Frederick Douglass and the Hidden Power of Recording Deeds

This Essay answers a single question: What led Frederick Douglass to accept an appointment as the D.C. Recorder of Deeds, especially at the height of his public service career? A possible answer, which is informed by the historical record and more contemporary accounts, is that Douglass accepted such an appointment for three reasons. The first reason is that the D.C. Recorder has been long recognized as an exemplar of fairness, perhaps due to its ministerial obligations, even when there could be no such expectation with respect to how Black folks are treated. The second reason is this office provided Douglass with a relatively safe position, in economic and political terms, that he used to call for more standard treatment of Black people by various governmental units such as the U.S. Supreme Court. The final reason is the D.C. Recorder collects public information, in the normal course of its business, which validates Douglass’s call for more standard treatment.

These three reasons, if they are read as a whole, refer to what the Essay is the first to call the hidden power of recording deeds. This power is made up of unnoticed benefits, largely arising from governmental policies informed by procedural fairness, which help to limit racial discrimination. Procedural fairness, by definition, is when U.S. governments refuse to treat similarly situated people in nonstandard ways without adequate justification. One reason for such a refusal to do so is that governments may have ministerial obligations, which limit their ability to exercise any discretion.

The D.C. Recorder has ministerial obligations which were intended to increase economic efficiency rather than to advance racial equality, such as the duty to register property interests upon the satisfaction of certain conditions precedent, but nonetheless ensure that Black people are treated just like everybody else. This office also does work that highlights the implications of failing to ensure standardization, which include unjustified economic losses that stem from adverse selection and other asymmetric information issues. Lastly, the D.C. Recorder shows that any such losses are not solely imposed upon Black folks, especially as many neighborhoods have become increasingly integrated, so harms are not limited to property owners in majority-Black areas. Stated simply, this hidden power is a less-than-salient way to remove “unfreedoms that leave [Black] people with . . . little opportunity of exercising their reasoned agency” even when they suffer from chronic property right violations such as trespasses to land or nuisances.

Part I provides additional information about Frederick Douglass and how he may have understood the various powers that are exercised by the D.C. Recorder of Deeds. Part II explains how to build upon Douglass’s legacy as the first Black D.C. Recorder, especially his call for more standardized treatment, mostly by explaining how this office could make better use of public information that it has in its possession. The Conclusion offers specific suggestions for how to achieve this goal, so as to prevent purchase price discrimination, lien fraud, and deed fraud.

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Tracing the Diverse History of Corporate Residual Claimants by Sung Eun (“Summer”) Kim

Postscript | Corporate Law
Tracing the Diverse History of Corporate Residual Claimants
by Sung Eun (“Summer”) Kim*

Vol. 95, Postscript (Jan 2022)
95 S. Cal. L. Rev. Postscript 43 (2022)

Keywords: Corporate Law, Residual Rights

The conventional understanding in corporate law is that shareholders are the residual claimants of corporations because they own the residual right to profits. Based on this understanding, shareholders are entitled to a host of corporate law rights and protections—including the right to vote and fiduciary duty protections. However, a review of the origin and history of residual claimant theory shows that the theory originally envisaged a broad conception of the residual claim that goes beyond profits, leading to a diverse array of stakeholders being the residual claimants of corporations over time. Depending on which of the theories of rent, interest, wages, or profit was adopted, each of the landlord, capitalist, laborer, and entrepreneur has been considered the residual claimant of the corporation. This history shows that the prevailing view of shareholders as the exclusive residual claimants of the corporation is a relatively recent understanding and that the historical record supports a more diverse conception of the residual claimant. In that sense, residual claimant analysis is better understood as a theory for the stakeholder model of the firm than the shareholder primacy model, as it is presently understood.

* Professor of Law, University of California, Irvine School of Law. I am grateful to Mehrsa Baradaran, Joshua Blank, Jill Fisch, Vic Fleischer, Jonathan Glater, Alex Lee, Jennifer Koh Lee, Stephen Lee, Christopher Leslie, Omri Marian, L. Song Richardson, and Arden Rowell for reading prior versions of this Article and providing helpful comments. I also benefitted from the opportunity to present and receive feedback on this project at the Trans-Pacific Business Law Dialogue (September 2020) and the University of Florida Business Law Conference (November 2020). Tianmei Ann Huang and Nick Nikols provided extraordinary research assistance, and Vivian Liu, Mindy Vo, Elizabeth Bell, and Jessica Block of the Southern California Law Review Postscript team, Deborah Choi, and Matthew Perez provided superb editorial assistance. Any errors are my own.

Trademark’s “Ship of Theseus” Problem by Mathew T. Bodie*

Postscript | Intellectual Property Law
Trademark’s “Ship of Theseus” Problem
by Matthew T. Bodie*

Vol. 95, Postscript (Nov 2021)
95 S. Cal. L. Rev. Postscript 27 (2021)

Keywords: Intellectual Property Law, Trademark

The “Ship of Theseus” is a classic philosophical problem posed about the continuity of identity. In Plutarch’s telling, the ancient Athenians preserved for posterity the famous ship piloted by Theseus after the slaying of the Minotaur.1 Once a year, a delegation would travel on the ship to the island of Delos with a tribute to the god Apollo.2 Over time, the wood began to rot, and the decaying planks were replaced with new ones. The ship became “a standing example among the philosophers, for the logical question of things that grow: one side holding that the ship remained the same, and the other contending that it was not the same.”3 The conundrum was recently referenced in the Marvel Comics Universe, as two versions of the organic android Vision puzzled over their identities in the climax of WandaVision.4 A wrinkle was added: what if the boards from the original ship were saved and used to recreate a version of the ship? Would that also be the ship of Theseus?

Trademark has long had a problem with identity. The purpose of trademark is to identify the source of goods or services and thereby make life easier for consumers. But trademark does not make an effort to ensure that the company that holds the mark still reflects the entity that developed the mark’s identity. Rather, trademark has turned largely into an alienable property right, unmoored from its created context.5 The law has severed the connection between the mark and the entity beyond the formalities of organization law, with the result that whoever controls the mark’s owner controls the mark. As a result, new owners can take advantage of reputation capital they never earned, and those with a true connection to the success of the original business can be shut out.6

This Essay argues against the law’s presumption that the corporate entity should have exclusive control over the mark, no matter the continuing connection (or lack thereof) that the entity has with the original business and goodwill. Trademark should instead reflect the potential that the identity will change over time, changing the meaning of the trademark along with it. Rather than blindly empowering individual corporations, trademark law should either pay closer attention to identity issues or allow a wider variety of participants to use the mark in various ways. Either of these approaches to trademark would be messier but would reflect more accurately our complicated reality.

* Callis Family Professor, Saint Louis University School of Law. This Essay is based in part on an ongoing research project presented at the Intellectual Property Scholars Conference and the biannual meeting of the Labour Law Research Network; I very much appreciate comments from Erika Cohn, Mark Lemley, Laura Heymann, Yvette Liebesman, Jake Linford, and Mark McKenna. Thanks to Danielle Dur- ban for excellent research assistance.

A Dose of Dignity: Equitable Vaccination Policies for Incarcerated People and Correctional Staff During the COVID-19 Pandemic by Itay Ravid, Jordan M. Hyatt, and Steven L. Chanenson

Postscript | Government
A Dose of Dignity: Equitable Vaccination Policies for Incarcerated People and Correctional Staff During the Covid-19 Pandemic
by Itay Ravid*, Jordan M. Hyatt†, and Steven L. Chanenson‡

Vol. 95, Postscript (September 2021)
95 S. Cal. L. Rev. Postscript 1 (2021)

Keywords: Criminal Law, Public Health, Government

Since its emergence in early 2020, the COVID-19 pandemic has altered the lives of millions of Americans. As it so often is during times of crisis, our most vulnerable communities have disproportionately suffered and were overlooked. Among these myriad communities, incarcerated people became a particularly potent symbol of our failure to handle the spread of the virus. In December 2020, a beacon of hope emerged with the introduction of new cutting-edge vaccines which promised to bring the world back to where it was just a year-and-a-half ago. Here again, however, policy and politics have led states to adopt different distribution plans that, broadly speaking, deprioritized incarcerated populations and in some cases correctional staff as well. While vaccinations are now much more widespread, things were dramatically different not too long ago. The first goal of this Essay is to ensure we memorialize how society, once again, failed to protect our incarcerated communities when they needed it the most. To illustrate this, we offer a data-driven analysis of the early state-level policies regarding vaccinations of people who live and work in prisons. Our findings show that vaccination policies tended to systematically ignore or disadvantage incarcerated individuals. We argue that by adopting such policies, states have neglected to comply with their legal obligations, grounded in existing and emerging Eighth Amendment jurisprudence and long-standing ethical responsibilities to proactively vaccinate this population. This is particularly true given that prisons are among the high-risk “congregate settings” that are widely recognized by health experts, and often by the states themselves, as deserving of immediate distribution of vaccines. Based on these obligations, and given recent new virus outbreaks and the realization that some form of COVID-19 is here to stay (and other pandemics may be around the corner), this Essay concludes with recommendations for the future.

____________________

*. Assistant Professor of Law, Villanova University Charles Widger School of Law.
†. Associate Professor of Criminology and Justice Studies, Director, Center for Public Policy,

Drexel University.
‡. Professor of Law, Villanova University Charles Widger School of Law. The authors would

like to thank Kristi Arty and Michael Slights for their terrific research assistance, and the SCLR editorial team for their careful and diligent work. Research for this Article was conducted with support provided to Dr. Hyatt (Drexel University) by Arnold Ventures. The views expressed in this Article are those of the authors and do not necessarily reflect those of the funder or any of the authors’ respective academic institutions.

 

 

Crypto-Enforcement Around the World by Douglas S. Eakeley, Yuliya Guseva with Leo Choi & Katarina Gonzalez, Rutgers Center for Corporate Law and Governance, Fintech and Blockchain Research Program

Postscript | Securities Law
 Crypto-Enforcement Around the World 
Douglas S. Eakeley* & Yuliya Guseva† with Leo Choi‡ & Katarina Gonzalez§, Rutgers Center for Corporate Law and Governance, Fintech and Blockchain Research Program**

Vol. 94, Postscript (May 2021)
94 S. Cal. L. Rev. Postscript 99 (2021)

Keywords: cryptocurrency, Technology, SEC, CFTC, cryptoasset

INTRODUCTION

The market for cryptoassets is burgeoning as distributed ledger technology transforms financial markets. With the extraordinary growth in the crypto-markets comes the need for regulation to promote efficiency, capital formation, and innovation while protecting investors. With the need for regulation comes enforcement. The blockchain revolution in capital and financial markets has already attracted the attention of enforcement agencies in many jurisdictions. In this Article, we elaborate on crypto-related enforcement and report on the results of the Enforcement Survey conducted by the Rutgers Center for Corporate Law and Governance Fintech and Blockchain Research Program.

We find that the United States Securities and Exchange Commission (“SEC” or “Commission”) brings more enforcement actions against digital-asset issuers, broker-dealers, exchanges, and other crypto-market participants than any other major crypto-jurisdiction. By the same token, its enforcement entails more serious penalties. In addition to reviewing the international data, we provide detailed comparisons of the crypto-enforcement actions of the United States Commodity Futures Trading Commission (“CFTC”) and the crypto-enforcement program of the SEC. Whereas SEC enforcement has been relatively stable, CFTC cases have been trending up. By contrast, enforcement in foreign jurisdictions seems to be subsiding. Our data raise theoretical questions on regulation via enforcement, its effect on financial innovation, and regulatory competition.

In Part I, we start with discussing the pros and cons of regulation by enforcement, as well as its consequences for innovation and a possible outflow of capital. Part II describes the methodology of the research. Part III presents the main findings. Parts IV and V discuss SEC and CFTC enforcement data, respectively, while Part VI compares the enforcement actions of the two regulators.

_________________________

*. Alan V. Lowenstein Professor of Corporate and Business Law, Co-Director of the Center for Corporate Law and Governance, Rutgers Law School (douglas.eakeley@law.rutgers.edu).

†. Professor of Law, Director of the Fintech and Blockchain Program, Rutgers Law School (yg235@rutgers.law.edu).

‡. J.D., Rutgers Law School 2020, Fintech Program Researcher 2019–2020, Associate at Sosnow& Associates PLLC (leo@jobsactlawyer.com).

§. J.D., Rutgers Law School, Fintech Program Researcher 2019–2020, E-Commerce and Contracts Manager at WingIt Innovations LLC (klg190@scarletmail.rutgers.edu).

**. The Blockchain and Fintech Research Program is generously supported by the University Blockchain Research Initiative, the Ripple Impact Fund, and Silicon Valley Community Foundation. The authors would like to thank the participants of the Yale Law School 2020 Conference on Law and Macroeconomics and the 2020 Annual Meeting of the American Society of Comparative Law, UCLA Law School, for their comments and suggestions.

Shutting Down the School-to-Prison Pipeline by Maja Tosic

Postscript | Anti-Discrimination Law
Shutting Down the School-to-Prison Pipeline
by Maja Tosic* 

Vol. 94, Postscript (April 2021)
94 S. Cal. L. Rev. Postscript 80 (2021)

Keywords: Student Discipline, Title VI of the Civil Rights Act of 1964, Disparate Impact

INTRODUCTION

When a student misbehaves, race plays a role in how harshly the student is disciplined. Given the long history of racial discrimination in the United States, as well as prevalent implicit biases, Black and Latino students are disciplined at higher rates with stiffer punishments than their white peers.[1] This higher level of discipline leads to a downward spiral of poor school performance and attendance,[2] involvement in illegal activity, and arrest and imprisonment.[3] Ultimately, Black and Latino students fall victim to a school-to-prison pipeline that many white students are not pushed into despite similar misbehavior.[4] In order to protect students from the pipeline, equalize educational opportunities, and create a safe and welcoming school environment, it is necessary for the federal government to invalidate disciplinary policies that cause an unjustified, disparate impact.

Under President Obama, a first-ever policy guidance on student discipline was issued, which stated that not only are intentionally discriminatory policies unlawful per Title VI of the Civil Rights Act of 1964, but so too are facially neutral policies that cause an unjustified disparate impact.[5] The Trump Administration rolled back the policy guidance, citing that a disparate impact policy is not a Title VI violation per current precedent[6] and that invalidating disparate impact disciplinary policies makes schools less safe and more prone to shootings.[7] This Note will examine those arguments and will conclude that the disparate impact standard is supported by current precedent, does not increase the rate of school shootings, and ultimately should be reinstated. The disparate impact standard is a necessary safeguard against negative, implicit attitudes and is an important step in eradicating the school-to-prison pipeline.

I. BACKGROUND

A. Legal Background

Title VI of the Civil Rights Act of 1964 establishes that no person on the basis of race, color, or national origin, shall be excluded, denied benefits, or subjected to discrimination under any federally assisted program.[8] Thus, public schools may not discriminatorily discipline students.[9] The purpose of Title VI is “that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes or results in racial discrimination.”[10] The Department of Education (“DOE”) and the Department of Justice (“DOJ”) are responsible for enforcing Title VI and implementing its regulations.[11] To ensure that a public school complies with Title VI, the DOJ and DOE may initiate investigations based on complaints of racial discrimination.[12]

In order to prove unlawful discrimination under Title VI, either a government actor must have acted with a discriminatory intent or the action must have created a disparate impact.[13] Discriminatory intent under Title VI is analyzed in the same way as intentional discrimination under the Equal Protection Clause of the Fourteenth Amendment.[14] Intentional discrimination occurs when an action is adopted “at least partially because the action would benefit or burden an identifiable group.”[15] However, “bad faith, ill will, or any evil motive” is not necessary to show intentional discrimination.[16] Regardless of the reasoning for an intentional use of race, the use must be “narrowly tailored” to achieve a “compelling” government interest.[17] Intentional discrimination can be proven with direct evidence, including express racial classifications or conduct that show a discriminatory motive.[18] However, “direct evidence of intentional discrimination is hard to come by,”[19] so the use of circumstantial evidence is more common.[20]

In addition, a disparate impact can show discrimination.[21] A disparate impact is proven by the effects of an actor’s practices rather than intent.[22] As the Supreme Court has noted in regards to Title VII, which was enacted at the same time as Title VI, “[u]nder the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to freeze the status quo of prior discriminatory . . . practices.”[23] When it is established that a policy creates a disparate impact, the decisionmaker must articulate a “substantial legitimate justification” for the challenged policy,[24] meaning that it was “necessary to meeting a goal that was legitimate, important, and integral to the institutional mission.”[25] Also, Title VI requires federally-funded recipients to implement a “less discriminatory alternative” if it is allowable and meets legitimate goals.[26] Thus, a disparate impact policy is unlawful if there is no substantial legitimate justification or an alternative exists.[27]

Under current legal precedent, a public-school district violates Title VI by either intentionally discriminating against one race or by implementing an unjustified policy that disproportionately affects students of a given race. Given that much of the racial discrimination that exists today is not born from intentional discrimination, it is imperative that the DOJ and DOE enforce Title VI using the disparate 4impact standard.

B. Social-Psychology Research

In order for the DOJ and DOE to effectively regulate public schools’ disciplinary actions, it is important to understand the underlying causes of the racial disparity in student discipline and the resulting school-to-prison pipeline. Multiple studies have examined the persistent racial disparities in student discipline rates, and research has revealed a deeply rooted, cyclical pattern of increasing student misbehavior and administered discipline.[28] Thus, to understand the totality of the problem, it is necessary to examine the behavioral and psychological tendencies of teachers, students, and how the two groups interact.[29]

1. Social-Psychological Factors of School Staff That Contributes to Disparity

Many teachers enter the profession with a strong teaching mission and as “idealists.”[30] However, as teachers gain more experience, they are more likely to self-identify as “disheartened,”[31] more likely to cite student-behavior problems as a major drawback,[32] and less likely to believe good teaching can make a difference in one’s learning.[33] Thus, as teachers work towards their teaching mission but encounter student misbehavior, a feeling of hindrance may arise.[34] When paired with exposure to racial stereotypes, teachers can be influenced to discipline minority students more harshly and more frequently.[35]

One specific factor is a teacher’s perception of students as troublemakers and a sense of feeling troubled. In one study, teachers felt more troubled, meaning they perceived heightened infraction severity, hindrance, and irritation, by a Black student’s infraction compared to a white student’s infraction.[36] Also, Black students were more likely than white students to be labeled as troublemakers, which increased how severely teachers felt the student should be disciplined.[37]

In addition, teachers’ racial biases play a role in perpetuating the cycle. As American society has shifted to morally condemn racism and to legally prohibit racial discrimination, racial biases have not disappeared but have become more hidden and implicit. An implicit attitude, as opposed to an explicit attitude, is an “automatic cognitive association” between a group of people and certain beliefs, and people may be “unwilling to endorse [implicit attitudes] as indicative of their beliefs.”[38] Specifically, one study revealed that elementary school teachers had different expectations of students depending on the students’ ethnicity and had implicit, negative attitudes towards students of non-white, non-Western ethnicities.[39] The implicit attitudes correlated with an achievement gap between minority students and white students.[40]

Ultimately, teachers’ psychological and emotional responses likely inform their decisions to discipline students of color more frequently and more harshly. In addition, teachers’ disciplinary decisions are, at least in part, influenced by a desire to diminish student behavior barriers to achieving their teaching missions.

2. Student Social-Psychological Factors That Contribute to the Disparity

In general, students enter school wanting to learn and develop.[41] However, minority students may question whether their abilities and behaviors will be seen in an unbiased light.[42] In turn, these fears and the visible racial disparity in discipline impact minority students’ social-psychological tendencies.[43]

One contributing factor to the vicious cycle of increased misbehavior and discipline is students’ loss of institutional trust.[44] Adolescents of color, especially Black students, more readily notice teachers and others stereotyping and perceiving them as a threat by the time they enter middle school.[45] This awareness among students of color causes them to lose institutional trust.[46] In one study, institutional trust declined faster for Black and Latino middle school students, creating a “racial trust gap.”[47] The trust gap was sustained by a racial disparity in discipline for “judgment call incidents,” such as “defiance” and “disobedience,” as opposed to objective infractions, such as cheating.[48] This visible difference in discipline may cause minority students to question rules, the fairness of the institution, and teachers’ trustworthiness.[49] In addition, a student’s level of institutional trust is a strong predictor of future misbehavior and educational pursuits.[50]

Stereotype threats can also influence a student’s performance and confidence in school. A stereotype threat is a “situational threat of negative stereotypes,” which “does not depend on cuing internalized anxiety or expectancy.”[51] It is cued by a recognition that a negative stereotype could apply to a person, and its level of threat depends on how closely a person identifies with the stereotyped group.[52] A stereotype threat most impacts people who have great skills and confidence and have not adopted the stereotype to the point of doubting their abilities.[53] Though Black students with activated negative stereotypes valued things related to Black experiences less, their devaluation was more likely a strategic self-presentation to deflect stereotypes than a self-rejection.[54] Stereotype threats may cause students to underperform in schools and may contribute to students’ fear of being of stereotyped.

In sum, though most students want to learn in school, minority students face certain challenges that their white peers are not similarly exposed to. The concerns and tendencies of students of color perpetuate the vicious cycle of increased misbehavior and discipline.

3. Teacher-Student Interactions That Contribute to the Disparity

Much of the racial disparity in student discipline originates at the level of office referrals issued by teachers and school staff rather than through administrative decisions.[55] In one study, the rates of office referrals of Black versus white students showed “large, statistically significant differences,” whereas administrative responses were “almost identical” across race.[56] The racial disparities “remain even after controlling for socioeconomic status”[57] and could not be explained by higher rates or more serious misbehavior of Black students.[58] Instead, a difference in the type of infractions for which white students and Black students were referred contributed to the racial disparity.[59] White students are more frequently referred for objective infractions and behavior, while Black students are referred more for infractions requiring subjective assessments.[60]

In addition, race effects weakened as students moved through the disciplinary system.[61] A student’s expulsion was most tied to the seriousness of an offense, the reasons for an initial office referral, and the student’s gender.[62] The lower risk of differential treatment on the basis of race at the expulsion level may be indicative of the checks and balances in place for expulsions, such as formal hearings mediated by an independent officer.[63] In contrast, on- and off-campus suspension referrals are mostly issued for “defiance of adult authority,”[64] all while Black students are disproportionately referred for such behavior.[65] This supports the finding that discipline of subjective behavior contributes to the racial disparity.

Overall, the problem stems from daily interactions between students and school staff, which lead to racialized perceptions, more office referrals, and a racial disparity in discipline. Ultimately, because students of color face higher rates of discipline, they are also more likely to be pushed into the school-to-prison pipeline.

