrity can be achieved in positive ways.

The new Food Stamp Program promotes work through incentives more than sanctions. Its incentive structure changed to encourage states to improve access for low-wage workers, and states received flexibility to make those kinds of innovations rather than ones that would destabilize the program’s national benefit structure. Additionally, enforcement efforts deemphasized minor accounting issues having little bearing on the program’s integrity. Ultimately, these efforts were so successful that President Bush and conservative Republican senators pushed substantial benefit increases through Congress. This success may be a model for the survival and expansion of other programs.