... how well intentioned, lawyers regulating lawyers cannot escape the economic, psychological, a... more ... how well intentioned, lawyers regulating lawyers cannot escape the economic, psychological, and political ... 12 IN THE INTERESTS OF JUSTICE were losing public respect because they were also losing their commitment to public service and their moral independence from ...
The COVID-19 pandemic has challenged governments of every description across the globe, and it su... more The COVID-19 pandemic has challenged governments of every description across the globe, and it surely would have tested the mettle of any American administration. But the pandemic appeared in the United States at a particularly inopportune time. January 2020 marked the beginning of a presidential election year in a deeply polarized country. President Donald Trump was a controversial figure, beginning the fourth year of a highly idiosyncratic administration. He was both a candidate for re-election and the subject of an ongoing impeachment proceeding. In these circumstances, the pandemic quickly became politicized.
President Trump’s response to the COVID-19 pandemic has often been faulted for his lack of leadership, and for his refusal to “follow the science.” During the 2020 election, the Democrats sought to portray themselves as the “party of science,” touting their willingness to “follow the science,” and distinguishing themselves in that way from President Trump—whom they portrayed as someone who did not “believe in science.” As this Article shows, however, the issue was more complicated than “following the science” or not. The president failed to demonstrate the leadership that the situation called for, and he seemingly lost all interest in the pandemic after he failed to win re-election—even as the infection and death counts spiraled out of control. But the story of the federal government’s missteps also involves the government’s scientific bureaucracy, and its relationship to the president and other political actors—matters that transcend the personalities or particularities of any specific administration. From the beginning of the pandemic, government scientists purported to speak with great authority, but their pronouncements were far from consistent.
The federal government’s response to the pandemic involves failures by scientists and politicians and implicates some of the most fundamental aspects of our constitutional system. First, the primary responsibility for public health rests with the states in our federal system, but the national government is constitutionally authorized to act in a national public health emergency. At the end of the day, however, the effectiveness of federal action may depend as much on the quality of the president’s leadership and relationships with state officials (and, at least in times of extreme partisanship, on whether the president and state officials belong to the same political party), as on any specific constitutional or legal authority. Second, it is a commonplace that Congress makes the laws, while the president’s role is to “take Care that the Laws be faithfully executed.” For the federal government to respond effectively to a national health crisis, Congress must grant the president the legal authority to act, and the president must be willing to exercise the authority that Congress has given. That too depends on presidential leadership, and, at least in times of extreme partisanship, it may also depend on the respective party affiliations of the president and congressional majorities. Third, in several recent cases, the Supreme Court has enthusiastically endorsed the so-called “unitary executive” theory, which holds that the president must have strong chain-of-command authority over all administrative decisionmakers, regardless of how technical or inappropriate for resolution by short-term political calculation their work may be. On the other hand, governmental transparency and sound policy demand that policymakers and the public be able to recognize where scientific expertise ends, and politics begins. Finally, given the date currently set for presidential elections, the Twentieth Amendment ensures that a defeated or otherwise retiring president will retain all the power of the presidency for approximately ten weeks after a new president has been elected, regardless of how much political support or interest in governing the incumbent president may have.
This Article explores the effects that each of these constitutional principles and understandings has had on the government’s efforts to combat the COVID-19 pandemic, as well as the effect that the government’s performance with respect to the pandemic should have on how we think about these principles and theories. Those inquiries are particularly appropriate now, when the problems posed by political polarization, unconventional political leaders, and the public’s need for the best available science are unlikely to disappear.