C. Background on the School-to-Prison Pipeline

The school-to-prison pipeline is a process by which students are pushed out of school systems and into the criminal justice system.[66] The pipeline is created by removing students from school by placing them “on out-of-school suspension, transferring them to alternative schools, expelling them, and/or having them arrested for minor offenses.”[67] When students are no longer regularly in school, they are more susceptible to end up in trouble, detention, or jail.[68]

As schools have adopted society’s tendency towards criminalization and incarceration, they have also adopted “zero tolerance policies.”[69] Generally, such policies implement a harsh predefined mandatory consequence without an examination of the “seriousness of the behavior, mitigating circumstances, or the situational context.”[70] Also, schools have increased “police and security presence at school, metal detectors, security cameras, locker and person searches, and all the accoutrements of formal legal control.”[71] School districts with a disproportionate amount of poor and minority students are more likely to use police officers in schools. These officers exacerbate the school-to-prison pipeline by criminalizing school-based, minor offenses.[72]

While zero-tolerance policies were originally intended to punish serious and dangerous infractions, the punishments have applied frequently to nonviolent violations.[73] Thus, the rates of suspensions and expulsions have escalated since the adoption of zero-tolerance policies in the mid-1990s.[74] However, there is no evidence that exclusionary policies like suspension or expulsion reduce school violence.[75]

Zero-tolerance policies have increasingly removed students from schools and have made students more vulnerable to engage in unsupervised activities.[76] An adolescent student is more than twice as likely to get arrested in a month when the student is suspended or expelled from school than in the months when the student is in school.[77] Thus, as students are punished and excluded from school, many are ultimately thrown into the hands of law enforcement. Meanwhile, the consequences of arrest exist for students of all races and “appear to be universal.”[78]

On the surface, zero-tolerance policies are neutral and applied evenhandedly, but race and ethnicity are strong predictors of student discipline.[79] Black boys are suspended and expelled at three times the rate of white boys, and Black girls are suspended at six times the rate of white girls.[80] As a result, the school-to-prison pipeline disproportionately affects students of color.[81]

D. Policy Background

1. Obama-Era Policy Guidance

On January 8, 2014, the U.S. DOE and the DOJ under the Obama Administration released a first-ever policy guidance on school discipline and school climate to ensure public school districts comply with federal law, namely Title IV and Title VI of the Civil Rights Act of 1964.[82] The objective of the policy guidance was to help schools create “safe, inclusive and positive learning environments” by improving school climates and implementing “fair, non-discriminatory” responses to misbehavior.[83] The guidance was inspired by data from the Office of Civil Rights (“OCR”), which revealed that minority students are disciplined at higher rates and more harshly, are at a higher risk of entering the school-to-prison pipeline,[84] and that racial discrimination has caused this racial disparity.[85] In order to achieve its goals, the Obama Administration sought to enforce federal laws to eliminate unlawful racial discrimination in student discipline.[86] Specifically, the DOE and DOJ were to investigate complaints, proactively initiate compliance reviews, and provide assistance to schools as they adopt new antidiscriminatory disciplinary policies.[87]

Most notably, the guidance expanded the standard under which a school’s conduct is considered discriminatory by adding “disparate impact” to the established intentional discriminatory prohibition.[88] First, a policy is intentionally discriminatory and unlawful if a student is subjected to “different treatment” based on the student’s race.[89] Such a policy can be either facially discriminatory by having explicit discriminatory language, or it can be facially neutral but administered in a discriminatory manner, such as when an administrator exhibits racially charged behavior while disciplining a student.[90] Second, if a neutral policy is applied evenhandedly but has a disparate and unjustified impact on students of a certain race, it may be unlawful.[91] A policy that has an adverse impact on students of a particular race is unlawful if it is either not necessary to meet an important educational goal or is necessary but there is a comparable, effective alternative that causes less of a burden or impact.[92] For example, if Black students are excessively and more frequently punished for using electronic devices and there is no evidence of explicit racial bias, the policy is unlawful because of the adverse impact and lack of justification to meet an important educational goal.[93]

In sum, the DOE and DOJ, under President Obama, created a guidance to eliminate the racial disparity in student discipline and believed that invalidating both intentionally discriminatory and disparate impact policies was the best solution.

2.Effects of the Obama-Era Policy Guidance

Though the Obama-Era policy was in place for only four years, the School Superintendents Association found that some school districts were impacted by the Obama-Era policy guidance.[94] Even though schools were not required to adopt any particular action, 16% of the 950 school district leaders in forty-seven states stated that their district had modified discipline policies in response to the guidance.[95] Some school districts had already implemented the guidance on their own and did not need to change policies.[96] However, the greatest impact of the guidance was that it communicated to public-school administrators that the DOE and DOJ will investigate and correct civil rights violations.[97]

Of the school leaders that did modify their policies, only 4.5% stated the discipline guidance had a negative effect, while 44% indicated a positive effect.[98] Some of the school leaders who cited a negative impact felt that the guidance forced school staff to be more lenient towards minority students in order to avoid an accusation of racism and felt frustrated by the extra steps.[99] In addition, some school leaders noted that a lack of funding, resources, and staff made it difficult for schools to manage students that were kept in school instead of given an out-of-school suspension.[100] In contrast, some of the respondents who indicated a positive outcome felt that the guidance influenced school staff to “use more forethought, consideration, and find alternatives,” “address bias and prejudice,” and “increase their awareness and understanding.”[101] In addition, the survey revealed that “urban and large districts were more likely to adopt new discipline policies and practices because of the 2014 discipline guidance.”[102]

Despite the frustrations felt by some school staff, the positive impact of the Obama-Era guidance outweighed the negative: ten times as many school districts noted a positive effect than noted a negative one. The guidance caused some schools to address racial biases and to find alternative actions that kept students in school, especially for minor offenses.

3.Trump Administration’s Rescission of the Obama-Era Guidance

The Federal Commission on School Safety, created by President Trump after the Parkland shooting, investigated school gun violence and issued a report with recommended policies.[103] Specifically, the Commission noted that the 2014 guidance caused some schools to become “fearful of potential [federal] investigations”; and thus, some schools “ignored or covered up – rather than disciplined – student misconduct in order to avoid any purported racial disparity in discipline numbers than might catch the eye of the federal government.”[104] In response, the Commission recommended that the DOJ and DOE rescind the 2014 guidance.[105]

On December 21, 2018, following the release of the report, the DOJ and DOE issued a Dear Colleague Letter, in which the Obama-Era policy guidance was rolled back.[106] It notes that the previous guidance advanced “policy preferences and positions not required or contemplated by Title IV or Title VI.”[107] Despite the rescission, the DOJ and DOE were to remain “firmly committed to vigorously enforcing civil rights protections on behalf of all students.”[108]

In a “Questions & Answers” document that was released along with the 2018 Letter, the OCR provided further details on a public school’s legal obligations and its future regulatory involvement.[109] Specifically, the OCR explained it will only investigate a complaint that alleges a student of a certain race was being treated differently or if a racially neutral policy was adopted with the intent to target students of a particular race. [110] Thus, the disparate impact standard was revoked by the Trump Administration.

II. ANALYSIS

A. Analysis of Trump-Era Policy Guidance

The Trump Administration’s decision to roll back the Obama-Era guidance was misguided. While the Obama Administration understood the path to safer schools as protecting students’ civil rights and providing alternatives to exclusionary discipline,[111] the Trump Administration had taken a different approach. The Trump Administration believed that public schools may become safer if school administrators have more discretion and freedom to apply disciplinary actions,[112] even if the actions result in a racially disparate impact. However, greater discretion and greater racialized discipline will not make schools safer, especially not against school shootings. Overall, the Trump Administration was incorrect to rescind the disparate impact standard given current legal precedent and social-psychological research, and it cannot “vigorously enforce civil rights protections on behalf of all students”[113] under the current policy.

1.Current Legal Precedent Supports Disparate Impact Standard

The Federal Commission on School Safety incorrectly held that a public school policy does not violate Title VI when it creates a racialized disparate impact despite lacking a discriminatory intent. Specifically, the Commission stated that the validity of the 2014 guidance “cannot be squared away with the Supreme Court’s holdings.”[114] However, the Supreme Court has never held that a federal agency cannot regulate a disparate impact policy. Rather, the Supreme Court held in Lau v. Nichols that section 601 of Title VI bars a practice that has a discriminatory effect on protected groups, even if the practice is not purposefully discriminatory.[115] Also, Justice Stewart, in his concurrence, held that section 602 allows agencies to enact rules that broadly furthered the purpose of deterring discrimination.[116] In Lau, a school district that did not provide supplemental language courses to a majority of non-English speaking students violated Title VI because the lack of instruction had a discriminatory effect even though no purposeful discriminatory design was present.[117] Though the Court later limited Lau by asserting that section 601 only outlaws intentional discrimination,[118] it has never addressed whether federal agencies may regulate disparate impact policies, [119] and so the expansive regulatory view of Title VI in Lau has never been explicitly rejected. The Federal Commission does not cite a holding for its position but rather relies on dicta and footnotes to further its argument that a federal agency can only prohibit intentional discrimination.[120] Based on current precedent, two possible interpretations of section 602 exist: (1) agencies may issue “broad prophylactic rules”[121] reaching policies beyond intentional discrimination; and (2) agencies are limited to regulating only intentional discrimination.[122] Thus, unlike the Federal Commission’s proposition, there is no Supreme Court precedent that squarely holds a federal agency cannot regulate disparate impact policies. Though the Trump Administration has discretion, it is incorrect to remove the disparate impact standard on the grounds of current legal precedent and to state that the Obama-Era guidance was against precedent.

2. A Disparate Impact Standard Does Not Increase School Shootings

First, school shootings are not caused or impacted by an attempt to lower racial disparity in student discipline. Since 2010, total incidents of school shootings have steadily been increasing despite different policies being in place since that time.[123] Between 2010 and 2014, prior to the Obama-Era policy guidance, there were 150 total incidents of school shootings, or an average of thirty per year. [124] From 2015 to 2018, there were 261 incidents an average of sixty-five per year.[125] In 2019, after the rescission of the guidance, there were 118 incidents.[126] This steady increase suggests that incidents of school shootings are not correlated with the policies issued by the DOE and DOJ.

Second, school shooters are predominately white students,[127] and the Obama-Era guidance was structured to tackle the over-discipline of primarily minority students. The negative impact cited by some school administrators mostly pertained to disciplining students of color.[128] In fact, the Parkland shooter’s ability to buy, own, or possess a firearm had not been impacted by his involvement in a program that complied with the 2014 guidance.[129]

Thus, rescinding the 2014 guidance will not confront most students who turn to gun violence.

Third, the school districts that adopted the Obama-Era guidance did not alter the way they treated violent and serious infractions.[130] Rather, school districts, regardless of the policy guidance, investigated and dealt with such infractions and violent students in a serious manner, regardless of race. The greatest impact the guidance had was upon smaller infractions and altered how schools responded particularly to Black and Latino students.[131]

Overall, school safety is a complex issue, but the 2014 guidance to minimize racial disparity in student discipline does not conflict with the goal of eliminating school shootings.[132] A school’s compliance with the guidance would help improve school climate and increase school safety. To truly “vigorously enforce civil rights protections on behalf of all students,”[133] a disparate impact standard should be reinforced.

B. Predicted Future Impact of Trump-Era Policy Guidance

The decision to rescind the Obama-Era guidance will not create the intended result of decreasing school homicides and will negatively impact students of color, particularly Black and Latino students. Policies generated from negative, implicit biases are immune to challenges when only an intentionally discriminatory standard is applied. Therefore, without the disparate impact standard, school staff may let their racial biases and disciplinary actions go unexamined and will refer Black and Latino students more readily for subjective infractions. Ultimately, more students of color will be pushed out of schools and into the school-to-prison pipeline.

Aside from the increases in the disparate impact and the strengthening of the school-to-prison pipeline, students will also lose more institutional trust and perform poorly. The Trump Administration’s decision tells students that civil rights violations will not be taken seriously. Instead, this decision treats student discipline as justified, no matter how unfair it is. Students of color will have less reason to believe school staff will not be biased against and discriminate against such students. As young students lose institutional trust, their level of misbehavior will increase, and their prospects for future education beyond secondary education will decrease. Thus, students may more easily fall into the belief that their success, expected performance, and treatment will be impacted by racial stereotypes.

III.  PROPOSED RECOMMENDATIONS

Policies issued by the DOE and DOJ must go further than the current guidance to address the underlying causes of the school-to-prison pipeline. It is not enough to only investigate policies that are facially discriminatory because almost none are. Instead, discrimination results from implicit biases and subjective judgments by teachers and administrators. Furthermore, current legal precedent supports the invalidation of disparate impact policies under Title VI.[134] Therefore, the DOE and DOJ ought to ensure that unjustified disparate impact policies and practices are invalidated and altered.

Also, given the roll back of the Obama-Era guidance, states and local school districts should examine their disciplinary actions and create alternatives. The DOE and DOJ recognized that “[s]tates and local districts play the primary role in establishing educational policy, including how to handle specific instances of student misconduct.”[135] Therefore, public school districts are not limited to the new guidance and can mitigate the predicted effects by doing more than the federal government to protect students’ civil rights.

Ultimately, a comprehensive solution involving the DOE, DOJ, states, and local governments will best challenge the underlying issues sustaining the school-to-prison pipeline.

CONCLUSION

In order to challenge the racial disparity in student discipline and to eliminate the school-to-prison pipeline, the disparate impact standard should be restored. Racial disparity is not only the result of intentional discrimination but is more so created by policies with unintentional, disparate impacts. The disparate impact standard is supported by current legal precedent and is a necessary tool to confront the social-psychological factors bolstering the racial disparity. Restoring the disparate impact standard is a needed step in increasing students’ institutional trust, challenging school staff’s implicit attitudes, and repairing student-teacher relationships. Ultimately, the standard is a safeguard against discriminatory decisions and is necessary to eliminate the existing school-to-prison pipeline.

________________________________

         *.    Executive Notes Editor, Southern California Law Review, Volume 94; J.D. Candidate 2021, University of Southern California Gould School of Law; B.S. Biopsychology, Cognition, and Neuroscience 2016, University of Michigan. Thank you to my parents, Aleksandar and Jasna, for encouraging me to pursue a law degree and for their constant support. I also would like to thank Professor Dan Simon for his guidance during the drafting of this Note. Lastly, thank you to the editors of the Southern California Law Review for their excellent work.

[1].   Travis Riddle & Stacey Sinclair, Racial Disparities in School-Based Disciplinary Actions Are Associated with County-Level Rates of Racial Bias, 116 Proc. Nat’l Acad. Sci., 8255, 8255 (2019); Moriah Balingit, Racial Disparities in School Discipline Are Growing, Federal Data Show, Wash. Post (Apr. 25, 2018, 11:41 PM), https://www.washingtonpost.com/local/education/racial-disparities-in-school-discipline-are-growing-federal-data-shows/2018/04/24/67b5d2b8-47e4-11e8-827e-190efaf1f1ee
_story.html [https://perma.cc/MQQ9-L2B8].

[2].    See Emily Arcia, Achievement and Enrollment Status of Suspended Students: Outcomes in a Large, Multicultural School District, 38 Educ. & Urb. Soc’y 359, 367 (2006).

[3].   See Virginia Costenbader & Samia Markson, School Suspension: A Study with Secondary School Students, 36 J. Sch. Psychol. 59, 73 (1998).

[4].    Judith A.M. Scully, Examining and Dismantling the School-to-Prison Pipeline: Strategies for a Better Future, 68 Ark. L. Rev. 959, 959–60 (2016); see also U.S. Dep’t of Educ., Office for Civil Rights, Civil Rights Data Collection: Data Snapshot: School Discipline 2 (2014), https://www2.ed.gov/about/offices/list/ocr/docs/crdc-discipline-snapshot.pdf [https://perma.cc/BMS8-X
RG6].

[5].    U.S. Dep’t of Justice & U.S. Dep’t of Educ., Dear Colleague Letter on the Nondiscriminatory Administration of School Discipline 5 (2014), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-residential-facilities-201412.pdf.

[6]. U.S. Dep’t of Justice & U.S. Dep’t of Educ., Dear Colleague Letter (Dec. 21, 2018), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201812.pdf; see also Fed. Comm’n on Sch. Safety, Final Report of the Federal Commission on School Safety 70 (Dec. 18, 2018), https://accentdistributing.com/wp-content/uploads/2020/09/school-safety-report.pdf (stating that the Obama-Era guidance “lacks foundation in applicable law.”).

[7].    See Fed. Comm’n on Sch. Safety, supra note 6, at 67.

[8].    42 U.S.C. § 2000d.

[9].    U.S. Dep’t of Justice & U.S. Dep’t of Educ., supra note 5, at 3.

[10]. Title VI of the Civil Rights Act of 1964, U.S. Dep’t of Just.,  https://www.justice.gov/crt/fcs/TitleVI [https://perma.cc/MQQ9-L2B8]; see also Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 609 (1983) (“The legislative history of Title VI is replete with references to the Act’s central purpose of ensuring that taxpayers’ money be spent nondiscriminatorily.”).

[11].    42 U.S.C. § 2000d-1.

[12].  See Title VI of the Civil Rights Act of 1964, supra note 10; Education and Title VI, U.S. Dep’t of Educ., https://www2.ed.gov/about/offices/list/ocr/docs/hq43e4.html [https://perma.cc/34TR-GY3V].

[13].  Elston v. Talladega Cty. Bd. of Educ., 997 F.2d 1394, 1406 (11th Cir. 1993) (“While Title VI itself, like the Fourteenth Amendment, bars only intentional discrimination, the regulations promulgated pursuant to Title VI may validly proscribe actions having a disparate impact on groups protected by the statute, even if those actions are not intentionally discriminatory.”); see also 28 C.F.R. § 42.104(b)(2) (“A recipient . . . may not . . . utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin . . . .”); 34 C.F.R. § 100.3(b)(2).

[14].  See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 286–87 (1978); Washington v. Davis, 426 U.S. 229, 242 (1976).

 [15].    Doe v. Lower Merion Sch. Dist., 665 F.3d 524, 548 (3d Cir. 2011).

 [16].    Williams v. City of Dothan, 745 F.2d 1406, 1414 (11th Cir. 1984).

 [17].    Parents Involved in Cmty. Schools v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720 (2007).

[18]. Applying Title VI of the Civil Rights Act of 1964, Am. Bar Ass’n (2016), https://www.americanbar.org/groups/public_interest/child_law/resources/child_law_practiceonline/child_law_practice/vol-35/november-2016/applying-title-vi-of-the-civil-rights-act-of-1964) [https://perma.c
c/LA3P-QMQ4]; see also Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977) (discussing intentional claim under the 14th Amendment).

[19].    Price Waterhouse v. Hopkins, 490 U.S. 228, 271 (1989) (O’Connor, J., concurring).

[20].    See Village of Arlington Heights, 429 U.S. at 266 (discussing violations under the 14th Amendment and that cases of a clear discriminatory pattern are rare, so the “Court must to look to other evidence”).

[21].    Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 593 (1983).

[22].    See Lau v. Nichols, 414 U.S. 563, 568 (1974).

[23].    Griggs v. Duke Power Co., 401 U.S. 424, 430 (1971)

[24].    Georgia State Conf. v. Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985).

[25].    Elston v. Talladega Cty. Bd. of Educ., 997 F.2d 1394, 1413 (11th Cir. 1993).

[26].    Id.

[27].    Id. at 1407.

[28].    See Jason A. Okonofua, Gregory M. Walton & Jennifer L. Eberhardt, A Vicious Cycle: A Social-Psychological Account of Extreme Racial Disparities in School Discipline, 11 Persp. on Psychol. Sci. 381, 382 (2016).

[29].    Id.

[30].    See Jean Johnson, Andrew Yarrow, Jonathon Rochkind & Amber Ott, Teaching for a Living: How Teachers See the Profession Today, Educ. Dig., Jan. 2010, at 5.

[31].    40% of the total teacher population were older teachers with more experience and had categorized themselves as “disheartened.” Id. at 6–7.

[32].    Id; see also Matthew P. Steinberg & Johanna Lacoe, What Do We Know About School Discipline Reform? Assessing the Alternatives to Suspensions and Expulsions, 17 Educ. Next 3 (2017) (“[M]ore than one-third of teachers in 2012 reported that student behavior problems and tardiness interfered with their teaching.”).

[33].    Johnson et al., supra note 30, at 7 (50% of the disheartened teachers felt that good teaching can make a difference in a student’s learning, whereas 75% of idealist teachers believed that to be true).

[34].    See Okonofua et al., supra note 28, at 384.

[35].    Id.

[36].    Jason A. Okonofua & Jennifer L. Eberhardt, Two Strikes: Race and the Disciplining of Young Students, 26 Psychol. Sci. 617, 619 (2015). Specifically, teachers felt more troubled by a student’s second infraction than by the student’s first infraction when the student was Black compared to white, and second infractions committed by Black students troubled teachers more than second infractions committed by white students. Id.

[37].    Id. at 620. Furthermore, teachers more readily envisioned themselves suspending the Black students in the future than the white students and therefore were more likely to use the minor infractions of Black students to predict future suspensions. Id. at 621–22.

[38].    Natasha Warikoo, Stacey Sinclair, Jessica Fei & Drew Jacoby-Senghor, Examining Racial Bias in Education: A New Approach, 45 Educ. Researcher 508, 508 (2016).

[39].    Linda van den Bergh, Eddie Denessen, Lisette Hornstra, Marinus Voeten & Rob W. Holland, The Implicit Prejudiced Attitudes of Teachers: Relations to Teacher Expectations and the Ethnic Achievement Gap, 47 Am. Educ. Res. J. 497, 518 (2010). Teachers with negative implicit attitudes were more likely to “evaluate ethnic minority students as being less intelligent and having less promising prospects for their school careers.” Id.

[40].    Id. Biased attitudes predicted higher achievement of white students and lower achievement of ethnic minority students. Id.

[41].    Okonofua et al., supra note 28 at 393. 

[42].    Id. at 385. Students of color worry that teachers will adopt negative stereotypes that portray them as less intelligent and more dangerous. Id.

[43].    Id.

[44].    See id.

[45].    David S. Yeager, Valerie Purdie-Vaughns, Sophia Yang Hooper & Geoffrey L. Cohen, Loss of Institutional Trust Among Racial and Ethnic Minority Adolescents: A Consequence of Procedural Injustice and a Cause of Life-Span Outcomes, 88 Child Dev. 658, 660–61 (2017).

[46].    Id. at 661.

[47].    Id. at 664, 671.

[48].    Id. at 666.

[49].    Id.

[50].    Id. at 668. A year’s level of defiance of institutional policies can be predicted by the student’s level of institutional trust the previous year. Id. Black students who lost more trust than expected in seventh grade or in the beginning of eighth grade were less likely to enroll in a four-year college. Id.

