Mike Rappaport Website

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

Reforming Nonlegislative Rules

In my last post, I noted the problem of nonlegislative rules – rules, such as guidance documents, announced by administrative agencies that are not required to go through the procedural check of notice and comment and are usually not subject to judicial review.  These nonlegislative rules are greatly favored by administrative agencies because these rules allow the agencies to circumvent the ordinary checks on them.  Good governance requires that this loophole be closed.

The key feature about nonlegislative rules is that they are supposed to be non-binding.  In contrast to a legislative rule, no one is required to follow a nonlegislative rule.  In essence, they are simply supposed to provide information to the public about how the agency plans to interpret the law or exercise its policy discretion.  This is what is said to justify not following notice and comment and not being subject to judicial review.

The problem is that nonlegislative rules often have a real effect as a matter of practice.  For example, the guidance by the Department of Education announcing that the preponderance of the evidence standard should be used for sexual assault cases came in a nonbinding guidance, but of course many colleges have been pressured into adopting it for fear that the Department might otherwise take action against it, risking the federal funds it receives and the reputational hit it would take for being seen as violating Title IX.

But entirely forbidding nonlegislative rules is not a desirable solution, because these rules can often provide useful information to the public.  So what should be done?

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The Problem of Nonlegislative Rules

One of the big problems involving administrative agencies is that they are often insufficiently checked.  With the relaxation of separation of powers during the New Deal, modern administrative law limits agencies through two principal mechanisms: required procedures and judicial review.  Unfortunately, administrative law allows certain loopholes to these mechanisms that agencies can exploit.

One of the biggest problems these days occurs when agencies regulate through the use “guidance documents.”  Mike Greve recently had a post discussing the Department of Education’s use of one such guidance.  When agencies issue legislative regulations – rules that bind the public – they are normally required to do so after a notice and comment procedure.  Moreover, such rules are often subject to judicial review when they are issued.  Thus, there is a procedural and judicial review check on such legislative rules.

By contrast, guidance documents – which often read like legislative rules in that they appear to tell regulated parties how to act – are not subject to the notice and comment procedure.  While guidance documents do not formally bind private parties, they often operate in the real world to exert a practical influence on the public.  Moreover, while the matter is subject to dispute, there is often not judicial review of such rules.  As a result, agencies love to regulate with such guidance documents since they can avoid scrutiny.

While the courts could possibly address these problems, the best way would be through legislation.  Administrative agencies have enormous influence over the country and the Congress needs to pay attention to them.  Republicans, who have recently been greatly concerned about the abuses of administrative agencies, should attempt to address this problem through legislation.

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Two Political Theory Courses

As I have mentioned before, I am a big fan of listening to college courses from The Great Courses (previously known as the Teaching Company) and from other sources.  I have listened to hundreds of courses, which has greatly expanded my learning.

While I enjoy listening to courses in a great variety of areas, I especially like it when it is an area of my scholarly interests, such as political theory.  Happily, there are two courses – one recent, one out several years – that I strongly recommend in the political theory area.

The first course is “The Modern Political Tradition: Hobbes to Habermas,” given by Professor Lawrence Cahoone of Holy Cross.  There is a lot to like about this course, especially for those on the right. It is clear, enjoyable, and fair minded: for a significant portion of the course, I was not even sure what Cahoone’s politics were.  Perhaps the best feature is the coverage.  He covers both the historically important thinkers as well as modern ones.  Concerning the modern thinkers, he spends significant time on the right, discussing Oakeshott, Hayek, Rand and Nozick.  But he also discusses important continental thinkers about whom I knew less, such as Habermas and Foucalt.  And he does not slight other important thinkers, like Michael Walzer.  Overall, a great course.

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Mario Rizzo on Classical Liberals and Libertarians

My old friend Mario Rizzo has a great post up on classical liberalism and libertarianism.  The post discusses how to distinguish the two different political theories.  Interestingly, Mario does not follow the more common distinction – for example adopted by Richard Epstein – that classical liberalism is more moderate than libertarianism, because the former accepts the need for government to promote public goods.  Mario notes that the “philosophy of liberty has always admitted of gradations or degrees” and that classical liberals such as Lysander Spooner, Auberon Herbert, and Benjamin Tucker were radicals. Instead, Mario argues that “Classical liberalism is the philosophy of…

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Intoxication and Mutual Sexual Assault under the Yes Means Yes Statute

One more issue that the so called Yes Means Yes California statute on sexual assault in colleges raises is how sex between people who are intoxicated is regulated.  (For my earlier discussion of the statute, see here.)

The statute requires colleges to adopt:

 (2) A policy that, in the evaluation of complaints in any disciplinary process, it shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:

             (A) The accused’s belief in affirmative consent arose from the intoxication or         recklessness of the accused.

 (4) A policy that, in the evaluation of complaints in the disciplinary process, it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances:

             (B) The complainant was incapacitated due to the influence of drugs, alcohol, or       medication, so that the complainant could not understand the fact, nature, or        extent of the sexual activity.

