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Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.

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JoshVlogs: Jersey Shore Research Agenda

April 30th, 2011

Here is a YouTube video describing our Jersey Shore Research Agenda.

Jersey Shore, perhaps unintentionally, created an intriguing societal Situation. It’s cultural impact exceeded all foreseeable expectations. 2010 was the year of Jersey Shore. But why has Jersey Shore, ostensibly run-of-the-mill reality show trash, generated such a profound impact on American culture. The cast of the Jersey Shore–the salacious Snooki, the complicated Situation, the belligerent JWoww, the diplomatic DJ Pauly D, the evolving Vinny, the choleric Angelina, and the violently-in-love Sammi and Ron–represent certain literary archetypes that appeal to society as a whole. In this research agenda, we aim to analyze the travails of Jersey Shore through several lenses–legal, literary, and sociological. Jersey Shore’s critical impact on our society, and perhaps most importantly, its prominence in our cultural zeitgeist makes it an ideal scholarly vehicle to explore these important theoretical doctrines. We aim to explore these issues in a series of YouTube videos, as well as a scholarly article.

This agenda has been produced by Josh Blackman and Militza Machuca Franco.  Our work is dedicated to Amerigo Vespucci, the “original” Italian-American.

Sidestepping Chevron: Reframing Agency Deference for an Era of Private Governance

April 29th, 2011

An interesting note in the Georgetown Law Journal by Aaron Cooper on the continued viability of Chevron deference in a world where regulatory decision making is largely privatized, and not democratically “appointed” actors! Here is the abstract:

Judicial interpretation of regulatory standards generally relies on the presumption that agencies are politically accountable and democratically “appointed” actors. As a result, courts defer to reasonable agency interpretations of ambiguous statutory language. This presumption, however, is severely outdated. The regulatory arena is replete with the privatization of regulatory decision making, which puts the current approach to agency deference in question. This Note seeks to address the changing nature of the regulatory framework by suggesting a modification of agency deference doctrine that accounts for the increasingly active role played by private parties in public governance. In proposing a new framework for agency deference in cases of private delegation, the Note explores parallels between agency deference and the non-delegation doctrine, addresses the relationship of agency deference to the separation of powers and the fragmentation of the political branches, and seeks to reinstate the judiciary as a primary expositor of statutory meaning in the private delegation context.

What does Cooper mean by private governance?

Across the board, regulation is increasingly performed by private actors under privately set standards.1 Well-known examples include the privatization of public military force—the most notorious including the use of Blackwater security guards in the Iraq reconstruction effort2; the privatization of detention facilities, both prisons and immigration detention centers3; and the privatization of domain-naming rights for the Internet, through the Internet Corporation for Assigned Names and Numbers (ICANN).4 This privatization has always caused discomfort for some, particularly when the government appears to delegate the protection of traditionally public values to private entities, and extends to some of our most democratic institutions.5 The anxiety over privatization is pervasive, and in the words of one commentator, has created a ―crisis of legitimacy‖ for the administrative state.

And what does he suggest? Instead of the Chevron Two-Step, he proposes a Chevron Sidestep 🙂

As regards a deference framework that was justified at its inception by the institutional competence and constitutional legitimacy of agencies, what happens when agencies are no longer the only—or the most important—institutions in the picture? How is it that the private delegation model once vigorously rejected by the Court in Schechter Poultry goes unquestioned now? How can, and how should, Chevron deference account for these inconsistencies?

This Note will seek to answer these questions by proposing a new deference framework for review of regulatory interpretive decisions that function as private delegations. Part I first revisits the Court‘s rejection of private delegations in the pre-New Deal era, as exemplified in Schechter Poultry and Carter Coal, and notes the similarity between these rejected delegations and the various ways in which privatization operates now. Part I then develops a classification for identifying the various methods of private delegation based on congressional intent and political accountability, the mainstays of standard deference doctrine. Part II offers a possible explanation for why the rebirth of private delegations has taken place without a similar outcry from courts, and suggests that the replacement of a strict nondelegation doctrine with prodelegation Chevron deference is partly responsible. Part III documents how this metamorphosis of the regulatory state tends to undermine Chevron‘s central justifications. Part IV explores the fallout: what role should courts play in Chevron‘s absence, and how can a new deference doctrine mediate between political necessity and values inherent in the Constitution and the rule of law? Part IV then proposes a new ―persuasive deference‖ framework, in the vein of Skidmore deference, as a potential resolution.