[51].    Claude M. Steele, A Threat in the Air: How Stereotypes Shape Intellectual Identity and Performance, 52 Am. Psychologist 613, 617 (1997).

[52].    Id.

[53].    Id. at 617, 622.

[54].    Id. at 621–22.

[55].    Russell J. Skiba, Robert S. Michael, Abra Carroll Nardo & Reece L. Peterson, The Color of Discipline: Sources of Racial and Gender Disproportionality in School Punishment, 34 Urb. Rev. 317, 333–34 (2002).

[56].    Id. at 333.

[57].    Id.

[58].    Id. at 334. In fact, white students were referred more frequently for behaviors such as “smoking, leaving without permission, obscene language, and vandalism,” while Black students were referred more often for “disrespect, excessive noise, threat, and loitering.” Id; see also Yolanda Anyon, Jeffrey M. Jenson, Inna Altschul, Jordan Farrar, Jeanette McQueen, Eldridge Greer, Barbara Downing & John Simmons, The Persistent Effect of Race and the Promise of Alternatives to Suspension in School Discipline Outcomes, 44 Child. & Youth Services Rev. 379, 383 (2014) (explaining that higher rates of suspension and law enforcement referrals among Black and Latino students in the Denver public school system were not solely the result of higher rates of misbehavior, poverty, or special education eligibility).

[59].    Skiba et al., supra note 55, at 333–34

[60].    Id.

[61].    Anyon et al., supra note 58, at 383.

[62].    Id.

[63].    Id.

[64].    Anne Gregory & Rhona S. Weinstein, The Discipline Gap and African Americans: Defiance or Cooperation in the High School Classroom, 46 J. Sch. Psychol. 455, 461 (2008); see also Steinberg & Lacoe, supra note 32, at 9 (“[I]nsubordination has accounted for an increasing share of all serious disciplinary actions . . . [while] serious disciplinary actions for more serious student misconduct . . . declined from 50 to 22 percent.”).

[65].    Gregory & Weinstein, supra note 64. Specifically, though Black comprised 30% of the student population, they comprised 58% of the defiance referred, compared to white students, who comprised 37% of school enrollment and only 5% of those referred for defiance. Id. In addition, “almost 70% of all Black student referrals were issued for defiance compared to 55% of referrals for white students.” Id.

[66].    Scully, supra note 4, at 959.

[67].    Id. at 960.

[68].    Id.

[69].    Nancy A. Heitzeg, Education or Incarceration: Zero Tolerance Policies and the School to Prison Pipeline, 9 F. on Pub. Pol’y 1, 2, 8 (2009).

[70].    Id. at 8.

[71].    Id. 

[72].    Christopher A. Mallett, The School-to-Prison Pipeline: A Critical Review of the Punitive Paradigm Shift, 33 Child Adolescent Soc. Work J. 15, 20 (2016).

[73].    Heitzeg, supra note 69, at 9.

[74].   Id. at 13. For example, in 2011–2012, 3.45 million students were suspended out of school, and 130,000 students were expelled. School Climate and Discipline: Know the Data, U.S. Dep’t of Educ., https://www2.ed.gov/policy/gen/guid/school-discipline/data.html [https://perma.cc/J6YM-79G3]. The 2011–2012 rates are nearly double the rates in 1974. Id.

[75].    Am. Psychological Ass’n Zero Tolerance Task Force, Are Zero Tolerance Policies Effective in Schools? An Evidentiary Review and Recommendations, 63 Am. Psychologist 852, 852–862 (2008).

[76].    Kathryn C. Monahan, Susan VanDerhei, Jordan Bechtold & Elizabeth Cauffman, From the School Yard to the Squad Car: School Discipline, Truancy, and Arrest, 43 J. Youth Adolescence 1110, 1118 (2014).

[77].    Id. at 1116.

[78].    Id. at 1119.

[79].    Scully, supra note 4, at 961.

[80].    U.S. Dep’t of Educ. Office of Civil Rights, supra note 4.

[81].    Scully, supra note 4, at 959–60; see also U.S. Dep’t of Educ. Office of Civil Rights, supra note 4.

[82].    U.S. Departments of Education and Justice Release School Discipline Guidance Package to Enhance School Climate and Improve School Discipline Policies/Practices, U.S. Dep’t of Educ., (Jan. 8, 2014), https://www.ed.gov/news/press-releases/us-departments-education-and-justice-release-school-discipline-guidance-package; see also Cheryl Staats, Implicit Racial Bias and School Discipline Disparities: Exploring the Connection (2014).

[83].    U.S. Departments of Education and Justice Release School Discipline Guidance Package, supra note 82.

[84].    U.S. Dep’t of Educ. & U.S. Dep’t of Just., supra note 5, at 3; see also, U.S. Dep’t of Educ. Office of Civil Rights, supra note 4; The Leadership Conference Educ. Fund, School Discipline Guidance and Students’ Civil Rights 1 (Mar. 2018), http://civilrightsdocs.info/pdf/education/Sch
ool-Discipline-Policy-Brief.pdf [https://perma.cc/F2G4-7EKB].

[85].    U.S. Dep’t of Educ. & U.S. Dep’t of Just., supra note 5, at 3–4.

[86].    Id. at 2–3. 

[87].    Id. at 16.

[88].    Id. at 8.

[89].    Id. at 5.

[90].    Id. at 5–6.

[91].    Id. at 8.

[92].    Id. at 9.

[93].    Id. at 13.

[94].    Sch. Superintendents Ass’n, 2018 AASA Discipline Survey: An Analysis of How the 2014 Dear Colleague Letter on Nondiscriminatory Administration of School Discipline is Impacting District Policies and Practices, 1 (2018), https://aasa.org/uploadedFiles/AASA_Blog
(1)/AASASurveyDisciplineGuidance2014.pdf [https://perma.cc/6KEC-FS7M]; see also Evie Blad, Here’s What the End of Obama-Era Discipline Guidance Means for Schools, Educ. Week (Dec. 18, 2018), https://www.edweek.org/leadership/heres-what-the-end-of-obama-era-discipline-guidance-means
-for-schools/2018/12?s_kwcid=AL%216416%213%21266402628866%21b%21%21g%21%21&cmp=c
pc-goog-ew-dynamic%20ads%20recent%20articles&ccid=dynamic%20ads%20recent%20articles&cca
g=recent%20articles%20dynamic&cckw=&cccv=dynamic%20ad&gclid=EAIaIQobChMI4ryli8jV6wIVh8DACh3w3QP-EAAYASAAEgK_OvD_BwE [https://perma.cc/W9SE-MJKS].

[95].    Sch. Superintendents Ass’n, supra note 94.

[96].    Id. at 7. A 2013 survey found that 56% of the 450 school leaders interviewed had recently revised their student code of conduct. Id.; see also, Steinberg & Lacoe, supra note 32, at 44 (stating that in an April 2014 survey of 500 school superintendents, 84% stated that their districts had updated their code of conduct within the three previous years).

[97].    See Letter to ED and DOJ: Opposition to Rescission of Joint School Discipline Guidance Package, Leadership Conf. on Civ. & Hum. Rts. (Jan. 1, 2019), https://civilrights.org/resource/letter-to-ed-and-doj-opposition-to-rescission-of-joint-school-discipline-guidance-package [https://perma.cc/5
YSW-4JJB] (a coalition of 75 national and 45 state organizations signed a letter to the Education Secretary and Attorney General stating that the “2014 Dear Colleague letter clarifies that ED and DOJ expect schools and districts to treat all children fairly . . . .”).

[98].    Sch. Superintendents Ass’n, supra note 94, at 1–2.

[99].    Id. at 2.

[100].    Id. at 4–5.

[101].    Id. at 2.

[102].    Id. at 4.

[103].    Fed. Comm’n on Sch. Safety, supra note 6, at 1.

[104].    Id. at 67–68.

[105].    Id. at 72.

[106].    U.S. Dep’t Justice & U.S. Dep’t of Educ., supra note 6, at 1.

[107].    Id.

[108].    Id.

[109].    U.S. Dep’t. of Educ. Office Civil Rights, Questions & Answers on Racial Discrimination and School Discipline (2018).

[110].    Id. at 1–2.

[111].    U.S. Departments of Education and Justice Release School Discipline Guidance Package, supra note 82 (quoting former Attorney General Eric Holder, “By ensuring federal civil rights protections, offering alternatives to exclusionary discipline and providing useful information to school resource officers, we can keep America’s young people safe and on the right path”).

[112].    Fed. Comm’n on Sch. Safety, supra note 6, at 67.

[113].    U.S. Dep’t of Justice & U.S. Dep’t of Educ., supra note 6, at 2.

[114].    Fed. Comm’n on Sch. Safety, supra note 6 at 71.

[115].    Lau v. Nichols, 414 U.S. 563, 568 (1974).

[116].    Id. at 571 (Stewart, J., concurring) (noting that a policy under section 602 will be upheld “so long as it reasonably related to the purposes of the enabling legislation”).

[117].    Id at 564, 568 (majority opinion).

[118].    Alexander v. Sandoval, 532 U.S. 275, 285 (2001) (“[W]e have since rejected Lau’s interpretation of §601 as reaching beyond intentional discrimination.”)

[119].    Cf. Id. at 308 (Stevens, J., dissenting) (noting that “the question whether §601 applies to disparate iimpact claims has never been analyzed by this Court on the merits”).

[120].    Fed. Comm’n on Sch. Safety, supra note 6, at 71. The Federal Commission cites to Sandoval to support its arguments, but the Court in Sandoval did not reach the issue of whether section 602 grants federal agencies the ability to regulate disparate impact policies. Sandoval, 532 U.S. at 281–82.

[121].    Sandoval, 532 U.S. at 305 (Stevens, J., dissenting)

[122].    JD S. Hsin, Cong. Research Serv., R45665, Civil Rights at School: Agency Enforcement of Title VI of the Civil Rights Act of 1964 10–11 (2019).

[123].    K-12 School Shooting Database, Ctr. for Homeland Def. & Security, https://www.chds.
us/ssdb/view-chart/?chartid=8 [https://perma.cc/2SZY-VLUX].

[124].    Id.

[125].    Id.

[126].    Id.

[127].    Tiffany Xie, Mass Shooters Have a Gender and a Race: A Closer Look at White Male Privilege, Pol. Res. Associates (June 19, 2014), https://www.politicalresearch.org/2014/06/19/mass-s
hooters-have-a-gender-and-a-race [https://perma.cc/8WD3-WUNT].

[128].    See Sch. Superintendents Ass’n, supra note 94, at 2. For example, one district leader noted “minority students have received more lenient consequences than non-minority students in order to prevent minority students from accusing the school of racism.” Id.

[129].    Marjory Stoneman Douglas High Sch. Pub. Safety Comm’n, Initial Report 278 (2019).

[130].    See ACLU, Key Tool Issued to Help End School-to-Prison Pipeline (Jan. 8, 2014), https://www.aclu.org/press-releases/aclu-comment-groundbreaking-federal-school-discipline-guidance (explaining that the guidance did not eliminate law enforcement officers in schools but mostly provided a clear delineation of roles for handling minor discipline).

[131].    See RJ Vogt, Will A Policy Rollback Swell the School-to-Prison Pipeline, Law360 (Jan. 13, 2019, 8:02 PM), https://www.law360.com/articles/1118007 [https://perma.cc/99LJ-66E7].

[132].    Jon Valant & Michael Hansen, School Safety Commission’s Report Uses Tenuous Logic to Walk Guidance on School Discipline, Brookings (Dec. 21, 2018), https://www.brookings.edu/blog/bro
wn-center-chalkboard/2018/12/21/school-safety-commissions-report-uses-tenuous-logic-to-walk-back-guidance-on-school-discipline [https://perma.cc/L7XA-CHJZ].

[133].    U.S. Dep’t of Justice & U.S. Dep’t of Educ., supra note 6, at 2.

[134].    Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 593 (1983) (“[I]t must be concluded that Title VI reaches unintentional, disparate impact discrimination as well as deliberate racial discrimination.”).

[135].    U.S. Dep’t of Justice & U.S. Dep’t of Educ., supra note 6, at 2.

The Supersecretary in Chief by Kathryn E. Kovacs

Postscript | Administrative Law
The Supersecretary in Chief
by Kathryn E. Kovacs*

Vol. 94, Postscript (November 2020)
94 S. Cal. L. Rev. Postscript 61 (2020)

Keywords: Administrative Procedure Act, Unitary executive theory

Introduction

The U.S. President plays many roles. Under the Constitution, the President acts as Commander in Chief when directing the military,[1] “Legislator in Chief” when exercising the President’s functions in the legislative process,[2] and Negotiator in Chief under the Treaty Clause.[3] The President acts as the “Statutory President” when exercising authority delegated to the Office of the President by statute,[4] for example, when controlling immigration, establishing tariffs, and declaring emergencies.[5] As head of the executive branch, the President often acts as “Administrator in Chief,” guiding the federal officers who are charged by statute with implementing the law.[6]

This essay concerns situations in which the President goes beyond guiding those officers and actually exercises their statutory authority, essentially acting as a higher-level officer. I dub the President in this capacity the Supersecretary in Chief.[7] President Trump, for example, decided to “permit [liquefied natural gas] to be transported in approved rail tank cars,”[8] even though a federal statute delegates that safety determination to the Secretary of Transportation.[9] Similarly, both Presidents Obama and Trump dictated immigration enforcement policies, even though a federal statute assigns enforcement discretion to the Secretary of Homeland Security.[10] As Kathryn Watts observed, “presidential control . . . has become woven into the fabric of the regulatory state, and it occurs regardless of the political party in the White House.”[11]

The unitary executive theory blesses this state of affairs as an accurate reflection of Article II. The Constitution vests the executive power in the President, the argument goes; therefore, all exercises of executive power are within the President’s purview.[12] Accordingly, the Constitution gives the President the inherent power not only to influence the actions of the officials to whom Congress has assigned statutory authority, but also to step into their shoes and direct their actions, nullify their actions, or take action in their stead, even in areas in which the President otherwise has no constitutional power.[13]

Focusing on the Supersecretary in Chief demonstrates that the unitary executive theory is wrong, because allowing the President to exercise functions that Congress assigned to another officer shifts the balance of powers between the three branches of government.[14] First, the legitimacy of congressional delegations of power to federal officers is premised on control of those officers. Yet, unlike other federal officers, the President is not subject to such control. Second, Congress delegates authority to agencies on the understanding that the agencies will implement their statutory authority via Administrative Procedure Act (“APA”) processes and face judicial review.[15] Under the Supreme Court’s decision in Franklin v. Massachusetts, however, the President does not follow the APA and is not subject to full judicial review.[16] Third, the President’s duty to execute the law faithfully requires the President to implement Congress’s choices regarding the scope of the statutory delegation, the required procedure, and the identity of the delegate. The Supersecretary in Chief does not do so. Given those significant constitutional costs, the unitary executive theory’s approval of the Supersecretary in Chief casts serious doubt on the theory. It should be abandoned, and the President should not be permitted to act as Supersecretary in Chief.

Unfortunately, neither Congress nor the courts have reined in the Supersecretary in Chief, which leads me to explore alternative approaches to correcting the current imbalance. One possible alternative is the APA. Treating the Supersecretary in Chief like an “agency” under the APA would restore some balance by subjecting the President to Congress’s and the courts’ control, reinstating Congress’s primacy in drafting statutes, and faithfully executing the law—at least to some extent.[17] Unfortunately, the APA cannot solve the balance-of-powers problem entirely because it does not erase the fact that the President as Supersecretary in Chief supplants Congress’s chosen delegate. At most, the APA is a second-best alternative to simply striking down any presidential effort to bypass statutory delegations.

I. The President as Supersecretary in Chief

Congress often enacts statutes delegating decisionmaking responsibility to federal officers who lead administrative agencies in the executive branch. There is little dispute that the President, as head of the executive branch, may “be involved in agency decisions such as rulemaking.”[18] Beyond that, however, there is much debate. Under the standard view, the President cannot go so far as to “dictate actions to officials that Congress has authorized to act.”[19] If a presidentially appointed official takes action with which the President disagrees, the President’s primary legal recourse is to remove that person from office.[20]

The unitary executive theory contradicts the standard view. It posits that the Constitution assigns the executive power—“all of it,” as the Court recently emphasized[21]—to the President alone.[22] Any officer the President appoints merely helps the President exercise that constitutional authority.[23] Thus, the President is not limited to merely influencing the officials to whom Congress has delegated statutory authority. Rather, the Constitution gives the President the implied power to dictate their decisions or step into their shoes to exercise their authority, even in areas in which the President has no constitutional power.[24] In other words, the President may act as a higher level officer—as a Supersecretary.

Despite years of cautionary scholarship,[25] the unitary executive theory is now a reality.[26] As Daniel Farber observed, “recent presidents of both parties ‘have publicly proclaimed their authority to direct the administration of the federal government,’ with George W. Bush famously calling himself ‘the decider’ and Barack Obama saying, ‘I’ve got a pen to take executive actions where Congress won’t.’ ”[27] Presidents now direct agency actions via executive order, memorandum, and even tweet.[28] They do this not only in the military and national security arena where the President’s power is primary, but in areas in which Congress has constitutional primacy and has assigned policymaking authority to a particular officer.[29] Presidents are overriding Congress’s chosen delegate to act as the Supersecretary in Chief.

For example, President Obama took credit in a YouTube video for the Clean Power Plan,[30] a rule that the Clean Air Act authorized the Administrator of the Environmental Protection Agency (“EPA”) to issue.[31] President Trump mandated its rescission in an executive order.[32]

The Immigration and Nationality Act delegates enforcement discretion to the Secretary of Homeland Security.[33] Nonetheless, President Obama announced a new immigration enforcement policy in the Rose Garden; the Secretary of Homeland Security then promulgated it in a memorandum.[34] Five days after his inauguration, President Trump issued an executive order directing his new Secretary to rescind that policy and prescribing new enforcement priorities for the Department.[35]

President Trump has provided numerous other examples of this phenomenon.[36] He:

  • ordered the Army Corps of Engineers to “approve in an expedited manner” the Dakota Access Pipeline,[37] even though the relevant statutes delegate decisionmaking authority to the Secretaries of the Army and Interior[38];
  • ordered the EPA “to take specific actions to ensure efficient and cost-effective implementation” of the Clean Air Act[39] and to revise its Clean Water Act regulations to minimize the ability of states and tribes to interfere with the approval of energy projects,[40] despite the fact that both of those statutes empower the Administrator of the EPA to make such decisions[41];
  • ordered the Secretaries of the Interior, Agriculture, and Commerce to renew expired rights-of-way for energy infrastructure,[42] although the relevant statutes assign that responsibility to those particular officers[43];
  • ordered the Secretaries of Agriculture and the Interior to pursue active forest management,[44] overriding the statutes that entrust such judgments to those officers[45];
  • ordered the Secretaries of Treasury, Agriculture, Commerce, Labor, Health and Human Services, Housing and Urban Development, Transportation, and Education to amend their regulations to require recipients of public assistance to seek employment,[46] although typically the relevant statutes assign rulemaking responsibility to the Secretaries[47];
  • ordered the Secretary of Labor to revise the regulations governing multiple employer retirement plans,[48] even though Congress delegated that authority to the Secretary[49]; and
  • ordered agencies to revise their regulations governing commercial use of space[50] and established a detailed policy on the management of traffic in space[51] although statutes already assigned those responsibilities to the National Aeronautic and Space Administration and the Secretary of Transportation, among others.[52]

Numerous other statutes order federal officers to implement their provisions in regulations. Yet, President Trump issued an executive order forcing those officers to repeal two regulations for every one promulgated,[53] thus “constraining the authority of regulatory agencies to implement those statutes consistent with their express purposes and goals.”[54] Trump’s handling of the COVID-19 pandemic provides numerous other examples of this phenomenon.[55]

Even where a President does not go so far as to dictate a particular regulatory outcome, the President’s influence may be so strong that the agency effectively is prevented from exercising its statutorily delegated discretion. For example, President Trump issued an executive order regarding the rule interpreting the term “waters of the United States” in the Clean Water Act.[56] He ordered the Army Corps of Engineers and the EPA to rescind or revise the existing rule and consider making the new rule “consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006).”[57] Technically, the President left the decision to the Army Secretary and EPA Administrator, but his order “tilt[ed] the agencies” toward Scalia’s view.[58] Following the President’s wishes in such an order must be a major motivation for any final agency decision.[59] Indeed, the agencies’ notice of intent to revise the rule specifically referenced the President’s “directive” as its motivation,[60] and the final rule followed Justice Scalia’s Rapanos opinion.[61] Even without a direct order, the President displaced Congress’s chosen delegate.

In sum, where before agencies would make policy decisions with more or less presidential influence, Presidents now make policy decisions with more or less agency involvement.[62]

One difficulty with this state of affairs is that Presidents do not follow the procedures required of agencies, and they are not subject to judicial review to same extent as agencies.[63] Before issuing any binding policy statement, an agency must give notice of its proposal, accept and consider public comments, and publish the final rule with an explanation for its decision.[64] The President need not follow any particular procedure before issuing a binding directive.[65] If an agency’s decision is challenged in court, it must produce an administrative record for the court to use when determining whether the action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”[66] Presidential decisions cannot be reviewed under that standard,[67] and presidential documents generally are not included in administrative records.[68]

Despite the inadequate procedure and judicial review, presidential policy decisions are all binding to some degree.[69] A presidential order, like an agency rule, can have the force of law even if it binds only an executive branch agency[70] and even if it is not enforceable in court.[71] The Department of Justice now takes the position that even the President’s Tweets are official statements of the President.[72] Both agencies[73] and courts have treated them as binding.[74]

II. Unbalancing the Balance of Powers

Allowing the President to exercise authority that a statute assigns to another officer impermissibly shifts the balance of power between the branches of government. The unitary executive theory blesses this state of affairs. As explained above,[75] the unitary executive theory holds that “[w]henever an official is granted statutory discretion, the Constitution endows the President with the authority to control that discretion.”[76] Others have explained some of the flaws in that theory.[77] Focusing on the Supersecretary in Chief reveals flaws that the existing critiques have not highlighted. The unitary executive theory’s endorsement of the Supersecretary in Chief, despite the significant constitutional problems with the President bypassing Congress’s chosen delegate, further demonstrates that unitary executive theory is wrong.

