Choose the Best Answer: Organizing Climate Change Negotiation in the Obama Administration

Jonathan Zasloff[*]

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Bureaucratic reorganization may well constitute the most dismal swamp of policy analysis.  Agencies are restructured, responsibilities reassigned, bureaus renamed, boxes are moved around—yet all too often, nothing happens.  This failure, of course, leads to yet another fruitless round of thrashing about.

But organizational choices matter.  At the start of the War on Terror, President Bush made two crucial decisions: he gave the CIA (rather than the FBI) control over the interrogations of high-value terror suspects[1] and he gave the Defense Department (rather than State) control of postwar Iraqi reconstruction.[2]  These choices carried disastrous results.  Bush’s earlier decision to grant Vice President Dick Cheney essentially free rein throughout the executive branch also had critical consequences for the substantive outcomes of his administration.[3]

So it is with international climate change negotiations.  Which American agency or entity would be the most capable choice to design effective international climate change architecture?  This Essay examines the usual suspects—the Department of State, the Environmental Protection Agency, the Council on Environmental Quality, a “Climate Czar,” and a special climate change representative—and considers the advantages and pitfalls of each.

I conclude, however, that the (tentatively) best choice is one never mentioned by commentators: the Office of the United States Trade Representative (USTR).  Although USTR does not perfectly fit the task, it has fewer shortcomings than other available agencies.  While hardly without problems, the USTR represents the best maximization of advantages and minimization of problems.

A Lawyer's Worst Nightmare: The Story of a Lawyer and His Nurse Clients Who Were Both Criminally Charged Because the Nurses Resigned En Mass

Mitchell H. Rubinstein[*]

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Introduction

Imagine that a group of foreign registered nurses approaches you because they feel abused and want to quit their jobs.  They signed an employment contract with a $25,000 liquidated damage provision agreeing to remain employed for three years and are unsure of their rights.  You advise your clients that they have the right to quit, and after they act on this advice, you find yourself at the center of a massive criminal and civil controversy.  Both you and your clients are criminally charged with endangering the welfare of patients and related crimes because the nurses resigned en masse without notice.  This may seem strange in light of the Thirteenth Amendment’s ban on involuntary servitude, but in 2007, this happened to ten nurses and their lawyer.[1]

There is a serious shortage of Registered Nurses in this country, and as a result, nurses are widely recruited from the Philippines to work in hospitals and nursing homes.[2]  The nurses in question were sponsored immigrant workers from the Philippines working legally in the United States.  As part of their sponsorship, all had signed identical employment agreements.  These contracts required the nurses to remain employed for three years and included a $25,000 liquidated damages provision.[3]

After the nurses resigned on April 7, 2006, various legal proceedings involving the nurses and their attorney, Felix Vinluan, began.  Most notably, a claim of patient abandonment was filed with the New York State Education Department, which regulates the nursing profession, although that charge has since been dismissed.[4]  Nevertheless, a Grand Jury indicted the nurses on eleven counts of misdemeanor crimes, including endangering the welfare of pediatric patients.[5]  The indictment also charged their lawyer with conspiring to commit these crimes, alleging that he advised the nurses to resign en mass without notice.[6]  Significantly, the indictment does not allege that any shift at the nursing home went uncovered or that any child was actually harmed as a result of the nurses’ resignation.[7]

In September of 2007, the court denied motions to dismiss for insufficient evidence filed by both Vinluan and the ten nurses.  With regard to Vinluan, the court emphasized the fact that the mass resignations could have had disastrous consequences because many of the nurses’ patients were gravely ill.[8]  With regard to the nurses, the court rejected the claim that under the Thirteenth Amendment a person cannot be criminally punished for quitting her job.  The court interpreted the charges as not punishing the nurses for simply resigning, but because they resigned en masse, which the prosecution argued, endangered their patients.[9]  Vinluan and the nurses successfully brought a proceeding to stay their criminal prosecutions pending a determination on whether the trial court correctly denied the motions to dismiss.[10]  On January 13, 2009, the Second Judicial Department of the Appellate Division reversed the lower courts and held that neither the nurses nor their attorney may be criminally prosecuted.[11]

This Essay examines this troubling case and the public policy issues that it highlights.  Part I reviews the nature of employment contracts and concludes that the Thirteenth Amendment and related legislation prohibit enforcing the nurses’ three-year time commitment through specific performance.  Part II examines whether criminal prosecution of the nurses is preempted by the National Labor Relations Act (NLRA)[12] and concludes that criminal prosecution is preempted because it interferes with the free play of economic forces that NLRA aims to protect.  Part III explores legal issues surrounding the criminal prosecution of an attorney based on advice he may have given.  The Essay concludes by explaining that the liquidated damage provision, which may have sparked this entire controversy, was probably unenforceable as a penalty, that the criminal prosecution was unwarranted, and that the Appellate Division’s decision was correct.

Building Antitrust Agency Capacity in Context

Salil Mehra[*]

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Since the early 1990s, the world has seen the establishment of comprehensive antitrust regimes in the Eastern European transitional economies,[1] Latin America,[2] China,[3] and India.[4]  The growth of new and revitalized antitrust regimes around the world has focused attention on how to build effective and helpful competition law institutions.  In many respects, this is a novel challenge because the need and impulse for antitrust had previously been associated with mature market economies.[5]  Technical assistance as currently supplied in the world predominantly takes the form of experts from senior antitrust institutions in developed countries making recommendations to new or newer antitrust regimes in emerging economies.[6]  Because of the incongruity of this fit, technical assistance may be aimed at the problems it seeks to find, rather than the most pressing problems.