H/T Legal History Blog

 

UVA Dean Links to my Post about HLS Student Death from “Overstudy”

April 29th, 2011

My most popular blog post ever, HLS Flashback from 1900: Student goes insane during Con Law Final, Dies from “Overstudy,” has received over 34,000 unique views.

And I just received a note that the University of Virginia Law School Dean of Students sent this message to all students.

From: Martha Ballenger
Date: Fri, Apr 29, 2011 at 2:46 PM
Subject: Don’t let this happen to you
To: Law Students

Students:

Best of luck on your exams– but please don’t let this happen to you!

https://joshblackman.com/?p=4407

Best,
MB

Cool. Good luck everyone!

Listen to Tom Goldstein Light It Up at One First Street

April 29th, 2011

The MP3 For oral arguments for Sorrell v. IMS Health is now online. I blogged before about Tom Goldstein, who argued for the Respondent, and his sassy advocacy. Listen to it yourself here. Tom starts at 31:14.

[podcast]http://www.supremecourt.gov/media/audio/mp3files/10-779.mp3[/podcast]

In particular, I found this rapport a bit snarky:

JUSTICE BREYER: That’s where I was going.
MR. GOLDSTEIN: Okay.
JUSTICE BREYER: I chose an example that’s beyond your case.
MR. GOLDSTEIN: That’s why it’s called a hypothetical.

LOL.

Justice Breyer seemed to get a little testy later in the arguments, and quipped whether a regulated industry can even exist. Goldstein took it in stride.

JUSTICE BREYER: It used to be true there was something called a regulated industry.
MR. GOLDSTEIN: Yes.
JUSTICE BREYER: And selling was within activity among many.
MR. GOLDSTEIN: Sure.
JUSTICE BREYER: And there were lots of regulations that could be imposed upon selling.
MR. GOLDSTEIN: Sure, right.
JUSTICE BREYER: Are you saying that all those should be reexamined?
MR. GOLDSTEIN: I — I thankfully am not.

Update: OK, I just finished listening to the MP3. Wow. The transcripts really do not do Tom’s performance justice. In the “hypothetical question” exchange with Justice Breyer, he slides in “That’s why it’s called a hypothetical” under his breath, really quickly. He barely enunciates the end, as if he realized he shouldn’t say it. Then, smugly, he laughs.

In the second exchange I quoted, the interjections of “sure” and “sure, right” are not during pauses in Breyer’s question. Breyer is talking, and Tom talks over him to say “sure.”

The entire opening segment where he directs the Justices to turn to specific pages sounds awfully patronizing.

Damn.

 

Court Finds A Four Pound Dachshund Puppy is not Dangerous Per Se

April 29th, 2011

Chana, my precious Dachshund

I have a weakness for puppies, dachshunds in particular (see my precious Chana here and here). They are one of the friendliest breeds ever. I am glad to report that the Mississippi Court of Appeals, in the case of Penny Pinchers v. Outlaw, agrees with me. NMissCommentor has the story here:

The manager of the local Penny Pinchers store took her puppy Sophie to work.  Sophie was a dachshund that weighed in at four pounds one ounce and was all of four months old [JB: AWWWWW!]

To protect the puppy from customers, there was a little peg board barrier set up.

The plaintiff, a Mrs. Outlaw, apparently possessed of both a lifelong terror of wiener dogs (well, of dogs), and hip problems, heard frantic yapping behind her.

She fled in terror and found herself pinned against the freezer section when the manager plucked up the puppy and asked Mrs. Outlaw if she was ok.  At this point, Outlaw had not even seen the dog, but only heard it bark.

Here is the Court’s analysis:

Here, the dispute is whether the presence of the dog in the store created a dangerous condition. Outlaw, who claims that Sophie barked at and chased her, argues that Sophie was a dangerous condition. Penny Pinchers disagrees and says it had no reason to believe that Sophie’s presence in the store created any danger. Because Sophie had never exhibited any dangerous propensities, Penny Pinchers claims that it could not and should not have known of any dangerous condition.

While this is not a traditional “dog-bite” case, we find it instructive that the supreme court has held that dogs are not dangerous per se.

H/T Overlawyered