We may be in the latter days of this particular civilization whose very fabric seems to be tearin... more We may be in the latter days of this particular civilization whose very fabric seems to be tearing apart. But if we should have dark days ahead, we must remember the motto of the Christopher Society, "It is better to light one candle than to curse the darkness." - Edmund Campbell, Musings of a 95 Year Old In recognition of his contributions to Washington and Lee University, the Commonwealth of Virginia, the practice of law, and society, the Editors of the Washington and Lee Law Review respectfully dedicate this issue to Edmund Douglas Campbell. Although these writings cannot convey the full extent of Mr. Campbell's many achievements, we hope that they will illustrate how many lives he touched in his ninety-six years. Barry Sullivan* I am pleased to join the Editors of the Washington and Lee Law Review in paying tribute to the memory of Edmund Douglas Campbell. It is most appropriate that the Editors should note the passing of Ed Campbell. Indeed, it is difficult for me...
This paper considers three ways in which advocacy is related to what it means to be "human.&... more This paper considers three ways in which advocacy is related to what it means to be "human." The first is grounded in the nature of legal disputes, and in our expectations as a society of how those disputes are to be resolved in a way that is fair and just. The second arises from the fundamentally human character of the lawyer-client relationship, and the act of sharing expert legal knowledge, judgment and advice with another human being in need of those things. The third way advocacy has to do with humanity relates to the activity itself, which has to do with persuasion. Whether in a legal context or not, persuasion is a quintessentially human activity. It is this third aspect that forms the focus of the paper's exploration of the ways in which legal advocacy has to do with what it is to be human.
This article discusses the response of the United States Government to the COVID-19 Pandemic from... more This article discusses the response of the United States Government to the COVID-19 Pandemic from January through June 19, 2020.In particular, the article focuses on the constitutional and legal background of that response. The article was prepared for a symposium in the Italian journal Il diritti dell'economia on responses to the COVID-19 pandemic by governments around the world.
Although there are persuasive arguments for the benefits of diversity throughout higher education... more Although there are persuasive arguments for the benefits of diversity throughout higher education, a particularly compelling argument can be made for diversity in legal education, based on the distinctive mission, concerns, and pedagogy of legal education. In making that argument, this paper takes seriously Justice O’Connor’s insight in Grutter v. Bollinger, 539 U.S. 306 (2003), that “context matters” when courts consider the constitutionality of race-conscious admissions programs, as well as Justice Powell’s thoughtful reflections on the particular aims of professional education in Regents of the University of California v. Bakke, 438 U.S. 265 (1978). Legal education was the immediate context involved in Grutter, of course, but Justice O’Connor mainly focused on the context of higher education more generally. As the value of diversity continues to be questioned across the board, this paper suggests that Justice O’Connor’s insight might be further developed, so that more carefully t...
This essay discusses the relationship among government transparency, human dignity, democratic th... more This essay discusses the relationship among government transparency, human dignity, democratic theory, and Catholic social teaching. The essay argues that citizens in democratic societies such as the United States have a right to the information necessary to make informed decisions about public policy and those they elect to enact such policy. The citizen’s claim to such information is based on the belief that each citizen is respected and dignified as a human person when able to participate in this democratic form of governance and decision-making. This right, and the dignity it is based on, finds support in and through the insights offered by Catholic social teaching and in the work of the French philosopher Jacques Maritain. The difficulty arises, the essay maintains, when the Church supports human dignity and transparency as applied to others, but not to itself. That stance compromises its effectiveness in promoting the democratic right to information and the rights to respect a...
"To celebrate the Alberta Law Review's fiftieth volume, the book review editors invited ... more "To celebrate the Alberta Law Review's fiftieth volume, the book review editors invited friends and alumni to put aside for a moment their required reading, and reflect briefly on the books that have shaped their approaches to life and the law." Professor Sullivan chose to reflect upon the perennially popular A Christmas Carol, to thoughtful and poetic effect.