The balance-of-powers concept “stresses the need to balance the departments of government, primarily through the creation and maintenance of tension and competition among them.”[78] As James Madison observed in Federalist No. 51, each part of the government must be given “the necessary constitutional means and personal motives to resist encroachments of the others.”[79] M. Elizabeth Magill correctly highlighted the indeterminacy of this concept.[80] At its core, though, the balance-of-powers concept rejects any effort to usurp one branch’s constitutional checks on the others[81] and views with skepticism efforts to reduce the level of tension and competition between the branches.[82]

The President acting as Supersecretary in Chief violates that concept in at least three interrelated ways. First, the legitimacy of statutory delegations of decisionmaking authority to agencies is premised on control of those agencies.[83] The APA codified the conditions for that legitimacy. As I explained elsewhere, “[t]he APA represents a constitutional moment following years of meaningful democratic deliberation. At that moment, Congress, the President, and the courts unanimously accepted the existence of the administrative state, conditioned on procedural constraints and judicial review.”[84] The APA’s requirements “were the necessary ‘quid pro quos’ for the creation of the administrative state.”[85]

The President, however, is not subject to such control, because Franklin v. Massachusetts held that the APA does not apply to the President.[86] Consequently, the President may take action using solely statutory authority without any procedural restraint or adequate judicial review.[87] This undermines Congress’s and the courts’ ability to control the exercise of statutory delegations, shifting the balance of power decidedly in the President’s favor. “When the President assumes policymaking power without policymaking constraints, it undermines the central bargain of the APA and shakes the foundation upon which the administrative state is built.”[88]

Second, Congress delegates authority to officers on the understanding that the officers will implement their statutory authority via APA procedures and face judicial review.[89] Attorney General Wirt observed in 1823 that “[t]he Constitution assigns to Congress the power of designating the duties of particular officers.”[90] The Constitution also assigns to Congress the power of specifying the procedures by which officers act.[91] In fact, even where statutes assign rulemaking authority to the Office of the President, Congress may subject that authority to “substantive or procedural constraints.”[92] In other words, Congress may constrain presidential “value judgments in order to effectuate the execution of the law it creates.”[93] Allowing the President to exercise statutory authority without satisfying Congress’s statutory conditions contradicts Congress’s intent and undermines the legislative bargains underlying the statutory delegations, effectively usurping Congress’s lawmaking power.[94] It “cloth[es] the President with a power entirely to control the legislation of Congress”[95] and is “inconsistent with a fundamental design principle reflected in our evolved constitutional order.”[96]

Proponents of the unitary executive theory might object that Congress also delegates with the understanding that the President has the power to control federal officers, and thus, all statutory delegations to federal officers include the potential for a presidential override.[97] On the contrary, members of Congress may not agree with unitary executive theory.[98] They may recognize that “the Vesting Clause only speaks to the issue of who has control of this executive power to implement the laws. It does not speak to what the laws require in terms of substance or how to implement them in terms of process.”[99] They may understand that the President’s executive power must coexist with Congress’s power “to make all laws necessary and proper” for executing the powers vested in the federal government “or in any Department or Officer thereof.”[100] They may believe that Congress plays a “central role in structuring the Executive Branch,” and “[t]he President, as to the construction of his own branch of government, can only try to work his will through the legislative process.”[101] Robert Percival showed that “every regulatory review program since the rise of the administrative state has been founded on the notion that the president did not have the authority to displace agency decisionmaking.”[102] As Percival pointed out, some statutes expressly allow the President to override agency decisions, which undermines any inference that Congress intends to allow the President to override agencies in other circumstances.[103]

Third, the President’s duty to execute the law faithfully requires the President to implement the choices Congress and the President jointly etched in statutes.[104] Like a fiduciary, the President “must diligently and steadily execute Congress’s commands.”[105] Thus, the President must implement Congress’s choices regarding the scope of the statutory delegation, the required procedure, and the identity of the delegate.[106] When the President executes quintessentially presidential functions—commanding the armed forces, negotiating treaties, etc.—one might argue that legislative restrictions are inappropriate. On the other hand, when the President performs functions that Congress delegated to another officer—when the President acts as Supersecretary in Chief—legislative restrictions are part of the law that the President must execute.[107] Failing to do so impermissibly shifts the balance of powers toward the President.

III.  The APA to the Rescue?

In the absence of congressional or judicial action to rein in the Supersecretary in Chief, the APA provides a means of restoring some balance between the branches. I demonstrated elsewhere that the President should be subject to the APA when exercising powers assigned by statute to the Office of the President; in other words, the Statutory President should be treated like an “agency” under the APA.[108] I explained how the Supreme Court misread the APA’s text and contradicted its history when it held to the contrary in Franklin v. Massachusetts.[109] I revealed the flaws in the Court’s constitutional analysis: contrary to Franklin, treating the Statutory President like an “agency” under the APA alleviates the constitutional concerns with the President making binding policy decisions unilaterally.[110] I also presented the normative case for treating the Statutory President like any other agency under the APA.[111] Finally, I sketched a model for applying the APA to the Statutory President using Trump v. Hawaii as a foil.[112] I did not address the question of whether the President should be subject to the APA when exercising another officer’s statutory authority.[113] That is my task here.

If the APA applied to the Supersecretary in Chief, before making a binding decision, the President would have to give public notice of the proposed policy and accept and consider public comments.[114] The President would have to provide an explanation for the final decision.[115] Finally, the federal courts could review the record of materials the President considered in reaching a final decision[116] to determine if the decision is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”[117]

Applying these APA requirements to the Supersecretary in Chief would alleviate the balance-of-powers problems with the Supersecretary in Chief’s usurpation of another officer’s statutory authority. It also would advance the APA’s normative goals—public participation, political accountability, transparency, deliberation, and uniformity.[118] It would make the President’s decisionmaking more transparent to Congress and the public and subject it to court oversight, thus allowing some control and enhancing political accountability.[119] It also might improve the quality of the President’s decisions, enhance the fairness of the President’s decisionmaking process, and promote deliberation, making it more likely that the President’s decisions will reflect the public interest and expertise rather than raw politics.[120]

Applying the APA to the Supersecretary in Chief would only partially respect Congress’s lawmaking power and faithfully execute the law. The difficulty would remain that the President, when acting as Supersecretary in Chief, supplants Congress’s chosen delegate. Thus, in this context, the APA is only a second-best alternative.[121] If Presidents continue their march down unitary executive theory lane, though, better a second-best alternative than none.[122] Moreover, employing the APA to partially remedy the constitutional difficulties with the Supersecretary in Chief may be less intrusive than forcing the issue in court.[123]

Unfortunately, this means of restoring the balance of powers presents practical difficulties when applied to the Supersecretary in Chief. The Statutory President is designated by statute as the final decisionmaker.[124] Thus, the Statutory President’s decisions generally appear in definitive, written documents.[125] In contrast, when acting as Supersecretary in Chief, the President may employ a range of devices to control officers’ exercises of statutory power from expressly co-opting or directing an officer’s decision to subtly nudging, massaging, facilitating, or encouraging a particular outcome.[126] Subjecting only the more obvious instances of presidential control to the APA could incentivize the President to shift to less obvious means of control.[127] That could drive presidential influence underground where Congress, the courts, and the public cannot even monitor it, much less control it.[128] Expanding the APA’s application to all presidential influence on agency exercises of statutory authority would require documenting all presidential contact (both direct and indirect) with decisionmaking officers, making that material available for public notice and comment, and including it all in the record for judicial review.[129] Such a rule would be difficult to implement and impossible to enforce; any effort in that direction could drive presidential control even further underground.

Yet, driving presidential influence underground would be better than the current trajectory toward unmasked authoritarianism. Presidential influence is constitutionally acceptable so long as it does not prevent the deciding officer from exercising their statutorily delegated discretion.[130] Underground influence may be less likely to cross that line. It leaves Congress’s chosen delegates to make the decisions and take responsibility for them. Those officers are far more transparent and accountable than the President.[131] They engage the public and deliberate more than the President.[132] And they have the institutional support and expertise to make higher quality decisions than the President.[133] In any event, absent an order from the Supersecretary in Chief, the officer’s decision will stand or fall on its own merits under the APA’s arbitrary or capricious standard of review.[134] That is preferable to the overly deferential review of presidential orders.[135]

Conclusion

Unitary executive theory endorses a shift in the balance of powers away from the courts and Congress and towards the President.[136] Opposition to that shift should be bipartisan.[137] Conservatives decried President Obama’s unilateral actions, and now progressives bemoan President Trump’s.[138] The President should not be permitted to act as Supersecretary in Chief, lest the growing power of the presidency destroy our democratic republic.

In the absence of direct opposition to the growth of presidential power, however, the APA provides a second-best alternative. Treating the Supersecretary in Chief like an “agency” under the APA would partially alleviate the constitutional problems with the President supplanting Congress’s statutory delegates. It also would enhance public participation, political accountability, transparency, deliberation, and uniformity, leading the President to make better decisions. That is in every American’s interest.


          [1].      U.S. Const. art. II, § 2, cl. 1. See generally Zachary Price, Congress’s Power Over Military Offices, 99 Tex. L. Rev. (forthcoming), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3550548 [https://perma.cc/JRD7-Q2C2] (exploring the scope of congressional and presidential authority over military officers).

          [2].      See Vasan Kesavan & J. Gregory Sidak, The Legislator-in-Chief, 44 Wm. & Mary L. Rev. 1, 4 (2002).

          [3].      U.S. Const. art. II, § 2, cl. 2.

          [4].      Kevin M. Stack, The Statutory President, 90 Iowa L. Rev. 539, 542 (2005).

          [5].      See Kathryn E. Kovacs, Constraining the Statutory President, 98 Wash. U. L. Rev. 62 (2020).

          [6].      See Ming H. Chen, Administrator-in-Chief: The President and Executive Action in Immigration Law, 69 Admin. L. Rev. 347, 358–59 (2017). Others use the term “Administrator in Chief” to refer to the President “as a central figure directing agencies’ implementation of statutes.” Bijal Shah, Congress’s Agency Coordination, 103 Minn. L. Rev. 1961, 1963 n.5 (2019) (citing references). I use the term here to refer to the President as the administrative head of the executive branch, as distinguished from the President as the decisionmaker or Supersecretary in Chief.

          [7].      See Super, Merriam-Webster, https://www.merriam-webster.com/dictionary/super [https://
perma.cc/Y7TN-VE83] (defining the prefix “super” as “situated or placed above, on, or at the top of”).

          [8].      Exec. Order No. 13,868, 84 Fed. Reg. 15,495, 15497 § 4(b) (Apr. 10, 2019) (“The Secretary of Transportation shall propose for notice and comment a rule . . . that would . . . permit LNG to be transported in approved rail tank cars. The Secretary shall finalize such rulemaking no later than 13 months after the date of this order.”).

          [9].      49 U.S.C. § 60102.

        [10].      See infra text accompanying notes 33–35.

        [11].      Kathryn A. Watts, Controlling Presidential Control, 114 Mich. L. Rev. 683, 726 (2016).

        [12].      Kathryn E. Kovacs, Rules About Rulemaking and the Rise of the Unitary Executive, 70 Admin. L. Rev. 515, 562 (2018); see also Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2191 (2020) (“Under our Constitution, the ‘executive Power’—all of it—is ‘vested in a President’. . . .” (quoting U.S. Const. art. II, §1, cl. 1)).

        [13].      See Stack, supra note 4, at 583 (canvassing proponents of a strong unitary executive theory); see also Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Yale L.J. 541, 593–99 (1994); Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1153, 1166 (1992); Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231, 1242–43 (1994); Christopher S. Yoo, Steven G. Calabresi & Anthony J. Colangelo, The Unitary Executive in the Modern Era, 1945–2004, 90 Iowa L. Rev. 601, 607 (2005).

        [14].      See infra Part II.

        [15].      Administrative Procedure Act, Pub. L. No. 79–404, 60 Stat. 237 (1946).

        [16].      Franklin v. Massachusetts, 505 U.S. 788, 800–01 (1992).

        [17].      See infra Part III.

        [18].     Nina A. Mendelson, Disclosing “Political” Oversight of Agency Decision Making, 108 Mich. L. Rev. 1127, 1131 (2010).

        [19].      Mark Seidenfeld, A Process-Based Approach to Presidential Exit, 67 Duke L.J. 1775, 1781 (2018); see also Harold H. Bruff, Presidential Management of Agency Rulemaking, 57 Geo. Wash. L. Rev. 533, 539 (1989) (“[T]he President may not simply render a decision himself when Congress has vested such authority in another officer.”); William W. Buzbee, The Tethered President: Consistency and Contingency in Administrative Law, 98 B.U. L. Rev. 1357, 1363 (2018) (“[P]olicy shifts cannot be carried out by executive fiat.”); Robert V. Percival, Presidential Management of the Administrative State: The Not-So-Unitary Executive, 51 Duke L.J. 963, 965 (2001) (the “conventional wisdom is that the President does not have” “the power to dictate the substance of regulatory decisions that agencies are required by law to make”); Robert V. Percival, Who’s in Charge? Does the President Have Directive Authority over Agency Regulatory Decisions?, 79 Fordham L. Rev. 2487, 2538 (2011) (“the view most accepted by scholars is that the President does not” have “the legal authority to dictate the substance of regulatory decisions entrusted by statute to agency heads”); Peter L. Strauss, Overseer, or “The Decider”? The President in Administrative Law, 75 Geo. Wash. L. Rev. 696, 705–06 (2007).

        [20].      Bruff, supra note 19, at 539; Richard J. Pierce, Jr., Saving the Unitary Executive Theory from Those Who Would Distort and Abuse It: A Review of The Unitary Executive by Steven G. Calabresi and Christopher S. Yoo, 12 U. Pa. J. Const. L. 593, 613 (2010) (“I do not believe that the President has the power to veto a decision made by an executive officer to whom Congress has delegated the decision. If the President disagrees with such a decision his only recourse is to remove the officer.”).

        [21].      Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2191 (2020).

        [22].      Kovacs, supra note 12, at 562.

        [23].      Calabresi & Prakash, supra note 13, at 596 (“[T]he Constitution establishes that the President exclusively controls the power to execute all federal laws, and therefore it must be the case that all inferior executive officers act in his stead.”) (emphasis omitted); Saikrishna Bangalore Prakash, Hail to the Chief Administrator: The Framers and the President’s Administrative Powers, 102 Yale L.J. 991, 991–94 (1993) (similar); Peter M. Shane, Madison’s Nightmare: How Executive Power Threatens American Democracy 34, 37, 145 (2009) (explaining the unitary executive theory).

        [24].      See Stack, supra note 4, at 583 (canvassing proponents of a strong unitary executive theory); see also Calabresi & Prakash, supra note 13, at 593–99; Calabresi & Rhodes, supra note 13, at 1166; Lawson, supra note 13, at 1242–43; Yoo et al., supra note 13, at 607.

        [25].      See, e.g., Buzbee, supra note 19; Thomas O. McGarity, Presidential Control of Regulatory Agency Decisionmaking, 36 Am. U. L. Rev. 443 (1987); Mark Seidenfeld, The Role of Politics in a Deliberative Model of the Administrative State, 81 Geo. Wash. L. Rev. 1397 (2013); Strauss, supra note 19.

        [26].      See Kovacs, supra note 12, at 562; Jerry L. Mashaw & David Berke, Presidential Administration in A Regime of Separated Powers: An Analysis of Recent American Experience, 35 Yale J. on Reg. 549, 551 (2018) (studying the growth of presidential control in the Obama and Trump administrations); Watts, supra note 11, at 729 (“Presidential directive authority with respect to executive agencies is alive and well.”); Christopher S. Yoo, Foreword, 12 U. Pa. J. Const. L. 241, 243 (2010) (“The consistency with which the last several administrations have embraced centralized control over the administration of federal law eloquently demonstrates how the unitary executive has gained general acceptance.”); cf. Gillian E. Metzger, Foreword: 1930s Redux: The Administrative State Under Siege, 131 Harv. L. Rev. 1, 75 (2017) (“[P]residential administration has become the central reality of the contemporary national government.”).

        [27].      Daniel A. Farber, Presidential Administration Under Trump 23 (Aug. 9, 2017) (unpublished manuscript) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3015591 [https://perma.cc/SD5X-RM
HM]; see also Douglas H. Ginsburg & Steven Menashi, Nondelegation and the Unitary Executive, 12 U. Pa. J. Const. L. 251, 274–75 (2010) (detailing President Obama’s “principal strategies to strengthen his control over the executive”).

        [28].      See Knight First Amendment Inst. at Columbia Univ. v. Trump, 302 F. Supp. 3d 541, 571 (S.D.N.Y. 2018), aff’d, 928 F.3d 226 (2d Cir. 2019) (quoting stipulation that President Trump uses Twitter “to announce, describe, and defend his policies . . . [and] to announce official decisions”); J.B. Ruhl & James Salzman, Presidential Exit, 67 Duke L.J. 1729, 1739–41 (2018). See generally Phillip J. Cooper, By Order of the President: The Use and Abuse of Executive Direct Action (2d ed. 2014).

        [29].      See Lisa Manheim & Kathryn A. Watts, Reviewing Presidential Orders, 86 U. Chi. L. Rev. 1743, 1745, 1762, 1766–69 (2019).

        [30].      The Obama White House, President Obama on America’s Clean Power Plan, YouTube (Aug. 2, 2015), https://www.youtube.com/watch?v=uYXyYFzP4Lc [https://perma.cc/5EAD-BNF3]. See generally Jud Mathews, Presidential Administration in the Obama Era, in The U.S. Supreme Court And Contemporary Constitutional Law: The Obama Era And Its Legacy 67 (Anna-Bettina Kaiser, Niels Petersen & Johannes Saurer eds., 2019) (discussing presidentialism in the Obama administration).

        [31].      Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662 (Oct. 23, 2015) (promulgated under 42 U.S.C. § 7411(d), which delegates rulemaking authority to the EPA Administrator).

        [32].      Exec. Order No. 13,783, 82 Fed. Reg. 16,093 (Mar. 28, 2017).

        [33].      8 U.S.C. § 1103(a).

        [34].      Memorandum from Janet Napolitano, Sec’y of Homeland Sec., to David V. Aguilar, Acting Comm’r, U.S. Customs & Border Prot. et al. (June 15, 2012), https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf [https://perma.cc/U5RD
-6XLA]; see also Manheim & Watts, supra note 29, at 1787 (“[T]he DAPA order in some ways felt like an executive order.”).

        [35].      Exec. Order No. 13,768, 82 Fed. Reg. 8,799 (Jan. 25, 2017).

        [36].      Manheim & Watts, supra note 29, at 1786 (“Trump has acted aggressively throughout his presidency to blur the lines between the President and the agencies he oversees.”).

        [37].      Construction of the Dakota Access Pipeline, Memorandum for the Secretary of the Army, 82 Fed. Reg. 11,129 (Jan. 24, 2017); see also Buzbee, supra note 19, at 1389.

        [38].      The President referenced the Mineral Leasing Act, which delegates authority to the Secretary of the Interior, 30 U.S.C. § 185(a), and the Clean Water Act and the Rivers and Harbors Act, which delegate authority to the Secretary of the Army, 33 U.S.C. §§ 408, 1344.

        [39].      Presidential Memorandum for the Administrator of the Environmental Protection Agency (Apr. 12, 2018), https://www.whitehouse.gov/presidential-actions/presidential-memorandum-administra
tor-environmental-protection-agency [https://perma.cc/57E6-8TU9].

        [40].      Exec. Order No. 13,868, 84 Fed. Reg. 15,495, 15,495 § 3 (Apr. 10, 2019).

        [41].      42 U.S.C. § 7410; 33 U.S.C. § 1341.

        [42].      Exec. Order No. 13,868, 84 Fed. Reg. 15,495, 15,497 § 6(b) (Apr. 10, 2019).

        [43].      See U.S. Dep’t of Energy, Quadrennial Energy Review: Energy Transmission, Storage, and Distribution Infrastructure ch. IX (Apr. 2015), https://www.energy.gov/sites/prod/

files/2015/04/f22/QER-ALL%20FINAL_0.pdf [https://perma.cc/Q6RK-F9QK].

        [44].      Exec. Order No. 13,855, 84 Fed. Reg. 45 (Dec. 21, 2018). Many of these presidential orders include boilerplate statements that they should be “implemented consistent with applicable law and subject to the availability of appropriations.” E.g., id § 7(b); Exec. Order No. 13,868 § 10(b). That language does not prevent Presidents from ordering officers to take specific actions.

        [45].      E.g., 16 U.S.C. § 529; 43 U.S.C. §§ 1701, 1732.

        [46].      Exec. Order 13,828, 83 Fed. Reg. 15,941, 15,943 § 3 (Apr. 10, 2018).

        [47].      E.g., 7 U.S.C. § 2015(b)(4) (Supplemental Nutrition Assistance Program); 42 U.S.C. § 607 (b)(3)(A) (Temporary Assistance for Needy Families).

        [48].      Exec. Order 13,847, 83 Fed. Reg. 45,321 (Aug. 31, 2018).

        [49].      29 U.S.C. § 1135.

        [50].      Streamlining Regulations on Commercial Use of Space, Space Policy Directive-2, 83 Fed. Reg., 24,901 (May 24, 2018).

        [51].      Space Policy Directive-3, National Space Traffic Management Policy, 83 Fed. Reg. 28,969 (June 18, 2018).

        [52].      E.g., 51 U.S.C. §§ 20113(a), 50905(b)(2).

        [53].      Exec. Order No. 13,771, 82 Fed. Reg. 9,339 (Jan. 30, 2017); see also Buzbee, supra note 19, at 1376–77 (“[T]he President directed all agencies to make deregulatory policy shifts, but without regard to the net benefits, legislative edicts, and societal conditions that led to the earlier regulatory actions.”).

        [54].      Joel A. Mintz, The President’s “Two for One” Executive Order and the Interpretation Mandate of the National Environmental Policy Act: A Legal Constraint on Presidential Power, 87 UMKC L. Rev. 681, 693 (2019).

        [55].      E.g., Exec. Order No. 13,948, 85 Fed. Reg. 59,649 (Sept. 23, 2020) (ordering the Secretary of Health and Human Services to adjust prescription drug prices under Medicare).

        [56].      Exec. Order No. 13,778, 82 Fed. Reg. 12,497 (Feb. 28, 2017).

        [57].      Id. § 3, see also Buzbee, supra note 19, at 1383; Michael A. Livermore & Richard L. Revesz, Regulatory Review, Capture, and Agency Inaction, 101 Geo. L.J. 1337 (2013).

        [58].      Buzbee, supra note 19, at 1383.

        [59].      Seidenfeld, supra note 25, at 1453 (arguing that if the President makes their view known before the agency has deliberated, the agency is likely to be biased towards the President’s desired outcome). Manheim and Watts divide presidential orders into those that are “legally binding” (that is those “that carry the force and effect of law”) and those that are not legally binding (that is those that “do not themselves alter legal rights or obligations”). Manheim & Watts, supra note 29, at 1764–65. Orders that regulate private parties directly fall into the former category. Id. That distinction, however, is difficult to draw and not effective, because everything the President does is “binding” in some sense. Indeed, Manheim and Watts recognize that their categories “blur together around the margins,” and non-binding orders have a significant effect, “even if the effect is largely political instead of legal.” Id. at 1766.

