PADM-GP 2109



PADM-GP 2109The Legal Context for Public Policy & AdministrationSpring 2020Instructor InformationWilfred U. Codrington IIIEmail: wc50@nyu.eduOffice Hours: By appointment.Course InformationClass Meeting Times: Wendesdays, 4:55-6:35pmClass Location: 25W4 C-9Course Prerequisites CORE-GP 1022, or permission of the instructorCourse DescriptionLaw is a central element of policy development and the end result of public policy. In its various forms, the law shapes policymaking and the administration of government; it affects how officials make and implement policy, and informs the work of those in the nonprofit and for-profit sectors that provide direct services, engage in advocacy, and otherwise interact with the state. An understanding of the broader framework of law and basic legal processes is essential to undertaking any of these activities effectively.This course will provide an overview of the structure and sources of law, and an examination of how the law is interpreted and applied in the context of public policy and government administration. We will explore the issues through the lens of theory and practice by drawing on a broad array of materials, including scholarship in the fields of law, history, and the social sciences; case law, statutes, and regulations; news and media; and case studies. Students will gain an understanding of the various legal actors – those who create, influence, interpret, and enforce the law – and how those actors can support or limit their work as public policy decision-makers. They will also develop concrete skills in research, writing, and strategic and analytical thinking to help them navigate the legal thicket as policy professionals.Major course themes include: (1) the sources of law and legal actors; (2) legal analysis and interpretation for public policy and practice; (3) conflicts between legal precedent and official actions; and (4) navigating the legal frameworks from the government, nonprofit, and private sectors.Each class will cover a broad topic (e.g. the Executive branch) and at least one specific sub-topic (e.g. the Administrative State and Regulatory Policy), which will expose students to one or more sources of law and the actors behind them. The course will also refer to substantive areas of law (e.g. ethics/lobbying) to highlight the themes listed above. Because law is a dynamic field and does not operate in isolation of others, students should expect a cross-disciplinary approach to the class. They should also expect to revisit themes, topics, and cases throughout the term. Some classes will feature invited speakers working in the relevant field, and assignments will be revised accordingly.Assignments, Grading, and Course ExpectationsCourse assignments will entail consistent but short writings related to the readings and classroom discussion topics. In terms of substance, it is important to demonstrate an understanding of the relevant facts, critical thinking and analysis (which includes building on the reading materials, presenting a cogent case for what you argue, and giving due consideration to arguments that might be made in opposition to your point of view), and clarity of writing. While I am flexible in terms of assignment structure, I expect that you will present your thinking clearly, concisely, logically, precisely, and in grammatical English writing. These are principles that I will take into account for grading. Assignments are due by the start of each class. They are as follows:Class ParticipationAs a student, I found that some of my greatest learning moments came from the insights of my peers. As a professor and a lawyer, I prefer not to have a “cold bench.” Class participation is important. It will make the material more lively, engaging, and relevant. Please arriveeach week prepared to