Institutional structures that protect the impartiality of federal agency adjudicators and insulate them from undue political pressure are essential to the constitutional legitimacy of agency adjudication. Those structures are crumbling, leaving the administrative law judges (ALJs) who conduct formal adjudications for the federal government newly susceptible to political pressures from the executive branch that threaten the neutrality of ALJs and the fairness of the process by which they make their decisions. First, judicial decisions have drawn into question longstanding safeguards for ALJ impartiality, including merit-based appointment by nonpolitical officials and good-cause requirements for their removal. Second, executive branch actions, including exclusion of ALJs from the merit-based civil service appointment process and expansive construction of presidential authority to remove ALJs for good cause, have further eroded essential safeguards for ALJ independence. This Article argues that these threats to ALJ independence demand a legislative response. It provides what we regard as the most comprehensive analysis to date of the myriad and inter-related ways in which ALJ independence is being threatened. It then considers several options for restoring the balance between ALJ independence and preserving the policymaking discretion which Congress has delegated to the administrative agencies for which ALJs adjudicate. We argue that the adoption of the central panel model that predominates in the states is the most promising reform mechanism. Under this approach, ALJs would no longer be officers of the agencies for which they conduct adjudications. A properly constructed central panel could avoid the constitutional issues presented by recent Supreme Court decisions such as Lucia v. SEC and Free Enterprise Fund v. Public Company Accounting Oversight Board and provide greater security for ALJ neutrality and independence. At the same time, ALJs could continue to specialize in cases for particular agencies and the agency itself would retain final decisional authority and the ability to make policy through legislative rules and precedential adjudications that bind independent ALJs. Because the impartiality of government adjudicators is integral to the legitimacy of adjudicatory decsisionmaking, the time to restore ALJ independence is now. Adoption of the central panel model is a legally viable means of doing so that is capable for generating the bipartisan legislative support that is needed to break the legislative gridlock that has thwarted many other good governance initiatives.

In an almost circadian rhythm, the American public has become accustomed to waking up each morning with breaking news of the Trump administration's changes to the immigration system in the United States. 1 Whether Lilliputian changes or Himalayan overhauls, each policy enacted by the administration fundamentally changes what due process means in immigration courts. 2 In response to President Trump's efforts to increase deportations of migrants 3 in this country, many localities have instituted

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The Supreme Court’s equal protection jurisprudence is decidedly postracial. The Court has restricted the Equal Protection Clause to intentional discrimination by the government, concluding that the Constitution does not prohibit private acts of discrimination and rejecting challenges based on disparate impact, even when rigorous statistical analysis indicates that race is likely a factor. It has held that remedying the effects of past societal discrimination is an insufficient basis for race-specific remedies such as affirmative action. It has also ended remedies of this sort designed to combat previous state-sponsored racial discrimination, such as court-ordered desegregation measures in the schools and the preclearance provisions of the Voting Rights Act. Constitutional litigation currently provides little or no recourse to address racial disparities in outcomes that are not demonstrably caused by intentional governmental racial discrimination, and race-specific remedies face a level of judicial scrutiny that is especially difficult to satisfy. This Article asks what can be done under these circumstances to ameliorate racial inequality in a manner that is politically feasible and does not run afoul of constitutional limits. It argues that “postracial remedies” are a necessary component of an effective strategy to combat racial disparities in areas such as wealth, incarceration, education, and housing. Postracial remedies seek pragmatic solutions for the economic, social, and structural problems that disproportionately burden blacks in the United States. These remedies are not race specific because they do not treat people differently based on race, but they are race sensitive because they target the manifestations of racial inequality and recognize the salience of race in today’s political and legal environment. This approach, which seeks legally achievable remedies, is also consistent with “antibalkanization” perspectives associated with “race moderates” whose civil rights equal protection jurisprudence is motivated, in part, by a concern with preserving social cohesion. Although postracial remedies are necessary within this postracial ethos, pursuing them does not require acceptance of the postracial narrative or the abandonment of advocacy to combat ongoing racial discrimination.

