Things to Read This Week (8/25)
Equitable discretion, interim-docket-relevant articles, and much more
Tradition and Discretion, by Jonathan Green. “It’s possible, in my view, for a judge to determine whether a modern law fits within an inherited legal tradition without falling back onto her own views about what the tradition should permit as a policy matter. In other words, tying the scope of constitutional rights to tradition doesn’t necessarily vest the judge with moral discretion. Equally, however, reasoning coherently from tradition requires the ability to intuit and articulate what’s essential to a tradition, and what’s not. It demands an exercise of aesthetic judgment. And the capacity to form such judgments may have been lost to our legal culture.” A response to Sherif Girgis’s Dunwoody Lecture.
Equitable Regulatory Balancing, by Eli Nachmany. Timely and instructive: “What happened to balancing the equities? . . . Today, preliminary-relief determinations in these cases are almost entirely about the merits. Courts, including the Supreme Court, simply declare that the interests are “very weighty” on both sides and thus decline to engage in the time-honored tradition of equitable balancing that defined the task of courts at the preliminary stage when Congress enacted the Administrative Procedure Act. But equitable balancing is possible—. . . When considering the government’s interest preliminarily in a regulatory case, courts should disfavor novel regulation, elevate federalism, respect the President’s interest in internal executive branch management, and take account of the scope of the requested remedy. The government’s interest is not the same in every case, and applying these four principles will help courts move past ‘very weighty’ and get down to brass tacks when balancing the equities.”
The Tax Insurance Trap, by Ben Silver. Interesting discussion of the connection between tax uncertainty and the Anti-Injunction Act.
Constitutional Debt Wrangles, Redux - Aditya Bamzai, Ugo Panizza, and Mitu Gulati in the Financial Times. The impact of Section Four of the Fourteenth Amendment (“The validity of the public debt of the United States, authorized by law . . . shall not be questioned”) on historical bond prices. Very interesting, and hoping to see more from them!
Two different papers on the law/fact distinction from Haley Proctor: Law, Fact, Form, and Function and Law and Fact in Administration. I always learn a lot from her.
Contracts, Grants, and the Limits of Executive Discretion, by Ann Woolhandler. The case against unreviewable discretion to terminate grants. Perhaps relevant to all of the Court of Federal Claims litigation the Supreme Court keeps asking for.
Habeas Class Actions, by Teddy Rave and Lee Kovarsky, a defense of the lower court case law allowing class actions in habeas. Perhaps relevant to those putative class referenced in AARP v. Trump.
The Evolution of Legal Education, by Adam Chilton, Peter Joy, and Kyle Rozema. “In 2014 the American Bar Association adopted a requirement that law students take at least six credits of ‘experiential’ courses. . . . we find no evidence that the reform improved bar passage rates or employment outcomes. However, we also find no evidence that the reform increased tuition. . . . We find evidence suggesting that the reform expanded access to clinics primarily to students least inclined to benefit from them but without displacing students most inclined to benefit from them.” As the authors note, relevant to the new (tabled for now) ABA proposal to double the experiential credit requirement.