discuss that class’s broader themes, readings, and any other pre-class assignments. You should also do some brief research (i.e. spend 10-15 minutes on Google) in advance of each class to see if the topic is tied to any policy issues in contemporary media coverage. Attendance at all classes is essential. Please let me know in advance if you must be absent. Please do not text, email, etc. during in class. Class participation will account for 10% of your final grade.Case Briefing (250-400 words)Many classes will include a major Supreme Court decision (or two). Reading the cases is necessary background for the class. The case briefing assignments are designed not only necessary to provide context for that class, but also to make you “think like a lawyer.” Case briefings are not meant to be lengthy assignments, but a way for you to distill the most important information from case law. It will also help me gauge and assess class participation, including through questions about the selected cases. I will provide an example of a case brief on the first day of class. For classes where multiple cases are assigned, students will be required to brief only one. (I will split the class up and assign accordingly.) Case briefings will account for 30% of your final grade.Hearing Memo (1000-1200 words) and PresentationThis assignment requires students to attend and observe a legal, administrative, or legislative hearing of your choice. You may attend the hearing at any time during the course prior to the assignment due date, which is April 8. The memo should summarize your findings and offer some critical commentary, including, but not limited to, your view of whether and how the policy/practice at issue is good, and how/what you would change. You will then be asked to make a brief oral report during the following class, April 15. During that class, please be prepared to describe in 5-7 minutes what you observed and to give your conclusions about how the process is or is not useful for accomplishing sound policy or practice. The hearing memo and presentation together will account for 30% of your final grade.Law, Society & Public Policy Paper (1500 words)This paper, which is in lieu of an exam, will draw on the entirety of the course material. It is due on May 13. Its requirements will be discussed in greater detail in the second half of the course. The final paper will account for 30% of your final grade.Late Assignment PolicyPapers are due by hand at the beginning of class or, if submitted electronically, 1 hour prior to the start of class for that week. (Please send electronic copies in both Word and PDF document format.) Extensions will be granted only in cases of emergency. If you experience such an emergency, please provide notice as soon as practicable, but before the assignment is due. Late submissions without extensions will be penalized as much as a half a grade per day (e.g., B+ to B).Readings, Classes, and Guest SpeakersDuring each class, I will indicate the primary readings (i.e. must read) and the secondary readings (i.e. should read, but okay to skim if necessary) for the following week. They will all be available online in the NYU libraries database or via Google search (particularly in the case of news articles). Supreme Court cases assigned are always required reading. At times, reading assignments may be shortened, added, and/or substituted to accommodate guest speaker discussion. Likewise, classes and readings may be swapped around to accommodate speakers’ schedules. Please Google outside speakers prior to classes to have a sense of who will be addressing the class and why.Detailed Course OverviewSession 1 (1/29): Introduction to the Legal System: Law and its Structure & SourcesTopicsPublic Law vs. Private LawNatural Law, Common Law, Statutory/Code Law, and EquityLegal