This symposium contribution argues that partisan political advantage is not a legitimate purpose for election rules, requirements, or practices that burden the right to vote. This “nonpartisanship principle” might seem self-evident, insofar as the essence of representative democracy is the selection of leaders through free and fair elections that give voters equal opportunities to cast their ballots and elect the candidates of their choice and that give opposing candidates equal opportunities to garner votes and secure election. Even a casual observer of our elections, however, cannot help but notice that they are replete with rules, requirements, or practices that have the purpose and effect of obtaining political advantage for the party in power. These days, for example, parties in power use sophisticated computer software to gerrymander legislative districts in their favor, with remarkable effectiveness. Many states have also recently adopted various policies and practices, such as voter ID laws, voter registration requirements, or reduction of voting opportunities, whose apparent purpose is to suppress voting by classes of voters who are likely to vote for the opposing party. It is hardly surprising that partisan elected officials would seek to gain political advantage through manipulation of electoral rules, regulations, and practices. It is more surprising that the law does not place greater constraints on their ability to do so. In particular, while the nonpartisanship principle is fairly implicit in the United Supreme Court’s voting rights jurisprudence, the Court has taken a hands-off approach when it comes to enforcement. Thus, for example, the Court has declined to recognize or enforce any constitutional limits on partisan political gerrymandering (provided that districts comply with the one person, one vote principle). Likewise, it has largely declined to inquire into the partisan motivations behind voter ID laws and other requirements that tend to suppress particular classes of voters.The symposium contribution argues that it is time to take the nonpartisanship principle more seriously, both as a constitutional and policy matter. This argument begins by discussing the constitutional foundations of the nonpartisanship principle in the Court’s First and Fourteenth Amendment jurisprudence. It then examines the Court’s refusal to enforce the nonpartisanship principle in the context of partisan political gerrymandering, and considers its impact on the electoral process. It also considers the implications of the nonpartisanship principle for photo ID and other requirements that tend to suppress the votes of particular groups on the basis of their partisan alignment. The article concludes that the best way to enforce the nonpartisanship principle may be to take control over elections away from partisan elected officials.

This article, prepared for an issue devoted to the work of Judge Richard A. Posner, considers the implications of law and economics for the structure of supranational organizations, with particular attention to the application of collective action theory to the relationships among states in the EU. After discussing the connections between this approach and Judge Posner's work, the article describes collective action theory and its implications for our understanding of the state and of relationships among states. From this perspective, supranational organizations such as the EU can be understood as institutional structures that facilitate collective action among states by reducing the transactions and enforcement costs of making and implementing collective decisions. At the same time, the delegation of authority to supranational institutions creates agency costs for states and their peoples because the interests of the state and its people diverge from the interests of the collective in some instances. Viewed in this perspective, the institutional structure of the EU-like that of other supranational organizations or federal nation states-reflects an effort to strike a balance between collective decision making and local control so as to maximize the collective gains and minimize the resulting agency costs. Understood in these terms, various features of the EU's institutional design make sense. The ordinary legislative process permits the EU to act without the unanimous consent of member states, thus reducing transactions costs in those areas where collective action is necessary, particularly in relation to the creation and regulation of the internal market. The EU reduces enforcement costs through principles of direct applicability or effects and the supremacy of EU law, which are effective legal restraints in states governed by the rule of law. The institutional structure of the EU also incorporates a representative and deliberative process for collective action that helps control the resulting agency costs for member states and their peoples through supermajority and co-decisional requirements. The collective action perspective also illuminates the function of the subsidiarity principle and the enhanced role of national parliaments in its enforcement.

As a field of legal study and practice, administrative law rests on the premise that legal principles concerning agency structure, administrative process, and judicial review cut across multiple agencies. Administrative law treatises and textbooks largely treat the particular agency in which a case arises as an incidental factor that is not material to the administrative law principle the case represents and assume that the principle articulated applies to all (or almost all) agencies. This premise certainly holds true for iconic administrative law decisions like Chenery, Overton Park, Florida East Coast Railway, Vermont Yankee, State Farm, and Chevron, which are