Donald Trump repeatedly vowed to reduce regulation during the 2016 presidential campaign. Indeed,... more Donald Trump repeatedly vowed to reduce regulation during the 2016 presidential campaign. Indeed, one of his key advisors promised to "deconstruct" the administrative state. Since taking office, President Trump has attempted to make good on his promises, spurring federal agencies to brush aside countless regulations that previous administrations had promulgated based on scientific, technological, or economic evidence. Those efforts, which have been dubbed a "war on science," implicate a long-contested question in administrative law: to what extent should a change in presidential administrations excuse agencies from an obligation to justify changes in policy with expert, reasoned analysis of relevant data? Perhaps surprisingly, the Trump administration's efforts align with views that have dominated administrative law scholarship in recent decades. By the time Trump took office, many leading administrative law scholars had already championed enhanced presidential control over agency decisions, dismissed expert analysis as an anachronistic relic of the New Deal, and suggested that the considered judgments of previous administrations should be amenable to quick and easy change. This article takes a contrary view and asserts a renewed role for expert, reasoned analysis in the face of politically motivated administrative change. Unlike earlier work, this article identifies change as a fundamental and essential aspect of much expert decision-making, and it explains that regulatory statutes often call for an exercise of expert judgment capable of incorporating frequently changing bodies of scientific, technological, or economic knowledge. This positive procedural account of agency decision-making shows that the reasoned analysis contributed by agency expertise is far from superfluous, but contributes legitimacy and transparency to administrative government. By identifying the value of expertise within the context of politically directed policy changes, this article addresses an under-theorized aspect of judicial review of agency decisions and reinforces the need for agencies to support changes in policy with reasoned, expert analysis.
... how well intentioned, lawyers regulating lawyers cannot escape the economic, psychological, a... more ... how well intentioned, lawyers regulating lawyers cannot escape the economic, psychological, and political ... 12 IN THE INTERESTS OF JUSTICE were losing public respect because they were also losing their commitment to public service and their moral independence from ...
The COVID-19 pandemic has challenged governments of every description across the globe, and it su... more The COVID-19 pandemic has challenged governments of every description across the globe, and it surely would have tested the mettle of any American administration. But the pandemic appeared in the United States at a particularly inopportune time. January 2020 marked the beginning of a presidential election year in a deeply polarized country. President Donald Trump was a controversial figure, beginning the fourth year of a highly idiosyncratic administration. He was both a candidate for re-election and the subject of an ongoing impeachment proceeding. In these circumstances, the pandemic quickly became politicized.
President Trump’s response to the COVID-19 pandemic has often been faulted for his lack of leadership, and for his refusal to “follow the science.” During the 2020 election, the Democrats sought to portray themselves as the “party of science,” touting their willingness to “follow the science,” and distinguishing themselves in that way from President Trump—whom they portrayed as someone who did not “believe in science.” As this Article shows, however, the issue was more complicated than “following the science” or not. The president failed to demonstrate the leadership that the situation called for, and he seemingly lost all interest in the pandemic after he failed to win re-election—even as the infection and death counts spiraled out of control. But the story of the federal government’s missteps also involves the government’s scientific bureaucracy, and its relationship to the president and other political actors—matters that transcend the personalities or particularities of any specific administration. From the beginning of the pandemic, government scientists purported to speak with great authority, but their pronouncements were far from consistent.
The federal government’s response to the pandemic involves failures by scientists and politicians and implicates some of the most fundamental aspects of our constitutional system. First, the primary responsibility for public health rests with the states in our federal system, but the national government is constitutionally authorized to act in a national public health emergency. At the end of the day, however, the effectiveness of federal action may depend as much on the quality of the president’s leadership and relationships with state officials (and, at least in times of extreme partisanship, on whether the president and state officials belong to the same political party), as on any specific constitutional or legal authority. Second, it is a commonplace that Congress makes the laws, while the president’s role is to “take Care that the Laws be faithfully executed.” For the federal government to respond effectively to a national health crisis, Congress must grant the president the legal authority to act, and the president must be willing to exercise the authority that Congress has given. That too depends on presidential leadership, and, at least in times of extreme partisanship, it may also depend on the respective party affiliations of the president and congressional majorities. Third, in several recent cases, the Supreme Court has enthusiastically endorsed the so-called “unitary executive” theory, which holds that the president must have strong chain-of-command authority over all administrative decisionmakers, regardless of how technical or inappropriate for resolution by short-term political calculation their work may be. On the other hand, governmental transparency and sound policy demand that policymakers and the public be able to recognize where scientific expertise ends, and politics begins. Finally, given the date currently set for presidential elections, the Twentieth Amendment ensures that a defeated or otherwise retiring president will retain all the power of the presidency for approximately ten weeks after a new president has been elected, regardless of how much political support or interest in governing the incumbent president may have.