 These provisions address two aspects of intoxication.  One involves a situation where the intoxication of the accused led him or her to conclude that the complainant had affirmatively consented.  The other involves a situation where the the complainant appeared to affirmatively consent, but was unable to do so because of intoxication.

Clearly, the statute treats the intoxication of the complainant and the accused quite differently.  If the accused’s belief in the complainant’s consent was due to his or her intoxication, that’s tough.  By contrast, the apparent affirmative consent of the complainant does not count if the accused reasonably should have known the complainant was intoxicated and unable to consent. 

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The New California Statute on Sexual Assault in College

The new California statute regarding sexual assault on college campuses, which is known as the Yes Means Yes law, has received considerable attention.  I thought that I would take a look at the statute and evaluate the statutory language to determine what the law actually says.  I should note that I don’t teach criminal law or torts, and therefore do not have any expertise about these matters.  This is a post simply by a law professor analyzing the statute.

The most important provision of the statute imposes an affirmative consent standard.  Section 1(a)(1) provides that

“Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity.  It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

The most obvious question here is what affirmative consent means.  Conscious and voluntary seem relatively straightforward (although there are issues), but what does affirmative mean?  Does it mean verbal consent?  Does it mean express consent?

The statute does not define the term and dictionary definitions are not entirely clear.  In my view, one can read the language either way.  Some definitions of affirmative seem to imply expressing or asserting it.  Other definitions might be understood as merely requiring an action on the part of the person.  (See, e.g. an affirmative duty to stop crimes in their buildings.)  While I would probably read it in the latter way, the statute is not clear.

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The Court’s Alleged Power to Ignore the Original Meaning

In the past, I have been critical of the claim that positivism and the rule of recognition requires originalism.  Instead, my view has been that the rule of recognition allows both originalism and nonoriginalism. But I hope that my criticism of the case for originalist positivism has not obscured one very significant accomplishment of this argument.  I believe that scholars such as Will Baude and Steve Sachs have made a strong argument that the Supreme Court does not claim the power to ignore the Constitution’s original meaning, unless the Supreme Court asserts that it is following precedent. (Where the original meaning…

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Descriptivism, Prescriptivism, Great Aunts, and Grand Aunts

For many people who spend their time writing, the issue of descriptivism versus prescriptivism is  a fascinating one.  Are there rules of grammar and usage that people should follow?  Sure.  But are those rules defined by an elite group of language speakers and writers?  Or should they simply be based on regularities of language usage by all speakers and writers?  A fascinating question, with all types of issues.

For what it is worth, my view is basically that at any one time (within a group of language users), there are rules that define proper usage.  But those rules change over time.  At a certain point, the old conventions will give way to new ones, and those new ones will become the proper usages.  So one day, perhaps pretty soon, the distinction between imply and infer is likely to evaporate and it will be proper to use them interchangeably.

Even if one is a descriptivist and agrees with that prediction, I think that one should be sad about the demise of the distinction.  When the distinction is no longer recognized, it will be harder to convey precise information about whether the speaker is implying or the hearer is inferring.  Perhaps in the new world new words will allow a speaker to convey the distinction, but there is no certainty and it seems like a lot of trouble to reinvent the wheel.

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Halbig and the Possibility of Supreme Court Cert

Now that the D.C. Circuit has granted rehearing en banc for the Halbig case, there is speculation about whether the case will make it to the Supreme Court.  Halbig, of course, is the case addressing whether federal health care exchanges are allowed to receive federal subsidies.

The defenders of the subsidies for the federal exchanges are hopeful that the case does not reach the Supreme Court.  Before the D.C. Circuit granted rehearing en banc, there was a split between the circuits, with the D.C. Circuit ruling against the legality of the subsidies and the Fourth Circuit ruling in favor of them.  Cert seemed assured.

But the future decision of the en banc court of the D.C. Circuit changes things.  With the three new Democratic appointees to the Court, there is now a Democratic majority and it seems extremely likely that the panel decision will be reversed – in which case, there would no longer be a split.  Of course, there are other cases – a District Court in Oklahoma just held that federal exchanges cannot receive subsidies – but those circuit court decisions may take some time and there is arguably a strong need for this issue to be resolved expeditiously.

I wonder whether the Supreme Court will feel constrained from taking cert if the full D.C. Circuit decides in favor of federal exchange subsidies.  Every circuit court judge who has decided the matter has voted on party lines in these cases.  If the Democratic D.C. Circuit reverses, that trend will continue.  And there is controversy about whether the D.C. Circuit should have taken the case en banc.  In these circumstances, one might wonder whether at least four of the five Republicans on the Supreme Court will decide to hear the case, notwithstanding the lack of a circuit split.

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Originalism and the Good Constitution at the Cato Institute

Earlier this week, John McGinnis and I appeared at the Cato Institute to make a presentation on our book, Originalism and the Good Constitution.  The event was moderated by Trevor Burrus of Cato and commentary was supplied by Roger Pilon of Cato and by Brianne Gorad of the Constitutional Accountability Center.  You can watch the video here. Roger took issue with our book from a natural rights perspective.  He accused the book of endorsing Borkianism and modern constitutional law, not the original constitution, on the ground that we left too much room for democracy.  But I believe that Roger is mistaken. …

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