120 Yale L.J. 978 (2011).
This Article explores the relationship between the First Amendment right of free speech and the nontextual First Amendment right of freedom of association. The Article provides important and new insights into this area of law, drawing upon recent scholarship to urge a substantial rethinking of the Supreme Court’s approach to this subject. The Article proceeds in three parts. Part I explores the doctrinal roots of the right of association and reviews recent scholarship regarding the association right, as well as the provisions of the First Amendment addressing public assembly and petitioning the government for a redress of grievances. Drawing on these materials, I demonstrate that the assembly, petition, and association rights historically were important, independent rights of coequal status to the free speech and press rights of the First Amendment, and therefore that the Supreme Court’s modern tendency to treat the association right as subordinate to speech is incorrect. Building upon this conclusion, I then advance the novel argument that the key First Amendment rights of speech, assembly, petition, and association should be perceived as interrelated and mutually reinforcing mechanisms designed to advance democratic self-government. In particular, I argue that one of the key functions of free speech in our system is to facilitate the exercise of other First Amendment rights, including notably the right of association. I describe this as the theory of associational speech. Part II explores the implications of the theory of associational speech for various areas of free speech doctrine, including incitement, hostile audiences, and the public forum doctrine. Finally, Part III explores some broader questions regarding what the theory of associational speech teaches us about the basic nature of free speech and about the interrelationships between the various provisions of the First Amendment. It also notes some limits of the associational speech concept.
120 Yale L.J. 1032 (2011).
Standard questions in the theory of administrative law involve the allocation of power among legislatures, courts, the President, and various types of agencies. These questions are often heavily informed by normative commitments to particular allocations of governmental authority among the three branches of the national government. These discussions, however, are incomplete because agencies are typically treated as unitary entities. In this Article, we examine a different question: how does administrative law allocate power within agencies? Although scholars have sometimes cracked open the black box of agencies to peer inside, their insights are localized and confined to particular contexts. We will generalize the idea, attempting to show that administrative law allocates power both horizontally and vertically within agencies and offering some hypotheses about the nature of the resulting effects. Horizontally, administrative law directly or indirectly determines the relative influence within agencies of various types of professionals—lawyers, scientists, civil servants, politicians, and others. Vertically, administrative law directly or indirectly determines the relative influence within agencies of appointed agency heads, midlevel bureaucrats, and line personnel. This perspective illuminates several of the most puzzling judicially developed principles and doctrines of administrative law, including the doctrines surrounding Chenery, Chevron, Mead, and Accardi, as well as agency structures and procedures established by statute or executive order. The internal allocation perspective offered here both improves upon and critiques existing justifications for these developments and in that sense points the way toward a superior understanding of administrative law.
120 Yale L.J. 1084 (2011).
The Ideological Origins of American Federalism
By Allison L. LacroixCambridge, MA: Harvard University Press, 19th ed., 2010, PP. 312. $35.00.
120 Yale L.J. 1130 (2011).
This Note uses the 1999 sunset and 2003 reauthorization of New Mexico’s public employee collective bargaining law to estimate the causal effect of teacher collective bargaining on student achievement. This Note finds that mandatory teacher bargaining laws increase the performance of high-achieving students while simultaneously lowering the performance of poorly achieving students. After establishing this core empirical result, the Note explores its implications for current trends in American education policy and for normative arguments about the role of teachers’ unions in public schools.
120 Yale L.J. 1192 (2011).
In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 130 S. Ct. 2592 (2010), a plurality of the Supreme Court endorsed a judicial takings doctrine for the purpose of policing wayward state property law decisions. The plurality’s opinion culminates several decades’ worth of effort by legal scholars and property law groups to secure closer federal review of state court property law determinations antecedent to federal takings claims. In a great victory for these groups, but in an opinion that also cuts against more than a century of Supreme Court deference to state courts in this area, the plurality adopted a new standard of independent review for antecedent state property law determinations. This Note examines the tradition of deference cast aside by the plurality’s opinion and makes a case for its rehabilitation. Important purposes are served by Supreme Court deference to state court determinations of antecedent state law; not least of these is the check that deference places on the Supreme Court’s own power over state court decisionmaking. This Note concludes that the damaging consequences of independent review ultimately outweigh any benefits that may accrue to property owners; it urges the Court to return to a deferential standard of review and leave state courts free to develop distinctive bodies of property law responsive to their states’ local needs and histories.
120 Yale L.J. 1251 (2011).
120 Yale L.J. 1263 (2011).