This Article explores the effects that each of these constitutional principles and understandings has had on the government’s efforts to combat the COVID-19 pandemic, as well as the effect that the government’s performance with respect to the pandemic should have on how we think about these principles and theories. Those inquiries are particularly appropriate now, when the problems posed by political polarization, unconventional political leaders, and the public’s need for the best available science are unlikely to disappear.
We may be in the latter days of this particular civilization whose very fabric seems to be tearin... more We may be in the latter days of this particular civilization whose very fabric seems to be tearing apart. But if we should have dark days ahead, we must remember the motto of the Christopher Society, "It is better to light one candle than to curse the darkness." - Edmund Campbell, Musings of a 95 Year Old In recognition of his contributions to Washington and Lee University, the Commonwealth of Virginia, the practice of law, and society, the Editors of the Washington and Lee Law Review respectfully dedicate this issue to Edmund Douglas Campbell. Although these writings cannot convey the full extent of Mr. Campbell's many achievements, we hope that they will illustrate how many lives he touched in his ninety-six years. Barry Sullivan* I am pleased to join the Editors of the Washington and Lee Law Review in paying tribute to the memory of Edmund Douglas Campbell. It is most appropriate that the Editors should note the passing of Ed Campbell. Indeed, it is difficult for me...
This paper considers three ways in which advocacy is related to what it means to be "human.&... more This paper considers three ways in which advocacy is related to what it means to be "human." The first is grounded in the nature of legal disputes, and in our expectations as a society of how those disputes are to be resolved in a way that is fair and just. The second arises from the fundamentally human character of the lawyer-client relationship, and the act of sharing expert legal knowledge, judgment and advice with another human being in need of those things. The third way advocacy has to do with humanity relates to the activity itself, which has to do with persuasion. Whether in a legal context or not, persuasion is a quintessentially human activity. It is this third aspect that forms the focus of the paper's exploration of the ways in which legal advocacy has to do with what it is to be human.
This article discusses the response of the United States Government to the COVID-19 Pandemic from... more This article discusses the response of the United States Government to the COVID-19 Pandemic from January through June 19, 2020.In particular, the article focuses on the constitutional and legal background of that response. The article was prepared for a symposium in the Italian journal Il diritti dell'economia on responses to the COVID-19 pandemic by governments around the world.
Although there are persuasive arguments for the benefits of diversity throughout higher education... more Although there are persuasive arguments for the benefits of diversity throughout higher education, a particularly compelling argument can be made for diversity in legal education, based on the distinctive mission, concerns, and pedagogy of legal education. In making that argument, this paper takes seriously Justice O’Connor’s insight in Grutter v. Bollinger, 539 U.S. 306 (2003), that “context matters” when courts consider the constitutionality of race-conscious admissions programs, as well as Justice Powell’s thoughtful reflections on the particular aims of professional education in Regents of the University of California v. Bakke, 438 U.S. 265 (1978). Legal education was the immediate context involved in Grutter, of course, but Justice O’Connor mainly focused on the context of higher education more generally. As the value of diversity continues to be questioned across the board, this paper suggests that Justice O’Connor’s insight might be further developed, so that more carefully t...