This article, part of a symposium on Educational Reform in the 21st Century, considers the relationship between the recognition of a right to education and the amelioration of educational inequalities. As currently understood and implemented, the right to education is focused on the question of funding, and assumes a correlation between funding and educational achievement. This relationship, however, is a complex one, and educational achievement is influenced by numerous factors, many of which are extrinsic to the educational system or funding for it. Thus, legal and philosophical debates about the recognition, nature, and content of a right to education must acknowledge that addressing disparities or inadequacies in educational funding will not necessarily secure improved educational outcomes. As currently understood, the right to education cannot be the silver bullet for which many may have hoped, because it focuses on educational inputs (resources) rather than educational outcomes (achievement). Indeed, the focus in educational policy circles has increasingly shifted from educational inputs to educational outcomes. We believe that parties and courts involved in school finance litigation may also begin to rely on outcomes in assessing whether states are satisfying their constitutional obligations regarding the right to education. Such an outcomes-based approach may hold promise as a means to bridge the gap between our aspirations concerning the right to education and the realities of persistent and substantial educational inequalities. At the same time, however, we must recognize that the educational system alone is not responsible for educational inequalities, which means that education reform alone cannot completely solve this problem. Although a new wave of outcomes-based litigation may help to address the problem, it is a partial solution at best.Our argument unfolds in several steps. We begin with a review of the history of school finance litigation, highlighting the “equity” and “adequacy” aspects of the right to education. We then discuss how “equality” and “adequacy” theories factor into opposing philosophical conceptions of a just distribution of educational resources and opportunities, and consequently inform opposing conceptions of the right to education. We observe that a critical - yet largely unanswered - empirical question is whether the recognition of a right to education (whatever its content) will improve educational outcomes. After considering social scientific literature on the racial achievement gap, we argue that recognizing a right to education cannot be the silver bullet to slay the villain of educational inequality. Nevertheless, adequate and equitable funding remains the basis for school finance litigation, so litigants and courts must find a way to link funding with improving educational outcomes. We predict that school finance litigation will increasingly draw on the tools for assessing educational outcomes developed by education experts and policymakers as the basis for evaluating constitutional violations and remedies, and outline what such a new wave of school finance litigation might look like.

This essay responds to the Foulston, Siefkin Lecture, delivered by Professor William Eskridge at the Washburn University School of Law. Professor Eskridge challenged not only the argument that political powerlessness is a requirement for heightened scrutiny under the Equal Protection Clause, but also the wisdom of applying heightened equal protection scrutiny to laws discriminating against groups that are truly politically powerless. This essay uses Professor Eskridge’s argument to frame a more overarching issue in the Court’s suspect classification jurisprudence.The political powerlessness issue highlights an important ambiguity in the Court’s decisions analyzing whether classes or classifications are inherently “suspect” so as to require heightened equal protection scrutiny of government action that adversely affects those classes or is based on those classifications. Put simply, the cases leave unclear whether heightened scrutiny applies because laws targeting a “suspect class” are likely to be the result of a political process failure, or because the use of a “suspect classification” is unfair to those affected. Under the political process rationale, scrutiny is elevated because a history of discrimination and political powerlessness leads us to suspect that the law is the product of animus toward the class and its members. Under the individual fairness rationale, scrutiny is elevated because the classification is unlikely to reflect real differences that justify treating people differently under the law. The political powerlessness issue is highly relevant if the focal point of the inquiry is the existence of a political process failure, while it is not so relevant to the question of whether it is fair to treat individuals differently on the basis of the classification. I argue in the essay that the cases addressing whether a class or classification is suspect are ambiguous on this question, but other aspects of the Court’s equal protection jurisprudence suggest that it is individual fairness, rather than political process failure, that matters. The argument proceeds in several steps. I begin with a general overview of equal protection doctrine regarding suspect classes and classifications. I then describe the political process and individual fairness rationales for heightened scrutiny and consider the intermingling of the two rationales in the cases recognizing or declining to recognize a class or classification as suspect. Although these cases do not indicate which rationale is paramount or controlling, an examination of the Court’s “disparate impact” and “affirmative action” decisions suggest that the Court has firmly embraced the individual fairness rationale and rejected or minimized the political process rationale. Finally, I examine the lower court’s difficulties applying these principles to the question of whether to elevate scrutiny of classifications based on sexual orientation.