        [60].      Intention to Review and Rescind or Revise the Clean Water Rule, 82 Fed. Reg. 12,532, 12,532 (Mar. 6, 2017); see also Buzbee, supra note 19, at 1383.

        [61].      See Jeremy P. Jacobs and Pamela King, Trump’s Rewrite Is Finalized. What Happens Now?, E & E News (Apr. 21, 2020), https://www.eenews.net/stories/1062934329 [https://perma.cc/7T6Y-9MU
M]; Amena H. Saiyid, Lawyers See Maui Opinion as Grounds to Challenge Trump Water Rule, Bloomberg Law (Apr. 27, 2020, 7:37 AM) https://news.bloomberglaw.com/environment-and-energy/
lawyers-see-maui-opinion-as-grounds-to-challenge-trump-water-rule [https://perma.cc/5V7E-59C4].

        [62].      The APA sometimes uses the term “agency” to refer to the officer who heads the agency. See, e.g., 5 U.S.C. § 557(b); see also Michael Asimow, When the Curtain Falls: Separation of Functions in the Federal Administrative Agencies, 81 Colum. L. Rev. 759, 766 (1981) (referring to 5 U.S.C. § 554(d)(C).

        [63].      Kovacs, supra note 5, at 65.

        [64].      5 U.S.C. § 553.

        [65].      Manheim & Watts, supra note 29, at 1759; Stack, supra note 4, at 552, 554–55.

        [66].      5 U.S.C. § 706(2)(A); Kovacs, supra note 12, at 550.

        [67].      Franklin v. Massachusetts, 505 U.S. 788, 800–01 (1992).

        [68].      Kovacs,  supra note 5, at 103. Plaintiffs, of course, may wait for the agency to implement the President’s directive and sue the agency. See Franklin, 505 U.S. at 828 (Scalia, J., concurring in part and concurring in the judgment). That approach, however, is inadequate. The agency must follow the President’s instructions; its lack of discretion makes its action unreviewable. Cf. Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752 (2004) (holding that where a presidential order deprives an agency of discretion, the agency need not analyze the environmental effects of its action). Moreover, the agency cannot explain the President’s reasoning, but can only supply a post hoc rationale for an already-final decision. Kovacs, supra note 5, at 112.

        [69].      See Ruhl & Salzman, supra note 28, at 1741; Elizabeth Landers, White House: Trump’s Tweets Are ‘Official Statements,’ CNN (June 6, 2017, 4:37 PM), http://www.cnn.com/2017/06/06/politics/trump

-tweets-official-statements/index.html [https://perma.cc/DXM6-X9GC]; Executive Power—Presidential Directives—In Tweets, President Purports to Ban Transgender Servicemembers, 131 Harv. L. Rev. 934, 937–38 (2018) (“[T]he basic principles governing presidential instruments…tell us that authoritative presidential directives, whatever their form, are legally binding on subordinates.”).

        [70].      Gen. Elec. Co. v. EPA, 290 F.3d 377, 382 (D.C. Cir. 2002) (stating that a rule is legislative if it “binds private parties or the agency itself with the ‘force of law’”); Cass R. Sunstein, Chevron Step Zero, 92 Va. L. Rev. 187, 222 (2006) (“[A] decision has the ‘force of law’ if the agency is legally bound by it.” (citing FEC v. Nat’l Rifle Ass’n, 254 F.3d 173, 185–86 (D.C. Cir. 2001))); cf. Elec. Privacy Info. Ctr. v. Internal Revenue Serv., 910 F.3d 1232, 1244 (D.C. Cir. 2018) (“[A]n agency can create a non-discretionary duty by binding itself through a regulation carrying the force of law.”).

        [71].      Stack, supra note 4, at 597 (“[J]udicial enforceability is not necessary to the existence of a norm having the status of law.”).

        [72].      See, e.g. Memorandum of Law in Support of Motion for Summary Judgment at 15, Knight First Amendment Inst. at Columbia Univ. v. Donald J. Trump, No. 1:17-cv-05205-NRB (S.D.N.Y. Oct. 13, 2017), https://static.reuters.com/resources/media/editorial/20171016/knightvtrump–DOJSJmotion.p
df [https://perma.cc/K84L-MF83]; Defendant’s Supplemental Submission & Further Response to Plaintiff’s Post-Briefing Notices at 2, 4, James Madison Project v. Dep’t of Justice, No. 1:17-cv-00144-APM (D.D.C. Nov. 13, 2017), https://assets.documentcloud.org/documents/4200037/Trump-Twitter-20
171113.pdf [https://perma.cc/3K6Y-D84W].

        [73].      See Adam Aton, Trump Tweet Becomes Policy After Firefighters Rebuffed It, E&E News (Aug. 9, 2018), https://www.eenews.net/stories/1060093713 [https://perma.cc/T2K6-6BWC];, U.S. Secretary of Commerce Wilbur Ross Issues Directive for National Marine Fisheries Service to Facilitate Water Access in California Wildfire Relief Efforts, U.S. Dep’t of Com. (Aug. 8, 2018), https://www.com
merce.gov/news/press-releases/2018/08/us-secretary-commerce-wilbur-ross-issues-directive-national-m
arine [https://perma.cc/93TD-Y3CH]; cf. Shawn Snow & Leo Shane III, Trump Says Tweet Serves as ‘Notification’ to Congress that US May ‘Quickly & Fully Strike Back’ Against Iran, Military Times (Jan. 5, 2020), https://www.militarytimes.com/flashpoints/2020/01/05/trump-says-tweet-serves-as-notif
ication-to-congress-that-us-may-quickly-fully-strike-back-against-iran/ [https://perma.cc/N43M-T2EG]. But see Matthew Chou, Agency Interpretations of Executive Orders, 71 Admin. L. Rev. 555, 582 (2019) (“[T]he military declined to act on President Trump’s July 26, 2017 tweets that purported to exclude transgender individuals from the military, until the President issued a presidential memorandum.”).

        [74].      Hawaii v. Trump, 859 F.3d 741, 773 n.14 (9th Cir. 2017) (citing a tweet when noting that “the President recently confirmed his assessment that it is the ‘countries’ that are inherently dangerous, rather than the 180 million individual nationals of those countries who are barred from entry under the President’s ‘travel ban’ ”) (citing Donald J. Trump (@realDonaldTrump), Twitter (June 5, 2017, 6:20 PM), https://twitter.com/realDonaldTrump/status/871899511525961728), judgment vacated, 138 S. Ct. 377 (2017) (mem.), vacated, 874 F.3d 1112 (9th Cir. 2017).

        [75].      See supra text accompanying notes 22–24.

        [76].      Prakash, supra note 23, at 992.

        [77].      See, e.g., Shane, supra note 23; Martin S. Flaherty, The Most Dangerous Branch, 105 Yale L.J. 1725 (1996); A. Michael Froomkin, The Imperial Presidency’s New Vestments, 88 Nw. U. L. Rev. 1346 (1994); Heidi Kitrosser, The Accountable Executive, 93 Minn. L. Rev. 1741 (2009); Percival, Presidential Management, supra note 19; Peter M. Shane, Independent Policymaking and Presidential Power: A Constitutional Analysis, 57 Geo. Wash. L. Rev. 596 (1989); Jed Handelsman Shugerman, The Indecisions of 1789: Strategic Ambiguity and the Imaginary Unitary Executive (Part I) (Fordham Law Legal Studies Research Paper No. 3596566, June 23, 2020), https://papers.ssrn.com/sol3/papers.cfm?
abstract_id=3596566 [https://perma.cc/6URZ-S46L].

        [78].      M. Elizabeth Magill, The Real Separation in Separation of Powers Law, 86 Va. L. Rev. 1127, 1130 (2000); see also id. at 1131, 1159.

        [79].      The Federalist No. 51, at 289–90 (James Madison) (Clinton Rossiter ed., 1999).

        [80].      Magill, supra note 78, at 1194–97.

        [81].      Id. at 1175.

        [82].      See id. at 1196; see also Michael J. Teter, Congressional Gridlock’s Threat to Separation of Powers, 2013 Wis. L. Rev. 1097, 1135 (“[N]o matter the approach one chooses to follow, the core elements of separation of powers remain: separated branches performing certain functions while serving as checks on the others as a means of preserving the proper balance of power.”). But see Eric A. Posner, Balance-of-Powers Arguments, the Structural Constitution, and the Problem of Executive “Underenforcement,” 164 U. Pa. L. Rev. 1677, 1682 (2016) (suggesting that the balance of powers “metaphor is not useful”).

        [83].      See Watts, supra note 11, at 724–25 (“[W]e justify the existence and the legitimacy of what would otherwise be a ‘headless fourth branch’ by the fact that the political branches can and do exert control over agency heads.”); cf. Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 108 Colum. L. Rev. Sidebar 1 (2008) (“The Court therefore sees its role as attempting to reconcile the needs of both political branches for control of agency policy. It establishes the conditions for conflict and compromise between the political branches to produce politically reasonable policy outcomes. These conditions are inherent in separation of powers.”).

        [84].      Kovacs, supra note 5, at 89.

        [85].      Michael Ray Harris, Standing in the Way of Judicial Review: Assertion of the Deliberative Process Privilege in APA Cases, 53 St. Louis U. L.J. 349, 380–81 (2009).

        [86].      Franklin v. Massachusetts, 505 U.S. 788, 800–01 (1992).

        [87].      See Kovacs, supra note 5, at 78.

        [88].      Id. at 90. Manheim and Watts pointed out that “separation-of-powers principles” cut “in the direction of protecting the president” and “in the direction of checking the president.” Manheim & Watts, supra note 29, at 1810 (emphasis in original). That is particularly so because recent decades have “seen a massive transfer of policymaking authority from the legislative branch to the executive branch, coupled with increasingly aggressive attempts by Presidents to control that policymaking.” Id.

        [89].      See Strauss, supra note 19, at 754 (observing that when Congress delegates rulemaking authority, it intends for that authority to “be exercised at some remove from raw politics, pursuant to the APA and subject to FOIA”).

        [90].      The President & Accounting Offices, 1 Op. Att’y Gen. 624, 625–26 (1823).

        [91].      See Kevin M. Stack, The President’s Statutory Powers to Administer the Laws, 106 Colum. L. Rev. 263, 318 (2006) (“[S]tatutory constructions that imply directive powers disrupt Congress’s interest in specifying the procedures through which statutory delegations should be implemented.”).

        [92].      Valerie C. Brannon, Cong. Research Serv., LSB10172, Can a President Amend Regulations by Executive Order? 2 (2018); see also Seidenfeld, supra note 19, at 1786 (“[I]f Congress can withhold the power from the president entirely, it seems logical that Congress should be able to condition the exercise of that power however it sees fit.”).

        [93].      Seidenfeld, supra note 19, at 1787.

        [94].      See Harold J. Krent, From a Unitary to a Unilateral Presidency, 88 B.U. L. Rev. 523, 550–51 (2008); see also Christopher J. Walker, Restoring Congress’s Role in the Modern Administrative State, 116 Mich. L. Rev. 1101, 1115 (2018) (emphasizing Congress’s lawmaking power as a means of retaining balance of powers).

        [95].      Kendall v. United States ex rel. Stokes, 37 U.S. 524, 613 (1838).

        [96].      Thomas W. Merrill, Presidential Administration and the Traditions of Administrative Law, 115 Colum. L. Rev. 1953, 1980 (2015); see also Krent, supra note 94, at 550–51, 558; cf. Percival, Presidential Management, supra note 19, at 1005 (arguing that it undermines the value of the Senate’s advice and consent if the President can override an officer’s decision in any event).

        [97].      See Morrison v. Olson, 487 U.S. 654, 709 (1988) (Scalia, J., dissenting) (asserting that all “of the purely executive powers of government must be within the full control of the President”).

        [98].      Even if the Constitution requires all executive power to be lodged in the President, “a constitutional requirement of course does not imply that the legislation complies with it.” Stack, supra note 91, at 274.

        [99].      Richard W. Murphy, The DIY Unitary Executive, 63 Ariz. L. Rev. (forthcoming 2020) (manuscript at 35) (on file with author).

     [100].      U.S. Const. art. I, § 8, cl. 18; see also Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2226 (Kagan, J., concurring in the judgment with respect to severability and dissenting in part) (stating that Congress has the power “to structure administrative institutions as the times demand, so long as the President retains the ability to carry out his constitutional duties”).

     [101].      Seila Law LLC, 140 S. Ct. at 2227.

     [102].      Percival, Presidential Management, supra note 19, at 999.

     [103].      Id. at 1008 (“If the president has express authority to overturn the legal consequences of agency decisions in some circumstances, but not others, the argument for inferring congressional intent to permit the president generally to displace agency decisions is somewhat weaker.”); see also Stack, supra note 91, at 227–228.

     [104].      Andrew Kent, Ethan J. Leib & Jed Handelsman Shugerman, Faithful Execution and Article II, 132 Harv. L. Rev. 2111, 2186 (2019).

     [105].      Id. at 2192.

     [106].      Buzbee, supra note 19, at 1390–91; see also Strauss, supra note 19, at 711 (“The important propositions are that Congress (validly) assigned decision here and specified that decision should be taken by this official, following these procedures, within these legal constraints.”); id. at 759 (“Congress’s arrangements of government are a part of the law that the President is to assure will ‘be faithfully executed.’”).

     [107].      See Murphy, supra note 99 (“The executive power to implement the laws does not carry with it the power to violate them (which would, in any event, violate the president’s duties under the Take Care Clause).”).

     [108].      Kovacs, supra note 5.

     [109].      Id. at 82–88.

     [110].      Id. at 88–95.

     [111].      Id. at 97–114.

     [112].      Id. at 114–19.

     [113].      Id. at 64 n.8.

     [114].      5 U.S.C. § 553(b)–(c). As Manheim and Watts observed, a court may consider an order “binding” “[i]f a President or his subordinates treat a presidential order as binding—or if litigants otherwise can demonstrate that an order is binding as a practical matter.” Manheim & Watts, supra note 29, at 1805.

     [115].      5 U.S.C. § 553(c) (“[T]he agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.”).

     [116].      Kovacs, supra note 5, at 103–04.

     [117].      5 U.S.C. § 706(2)(A).

     [118].      See Kovacs, supra note 5, at 97.

     [119].      Id. at 100–01

     [120].      Id. at 98–99, 104–05. Peter Shane explained how presidential usurpation of agency discretion reduces transparency and democratic dialogue and increases the risk that decisions will be “based solely on passion or ‘interest’” rather than the concerns that animated the statute. Shane, supra note 23, at 160, 163, 164, 183; see also Percival, Presidential Management, supra note 19, 1010 (“[T]here is reason to suspect that the White House would be more inclined to intervene to achieve short-term political gains than to promote the objectives of regulatory statutes Congress has entrusted agencies to administer.”).

     [121].      See Lawrence Solum, Legal Theory Lexicon: Second Best & Nonideal Theory, Legal Theory Blog (Sept. 14, 2014, 7:38 PM), http://lsolum.typepad.com/legaltheory/2014/09/legal-theory-lexicon-se
cond-best-nonideal-theory.html [https://perma.cc/69ZR-NLF8].

     [122].      Id. (“[W]hen the first-best policy option is unavailable, then normative legal theorists should consider second-best solutions.”).

     [123].      Cf. Gillian E. Metzger, Ordinary Administrative Law as Constitutional Common Law, 110 Colum. L. Rev. 479, 485 (2010) (“[S]eeking to enforce constitutional norms through ordinary administrative law better accords with constitutional principles, and may be less intrusive on the policymaking prerogatives of the political branches, than efforts to segregate out [administrative law and constitutional common law].”); id. at 489 (explaining that administrative law requirements can avoid constitutional violations and enable courts to avoid addressing constitutional issues); David Zaring, Toward Separation of Powers Realism, 37 Yale J. Reg. 708, 749 (2020) (arguing that separation of powers claims fail to achieve their remedial goals because the APA provides a “less intrusive alternative”).

     [124].      See Stack, supra note 4, at 543.

     [125].      Id. at 590 (distinguishing the transparency of the Statutory President’s orders from the President’s influence on officers).

     [126].      See Manheim & Watts, supra note 29, at 1764–65; Watts, supra note 11, at 688–705; see also, e.g., Juliet Eilperin & Josh Dawsey, Trump Pushes to Allow New Logging in Alaska’s Tongass National Forest, Wash. Post (Aug. 27, 2019, 2:29 PM), https://www.washingtonpost.com/climate-environment/
trump-pushes-to-allow-new-logging-in-alaskas-tongass-national-forest/2019/08/27/b4ca78d6-c832-11e
9-be05-f76ac4ec618c_story.html? [https://perma.cc/J33C-ZSS8].

     [127].      Cf. Watts, supra note 11, at 725 (“[E]xpertise forcing threatens to drive political influences underground where such influences will be protected from public scrutiny, accountability, and oversight.”). Watts suggests compelling agencies to disclose presidential influence, but necessarily couples that with the incentive of more favorable standards of judicial review. Id. at 735. Absent the “carrot,” the “stick” would “drive political influences underground.” Id. at 725, 735.

     [128].      Cf. id.; Stack, supra note 4, at 590 (“[W]hen the President merely urges administrators to pursue a course of action . . . transparency is lacking.”).

     [129].      Watts does not go so far as to suggest this. Watts, supra note 11, at 735 (suggesting that agencies should be required “to disclose the substance of significant executive supervision” (emphasis added)); see also id. at 743.

     [130].      Underground influence does not eliminate agency control, undermine the legislative bargains underlying statutory delegations, or fail to execute the law faithfully. See supra Part II.

     [131].      See Metzger, supra note 123, at 491, 492, 530.

     [132].      See Kovacs, supra note 5, at 98–99, 104–05.

     [133].      Id. at 104–05.

     [134].      5 U.S.C. § 706(2)(A).

     [135].      See Kovacs, supra note 5, at 78–82, 109–111.

     [136].      For scholarly opposition to that theory, see supra note 77.

     [137].      Cf. Kovacs, supra note 12, at 561–65 (analyzing the problems with unilateral presidential action).

     [138].      Cf. Yoo, supra note 26, at 243 (“[D]ebates over the unitary executive are not merely a matter of partisanship, as some have claimed, but rather raise fundamental issues about the proper balance of power within the federal government that transcend the politics of the moment.”).

Judging Corpus Linguistics – Postscript by Brian G. Slocum & Stefan TH. Gries

Postscript | Legal Theory
Judging Corpus Linguistics
by Brian G. Slocum* & Stefan Th. Gries

Vol. 94, Postscript (June 2020)
94 S. Cal. L. Rev. Postscript 13 (2020)

Keywords: Legal Theory, Corpus Linguistics 

Judging Corpus Linguistics

Brian G. Slocum[*] & Stefan Th. Gries[†]

The practice of legal interpretation has long sought legitimization through devices that seek to distance interpretations from the personal predilections of judges.[1] Most notably, with the rise of textualism, courts have habitually relied on dictionary definitions to provide word meanings that are external to a judges own intuitions.[2] Similarly, some scholars and judges have recently argued that corpus linguistics can provide especially powerful and objective information to judges about the ordinary meanings of statutory and constitutional texts. For instance, in their influential article, Judging Ordinary Meaning,[3] Thomas R. Lee and Stephen Mouritsen argue that courts should import into the law of interpretation computer-aided means (primarily, corpus analysis) of determining the sense of a word or phrase that is most likely implicated in a given linguistic context.[4] In the view of Lee and Mouritsen, statutory interpretation is an empirical question (the authors assert this more than forty times), which makes it natural that courts should rely on scientifically-based interpretive sources such as corpus linguistics.[5]

The potential judicial adoption of interdisciplinary knowledge and techniques from fields such as linguistics is intriguing, and the resulting discussions from such proposals will enhance both the theory and practice of legal interpretation. Nevertheless, anyone advocating for the judicial adoption of a significant and novel interpretive source bears the burden of offering a compelling explication of the interpretive source and its role within the structure of interpretation. This demonstration should establish that the new interpretive source offers some comparative advantage to existing interpretive sources and is feasible in the sense that judges can competently use it. The advocate must therefore offer a compelling theory of how the interpretive source fits into existing processes of interpretation and explain whether the new interpretive source requires a new way of viewing those processes. With corpus linguistics, some of the issues that should be addressed therefore include: (1) how corpus linguistic analysis is relevant to some objective of interpretation currently identified by judges, such as the determination of ordinary meaning; (2) whether corpus linguistics should displace long-standing interpretive sources, such as dictionaries and textual canons; (3) the extent to which corpus linguistics can take account of the relevant context of a statutory provision; (4) to what extent determining statutory meaning is an empirical endeavor (with or without corpus linguistics); and (5) whether judges have both the technical ability to conduct competent corpus analyses and sufficient linguistic expertise to evaluate the raw data and make judgments of the kind made by trained linguists.

In this short essay, in the spirit of offering general concerns about corpus analysis and legal interpretation, we largely focus on Lee and Mouritsens efforts in addressing the above issues.[6] We argue that Lee and Mouritsens conceptualization of the potential role for corpus linguistics within legal interpretation is inadequate and underestimates the difficulty of judicial adoption of corpus analysis methods. Corpus analysis can provide useful information about the functioning of language, but it is crucial to neither understate the role of context in determining statutory meaning nor overstate the potential contribution of corpus analysis to legal interpretation.

 

I.  Corpus Linguistics as a tool of last resort

In evaluating the desirability of judicial adoption of corpus linguistics, a basic issue concerns the frequency of its applicability, which also determines in part whether corpus linguistics should displace other interpretive sources. In that light, perhaps the most nonplussing aspect of Judging Ordinary Meaning is the tension between many of its bold premises and its denouement that judges should consider corpus analysis as something of a last resort that is used only in a relatively rare case.[7] This conclusion does not follow from the premises offered by Lee and Mouritsen in asserting that corpus analysis is highly relevant to legal interpretation and should be utilized by judges. Note the rhetorical steps in their case for corpus linguistics: (1) there is near unanimity that the determination of ordinary meaning is a fundamental aspect of legal interpretation;[8] (2) determining ordinary meaning is an empirical issue and thus amenable to knowledge and processes from the field of linguistics;[9] (3) the current methods of determining ordinary meaning used by courts are flawed because they inaccurately measure ordinary meaning;[10] (4) as a valid method of empirically measuring how people use language, corpus analysis can help resolve issues of ordinary meaning;[11] (5) corpus analysis is superior to existing ways of exploring ordinary meaning, in part because the potential for subjectivity and arbitrariness is not heightened but reduced by the use of corpus linguistics;[12] (6) the scope of potential application of corpus analysis is broad enough to help determine the intent of the legislature;[13] and (7) although difficult, judges are capable of learning and applying corpus linguistic techniques (that is the techniques are not rocket science).[14] One would think based on the above premises that corpus analysis would provide an exciting new tool that judges could use in a large number of cases to resolve contested questions about statutory (and perhaps constitutional) meaning. Yet, the conclusion suggests that corpus linguistics is not so useful after all if it is something of a last resort to be used in a relatively rare case.