This essay discusses the relationship among government transparency, human dignity, democratic th... more This essay discusses the relationship among government transparency, human dignity, democratic theory, and Catholic social teaching. The essay argues that citizens in democratic societies such as the United States have a right to the information necessary to make informed decisions about public policy and those they elect to enact such policy. The citizen’s claim to such information is based on the belief that each citizen is respected and dignified as a human person when able to participate in this democratic form of governance and decision-making. This right, and the dignity it is based on, finds support in and through the insights offered by Catholic social teaching and in the work of the French philosopher Jacques Maritain. The difficulty arises, the essay maintains, when the Church supports human dignity and transparency as applied to others, but not to itself. That stance compromises its effectiveness in promoting the democratic right to information and the rights to respect a...
"To celebrate the Alberta Law Review's fiftieth volume, the book review editors invited ... more "To celebrate the Alberta Law Review's fiftieth volume, the book review editors invited friends and alumni to put aside for a moment their required reading, and reflect briefly on the books that have shaped their approaches to life and the law." Professor Sullivan chose to reflect upon the perennially popular A Christmas Carol, to thoughtful and poetic effect.
Donald Trump repeatedly vowed to reduce regulation during the 2016 presidential campaign. Indeed,... more Donald Trump repeatedly vowed to reduce regulation during the 2016 presidential campaign. Indeed, one of his key advisors promised to "deconstruct" the administrative state. Since taking office, President Trump has attempted to make good on his promises, spurring federal agencies to brush aside countless regulations that previous administrations had promulgated based on scientific, technological, or economic evidence. Those efforts, which have been dubbed a "war on science," implicate a long-contested question in administrative law: to what extent should a change in presidential administrations excuse agencies from an obligation to justify changes in policy with expert, reasoned analysis of relevant data? Perhaps surprisingly, the Trump administration's efforts align with views that have dominated administrative law scholarship in recent decades. By the time Trump took office, many leading administrative law scholars had already championed enhanced presidential control over agency decisions, dismissed expert analysis as an anachronistic relic of the New Deal, and suggested that the considered judgments of previous administrations should be amenable to quick and easy change. This article takes a contrary view and asserts a renewed role for expert, reasoned analysis in the face of politically motivated administrative change. Unlike earlier work, this article identifies change as a fundamental and essential aspect of much expert decision-making, and it explains that regulatory statutes often call for an exercise of expert judgment capable of incorporating frequently changing bodies of scientific, technological, or economic knowledge. This positive procedural account of agency decision-making shows that the reasoned analysis contributed by agency expertise is far from superfluous, but contributes legitimacy and transparency to administrative government. By identifying the value of expertise within the context of politically directed policy changes, this article addresses an under-theorized aspect of judicial review of agency decisions and reinforces the need for agencies to support changes in policy with reasoned, expert analysis.
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Papers by Barry Sullivan
President Trump’s response to the COVID-19 pandemic has often been faulted for his lack of leadership, and for his refusal to “follow the science.” During the 2020 election, the Democrats sought to portray themselves as the “party of science,” touting their willingness to “follow the science,” and distinguishing themselves in that way from President Trump—whom they portrayed as someone who did not “believe in science.” As this Article shows, however, the issue was more complicated than “following the science” or not. The president failed to demonstrate the leadership that the situation called for, and he seemingly lost all interest in the pandemic after he failed to win re-election—even as the infection and death counts spiraled out of control. But the story of the federal government’s missteps also involves the government’s scientific bureaucracy, and its relationship to the president and other political actors—matters that transcend the personalities or particularities of any specific administration. From the beginning of the pandemic, government scientists purported to speak with great authority, but their pronouncements were far from consistent.