Education.ReadingsMartin Luther King, Jr., “Letter from a Birmingham Jail,” (Apr. 16, 1963) (6 pages)“Is It Right to Break the Law?” N.Y. Times (Jan. 12, 1964) (4 pages)Randy E. Barnett, “Four Senses of the Public Law-Private Law Distinction, Foreword to the ‘Symposium on the Limits of Public Law,’” 9 Harv. J. L. & Pub. Pol’y 267 (1986) (10 pages)Elizabeth Garrett, “Becoming Lawyers: The Role of the Socratic Method in Modern Law Schools,” 1 Green Bag 199 (1998) (10 pages)Kristen Marie Hansen, “The U.S. Legal System: Common Values, Uncommon Procedures,” 69 Brook. L. Rev. 689-704 (2004) (16 pages)Edward A. Purcell Jr., “Democracy, the Constitution, and Legal Positivism in America: Lessons from a Winding and Troubled History,” 66 Fla. L. Rev. 1457 - 1490 (2015) (33 pages)Edward A. Purcell, Jr., “Exploring the Origins of America’s ‘Adversarial’ Legal Culture,” 70 Stan. L. Rev. Online 37 (2017) (11 pages)Wilfred U. Codrington III, “The Benefit of Equity in the Constitutional Quest for Equality,” 43 NYU Rev. L. & Soc. Change 105 (2018) (11 pages)Session 2 (2/5): The Judiciary I: Federal Courts Litigating Cases & ControversiesTopicsStages of LitigationStandingPolitics of the Legal SystemReadingsU.S. Const. Art. IIIMarbury v. Madison, 5 U.S. 137 (1803)Ryan C. Black and Ryan J. Owens, “Agenda Setting in the Supreme Court: The Collision of Policy and Jurisprudence,” 71 J. of Politics 1062 (July 2009) (12 pages)Lawrence Baum, “The Supreme Court in American Politics,” Annual Review of Political Science No. 6 (June 2003) (16 pages)“Standing – Pre enforcement Challenges – Susan B. Anthony List v. Driehaus,” 128 Harv. L. Rev. 331 (2014) (10 pages)Elizabeth M. Schneider, “Revisiting the Integration of Law and Fact in Contemporary Federal Civil Litigation,” 15 Nev. L. J. 1387 (2015) (10 pages)Stephen Wermiel, “SCOTUS for Law Students: Battling over Mootness,” SCOTUSblog (Aug. 2019) (3 pages)Joseph Blocher and Eric Ruben, “Disrupting the Consensus on Second Amendment Doctrine would be a Mistake,” SCOTUSblog (Nov. 2019) (3 pages)Fritz A. O. Schwarz, Jr., “Saving the Supreme Court,” Democracy Journal, Fall 2019 (8 pages)Ganesh Sitaraman, “How to Rein In an All-Too-Powerful Supreme Court,” The Atlantic (Nov. 2019) (4 pages)Adam Liptak, “As the Supreme Court Gets Back to Work, Five Big Cases to Watch,” N.Y.Times (Nov. 11, 2019) (3 pages)Session 3 (2/12): The Legislature II: Legislative OversightTopicsChecks and BalancesWaste, Fraud, and AbuseReadingsWatkins v. United States, 354 U.S. 178 (1957)Leon Halpert, “Legislative Oversight and the Partisan Composition of Government,” 11 Presidential Studies Quarterly 479 (1981) (11 pages)Walter J. Oleszek, “Congressional Oversight: An Overview,” Cong. Research Serv. (Feb. 22, 2010) (17 pages)Brianne J. Gorod, Brian R. Frazelle, and Ashwin P. Phatak, “The Historical and Legal Basis for the Exercise of Congressional Oversight Authority,” Constitutional Accountability Center (Jan. 2019) (15 pages)Pema Levy, “Impeachment Is Heading to the Supreme Court. Trump’s Lawyers Will Be Happy,” Mother Jones (Oct. 10, 2019) (3 pages)Jackson Gode and Lily Gong, “Congress’s Oversight Mandate goes Beyond Impeachment,” Brookings Institution (Nov. 22, 2019) (4 pages)H. Res. 755, “Impeaching Donald John Trump, President of the United States, for High Crimes and Misdemeanors,” (Dec. 2019) (10 pages)Session 4 (2/19): The Legislature I: Legislative DraftingTopicsLegislative DraftingStatutory Interpretation.ReadingsU.S. Const. Art. IMcDonnell v. United States, 136 S. Ct. 2355 (2016)Richard A. Posner, “Statutory Interpretation – in the Classroom and in the Courtroom,” 50 Univ. Chicago L. Rev. 800 (1983) (23 pages)Nancy Scola, “Exposing ALEC: How Conservative-Backed State Laws Are All Connected,” The Atlantic (Apr. 14, 2012) (7 pages)Frank B. Cross, “The Canons of