This brief Essay provides some context to understand why the transfer of antitrust expertise from experienced regimes such as the United States to emerging enforcement institutions elsewhere will likely not be a simple exercise.  A technocratic model of antitrust law suits the context of the United States because of the wide consensus on the goals of antitrust policy in the U.S.[7]  But emerging antitrust regimes may not have the benefit of the same underlying consensus on methods and goals that American enforcers enjoy.  As a result, technical assistance focusing on narrow questions of interpretation may elide difficult questions of first principles and institutional design in emerging antitrust regimes.

The descriptive statistics that Professor Sokol provides can help shed light on common problems with how technical assistance is provided to emerging antitrust regimes.[8]  However, as shown by the examples I will discuss, the focus on forms of technical assistance in isolation may lead to the inaccurate view that emerging antitrust regimes are part of a sterilized environment in which other issues of enforcement authority and state power in markets can be controlled.  In fact, reforming or emerging antitrust regimes may confront difficult—and contested—issues involving both the methods and institutions of competition law (“rules” of the game in Sokol’s terms) and their application to achieve goals in specific cases (“play” of the game).  Part I of this Essay sets forth an example of how competition law may involve different, intertwined goals, Part II provides an example of how competition law can hinge on the nature of enforcement authority, and Part III considers Professor Sokol’s findings in light of these issues.

Keeping Tillman Adjournments in Their Place: A Rejoinder to Seth Barrett Tillman

Brian C. Kalt[*]

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[Eds. Note: In light of the interest in our presidential transitions colloquy and the continuing debate over recess appointments, we would like to highlight a debate between Seth Barrett Tillman and Brian C. Kalt that occurred in the first volume of the Colloquy.]

Seth Barrett Tillman’s reply[1] warrants a rejoinder on two points.  First, I reject Tillman’s defense of his claim that the Senate can unilaterally terminate its half of a regular session of Congress.  Second, Tillman argues that the Senate can terminate a special Senate-only session called by the President, and claims that I disagree.  I did not and do not.

Terminating Presidential Recess Appointments: A Reply to Professor Brian C. Kalt

Seth Barrett Tillman[*]

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[Eds. Note: In light of the interest in our presidential transitions colloquy and the continuing debate over recess appointments, we would like to highlight a debate between Seth Barrett Tillman and Brian C. Kalt that occurred in the first volume of the Colloquy.]

In my opening article,[1] I took the position that although the Recess Appointments Clause[2] is traditionally imagined as merely a grant of authority to the President, it grants a coordinate power to the Senate.  If the Senate chooses to end its next session, the President's recess appointment has been terminated.

Professor Kalt acknowledges that the end of the Senate's session terminates a recess appointment, even if the recess is made only for an instant and only for the purpose of terminating recess appointees.[3]  Beyond that, he voices some thoughtful constitutional objections to my proposal.  Finally, he suggests that the proposed innovation, which he colorfully calls a "Tillman adjournment," is muddled by "practical problems" rendering it "pointless at best."[4]

Keeping Recess Appointments in Their Place

Brian C. Kalt[*]

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[Eds. Note: In light of the interest in our presidential transitions colloquy and the continuing debate over recess appointments, we would like to highlight a debate between Seth Barrett Tillman and Brian C. Kalt that occurred in the first volume of the Colloquy.]

The federal appointment process has degenerated in recent decades.  As the Senate has become more comfortable ignoring nominations instead of rejecting them, Presidents have become more comfortable pushing their recess-appointment powers to their fullest extent—and perhaps beyond.[1]  In his piece on the Recess Appointments Clause, Seth Barrett Tillman offers a clever way for the Senate to respond, which I will call the "Tillman adjournment."[2]  This response suggests some reasons why the Senate is unlikely to try a Tillman adjournment.  In brief, the tactic suffers from both constitutional problems and even deeper practical problems.

Senate Termination of Presidential Recess Appointments

Seth Barrett Tillman[*]

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[Eds. Note: In light of the interest in our presidential transitions colloquy and the continuing debate over recess appointments, we would like to highlight a debate between Seth Barrett Tillman and Brian C. Kalt that occurred in the first volume of the Colloquy.]

To a fair-minded person assessing the broad ramparts of American constitutional scholarship, it is striking how little attention legal scholars and public intellectuals pay to the text of the United States Constitution.  The document is a mystery to many of them.  Mostly they concern themselves with prior judicial decisions.  If a clause is not litigated, it is, as Judge Posner put it, off their "radar screen."[1]  Even where a particular constitutional provision is the subject of litigation, the judicial opinions almost invariably lead to scholarship assessing the propriety of the decision, as opposed to still-open aspects of the clause's meaning.  Thus the history of our legal scholarship leads to an ever narrowing legal imagination, with the rhetoric of debate escalating over constantly declining intellectual stakes.

But as citizens and lawyers interested in policy reform, including the institutional reform of our governing bodies, we should not limit ourselves to these narrow disputes.  The whole of the Constitution is within our grasp, if we would but seize it.  And, even today, the Constitution remains chock-full of unused (and therefore judicially untested and unapproved) powers whose potential might be used, or, at least, explored.[2]

One such power is the power of a Senate majority[3] to terminate a presidential recess appointment.  The Recess Appointments Clause, Article II, Section 2, Clause 3, states:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Certain aspects of this clause have been adjudicated and are much discussed in the academic literature.  For example, it has been questioned whether this power extends to the President's making appointments to the Article III courts,[4] whether the President can make a recess appointment after the Senate has returned from its recess to an office which had become vacant during (or prior to) the recess,[5] and whether the President can make a recess appointment during a recess to a statutory office that had never before been filled.[6]  These debates uniformly go to the limits of the President's power to appoint under the terms of the clause.  There is no discussion of any concomitant removal power—it is just assumed that the removal power (wherever it is vested) with regard to recess appointments is coextensive with the removal power generally.  This short article seeks to test that assumption.