The federal government’s response to the pandemic involves failures by scientists and politicians and implicates some of the most fundamental aspects of our constitutional system. First, the primary responsibility for public health rests with the states in our federal system, but the national government is constitutionally authorized to act in a national public health emergency. At the end of the day, however, the effectiveness of federal action may depend as much on the quality of the president’s leadership and relationships with state officials (and, at least in times of extreme partisanship, on whether the president and state officials belong to the same political party), as on any specific constitutional or legal authority. Second, it is a commonplace that Congress makes the laws, while the president’s role is to “take Care that the Laws be faithfully executed.” For the federal government to respond effectively to a national health crisis, Congress must grant the president the legal authority to act, and the president must be willing to exercise the authority that Congress has given. That too depends on presidential leadership, and, at least in times of extreme partisanship, it may also depend on the respective party affiliations of the president and congressional majorities. Third, in several recent cases, the Supreme Court has enthusiastically endorsed the so-called “unitary executive” theory, which holds that the president must have strong chain-of-command authority over all administrative decisionmakers, regardless of how technical or inappropriate for resolution by short-term political calculation their work may be. On the other hand, governmental transparency and sound policy demand that policymakers and the public be able to recognize where scientific expertise ends, and politics begins. Finally, given the date currently set for presidential elections, the Twentieth Amendment ensures that a defeated or otherwise retiring president will retain all the power of the presidency for approximately ten weeks after a new president has been elected, regardless of how much political support or interest in governing the incumbent president may have.
This Article explores the effects that each of these constitutional principles and understandings has had on the government’s efforts to combat the COVID-19 pandemic, as well as the effect that the government’s performance with respect to the pandemic should have on how we think about these principles and theories. Those inquiries are particularly appropriate now, when the problems posed by political polarization, unconventional political leaders, and the public’s need for the best available science are unlikely to disappear.
President Trump’s response to the COVID-19 pandemic has often been faulted for his lack of leadership, and for his refusal to “follow the science.” During the 2020 election, the Democrats sought to portray themselves as the “party of science,” touting their willingness to “follow the science,” and distinguishing themselves in that way from President Trump—whom they portrayed as someone who did not “believe in science.” As this Article shows, however, the issue was more complicated than “following the science” or not. The president failed to demonstrate the leadership that the situation called for, and he seemingly lost all interest in the pandemic after he failed to win re-election—even as the infection and death counts spiraled out of control. But the story of the federal government’s missteps also involves the government’s scientific bureaucracy, and its relationship to the president and other political actors—matters that transcend the personalities or particularities of any specific administration. From the beginning of the pandemic, government scientists purported to speak with great authority, but their pronouncements were far from consistent.
The federal government’s response to the pandemic involves failures by scientists and politicians and implicates some of the most fundamental aspects of our constitutional system. First, the primary responsibility for public health rests with the states in our federal system, but the national government is constitutionally authorized to act in a national public health emergency. At the end of the day, however, the effectiveness of federal action may depend as much on the quality of the president’s leadership and relationships with state officials (and, at least in times of extreme partisanship, on whether the president and state officials belong to the same political party), as on any specific constitutional or legal authority. Second, it is a commonplace that Congress makes the laws, while the president’s role is to “take Care that the Laws be faithfully executed.” For the federal government to respond effectively to a national health crisis, Congress must grant the president the legal authority to act, and the president must be willing to exercise the authority that Congress has given. That too depends on presidential leadership, and, at least in times of extreme partisanship, it may also depend on the respective party affiliations of the president and congressional majorities. Third, in several recent cases, the Supreme Court has enthusiastically endorsed the so-called “unitary executive” theory, which holds that the president must have strong chain-of-command authority over all administrative decisionmakers, regardless of how technical or inappropriate for resolution by short-term political calculation their work may be. On the other hand, governmental transparency and sound policy demand that policymakers and the public be able to recognize where scientific expertise ends, and politics begins. Finally, given the date currently set for presidential elections, the Twentieth Amendment ensures that a defeated or otherwise retiring president will retain all the power of the presidency for approximately ten weeks after a new president has been elected, regardless of how much political support or interest in governing the incumbent president may have.
This Article explores the effects that each of these constitutional principles and understandings has had on the government’s efforts to combat the COVID-19 pandemic, as well as the effect that the government’s performance with respect to the pandemic should have on how we think about these principles and theories. Those inquiries are particularly appropriate now, when the problems posed by political polarization, unconventional political leaders, and the public’s need for the best available science are unlikely to disappear.