The buildup of greenhouse gases in the atmosphere and the likely growth in future emissions due to increased energy consumption in developing nations have convinced many scientists and policymakers of the need to develop policies that will allow adaptation to minimize the adverse effects of climate change. Climate change adaptation is designed to increase the resilience of natural and human ecosystems to the threats posed by a changing environment. Although an extensive literature concerning the federalism implications of climate change mitigation policy has developed, less has been written about the federalism issues arising from climate change adaptation policy. This article provides a framework for determining how to structure a policy to facilitate adaptation to climate change that assigns appropriate roles to all levels of government.In particular, the article addresses three questions. First, when is participation by the federal government in directing climate change adaptation policy appropriate? Second, should the federal government set a floor that requires participation by, or at least conformance with federal requirements, by states and localities? Third, should the federal government ever displace state and local adaptation responses based on the threats they pose to federal interests? Collective action principles can assist in answering these questions and determining the proper institutional arrangements for dealing with climate change adaptation.It is inevitable that clashes of interest will develop between jurisdictions when desired resources are scarce or efforts by one jurisdiction to avoid the undesirable aspects of climate change shift the burden of those changes to other jurisdictions. These conflicts are likely to arise both when states and localities fail to do enough to anticipate and react to climate change and when they do “too much.” In these instances, federal intervention is desirable. The presence of transboundary externalities and race-to-the-bottom considerations are the most likely justifications for establishment of a federal floor, and conditional funding or cooperative federalism arrangements may be useful in avoiding excessive intrusion on state and local discretion. While most of the collective action rationales for a federal presence in environmental law are not likely to justify preemption of state and local adaptation measures, transboundary externalities, the need for uniformity, and the proclivity of state and localities to foist problems arising from climate change on other jurisdictions may do so in limited instances.

Franklin complained in a famous letter regarding German immigrants in Pennsylvania that "[f]ew of their children in the Country learn English" and that "legal Writings in their own Language . . .are allowed good in our Courts." 3In 1780, John Adams proposed the establishment of a national language academy, which would have effectively created an official English for the United States, but the proposal garnered little support and died in Congress. 4 This failure is generally understood as a reflection of the then popular view that a national language academy would be "monarchist" in character and "inconsistent with principles of individual liberty." 5 Thus, even at the founding, there was tension between "a tolerant, expansive view of liberty that includes recognition and respect for the cultural differences of Americans" and "a demand for uniformity and assimilation to some vision of American identity, assumed to be homogeneous." 6 Efforts to make English the official language of the United States or to discourage immigrants from continuing to use their native tongue have appeared periodically throughout our history, typically coinciding with significant waves of immigration and anti-immigration sentiment. 7One well-known example arose around the time of World War I, when a wave of anti-German sentiment resulted in many state laws prohibiting the teaching of foreign languages.In Meyer v. Nebraska, 8 the Supreme Court held that a law banning the teaching of a language other than English before the eighth grade improperly interfered with the liberty of of the United States).3.

Preemption of common law remedies for individual injuries such as harm to health raises fundamental questions about the proper allocation of authority between the federal and state governments and about the role of courts in interpreting statutes and providing remedies for those who suffer injuries. Developing a workable framework for analyzing what we call “remedial preemption” issues can help to ensure an appropriate accommodation of the federal and state interests at stake and promote consistent application of preemption doctrine to state judicial remedies. This article applies a “collective action” framework for preemption analysis to the issue of remedial preemption. Our analysis suggests that while remedial preemption may be justified in some cases, courts should not lightly infer remedial preemption unless: (1) a primary purpose of the federal law is to ensure uniform standards to promote free movement of goods, prevent the export of regulatory burdens by “downstream” states, or solve a not-in-my-backyard problem; and (2) there is strong evidence that state judicial remedies (as opposed to direct state regulation through legislation or the actions of administrative agencies) would interfere with the achievement of those goals. In addition, we conclude that preemption of one common law cause of action does not necessarily warrant preemption of different causes of action for remediation of the same injury. Finally, we argue that courts should be especially reluctant to read the preemptive effect of federal law so as to leave injured persons without any remedy whatsoever. In doing so we pay particular attention to the ways in which state judicial remedies differ from state regulation by means of statutes or administrative rules, including the differences between legislatures and courts, between legislative rules and judicial decisions, and among possible preemptive effects on judicial remedies. We conclude by analyzing how the Supreme Court’s 2009 holding in Wyeth v. Levine that state tort remedies based on failure-to-warn claims were not preempted by federal regulation of the content of warning labels for drugs comports with our analysis.