Readers of Judging Ordinary Meaning may reasonably believe that its ending makes the entire project mysterious. Even if useful, considering the actual difficulty of performing corpus analysis, which the authors underestimate, readers may wonder whether judges should even bother with the topic. If corpus analysis is only useful as something of a last resort in a relatively rare case, surely there is another coherent basis on which to rest the interpretation that is consistent with judicial practice. The authors suggest that judges dispose of most cases using more traditional tools of interpretation, such as the structure or context of the statute.[15] This brief description does not adequately explicate the role of corpus analysis in legal interpretation but only raises questions. For example, do these more traditional tools of interpretation help to determine ordinary linguistic meaning, which the authors posit is the threshold question of interpretation? If so, are these traditional tools more accurate than corpus analysis or just easier for courts to apply? Fundamentally, how does corpus analysis relate to these other traditional tools of interpretation and how they interact with statutory context? Is there information about the context of the statute that cannot be discovered through corpus analysis?

Lee and Mouritsen do focus on a salient and long-standing issue of legal interpretation: how courts should determine the ordinary meaning of the relevant textual language.[16] Corpus analysis is legitimized (if at all) through its connection to the ordinary meaning doctrine, which acts as an umbrella of sorts that includes various determinants of meaning within its scope.[17] The ordinary meaning doctrine represents a presumption that words in legal texts are to be interpreted in light of accepted and typical standards of communication that apply outside of the law.[18] The very premise of the ordinary meaning doctrine (that is presumed legislative adherence to normal principles of language usage), though, is that the test for meaning is an objective one that is external to the legislatures actual intentions. As is often the case with interpretive sources, the Supreme Court has indicated that, courts assume[] that the ordinary meaning of statutory language accurately expresses the legislative purpose.[19] The intent referenced, though, is generalized in the sense that it is not connected to any particular Congress, subject matter, or statute. When generalized legislative intent is at issue, as it is with the ordinary meaning doctrine, identifying actual legislative intent, as opposed to reasonable (or constructed) intent, is, typically, speculative and beside the point.

It seems, though, that the authors are suggesting a much closer nexus to actual legislative intent for corpus linguistics than can be claimed for other determinants of ordinary meaning that are based on generalizations about legislative intent.[20] If so, the judicial use of corpus analysis, which does not suffer from the same problems of legitimacy as determinants like legislative history, would be a remarkable advance in legal interpretation. Yet, corpus linguistics is fundamentally distinct from legislative history and other interpretive sources that focus on the language production of the legislature. Corpus linguistics as discussed by Lee and Mouritsen is more useful for quantifying to what degree a certain intention is encoded in a text in such a way that it will be understood by ordinary readers. It is less useful for inferring the intentions of the producers of the text.

While there is no doubt that corpus analysis can reveal systematicities of language usage, determining whether corpus analysis represents a rather astonishing advancement in legal interpretation or merely a much improved substitute for dictionary consultation (assuming, of course, that courts would be willing and able to do the analyses) does not depend on broad assertions about legislative intent. Rather, it depends on the extent to which corpus analysis can account for the particularized context of the relevant statute while, at the same time, revealing important and useful information about the systematicities of general language usage. As the next Part outlines, even determinants of ordinary meaning that are based on systematicities of language usage typically require courts to consider the context of the relevant statute. As such, determinants, like corpus analysis, that reveal systematicities of language usage but can typically only account for limited aspects of the context of the relevant statute can be valuable tools of legal interpretation. They must however be combined with an examination of the particularized context of a statute in order to determine the meaning of the relevant provision.

 

II.  Context and Empiricism in Statutory Interpretation

Any evaluation of a determinant of meaning must be based on an appreciation of the contribution that context makes to meaning, both within and outside of law. The linguistic meaning of a legal text is not limited to the semantic meaning of the language but, rather, includes the pragmatic processes necessary to identify the meanings of the specific textual utterances of the legislature.[21] While semantic meaning must in some ways account for context, identifying utterance meaning requires that particular consideration be made of context. In fact, semantic meaning and contextual cues often have a symbiotic relationship. Scholars have demonstrated that efficient communication systems will contain ambiguity, as long as context is informative about meaning.[22] Comprehenders continually make inferences about what speakers are intending to convey.[23] An efficient communication system may thus produce ambiguous language when it is examined out of context but will not express information already provided by the context.[24] Disambiguation occurs because comprehenders are able to quickly use contextual information in the form of discourse context, local linguistic context, or more global world knowledge.[25]

Context is thus crucial to meaning, and determinants of legal meaning must relate in some way to the context of the relevant statute, whether the connection is to its language or the circumstances surrounding its enactment. Legislative history, for example, allows the interpreter to consider the particularized context surrounding the enactment of a statute and make inferences about legislative intent on the basis of that evidence.[26] Other determinants depend primarily on the systematicities of language, reflecting likely reader comprehension, rather than multiple interpretive clues drawn from the particular context of the statute and the legislatures production of language. As indicated above, the ordinary meaning doctrine acts as an umbrella concept that encompasses various determinants relevant to a readers language comprehension. Dictionaries are an obvious, and commonly used, example. A dictionary definition is not useful because it reveals some particular legislative intent but, rather, because of the (often mistaken) belief that the definition provides the ordinary meaning of the relevant word and the correlative, generalized presumption that the legislature intended for the word to be given its ordinary meaning. A dictionary definition, though, cannot adequately account for the context of the provision at issue, and while useful for various purposes, the listing of words as a set of isolated items can be highly misleading if used as a basis of theorizing about what words and their meanings are.[27]

Contextual considerations are such an integral aspect of meaning that even determinants of meaning that are based on generalized intent and systematicities of language usage may require consideration of the particularized context of the statute. For instance, the ordinary meaning umbrella likely includes at least some textual canons, which  are “default presumptions based on common rules of grammar and word usage.”[28] The presumptions typically are said to be based on general principles of language usage rather than legal concerns.[29] Importantly, though, textual canons, to varying degrees, require courts to consider the context of the statute, making the systematicity of language identified by the textual canon only one aspect of its application. Thus, the canon may be justified by a generalized presumption of legislative adherence to its broad interpretive principle, but the actual application of the canon may call for consideration of the particularized context of the statute (which may even convince the court that the generalized presumption should not be applied).

Space limitations prevent illustrations of the necessary relation of determinants of meaning to the context of the relevant provision, whether to its language or the circumstances surrounding its enactment.[30] Nevertheless, the basic picture should be relatively clear. To wit, determinants of meaning, such as dictionaries, that relate only superficially (or partially) to the context of a provision, and depend on generalized assumptions about legislative intent, can be valuable tools of legal interpretation but must be combined with an examination of the context of the statute in order to fix the meaning of a provision.[31] Certainly, corpus linguistics can take account of context in ways that dictionaries cannot. Nevertheless, unlike other determinants of meaning such as legislative history, the main function of corpus analysis is to provide data about word meanings that cut across contexts. While Lee and Mouritsen speculate that a corpus might eventually exist that will essentially replicate the specific context of the relevant statute, achieving this would be difficult (in part because legal contexts typically are not mirrored in non-legal contexts).[32] Thus, while the kind of linguistic facts discoverable through corpus analyses can be useful, the inherently contextual nature of interpretation helps to explain why meaning is often fixed in other ways.

The importance of the particularized context of a statute to a courts interpretation also illustrates why Lee and Mouritsens assertion that the determination of ordinary linguistic meaning is an empirical question is especially provocative, and perhaps misleading. Significantly, Lee and Mouritsen give empirical no special significance and mean it only to refer to the sense of a word or phrase that is most likely implicated in a given linguistic context.[33] There is unlikely to be any opposition to such a description of word meaning, as their use of empirical corresponds with the normal process of judicial interpretation.[34] Yet, this insubstantial definition of empirical also underscores that a courts statutory interpretation is not empirical in any real sense, even if one or more aspects of an interpretation may have an empirical basis. A corpus analysis may be empirical, but the introduction of corpus linguistics to legal interpretation does not make legal interpretation empirical or, for that matter, a mechanical exercise devoid of significant judicial discretion.

 

III.  Definitional and methodological concerns

Even if the potential role of corpus linguistics within legal interpretation is properly understood, advocates of judicial adoption of corpus linguistics must also explain how it is feasible in the sense that judges can competently apply corpus linguistic principles to interpretive questions. For various reasons, that burden is not one that advocates have yet satisfied. The main problem of feasibility is that when a judge conducts corpus analysis the judge is placed in the role of a linguist in a way that is not true when the judge just looks up a word in a dictionary.[35] Rather, the judge is dealing with raw data and has to make sense of it. If the ordinary meaning doctrine suffers from imprecision, as Lee and Mouritsen claim, a corpus linguistic analysis must therefore be rigorous, comprehensive, precise, and replicable if not falsifiable, since the goal, after all, is to think of language in precise and scientific ways. Below we will detail several ways in which Lee and Mouritsens work falls short and caution that the issues we raise are general ones that highlight the difficulties of competent corpus analysis. The discussion is in some places technical and complex, but anyone applying corpus linguistics to serious and important interpretive questions should understand these and other linguistic issues.

 

A.  Non-Committal Reasoning Regarding Ordinary and Prototypical Meaning

The first area of concern is Lee and Mouritsens approach to different kinds of meaning which they argue are routinely, but not consistently, used in legal scholarship and practice. These include ordinary, plain, obvious, clear, reasonable, common, and prototypical meaning. However, it is one thing to (correctly) point out that inconsistency, it is another to be similarly unclear with regard to these terms even in ones own work. This is particularly relevant for the kind of meaning that is, perhaps, central to their paper, prototypical meaning, and one they relate to this, common meaning. Below are ways in which Lee and Mouritsen talk about prototypical meaning:

(1) Sometimes judges seem to have reference to a fifth notion of ordinarya notion of linguistic prototype. A prototype is a sense, or example of a sense, that is viewed as most strongly associated with a given term in a given context.[36]

(2) [P]rototypes [are] (the clearest cases, best examples) of the category. [37]

(3) A judge who approaches the question of ordinary meaning by attempting to determine the most prototypical example of a given sense of a term is searching for a linguistic prototype. Under this approach, the ordinary (prototype) sense of vehicle would be the one that is most vehicle-like. [38]

(4) If the ordinary meaning question in Muscarello is an empirical question of frequency or prototype analysis”[39]

(5) perhaps a common, prototypical example[40]

(6) The notion of oral translator could simply be perceived as a more common prototype of the more general notion of one who translates. [41]

(7) If the corpus data reveal that most vehicles that we speak of are automobiles, . . . we may infer that those senses are more likely to be prototypical senses.[42]

(8) We present some relevant data below, concerning the frequency or prototypicality of various senses of this term. (Followed by a discussion of the fifty most common collocates of vehicle).[43]

As the above quotes help to indicate, Lee and Mouritsen, to put it mildly, hedge their bets with regard to the two most important operationalizations of the whole paper, namely (1) how to operationalize ordinary meaning (as prototypical meaning?) and (2) how to operationalize prototypical meaning (as the most frequent meaning?). As for (1), they do not commit to what they consider the best operationalization of ordinary meaning. Several of the quotes above carefully include what judges or a judge might think/do or what would be the case [if] the ordinary meaning question in Muscarello [was] an empirical question of frequency or prototype analysis. This is fine, but it is important to know what Lee and Mouritsen think, considering that they are offering both a critique of ordinary meaning and arguing that corpus linguistics can help determine ordinary meaning. Do they think ordinary meaning should be considered prototypical meaning? Or, somewhat differently, (most) common meaning? They dont say explicitly, but hint at a stance implicitly, which brings us to (2).

As for (2), the above quotes and their analyses imply that prototypical meaning (which, recall, Lee and Mouritsen may or may not believe to be synonymous with ordinary meaning), is at least closely related, if not identical, to the most common meaning. In other words, they operationalize prototypicality in terms of frequency of occurrence. However, they are similarly imprecise regarding their views on the issue. For instance, they indicate (correctly) that frequency may be a factor for prototypicality but is certainly not the whole story.[44] Well, but then what is? Corpus-linguistic data provide nothing but frequencies,[45] so if they advertise the use of corpus data, what else do we need to consider?

The imprecision in their claims is evident in their analysis of the collocate data of vehicle. They state that a conclusion regarding the prototype sense of vehicle requires the application of empirical methods, as we will discuss below,[46] and then the last sentence before the specific results includes quote eight from the list above (data below, concerning the frequency or prototypicality of various senses).[47] However, prototypicality is then not mentioned again for more than a dozen pages. It is not mentioned in the collocation analysis of vehicle or in its concordance analysis or in later sections analyzing other words (such as carry, interpreter, and harbor). So what was the point of Lee and Mouritsens earlier discussion of prototypicality?

Their imprecision and inconsistency even leads to slightly non-sensical sentences, such as: To the extent that our notion of ordinary meaning has a frequency component, this data suggests that automobile is overwhelmingly the most common use of the word vehicle in the modern written American English represented in the NOW Corpus.[48] To the contrary, the data suggests that automobile is overwhelmingly the most common use regardless of whether their notion of ordinary meaning has a frequency component. In fact, the this data clause makes no connection whatsoever to ordinary meaning. Even if ones notion of ordinary meaning did not have a frequency component, the this data clause still just says what’s most frequent in our sample is probably most frequent in the corpus.

In sum, their analyses are based on and communicate implicitly that (1) they defined ordinary meaning as prototypical meaning and (2) they operationalized prototypical meaning as most common meaning. While these positions are quite contestable (although there is no space in this essay to consider them), Lee and Mouritsen do not communicate explicitly that they have so defined ordinary meaning and, through hedges and inconsistencies, seem unwilling to take such a position.[49] Judges who apply corpus linguistics to interpretive disputes will have to take positions on these issues.

 

B.  Problems of Operationalization

If prototypicality is to play a central role in the definition of ordinary meaning, it must be defined in a coherent manner. Unfortunately, Lee and Mouritsen mix up multiple perspectives on prototypicality from the relevant (cognitive) linguistic and psycholinguistic literature and offer differing conceptualizations of it. As mentioned above, Lee and Mouritsen imply that their operationalization of prototypicality is based on (highest) frequency of (co-)occurrence. Their definition of prototypicality, however, involves the notion of association, which is potentially a very different concept.[50] Association measures in corpus linguistics are statistics that, typically at least, quantify how much two (or more) elements are associated with each other in a way that is mathematically derived from frequencies. Association measures, though, quantify the degree of contingency between the elements involved.[51] A third conceptualization from Lee and Mouritsen is the prototype [as ]the clearest cases, best examples[] of the category,[52] which suggests that a prototype is a concrete exemplar that exemplifies the concept of its category. Yet another conception is implied in their analysis of collocations, namely the prototype-as-default approach, according to which the prototype could be a best example[53] whose attributes will be overridden as more specific information becomes available.[54] For example, the prototype of spoon would be overridden if spoon was preceded by wooden.[55]

Lee and Mouritsens varied conceptualizations are problematic. Just as they do not commit to whether they want ordinary meaning to be operationalized by the prototype, they do not commit to one definition of a prototype. They do not provide a necessary-and-sufficient-conditions definition of prototypicality, and also do not acknowledge that prototype is itself a prototype concept.[56] Thus, prototypicality plays a sometimes important role in Judging Ordinary Meaning but never gets defined in a way that readers could use themselves.

As discussed above, the closest Lee and Mouritsen come to providing an explicit definition is when they mention prototypicality together with frequency and report their own frequency-based analyseswhile downplaying the role of frequency.[57] Similarly, they quote experimental findings regarding prototype effects,[58] yet in many of these studies frequency of occurrence was actually controlled for and thus not relevant.[59] Taylor states it most unambiguously:

[F]requency effects are often discussed in terms of prototypicality . . . .We need to be wary, however, of uncritically equating relative frequency with degrees of prototypicality . . . . An appeal to frequency is no doubt useful as a research heuristic, but as a pointer to prototypicality it needs to be supported by other considerations.[60]

A related problem is that frequency has been shown to be not as good a measure of commonness and ease of accessibility in a speakers mind as Lee and Mouritsen presuppose. In fact, there are a variety of different studies from both corpus linguistics and psycholinguistics proving that frequency can be extremely misleading if unaccompanied by dispersion information.[61] Dispersion is a statistic that quantifies the way a word is distributed in a corpus in a way that goes far beyond frequency. A word x can be distributed very evenly in a corpus, which means that the chance of seeing x in a randomly chosen part of the corpus (such as a file or a text) is high. Conversely, x can be distributed very clumpily, which means that the chance of seeing it in a randomly chosen part of the corpus (such as a file or a text) is very low. Dispersion information is particularly important for lexical content words, which are precisely the relevant words in Lee and Mouritsens case studies. Relying on frequencies alone often exaggerates the degree of commonness of a word because the frequencies do not reveal how widespread a words uses are (especially when most or all occurrences of a word are squeezed into a single/small part of the corpus).[62] Thus, both frequency and dispersion information should be considered.[63]

The picture does not become much clearer when we consider Lee and Mouritsens references to association. While Lee and Mouritsen are right that association is a component of prototypicality, they do not incorporate that notion, which is surprising. First, they actually have proper association data. If one enters the URL they provide for their search for vehicle in the NOW corpus, one gets the 100 most frequent collocates of vehicle (sorted by frequency)[64] but also the results of one particular association measure, mutual information (MI). Thus, data to discuss association was available. Second, their own data demonstrate convincingly that frequency (which they use) and association (which they dont) are not the same: A linear correlation between frequency and MI in their own 100 collocates of vehicle is low (R2=0.036) and not significant (p>0.06), indicating that the two notions are not measuring the same thing, which, again, leads to the same conclusion: one should interpret these dimensionsfrequency and associationjointly but separately. Figure 1 is an example, with frequency and association on the x– and y-axes respectively.

Figure 1.  High frequencies and associations of vehicle in COHA 2000s

While this graph only shows high-value results, it is obvious that words can be frequent around vehicle but only moderately attracted (four, drive, military, space, etc.), that words can be less frequent around vehicle but highly attracted (uavs, motorized, propel, rv, etc.), or both (unmanned, armored, utility, motor, and aerial).

Prototypicality is thus a multi-faceted notion that needs to be defined properly and cannot be reduced to simple co-occurrence frequency, especially given Lee and Mouritsens view that corpus linguistics depends on both quantitative and qualitative analytical techniques.[65] A better approach to prototypicalitythe weighted-attribute approachhas existed for quite some time. The weighted-attribute approach provides that a prototype is an abstract entitynot a concrete exemplarwhich consists of the combination of the most salient attributes of the category, where (1) the most salient attributes for a category are those with a high cue validity for the category and (2) the cue validity of an attribute A (for example, flying) of object X (for example, a sparrow) with regard to a category C (for example, birds) is the conditional probability of X being a member of category C given that X exhibits A, p(C|A).[66] This definition, while quantitatively more demanding, can accommodate not just frequency of occurrence, but also frequency of predictive attributes and association information (by virtue of the conditional probability). It also avoids the prototype-as exemplar fallacy,[67] and it provides a straightforward integration with the psychological notion of salience. In other words, the quantitative part of corpus linguistics must not be reduced to one column of what a web browser returns. Rather, the operationalization of anything needs to be commensurate with the complexity of what it is supposed to measure.

Just as important is what is done with whatever quantitative results one obtains. Let us therefore conclude this part by briefly discussing some aspects of Lee and Mouritsens interpretation of the collocates of vehicle, specifically their treatment of the presence or absence of collocates. For instance, from the presence of motor, car, traffic, fuel, driving, etc. they infer that automobile is a likely candidate for the most common use.[68] But why do they not also infer from the presence of electric (1st in their ranking), plug-in (ranked 3rd), charging (9th), hybrid (13th), battery and batteries (22nd and 25th) that the most common use is an electric vehicle? After all, only their 15th collocate (fuel) is one pointing to an internal-combustion-engine meaning. In other words, sometimes the presence of something is utilized, sometimes it is not. Minimally, one should explain the principle of which collocates are used and which level of categorization one is targeting, whether it is basic-level terms such as car/automobile or something more specific such as electric car.

The same is true of the reverse: Lee and Mouritsen make a point of noting the absence of airplane or bicycle among the top fifty collocates in NOW[69] and why that may [raise] an important question.[70] But why does the absence of tire or wheel (either on its own or in steering wheel) not mean anything? What is the principle that determines when the presence or absence of something means something? Lee and Mouritsen provide no answers.

The fact of the matter is that collocate analysis, which Lee and Mouritsen utilize extensively, is fairly useless. On the likely uncontroversial assumption that, at present, the prototype of vehicle is a four-wheeled car with an internal combustion engine, the presence of a collocate does absolutely nothing other than highlight a relevant semantic dimension, but it does not indicate the value (positive/defining/typical or negative/negating/atypical) of the node word (in this case, vehicle) on that dimension. For instance, electric is the most frequent collocate of vehicle in Lee and Mouritsens data because the prototype of vehicle is not electric so one has to mention it and cannot take it to be the default. At the same time, motor is the second most frequent collocate of vehicle in their data because one apparently often talks about motors when talking about vehicles even though having a motor is the (overridable) default of vehicles. In fact, even the most advanced approaches to collocationvector space models such as GloVereturn meat as one of the words most similar distributionally to vegetarian.[71] All that collocates do is reveal general semantic relatedness and nothing more. Importantly, they do not highlight attributes or features. A (corpus) linguist would know that.

 

IV.  Concerns Regarding Judicial Competence to Perform Corpus Linguistics

Our last main point follows ineluctably from the above rather technical discussion of corpus linguistics. That is, Lee and Mouritsen have a mistaken view of the potential for judicial adoption of competent corpus-linguistic methods in the legal domain. First, they concede that corpus linguistics is not plug and play analysis. Corpus data can be gathered and analyzed properly only with care and a little background and training in the underlying methodology.[72] This concession is not meaningful in light of their forceful advocacy of judicial adoption of corpus linguistics. Consider that Lee and Mouritsen are likely significantly more knowledgeable about corpus linguistics than the average (or any?) judge that may adopt such methods. Yet, even in this short essay, we have demonstrated that (1) their approach towards prototypicality appears unsystematic, (2) their approach to commonness was lacking several features known to all quantitative corpus linguists, and that (3) their approach to collocation/co-occurrence is incomplete and unprincipled. That is precisely what a little background and training does, which is likely something not acceptable in any other scientific discipline and should not be with corpus linguistics.