Statutory Interpretation,” in The Theory and Practice of Statutory Interpretation (pp. 85-101) (2009) (15 pages)Abbe R. Gluck, “Justice Scalia’s Unfinished Business in Statutory Interpretation: Where Textualism’s Formalism Gave Up,” 92 Notre Dame L. Rev. 2053 (2017) (24 pages)Matt Ford, “The Risk of Rushing Through Legislation,” The Atlantic (June 23, 2017) (3 pages)Session 5 (2/26): The Executive I: Executive Orders & Unilateral ActionTopicsPrivilegeUnilateral Action“Unitary” ExecutiveAll the President’s (Wo)menReadingsU.S. Const. Art. IIUnited States v. Nixon, 418 U.S. 683 (1974)E. Lee Bernick and Charles W. Wiggins, “The Governor’s Executive Order: An Unknown Power,” 16 State & Local Gov’t Rev. (1984) (8 pages)Jeremy Rabkin, “At the President’s Side: The Role of the White House Counsel in Constitutional Policy,” 56 Law & Contemporary Problems 63 (1993) (35 pages)Margaret R. Ferguson and Cynthia J. Bowling, “Executive Orders and Administrative Control,” 68 Pub. Admin. Rev. S20 (Dec. 2008) (8 pages)Alexander Bolton and Sharece Thrower, “Legislative Capacity and Executive Unilateralism,” 60 Am. J. of Pol. Science 649 (2016) (14 pages)Graham G. Dodds, “Presidential Executive Orders: Controversial but Common,” 17 Insights on L. & Soc’y 19 (2016) (5 pages)Michael Grunwald, “Trump’s Executive Orders Are Mostly Theater,” Politico Magazine (Apr. 28, 2017) (7 pages)Sarah Glazer, “The Presidency,” CQ Researcher, pp. 969-92 (Nov. 16, 2018) (19 pages)Olivia B. Waxman, “President Trump Invoked Executive Privilege. Here’s the History of That Presidential Power,” Time (June 13, 2019) (8 pages)Jonathan Shaub, “The Executive’s Privilege: Rethinking the President’s Power to Withhold Information,” Lawfare Blog (Oct. 31, 2019) (7 pages)Letter from President Donald J. Trump to the Speaker of the House of Representatives (Dec. 17, 2019) (6 pages)Session 6 (3/4): The Executive II: Administrative State & Regulatory PolicyTopicsExecutive Orders, Rules, Regulations, and Agency Decision MakingReadingsAdministrative Procedure ActChevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984)“OIRA Avoidance,” 124 Harv. L. Rev. 994 (2011) (23 pages)Gbemende Johnson, “Judicial Deference and Executive Control Over Administrative Agencies,” 14 State Politics & Policy Quarterly 142 (June 2014) (19 pages)Jennifer Nou, “The CBO-CBA Analogy, or What Wonks Could Learn from Each Other,” Take Care Blog (Mar. 17, 2017) (4 pages)Todd Garvey, “A Brief Overview of Rulemaking and Judicial Review,” Cong. Research Serv. (March 27, 2017) (19 pages)Khaldoun AbouAssi and Tina Nabatchi, “A Snapshot of FOIA Administration: Examining Recent Trends to Inform Future Research,” 49 Am. Rev. of Pub. Admin. 21 (May 13, 2018) (14 pages)Jeff Hauser, “The Little Agency That Could (Block All Good Regulations),” The American Prospect (Sept. 25, 2019) (4 pages)Bridget C. E. Dooling, “Sometimes, Executive Orders Are No More Powerful Than Tweets,” Government Executive Magazine (Nov. 26, 2019) (3 pages)Session 7 (3/11): Federalism: Partners & RivalsTopicsStates and Localities in the American Constitutional SystemScope of JurisdictionReadingsU.S. Const. Art. IVGibbons v. Ogden, 22 U.S. 1 (1824); Printz v. United States, 521 U.S. 898 (1997)Timothy J. Conlan, “Between a Rock and a Hard Place: The Evolution of AmericanFederalism,” in Intergovernmental Management for the 21st Century pp. 26-41 (2009) (15 pages)Ernest Young, “Federalism as a Constitutional Principle,” 83 U. Cin. L. Rev. 1057 (2015) (28 pages)“Federalism and Immigration: Will the Court Choose Federal Uniformity or States’ Rights in Immigration Law?” in The Constitution at a Crossroads (June 19, 2012) ( 10.pdf) (9 pages)Erwin Chemerinsky, “Embracing Federalism,” Take Care Blog (Mar. 16, 2017) (3 pages)Conor Friedersdorf, “Federalism is Dead, Long Live Federalism,” The Atlantic (June 28, 2017) (3 pages)Alan Greenblatt, “Federal-State Relations,” CQ Researcher (April 27, 2018) (17 pages)Session 8 (3/25): The Judiciary II: Justice in the State CourtsTopicsStructure & Jurisdiction of State CourtsFunding & Resource PressuresReadingsNY Const. Art. VIFL Const. Art. VHon. Randall T. Shepard, “The New Role of State Supreme Courts as Engines of Court Reform,” 81 N.Y.U. L. Rev. 1535 (2006) (18 pages)Michael D. Greenberg and Geoffrey McGovern, “State Court Funding,” in An Early Assessment of the Civil Justice System After the Financial Crisis: Something Wicked This Way Comes? (2012) (8 pages)Jonathan R. Nash, “Supreme Court Reaffirms Supremacy over State Courts, and Why that Matters Now,” The Hill (Feb. 4, 2016) (3 pages)Miriam Seifter, “Judging Power Plays in the American States,” 97 Tex. L. Rev. 1225 (2019) (22 pages)Session 9 (4/1): Access to JusticeTopicsRight to CounselLegal Assistance for the UnderservedReadingsGideon v. Wainwright, 372 U.S. 335 (1963)Hon. Robert A. Katzmann, “The Legal Profession and the Unmet Needs of the Immigrant Poor,” 62 The Record 287 (2007) (25 pages)Justin F. Marceau, “Gideon’s Shadow,” 122 Yale L. J. 2482 (2013) (22 pages)Andrew Cohen, “How Americans Lost the Right to Counsel, 50 Years After ‘Gideon’,” The Atlantic, (Mar. 13, 2013) (19 pages)Lucas Guttentag and Ahilan Arulanantham, “Extending the Promise of ‘Gideon’: Immigration, Deportation, and the Right to Counsel,” 39 Human Rights 14-16, 23 (April 2013) (4 pages)Maura Ewing, “When Does the Right to an Attorney Kick In?,” The Atlantic, (Sept. 15, 2017) (4 pages)Deborah L. Rhode, Kevin Eaton, and Anna Porto, “Access to Justice Through Limited Legal Assistance,” 16 Nw. J. Hum. Rts. 1 (2018 (20 pages)Vicki Been, Nicole Summers, and Jessica Yager “Implementing New York City’s Universal Access to Counsel Program: Lessons for Other Jurisdictions,” NYU Furman Center (Dec. 2018)Session 10 (4/8): Political Law & EthicsTopicsVotingRedistrictingReadingsShelby County v. Holder, 570 U.S. 529 (2013); Rucho v. Common Cause, 139 S. Ct. 2484 (2019)Spencer Overton, “Voting Rights Disclosure,” 127 Harv. L. Rev. F. 19 (2013) (13 pages)Guy-Uriel E. Charles & Luis E. Fuentes-Rohwer, “Voting Rights Law and Policy in Transition,” 127 Harv. L. Rev. F. 243 (2014) (6 pages)Nancy Martorano Miller, Keith E. Hamm, Maria Aroca, and Ronald D. Hedlund, “An Alternative Route to Voting Reform: the Right to Vote, Voter Registration, Redistricting and US State Constitutions,” 49 Publius: The Journal of Federalism 465 (2019) (21 pages)Franita Tolson, “The Elections Clause and the Underenforcement of Federal Law,” 129 Yale L. J. F. 171 (2019) (14 pages)“Voting Laws Roundup 2019,” Brennan Center for Justice (July 10, 2019) (6 pages)“Who Draws the Maps? Legislative and Congressional Redistricting,” Brennan Center for Justice (Jan. 30, 2019) (6 pages)Kim Zetter, “How Close Did Russia Really Come to Hacking the 2016 Election?,” Politico Magazine (Dec. 26, 2019) (28 pages)Session 11 (4/15): Hearing PresentationsSession 12 (4/22): Political Law & Ethics IITopicsLobbyingEthicsCampaign FinanceReadingsCitizens United v. FEC, 558 U.S. 310 (2010)Alan N. Fernandes, “Ethical Considerations of the Public Sector Lobbyist,” 41 McGeorge L. Rev. 183 (2009) (19 pages)Floyd Abrams and Burt Neuborne, “Debating Citizens United with Burt Neuborne,” in Friend of the Court: On the Front Lines with the First Amendment (2013) (15 pages)Heather K. Gerken, “The Real Problem with ‘Citizens United’: Campaign Finance, Dark Money, and Shadow Parties,” 159 Proceedings of the American Philosophical Society (March 2015), pp. 5-16 (11 pages)Stephen Spaulding, “H.R. 1: Forging a Path for Pro-Democracy Reform,” Take Care Blog (Dec. 24, 2018) (4 pages)Gabrielle Gesek, “A House Divided: The Fall of the Federal Election Commission,” Drexel