INTRODUCTION In this Article, we draw on collective action theory1 and traditional preemption doctrine2 to develop a framework for thinking about environmental preemption. We then apply it to regulation of greenhouse gases (GHGs) in response to global climate change.3 We begin with the fundamental premise that preemption doctrine can be understood as a means of allocating decisional responsibility between the federal and state governments with respect to matters in which they exercise concurrent authority.4 Because preemption in all its forms generally depends upon the purposes of federal regulation, the critical question is the extent to which those purposes justify the displacement of state regulatory authority. The development of a framework for thinking about preemption issues is especially important in light of recent trends in the regulatory state. From the New Deal through the Great Society, the dominant political and academic mentality assumed that government regulation was necessary to prevent abuse of economic power, protect public health and safety, and preserve the environment.5 Over time, however, critics emerged to challenge these assumptions. Academics extolled the virtues of free markets and argued that most regulation is the product of rent-seeking by special interests (cloaked in public interest rhetoric).6 Politicians blamed a variety of economic and social ills on excessive regulation, which they contended stifled economic growth while producing few, if any, measurable benefits.7 In light of this sustained challenge to the administrative state, we live in an era of regulatory skepticism. Even though the opponents of regulation have not succeeded in dismantling the modern regulatory state, they have had a significant impact on the political and legal landscape.8 Deregulation or market-based approaches to regulation have been implemented in various areas.9 Statutes and executive orders direct federal agencies to assess the costs of regulation and seek the least burdensome alternatives.10 There are even some signs of more aggressive judicial review of government regulation.11 The modern regulatory state remains firmly established and the need for economic, health and safety, and environmental regulation is broadly accepted. But in the era of regulatory skepticism, the creation of new regulatory programs is difficult and the implementation of existing programs is often less robust; proponents of regulation bear a heavier burden of justification to persuade policymakers and must overcome a variety of new legal hurdles. These forces are particularly apparent in the field of environmental law. With some exceptions, the trend since the mid-1980s has been toward weakening federal laws that protect the environment. Congress has weakened procedural requirements designed to make it more difficult for federal agencies to engage in, or authorize others to engage in, environmentally damaging activities.12 It has also removed or weakened some of the substantive constraints applicable to activities that are potentially harmful to public health or the environment.13 The executive branch, through the issuance of executive orders and agency regulations, has embarked upon a similar path, although the antiregulatory thrust has been stronger under some administrations than others.14 Finally, the federal courts have restricted the scope and watered down the content of federal environmental law through their interpretation and application of both constitutional and statutory doctrines.15 Due to an unreceptive federal government, environmentalists have increasingly turned to state and local regulatory bodies, many of which have been far more sympathetic to their regulatory agenda. Some of these state and local entities have adopted environmental regulations that are more protective of the environment than their federal counterparts, only to encounter federal obstructions. Insofar as the federal government had taken the lead in environmental protection since the adoption of the Clean Air and Clean Water Acts in the early 1970s,16 this flurry of state regulatory activity represents something of a role reversal. …

I am deeply grateful and honored to have been selected as the first holder of the J.B. Smith Distinguished Professorship in Constitutional Law and pleased to offer this inaugural lecture. James Barclay Smith was and remains a legendary figure at the University of Kansas - famous for his penetrating intellect, his witty sayings, and his devotion to the forms of civility. I can only hope one day to be described, as J.B. Smith has been, as a great constitutionalist. An inaugural lecture presents a unique challenge and a unique opportunity. The challenge is to say something profound that befits the high honor of the occasion, while keeping it accessible and interesting to a diverse audience that includes family and friends, faculty from various disciplines throughout the university, and colleagues from the law school. The opportunity is to say whatever you want to a captive audience. I decided not to worry about saying anything profound or accessible and indulge in the opportunity to say what I want to a captive audience. This lecture brings together a variety of little ideas I have had over the years that seem to me important and connected, yet do not lend themselves to the usual forms of legal scholarship. In some ways the ideas are disparate and you may wonder as I proceed whether they belong together at all. I assure you, I do have a point that brings all these ideas together, at least in my own mind.