But Lee and Mouritsen tell us why only a little background and training is sufficient for judges. It is because judges and lawyers are linguists.[73] Justices Lees assessment that [corpus linguistics] isnt rocket science sounds pithy,[74] but it manifests a lack of appreciation for a discipline of which he simply is not a fully trained part. While the discussion in the previous Part  may have seemed technical, other corpuslinguistic applications are even further removed from the capability of the average law practitioner or judge without a degree in linguistics and/or computer/data science. Lee and Mouritsen chide judges for their abuse of dictionaries, but how can they expect that judges will be better at highly statistical corpus-linguistic analysis?

While we appreciate Lee and Mouritsens contribution to legal corpus linguisticsit is a timely and much more thoughtful and inspiring discussion than many others we have seenit can only be the beginning of the discussion about corpus linguistics and legal interpretation, and much of the work needs to be done by trained experts. It cannot be the responsibility of lawyers and judges who have bone[d] up on some basic linguistic methodology.[75] Otherwise, legal corpus linguistics will undermine itself by attracting more criticism than it deserves.

 

Conclusion

The kind of linguistic knowledge that can be obtained from corpus analyses can be useful to legal interpretation. Linguistics is a living scientific discipline, though, that requires the same degree of sophistication and empirical rigor as any other. At this point in time, it is highly doubtful the cost/benefit analysis of judges and lawyers acquiring the knowledge necessary to perform corpus linguistics competently points in favor of widespread judicial adoption. Nevertheless, publicizing the kind of knowledge that can be gained from linguistic work may encourage judges to avail themselves of the services of linguists or, more likely, gain a greater understanding of the nature and functioning of language. In that sense, then, Lee and Mouritsens article (as well as similar scholarship) can be considered an exciting and welcome contribution to the law.

 


[*] *. Professor of Law, University of the Pacific, McGeorge School of Law. J.D., Harvard Law School; Ph.D., University of California, Davis (Linguistics)

[†] . Professor of Linguistics, University of California, Santa Barbara and Chair of English Linguistics (Corpus Linguistics with a focus on quantitative methods), Justus Liebig University Giessen. Ph.D., University of Hamburg (English Linguistics)

 [1]. See, e.g., Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 41718 (1899) (arguing the interpreter’s role is to determine what words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used . . . .”).

 [2]. See James J. Brudney & Lawrence Baum, Oasis or Mirage: The Supreme Court’s Thirst for Dictionaries in the Rehnquist and Roberts Eras, 55 Wm. & Mary L. Rev. 483, 483 (2013) (explaining that, while the United States Supreme Court’s use of dictionaries was virtually non-existent before 1987, now as many as one-third of statutory decisions cite dictionary definitions).

 [3]. Thomas R. Lee & Stephen C. Mouritsen, Judging Ordinary Meaning, 127 Yale L.J. 788 (2018).

 [4]. Id. at 795.

 [5]. See id. at 789.

 [6]. For a fuller elaboration of our views regarding corpus linguistics and legal interpretation, see generally Stefan Th. Gries & Brian G. Slocum, Ordinary Meaning and Corpus Linguistics, 2017 BYU. L. Rev. 1417.

 [7]. Lee & Mouritsen, supra note 3, at 872. One of the authors mentions that in his five years on the Utah Supreme Court, he has “employed such analysis only a very few times.” Id. n.322.

 [8]. Id. at 788, 79293, 79697.

 [9]. Id. at 789.

 [10]. Id. at 794, 798 (“The problem is underscored by the tools (mis)used by judges to try to answer this empirical question . . . .”).

 [11]. Id. at 82930, 83132.

 [12]. Id. at 867.

 [13]. See id. at 82324, 85356.

 [14]. Id. at 872.

 [15]. Id. at 872 & n.322.

 [16]. See id. at 788.

 [17]. See generally Brian G. Slocum, Ordinary Meaning: A Theory of the Most Fundamental Principle of Legal Interpretation (2015) (analyzing whether various determinants of meaning fall under the ordinary meaning doctrine).

 [18]. See id. at 3.

 [19]. Marx v. Gen. Revenue Corp., 568 U.S. 371, 376 (2013).

 [20]. See Lee & Mouritsen, supra note 3, at 824, 85355 (discussing Richard Posner’s keep-off-the-grass hypothetical).

 [21]. See Scott Soames, Deferentialism, Living Originalism, and the Constitution, in The Nature of Legal Interpretation: What Jurists Can Learn about Legal Interpretation from Linguistics and Philosophy 218, 21819 (Brian G. Slocum ed., 2017).

 [22]. See Steven T. Piantadosi et al., The Communicative Function of Ambiguity in Language, 122 Cognition 280, 28081 (2012).

 [23]. See id.

 [24]. See id.

 [25]. See id.

 [26]. For an analysis of legislative history see generally, for example, James J. Brudney & Corey Distlear, The Decline and Fall of Legislative History Patterns of Supreme Court Reliance in the Burger and Rehnquist Eras, 89 Judicature 220 (2006); Charles Tiefer, The Reconceptualization of Legislative History in the Supreme Court, 2000 Wis. L. Rev. 205.

 [27]. M. A. K. Halliday & Colin Yallop, Lexicology: A Short Introduction 2425 (2007).

 [28]. Abbe R. Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism, 119 Yale L.J. 1750, 1763 (2010).

 [29]. See Slocum, supra note 17, at 94.

 [30]. For examples and analysis, see generally Slocum, supra note 17.

 [31]. To be sure, judicial reliance on dictionaries has been harshly criticized by commentators. See, e.g., Ellen P. Aprill, The Law of the Word: Dictionary Shopping in the Supreme Court, 30 Ariz. St. L.J. 275 (1998).

 [32]. See Lee & Mouritsen, supra note 3, at 824, 85355.

 [33]. See id. at 789.

 [34]. While some aspects of interpretation may be empirical, such as word meaning, the judicial determination of the ordinary or communicative meaning of a text is not an empirical endeavor. See generally Brian G. Slocum, Ordinary Meaning and Empiricism, 40 Statute L. Rev. 13 (2019).

 [35]. The same is also true of course for lawyers and legal scholars.

 [36]. Lee & Mouritsen, supra note 3, at 801 (emphasis omitted).

 [37]. Id. at 802.

 [38]. Id.

 [39]. Id. at 808.

 [40]. Id. at 811.

 [41]. Id. at 821 (emphasis omitted).

 [42]. Id. at 830 (emphasis omitted).

 [43]. Id. at 83738.

 [44]. Id. at 830 n.179.

 [45]. Stefan Th. Gries, Quantitative corpus linguistics with R 141 (2d ed. 2017).

 [46]. Lee & Mouritsen, supra note 3, at 802 n.52.

 [47]. Id. at 837.

 [48]. Id. at 842 (emphasis omitted).

 [49]. See id. (“To the extent . . . .”).

 [50]. See supra note 36 and accompanying text; infra note 51.

 [51]. For instance, virtually every native speaker of English will guess sealed when asked to guess which word in some sentence is likely to follow the word hermetically. This is not because any of the three elements (hermetically, sealed, and their combination) is frequent, it is because the two words are strongly associated with, or attracted to, each other or, put differently, because sealed is contingent on hermetically. It is this notion of association/contingency we are using here. See Nick C. Ellis, Language Acquisition as Rational Contingency Learning, 27 Applied Linguistics 1, 1-2 (2006); Stefan Th. Gries & Nick C. Ellis, Statistical Measures for Usage-Based Linguistics, 65 Language Learning 228, 23537 (2015).

 [52]. Lee & Mouritsen, supra note 3, at 821 (emphasis added); supra text accompanying note 37.

 [53]. John R. Taylor, Prototype Theory, in 1 Semantics 643, 655 (Claudia Maienborn et al. eds., 2011).

 [54]. Id.

 [55]. See id.

 [56].  Dirk Geeraerts, Introduction: Prospects and Problems of Prototype Theory, 27 Linguistics 587, 592 (1989).

 [57]. See Lee & Mouritsen, supra note 3, at 802.

 [58]. See id. at 802, 861.

 [59]. See Eleanor Rosch, Principles of Categorization, in Cognition and Categorization 317, 31718 (Eleanor Rosch & Barbara Lloyd eds., 1978).

 [60]. John R. Taylor, Prototype Effects in Grammar, in Handbook of Cognitive Linguistics 563, 56768 (Ewa Dąbrowska & Dagmar S. Divjak eds., 2014).

 [61]. See Stefan Th. Gries, Ten Lectures on Corpus Linguistics with R 114 (2020); Stefan Th. Gries, Analyzing Dispersion, in A Practical Handbook of Corpus Linguistics (Magali Paquot & Stefan Th. Gries eds.) (forthcoming 2020) (on file with author); Stefan Th. Gries, Corpus Linguistics and the Law: Extending the Field from a Statistical Perspective, Brook. L. Rev. (forthcoming 2020) [hereinafter Gries, Statistical Perspective].

 [62]. This is why Slocum, Gries, & Solan’s amicus brief on the use of gender included dispersion. See generally Brief for Amici Curiae Corpus-Linguistics Scholars Professors Brian Slocum, Stefan Th. Gries, & Lawrence Solan in Support of Employees, Bostock v. Clayton County, No. 171618 (U.S. July 3, 2019).

 [63]. See Stefan Th. Gries, 15 Years of Collostructions: Some Long Overdue Additions/Corrections (to/of Actually All Sorts of Corpus-Linguistics Measures), 24 Intl J. of Corpus Linguistics 385 (2019); Gries, Statistical Perspective, supra note 61.

 [64]. It is worth pointing out that the results one obtains from using the link where Lee & Mouritsen say “the search results are saved,” Lee & Mouritsen, supra note 3, at 837 n.211, are not identical to the results they cite in the paper. Once collocate #17 is reached, their listing in the paper deviates from the one shown in the web browser. Pointing this out is not just pedantryit is important because Lee & Mouritsen themselves emphasize how “we understand good science as including replicability,” id. at 812, while their own results are not completely replicable because they are dependent on partial access to a changing corpus on the internet, see id. at 840 n.225, as opposed to having full access to a corpus on their own computer, which quantitative corpus linguists would much prefer.

 [65]. See Lee & Mouritsen, supra note 3, at 828 n.171.

 [66]. See Taylor, supra note 53, at 649, 653; Rosch, supra note 59, at 313.

 [67]. See Rosch, supra note 59, at 318; John R. Taylor, Linguistic Categorization 5960 (2d ed. 1995); Taylor, supra note 53, at 652.

 [68]. See Lee & Mouritsen, supra note 3, at 837.

 [69]. As a matter of fact, it is not even clear why one would stop at fifty collocates, and Lee and Mouritsen provide no explanation for doing so. In the Corpus of Historical American English (COHA) from the 1950s, vehicle has more than one thousand six hundred different words in the span of four words around itwhy would one only look at fifty of those? The word planes is a collocate of vehicle, just further down the list (ranked 370th in terms of frequency), but it is highly significantly and strongly attracted to vehicle (odds ratio=99.89, p<10-34), information that Lee and Mouritsen’s exclusive focus on frequency does not even notice.

 [70]. See id. at 83940.

 [71]. See Gries, Statistical Perspective, supra note 61.

 [72]. Lee & Mouritsen, supra note 3, at 866.

 [73]. See id.

 [74]. Id at 872.

 [75]. Id.

2021 Federal Clerkships: Can Order Emerge From Chaos?

Postscript | Administrative Law
2021 Federal Clerkships: Can Order Emerge From Chaos?
by Carl Tobias*

Vol. 94, Postscript (June 2020)
94 S. Cal. L. Rev. Postscript 1 (2020)

Keywords: Federal Clerkship, Federal Law Clerkship Hiring Plan 

2021 FEDERAL clerkships: CAN ORDER EMERGE FROM CHAOS?

Carl Tobias[*]

This is a perfect juncture for analyzing 2021 federal judicial clerkships. Many aspirants recently finished half of their legal education. Six appeals courts’ members have agreed to honor a new Federal Law Clerk Hiring Plan (hereinafter referred to as “the pilot”) that is currently in its second year. The pilot directly proscribes seeking and permitting clerkship applications and recommendation letters until June 15, 2020 and prohibits student clerkship interviews and judicial offers before June 16, 2020.[1] However, certain judges within these six tribunals will not respect the pilot during its second year, even though jurists in the seven remaining courts of appeals might follow the new plan. The Administrative Office of the United States Courts (“AO”) extended 2L students OSCAR access in February while suspending in January 2014 the 2003 clerk hiring plan—whereby 3L employment began near Labor Day—and judges will soon consider aspirants. Clues offered below may assist prospects in securing the coveted positions which start in 2021.

 

I.  Federal Appellate Clerkships

Most of the 270 appeals court jurists have filled posts, yet a significant number remain open. Many hired before the set period prescribed by the pilot, which other judges honored.[2] There are many phenomena that can explain the variation in hiring by federal appellate court judges, including the nascent pilot program, the 2014 AO discontinuation of an earlier hiring plan, and the reactions of numerous judges to a U.S. Court of Appeals for the District of Columbia Circuit announcement in January 2013. Seven years ago, the D.C. Circuit, America’s second most important court, which had assiduously followed the 2003 clerkship hiring rules for years, announced that the tribunal’s jurists, who found the once-workable plan had not been efficacious, would grant offers whenever they wanted.[3] The statement quickly precipitated a hiring frenzy that has continued since and promotes greater uncertainty this season, which the pilot’s implementation compounds.[4]

Those developments suggest that applicants who hope to clerk for judges rejecting the plan and even students who might wish to capture positions on the D.C., First, Second, Third, Seventh and Ninth Circuits, which abide by the pilot, should move immediately. Clerkships for all jurists who dutifully comply with the plan are extremely competitive. They serve on courts of last resort which decide exceptional issues, encompassing abortion, civil rights, discrimination and immigration, or are ensconced in particularly desirable venues, including New York, Chicago and San Francisco, which means that numerous appellate court judges may favor aspirants who bring recent district clerkship or legal practice experience. Nonetheless, even on those appeals courts, some members in less popular areas recruit later. For example, frigid Vermont, Wisconsin or Idaho winters and steamy District of Columbia, Philadelphia or Phoenix summers can discourage numbers of potential applicants. When carefully scrutinizing the employment possibilities, students might want to remember that they will actually clerk for only a year.

Additional jurists, whose clerkship posts are not so distinguished or whose chambers are clearly in locales that applicants would prefer considerably less, have yet to employ students. They include portions of the Fifth, Eighth and Tenth Circuits but also in the Fourth, Sixth and Eleventh Circuits.[5] Finally, certain judges may be respecting the nascent pilot or awaiting two years of grades. Therefore, a number may have slots available,[6] yet time is certainly of the essence.

 

II.  Federal Clerkships History

The D.C. Circuit ignited a firestorm which consumed hiring by most of the 1,100 district court jurists in 2013 and continued raging subsequently. After the D.C. Circuit’s announcement, numerous judges picked 2Ls, but others acted slowly, perhaps favoring the clerkship system that performed well over the decade after 2003. This endeavor relied on Labor Day for the benchmark when 3L students could proffer, and jurists could receive, submissions; judges were concomitantly to delay arranging interviews until a week later when they might have extended offers.[7]

Problems complicate identification of exactly what happened after the D.C. Circuit jettisoned the standard regime.[8] Aspirants were not certain about how to pursue clerkships and were discharging time-consuming law review duties. Many jurists offered no or limited guidance. Schools were unclear regarding how to advise candidates. They lacked material on judges and closely observed National Association for Law Placement (NALP) guidelines, which cautiously approached the D.C. Circuit decision. However, by April 2013, in a seeming effort to resuscitate the collapsing plan, the AO imposed June 28 as the date when rising 3Ls commenced applying.[9]

In 2013, employment did vary considerably. Most jurists slowly responded to the D.C. Circuit’s notice, but in time more abandoned the decade-old process, which the AO had elaborated. They found that the scheme permitted inefficiency, “exploding offers,” cheating, and secrecy.[10] A number complied with the 2003 and recent measures or decided to hire later for numerous reasons. Many chief judges, who administer district courts, respected the practices, as they deemed the notions constructive and probably wished to serve as role models. Specific jurists could have perceived that the nuanced strictures operated impressively or were awaiting the AO determination to end or refine the 2003 clerkship plan. Some judges may have preferred the late summer deadlines, recognized that numbers of aspirants can be accomplished clerks or thought the frenetic procedures were absurd or undignified.

Instructive empirical data in responses to a 2013 NALP member survey detected that judges’ hiring endeavors provoked “real concerns about [OSCAR’s] diminished utility” for clearly notifying students and their presenting clerkship submissions.[11] Jurists correspondingly “looked beyond OSCAR” to provide salient information, which prompted surging “email and paper applications,” while confusion in OSCAR materials’ reliability, notably the timing of applications, dissuaded manifold students from participating.[12] Legal educators in turn consistently “favored opening OSCAR” sooner and uncoupling clerkship applications from the hiring plan deadlines.[13] The AO carefully effectuated these recommendations in Fall 2013[14] and clarified hiring over the next several years by discontinuing the regime a few months later.[15]

 

III.  More Recent Guidance

In 2014, Administrative Office Director Judge John Bates remarked to jurists that the plan was ending and “no further dates [were] being set” for clerkships,[16] while the AO adopted voluntary “Best Practices to support transparency,” requesting that NALP craft those procedures “from the law school perspective.”[17] He implored judges to use the online mechanism.[18] The notice, which granted 1Ls access, meant that jurists sent OSCAR copious additional positions.[19] Discontinuation concomitantly seemed to propel hiring, witnessed by the surfeit of accelerated listings the past six years.[20] Nevertheless, relatively few judges employed clerks ahead of January, perhaps waiting on third semester grades, the 2014 AO plan change, or subsequent guidance.

In February 2018, the AO announced a pilot that would govern 2020–21 clerkship hiring.[21] This initiative deserves considerable review because some courts and jurists followed the plan last year or will this season. Thus, evaluation might aid their coordination and people who hope to begin clerking in August 2021. The chief judges of the D.C., Second, Seventh and Ninth Circuits and deans who lead prominent law schools proposed the regulatory system that would ostensibly expand student participation, while certain jurists on these tribunals, the First and Third Circuits and the Districts of Connecticut, District of Columbia and Massachusetts subscribed to the pilot.[22] The AO chose February 2020 OSCAR access for members of the 2021 class, who submit applications in June, permitted judges to extend, and students correspondingly to accept, clerkship offers basically upon receipt and in turn prohibited exploding offers.[23]

Several law professors who track court of appeals law clerk employment detect that some jurists honor the plan but numerous other judges whose courts subscribe to, or do not follow the pilot, eschew it. However, the writers find very difficult ascertaining exactly what is happening, while strong pressure to satisfy the pilot requirements exacerbates transparency’s dearth.[24] The faculty members state that this paucity concomitantly helps students plus schools with access to inside information, and the plan can allow judges to select clerks early, issue exploding offers, and hire practitioners.[25] The scholars register concern that numbers of particular jurists who follow and support the pilot constitute appointees of Democratic presidents whose chambers are situated on the coastlines whom more progressive aspirants could favor, and numerous judges who seem to eschew while opposing the plan comprise appointees of Republican presidents whose chambers are located throughout the heartland whom conservative students prefer.[26]

In short, plentiful factors leave this season uncertain. [27] Essential is how many jurists now adopt the pilot. Others may be the limited, clear data on what happened subsequent to 2013. Related were June 1L OSCAR access, the 2003 plan suspension, the Best Practices’ creation and circulation, the number of judgessaliently those eschewing OSCAR deploymentwho learned about the procedures, and how completely jurists adhere to the guidelines furnished.

 

IV.  Federal District Clerkships Reprised

Candidates should meticulously apply the concepts assessed by consulting the AO views, judges’ OSCAR postings, and court websites. To jumpstart the search, I provide a representative sample of how numerous district jurists and courts proceeded after January 2013 from which students can extrapolate. Potential applicants might remember that, while district court judges and tribunals traditionally recruit later, the 2014 discontinuation of the 2003 plan, the institution of several Best Practices, and the uncertainty about how careful and systemic pilot compliance will be acutely show that confusion and variability could plague this year.[28]

Some judges acted earlier to pick clerks in the last few seasons. Phenomena, which encompass prestige, location, and competitiveness, indicate aspirants can rely on heavily and sparsely populated districts when they set 2021 priorities. This approach reveals that numbers of jurists did conclude 2L employment by May in Arizona, Colorado, Northern Ohio, Maryland, Northern Georgia, Eastern Missouri, and Northern Texas.[29] However, the courts include so many judges that all districts and jurists require verification.[30] A plethora completed hiring on June 28 (for 3Ls) in 2013 and earlier (for 2Ls) subsequently until 2019. Illuminating were Eastern Virginia jurists, who promptly collected applications, conducted interviews, and chose before March.

Since 2013, numerous judges had yet to fill positions by April, while specific ones might have not even begun. Montana jurists, who principally notify students during the year when they will clerk, are illustrative. Eastern California, and Middle Pennsylvania, which regularly start later had plenty of fall slots, and districts in rural venues, like Wyoming, also experienced vacancies then. Finally, plentiful judges supplied negligible information, but a few courts enhanced transparency by placing strictures prominently on websites.[31]

 

V.  gathering Additional Information

Applicants could depend on these snapshots of the past six years and how this season commenced. Persons may also consult the information which numbers of jurists efficiently list through OSCAR and websites that they or courts maintain, yet some jurists use neither. A related way that people solicit profitable material is phoning and emailing chambers to seek advice from law clerks or judicial assistants, namely for jurists who ignore OSCAR or employ it but disregard the rules enunciated. These inquiries elicit much data respecting hiring processes: notably who screens candidates and crucial timeframes which govern submissions, interviews, and clerkship offers.

 

VI.  Additional Clerkships

As myriad persistent students frantically pursue clerkships at the thirteen appellate courts and ninety-four district courts, committed aspirants might wish to seriously contemplate numerous possibilities serving with additional particular courts and copious judges whom applicants may have overlooked or not considered. They run along a gamut of appeals courts, district courts, and Article I tribunals. Senior appellate court and trial level jurists constitute preeminent examples.[32] Another is chief judges, who upon ascension secure one more clerk.[33] A related promising source would be President Donald Trump’s nominees and confirmees; the chief executive must fill seventy-two positions which currently remain unoccupied, and competition might be less stiff for those posts because smaller numbers of students meticulously track the vacancies.[34]

 

VII.  Early Preparation

Aspirants ought to plan early. For instance, when 1L examinations conclude, students should actively participate in law review competitions to ensure their selection. Once designated, picks need to be rigorously involved, as jurists value membership, specifically on the editorial board, which perceptibly demonstrates commitment to robust intellectual activity. Students can diligently prepare to apply for clerkships by assembling a comprehensive list of judges, signing up for OSCAR, and creating a profile. Aspirants could solicit advice on jurists whom they can target from knowledgeable professors or 3L colleagues while seeking powerful faculty letters of recommendation.