L. Rev. Blog (Oct. 24, 2019) (2 pages)Richard H. Pildes, “Small-Donor-Based Campaign-Finance Reform and Political Polarization,” 129 Yale L. J. F. 149 (2019) (22 pages)Ross Barkan, “Albany Watchdogs Say Anti-Corruption Commission Is Failing, Just As ‘Powers That Be’ Intended,” Gothamist (Nov. 27, 2019) (3 pages)Richard L. Hasen, “The Decade of Citizens United,” Slate (Dec. 19, 2019) (14 pages)Ciara Torres-Spelliscy, “The Supreme Court Is Killing Contribution Limits Softly; A Few Years from Now They Likely Will Be Dead,” Harv. L. Rev. Blog (Dec. 29, 2019) (2 pages)Session 13 (4/29): International Law: Law in the Global ContextTopicsInternational Law Origins, Sources, and NormsInternational Law Post-9/11, Post-the State, and Post-GlobalizationReadingsWilliam H. Taft IV, “The Law of Armed Conflict After 9/11: Some Salient Features,” 28 Yale J. Int’l L. (2003) (6 pages)Sabino Cassese, “Administrative Law Without the State? The Challenge of Global Regulation,” 37 NYU J. of Int’ L. & Pol. (2005) (30 pages)John P. Grant, “Sources of International Law,” in International Law Essentials (Edinburgh: Edinburgh University Press, 2010). (Chapter 2) (16 pages)“Summary of the Geneva Conventions of 1949 and Their Additional Protocols,” American Red Cross (April 2011) (7 pages)Julian G. Ku and John Yoo, “Globalization and Sovereignty,” 31 Berkeley J. Int’l L. 210 (2013) (25 pages)Harold Hongju Koh and Michael Doyle, “The Case for International Law: A Response to ‘The War of Law’,” Foreign Affairs, Vol. 6 (Nov. /Dec. 2013), pp. 162-165 (4 pages)Joel Simon, “Why Mass Surveillance Violates International Law,” Slate (June 17, 2015) (4 pages)Session 14 (5/6): Conclusions: Law and Public PolicyTopicsLaw v. Public PolicyCritical Race, Feminist Legal StudiesCourse ReflectionsReadingsTheodore J. Lowi, “Law vs. Public Policy: A Critical Exploration,” 12 Cornell J. of L. & Pub. Policy (2003) (11 pages)Darren L. Hutchinson, New Complexity Theories: From Theoretical Innovation to Doctrinal Reform, 71 UMKC L. Rev. 431 (2002) (20 pages)Adrien K. Wing, “Is There a Future for Critical Race Theory?,” 66 J. Legal Educ. 44 (2016) (10 pages)Academic IntegrityAcademic integrity is a vital component of Wagner and NYU. All students enrolled in this class are required to read and abide by Wagner’s Academic Code. All Wagner students have already read and signed the?Wagner Academic Oath. Plagiarism of any form will not be tolerated and students in this class are expected to?report violations to me.?If any student in this class is unsure about what is expected of you and how to abide by the academic code, you should consult with me.Henry and Lucy Moses Center for Student AccessibilityAcademic accommodations are available for students with disabilities.? Please visit the Moses Center for Students with Disabilities (CSD) website and click the “Get Started” button. You can also call or email CSD (212-998-4980 or mosescsd@nyu.edu) for information. Students who are requesting academic accommodations are strongly advised to reach out to the Moses Center as early as possible in the semester for assistance.NYU’s Calendar Policy on Religious HolidaysNYU’s Calendar Policy on Religious Holidays states that members of any religious group may, without penalty, absent themselves from classes when required in compliance with their religious obligations. Please notify me in advance of religious holidays that might coincide with exams to schedule mutually acceptable alternatives.NYU’s Wellness ExchangeNYU’s Wellness Exchange has extensive student health and mental health resources. A private hotline (212-443-9999) is available 24/7 that connects students with a professional who can help them address day-to-day challenges as well as other health-related concerns. ................
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