 

VIII.  Applications

Judges directly receive clerkship applications from plentiful students, who ought to consider the starting period the deadline, as numerous jurists hire on a rolling basis. Candidates should astutely choose because OSCAR’s maximum number of applications has been 100,[35] (although deficient transparency confounds this). Aspirants who employ paper submissions need to carefully place materials in a single envelope which promotes tracking by judicial chambers. The large number of applications indicates that cover letters and resumes must be short. Cover letters ought to persuasively explain why aspirants do have substantial competence and how collegially applicants would perform in chambers. Students normally advance three recommendation letters, two of which faculty craft and one that a practitioner develops. The writing sample must be concise enough that it deftly provokes reading, yet sufficiently long to display fine analytical, critical research, and exquisite drafting, capability.

 

IX.  Interviews

Numerous interviews actually resemble law firm “call-backs,” even though aspects can be peculiar to the bench and individual jurists.[36] Court members seemingly have different perspectives, expectations, interests, and requirements. Substantial numbers of judges clearly are intelligent, diligent, ethical, and independent, while most have balanced temperament. Candidates need to learn all possible regarding specific judges’ diverse backgrounds: colleges attended, career history, and conditions of appointment.[37] Prospects must correspondingly examine jurists’ writing, namely decisions.

Aspirants should concomitantly anticipate lines of inquiry that bench members, law clerks, and additional court personnel will scrutinize by, for example, contacting present and former clerks. Interviews’ salient purposes are cogently ascertaining whether candidates have effectively acquired the necessary competence and can collaboratively interact with others. Applicants must be especially solicitous of chamber personnel, as court staff need to perform smoothly on a team and judges prize their opinions. The queries, thus, could address a broad spectrum from recent judicial treatment of discrete areas, notably criminal procedure, reproductive freedom, or employment discrimination, to favorite Supreme Court Justices, hobbies or wines.

Some jurists eschew making final determinations at interviews because they conscientiously prefer to interview every individual and select clerks who appear extremely capable and can be rigorous teammates of the permanent staff.[38] Increasing numbers extend offers during interviews or at their conclusion, which means aspirants need to realistically prepare for this eventuality.

X.  Offers

Judges may variously notify students when tendering offers, but certain dimensions of the process seem analogous to procedures that law reviews use in choosing manuscripts. Numerous jurists expect instant acceptances, a concept which distinctly resembles journals’ “short fuse” or exploding offers.[39] Judges might withdraw any offers that prospective clerks fail to swiftly accept in phone conversations when they are delivered, which writers trenchantly characterize as “disappearing offers,” even though the nascent pilot bars this measure.[40]

Jurists could accord students one week for making clerkship determinations. Applicants with the intestinal fortitude can attempt to leverage the opportunities for circumstances which they perceive as superior.[41] Certain judges apparently encouraged applicants to leverage offers by requesting that aspirants directly inform chambers upon offers’ extension.[42] The Administrative Office Best Practices also urge jurists to supply complete instructions on employment processes and grant students reasonable time for cautiously weighing offers but do not proscribe speedy acceptances.[43] However, the pilot insists that students have forty-eight hours to reach this decision.[44]

 

Conclusion

I hope that these clues for attaining clerkships prove helpful. Bon voyage.

 


[*] *.              Williams Chair in Law, University of Richmond School of Law. This piece is for David Lat whose perceptive insights on federal law clerk employment and so much else in law and life inspire all people who know his work and David. I wish to thank Margaret Sanner for valuable suggestions, Jamie Wood, Jane Baber and Emily Benedict for valuable research and careful editing, the University of Richmond Law Library staff for valuable research, the Southern California Law Review Postscript editors for excellent editing and sound advice, Ashley Griffin Hudak and Leslee Stone for excellent processing as well as Russell Williams and the Hunton Andrews Kurth Summer Research Endowment Fund for generous, continuing support. Numerous federal appellate and district court judges, law clerks and additional court personnel, law professors, Career Development Office (CDO) professionals and law students afforded many ideas examined below. Remaining errors are mine alone.

 [1]. Admin. Office of the U.S. Courts, Federal Law Clerk Hiring Plan (2018) [hereinafter Hiring Plan]; Admin. Office of the U.S. Courts, Federal Law Clerk Hiring Plan 2nd Pilot Year (2019) [hereinafter 2nd Pilot Year],  https://oscar.courts.gov/federal_law_clerk_hiring_pilot; see also Will Baude, A Proposal for a New Clerkship Hiring Plan (When The Current One Collapses), Reason: Volokh Conspiracy (Feb. 10, 2020, 3:55 PM), https://reason.com/2020/02/10/a-proposal-for-a-new-federal-clerkship-hiring-plan-when-the-current-one-collapses [https://perma.cc/8KYL-6VVN] (analyzing the 2019 federal law clerk employment pilot and suggesting a new plan).

 [2]. See Edward Becker et al., The Federal Judicial Law Clerk Hiring Problem and the Modest March 1 Solution, 104 Yale L. J. 207, 215–16 (1994); Alex Kozinski, Confessions of a Bad Apple, 100 Yale L. J. 1707, 1725 (1991).

 [3]. See also Carl Tobias, Tips for Capturing 2014 Federal Court Clerkships, 66 Vand. L. Rev. En Banc 145, 146 n.2 (2013); David Lat, The Law Clerk Hiring Plan: Really, Really Dead Now, Above the Law (Jan. 30, 2013, 12:38 PM), https://abovethelaw.com/2013/01/the-law-clerk-hiring-plan-really-really-dead-now [https://perma.cc/KRX4-ANKQ]. It is unclear why so many federal judges have defected from the nascent pilot and every prior iteration of the Federal Law Clerk Hiring Plan. See Kozinski, supra note 2. See generally Louis F. Oberdorfer & Michael N. Levy, Response, On Clerkship Selection: A Reply to the Bad Apple, 101 Yale L. J. 1097, 1108 (1992) (addressing the “inefficient, expensive, disruptive, and demeaning” way that federal judges have selected their law clerks and proffering suggestions for improvement).

 [4]. Karen Sloan, Law Deans Implore Federal Judges to Follow Clerk Hiring Plan, Law.com, (Jan. 29, 2020, 2:11 PM) https://www.law.com/2020/01/29/law-deans-implore-federal-judges-to-follow-law-clerk-hiring-plan [https://perma.cc/X8J9-5FF4]. The pilot ostensibly attempts to remedy or ameliorate what many observers contend has become a two-track process. Letter from Kerry Abrams et al. to the Members of the Federal Judiciary (Jan. 22, 2020), https://images.law.com/contrib/content/uploads/docum
ents/292/60749/Deans-Letter-to-the-Federal-Judiciary-January-20201.pdf [https://perma.cc/BRT7-E52
W].

 [5]. Aspirants should consider applying to positions in Jackson, Fargo, Casper, Greenville, Akron or Montgomery. See Jack Goldsmith (@jacklgoldsmith), Twitter (Feb. 10, 2020, 11:51 AM), https://twit
ter.com/jacklgoldsmith/status/1226955076738007040 [https://perma.cc/KJP3-CRVN] (urging students to apply beyond “so-called elite federal circuits”).

 [6]. Indeed, 2020 OSCAR postings include 2021 court of appeals clerkships. See, e.g., Weekly Update: New Positions Posted (March 9 – March 16, 2020), OSCAR Blog (Mar. 16, 2020), https://oscar.uscourts.gov/blog_post/_1/348/Weekly_Update_New_Positions_Posted_March_9_-_Marc
h_16_2020 [https://perma.cc/M7XA-2EGN]; Weekly Update: New Positions Posted (March 30 – April 6, 2020), OSCAR Blog (Apr. 6, 2020), https://oscar.uscourts.gov/blog_post/_1/354/Weekly_Update_Ne
w_Positions_Posted_March_30_-_April_6_2020 [https://perma.cc/32AD-VSVV].

 [7]. Carl Tobias, Salvaging the 2013 Federal Law Clerk Hiring Season, 91 Wash. U. L. Rev. 243, 244 (2013).

 [8]. Considerable empirical data and other relevant information are private or anecdotal and complex variations existed among schools, courts, judges, and students. However, I can posit a snapshot by consulting accessible material and by relying on ideas which innumerable federal judges, law clerks, court employees, law professors, law students and Career Development Office personnel have expressed. For 2013–2015 data, see David Lat, The Current State of Clerkship Hiring: 5 Points Worth Noting, Above the Law (Apr. 28, 2015, 5:59 PM) https://abovethelaw.com/2015/04/the-current-state-of-clerkship-hiring-5-points-worth-noting [https://perma.cc/TLH7-FHUB]. For recent ideas, see Baude, supra note 1.

 [9]. The Administrative Office provided one day to apply, interview and offer. See Tobias, supra note 3, at 147; David Lat, Clerkship Hiring Is Getting Earlier and Earlier, Above the Law (Apr. 11, 2013, 2:25 PM) https://abovethelaw.com/2013/04/clerkship-hiring-is-getting-earlier-and-earlier [https://perma.cc/5V9P-UUY5]. In 2012, prominent law schools recommended that their 2L students apply in the spring, information on which many potential applicants capitalized. Other schools have provided similar advice since. Tobias, supra note 7, at 246.

 [10]. Exploding offers are ones that have short or no fuses. Many judges want freedom of action or oppose hiring plans because they function as cartels by limiting competition. See sources cited supra note 4.

 [11]. Memorandum from NALP Judicial Clerkship Section to Fed. Judges’ OSCAR Working Grp. 1 (Oct. 10, 2013) [hereinafter 2013 Memorandum], https://www.nalp.org/uploads/BoardReports/Judicial
ClerkshipSectionPerezNov2013.pdf [https://perma.cc/XS45-VTTS].

 [12]. Id. at 2–3; see also Tobias, supra note 7, at 246; Baude, supra note 1; Letter from Kerry Abrams et al. to the Members of the Federal Judiciary, supra note 4.

 [13]. 2013 Memorandum, supra note 11, at 1.

 [14]. Email from Laura Simon, OSCAR Program Manager, Admin. Office of the U.S. Courts, to Valerie L’Herrou, Dir. of Career Dev., Pub. Sector Careers, Univ. of Richmond Sch. of Law (Nov. 4, 2013) (on file with author); David Lat, Clerkship-Seeking 2Ls, Start Your Engines, Above the Law (Nov. 4, 2013, 2:03 PM), https://abovethelaw.com/2013/11/clerkship-seeking-2ls-start-your-engines [htt
ps://perma.cc/ULS8-4WB4].

 [15]. Memorandum from Judge John D. Bates, U.S. Courts Admin. Office Dir., to U.S. Judges (Jan. 13, 2014), [hereinafter Memorandum from Judge John Bates] https://oscar.uscourts.gov/assets/Federal_
Law_Clerk_Hiring-January_13_2014.pdf [https://perma.cc/DH3B-K2HK].

 [16]. Judge Bates adopted a proposal that gave rising second-year students OSCAR access in June, so judges may have hired after students’ first year. Id.

 [17]. Memorandum from Judge John Bates, supra note 15. I emphasize 2013 in this piece because the Administrative Office implemented comparatively few subsequent changes in federal law clerk employment. Federal Law Clerk Hiring Best Practices are:

  • Support a transparent recruitment process by maintaining OSCAR judge profiles that identify hiring practices and preferences. . . .
  • Consider coordinating hiring activities and efficiencies such as setting court-wide interview dates. Post interview dates in each OSCAR judge profile.
  • Use video conferencing or electronic face-to-face interviews . . . when feasible. . . .
  • Inform applicants of clerkship offer policies . . . [and grant reasonable time] to weigh [offers] against other viable offers. This does not prohibit [immediate acceptances].
  • Choose online[, fax,] or paper application methods rather than requiring applications submitted by email due to the hardship which emailing applications places on law schools and applicants.
  • Consider visiting law schools with a minority student population to share recruitment practices and insights . . . [that] may encourage more minority law students to [apply].

Federal Law Clerk Hiring Best Practices, OSCAR, https://oscar.uscourts.gov/hiring-practices [https://pe
rma.cc/L4GU-HTZH].

 [18]. Judge Bates implored his federal court colleagues to employ the online mechanism because OSCAR ensures transparency, eliminates paper, saves staff time, can increase diversity, and helps manage substantial numbers of applications with search and sort features. Memorandum from Judge John Bates, supra note 15.

 [19]. See, e.g., Lat, supra note 14; sources cited supra note 6.

 [20]. District court postings clearly outnumber appellate court postings. See sources cited supra note 6. But this is not surprising because the federal bench includes 677 active district judges and 179 active court of appeals judges. See Authorized Judgeships 8, https://www.uscourts.gov/sites/default/files/all
auth.pdf [https://perma.cc/2ULM-EKRZ].

 [21]. Hiring Plan, supra note 1; David Lat, Order in the Court, Order in the Court: The Law Clerk Hiring Plan Returns!, Above the Law (Mar. 1, 2018, 7:43 PM), https://abovethelaw.com/2018/03/order
-in-the-court-the-law-clerk-hiring-plan-returns/2 [https://perma.cc/R9KT-DYDE].

 [22]. Letter from Ad Hoc Comm. on Law Clerk Hiring to Fellow Judges (Feb. 28, 2018), https://oscar.uscourts.gov/_assets/Ad_Hoc_Committee_on_Law_Clerk_Hiring_Announcement [https://
perma.cc/9MGK-M3MT]; Judicial Clerkship Info for Career Services, NALP (Dec. 2019) https://www.nalp.org/judicialclerkshipinfoforcareerservices [https://perma.cc/V73Z-X2ZC]; Letter from Ad Hoc Comm. on Law Clerk Hiring to Fellow Judges (Dec. 2019), https://www.nalp.org/uploads/2019C
lerkshipHiring2ndPilotYearJudgesEmailDec19.pdf [https://perma.cc/FCS5-XAPY]. A small number of appellate courts leave the choice to each individual judge, the first three appeals courts supported earlier plans and the new one, and some judges of the Ninth Circuit have supported neither previous plans nor the pilot. Lat, supra note 21. Rather few appellate court judges follow the plan. Baude, supra note 1; Goldsmith, supra note 5.

 [23]. 2nd Pilot Year, supra note 1 (adding one day reading period); Baude, supra note 1; see also infra notes 25, 38 and accompanying text.

 [24]. For example, OSCAR proscribes “off-plan applications and requires those judges” to use word-of-mouth; some schools deny clerkship resources to off-plan students. Will Baude, Some Reluctant Skepticism About the New Law Clerk Hiring Plan, Reason: Volokh Conspiracy (Aug. 27, 2018, 10:36 AM), https://reason.com/2018/08/27/some-reluctant-skepticism-about-the-new [https://perma.cc/ES72-FDPG]; Aaron L. Nielson, D.C. Circuit Review – Reviewed: Why I Fear the D.C. Circuit’s Approach to Clerkship Hiring Is Misguided, Yale J. on Reg.: Notice & Comment (Aug. 24, 2018), https://www.yalejreg.com/nc/d-c-circuit-review-reviewed-why-i-fear-the-d-c-circuits-approach-to-clerk
ship-hiring-is-misguided [https://perma.cc/4PNB-DCZ2]; see also Letter from Kerry Abrams et al. to the Members of the Federal Judiciary, supra note 4. I rely substantially here on Professor Baude and Professor Goldsmith and my work advising students, but Mr. Lat, Professor Nielson, and I seem to share many of the views expressed.

 [25]. I rely substantially here on Professor Nielson, supra note 24, and Professor Goldsmith, supra note 5, but Professor Baude, Mr. Lat and I seem to share the views.

 [26]. Jack Goldsmith (@jacklgoldsmith), Twitter (July 15, 2019 11:47 AM) https://twitter.com/jac
klgoldsmith/status/1150839301929930752 [https://perma.cc/R5NH-L522] (claiming that more progressive students will be able to seek fewer clerkships, as more progressive judges follow the plan and hire later); see also Karen Sloan, Not Everyone Loves the Federal Clerk Hiring Plan, Law.com: Ahead of The Curve (Feb. 3, 2020, 9:00 PM), https://www.law.com/2020/02/03/ahead-of-the-curve-not-everyone-loves-the-federal-clerk-hiring-plan [https://perma.cc/RU3Y-EP5P]; Mark Joseph Stern, President of Harvard’s Federalist Society Brought a Gun to Zoom Class, Slate (Apr. 9, 2020), https://slate.com/news-and-politics/2020/04/chance-fletcher-federalist-society-harvard-gun.html [https://perma.cc/8XUV-7JJE]. Professor Baude surmises that the patterns can yield a regime which half the bench adopts and half rejects, so if students cluster by locale and ideologically, it could be rather stable but may frustrate those who wish to clerk for judges in each camp or many locales, and few would design this regime ex ante. Baude, supra note 24. Goldsmith and Baude predict the plan’s demise. Goldsmith, supra note 5; Baude, supra note 1. I rely here on Professor Goldsmith and Professor Baude, but I share their views.

 [27]. This season is uncertain and may only become clearer after mid-June and once the AO has scrutinized empirical data on the pilot. For later seasons, the judiciary must review the data and improve the pilot or craft a new plan. See Baude, supra note 1 (providing valuable suggestions for improving hiring after the pilot fails, which he predicts).

 [28]. The representative sample enhances earlier data’s value, because how most jurists will proceed this season remains unclear, as the nascent pilot and the 2014 advice are not mandatory, while many have hired later since 2013 and may still follow that and other earlier ideas.

 [29]. This hiring was predictable because their clerkships are competitive, prestigious and in desirable areas.

 [30]. There were also exceptions. For instance, Western Louisiana and Northern Florida judges had apparently hired clerks by May, while Minnesota and Eastern Michigan jurists seemingly had not employed by then.

 [31]. The Southern District of New York posted numerous judges’ measures; some jurists deployed rolling review but did not interview or offer until June 28 in 2013. Law Clerk Hiring Information, U.S. District Ct.: S. District N.Y., https://www.nysd.uscourts.gov/judges/law-clerk-hiring-information [https://perma.cc/Q8YS-EA5]; see Baude, supra note 24 (suggesting that requiring judges to post openings on the internet could help level the playing field).

 [32]. 28 U.S.C. § 371 (2018); see also David R. Stras & Ryan W. Scott, Are Senior Judges Unconstitutional?, 92 Cornell L. Rev. 453, 455 (2007); Joseph Goldstein, The Oldest Bench Ever, Slate (Jan. 18, 2011, 7:01 AM), https://slate.com/news-and-politics/2011/01/federal-judges-are-getting-older-and-more-often-senile.html [https://perma.cc/88CX-W6HV].

 [33]. 28 U.S.C. § 136 (2018). Magistrate judges and judges for territories, including Guam and the Virgin Islands, also hire. 28 U.S.C. § 631 (2018); 48 U.S.C. §§ 1424, 1612 (2018).

 [34]. Judicial Vacancies, U.S. Courts, https://www.uscourts.gov/judges-judgeships/judicial-vacancies [https://perma.cc/BLH7-YH33]; see Confirmation Listing, U.S. Courts, https://www.uscourt
s.gov/judges-judgeships/judicial-vacancies/confirmation-listing [https://perma.cc/GFW5-UEXD]; John Besche, YLS Students Speak About Clerking for Trump Appointees, Yale Daily News (Jan. 30, 2020, 11:54 PM), https://yaledailynews.com/blog/2020/01/30/progressive-law-students-speak-about-clerking-for-trump-appointees [https://perma.cc/TE4V-BTQA]. But see Hannah A. Klain et al., Harvard Law School: Its Time to Be Part of the Solution, Not the Problem, with Judicial Clerkships, Harv. Crimson (Feb. 5, 2019), https://www.thecrimson.com/article/2019/2/5/klain-kohnert-yourt-patel-judicial-clerkshi
ps [https://perma.cc/R3F6-JGMM]; Leah Litman, On Clerkships & Wasted Opportunities, Take Care (Dec. 23, 2019) https://takecareblog.com/blog/on-clerkships-and-wasted-opportunities [https://perma.cc/
7CF8-LUZF]; Stern, supra note 26.

 [35]. OSCAR Version 7: Limit of 100 Clerkship Applications, OSCAR Blog (Apr. 8, 2013, 11:10 AM), https://oscar.uscourts.gov/blog_post/_1/13/OSCAR_Version_7_Limit_of_100_Clerkship_Applic
ations [https://perma.cc/7N2Y-JE33].

 [36]. Numerous Career Development Offices maintain useful summaries of past students’ interview experiences. See Debra M. Strauss, Top Ten Tips for Judicial Clerkship Interviews, Above the Law (Jan. 22, 2015, 6:59 PM) https://abovethelaw.com/career-files/ten-tips-to-the-judicial-clerkship-intervie
w [https://perma.cc/89QK-65G2].

 [37]. For biographical data sources, see Judicial Yellow Book (Winter 2020); Forster-Long, The American Bench (2020).

 [38]. “If you have two young, male hot dogs [as clerks], you may [want one] who is a bit older, or female, or had a prior career.” Kozinski, supra note 2, at 1722. For an explanation as to why selecting the finest clerks is crucial for judges, see Patricia M. Wald, Selecting Law Clerks, 89 Mich. L. Rev. 152, 153 (1990).

 [39]. Kozinski, supra note 2, at 1716; see also Carl Tobias, Manuscript Selection AntiManifesto, 80 Cornell L. Rev. 529, 535 (1995); Wald, supra note 38, at 152, 156; supra note 10.

 [40]. Kozinski, supra note 2, at 1716; see also supra note 23 and accompanying text; Deborah Pines, Federal Judges Try to Fix Frantic Clerk Hiring, N.Y.L.J., June 14, 1993, at 26; Strauss, supra note 36. Many judges who hire early deploy this.

 [41]. Wald, supra note 38, at 156. This phenomenon resembles law review leveraging. Tobias, supra note 39, at 537–38.

 [42]. See generally Christopher Avery et al., The Market for Federal Judicial Law Clerks, 68 U. Chi. L. Rev. 793, 81320 (2001). Judges employ diverse measures to not offer. See Staci Zaretsky, Rejection Letter of the Day: You’re Not Prestigious Enough To Clerk In My Less-Than-Prestigious Court, Above the Law (Feb. 25, 2014), https://abovethelaw.com/2014/02/rejection-letter-of-the-day-youre-not-prestigious-enough-to-clerk-in-my-less-than-prestigious-court [https://perma.cc/X8Y8-AADS].

 [43]. See supra note 17. Many judges who rely on OSCAR post notices online that their slots are filled. Some who use paper applications do not. Students who have not received interviews by autumn can assume that most judges have hired.

 [44]. Hiring Plan, supra note 1; Nielson, supra note 24 (suggesting that forty-eight hours is insufficient time for making such an important decision).