Digital Commons Network^™

Excepting Nondelegation From Supreme Court Review, Michael Lomax

Georgia Law Review

For almost a century, the nondelegation doctrine has allowed Congress to create hundreds of distinct federal agencies—provided the delegation meets the “intelligible principle” requirement. While not exacting, this standard underlies the current administrative state, and absent a sufficiently defined alternative, the intelligible principle should remain undisturbed. A recent dissent and a separate pending case, however, give pause. Both present opportunities to rework the intelligible principle, but the solutions offered do not advance the ball. Rather, they suggest replacing a vague interpretive standard with a troublesome interpretive standard, which is unwarranted when a meaningfully clearer one is unfeasible. Further still, conceptualizing …

Judicial Review Of Government Pandemic Responses: Emerging Basic Lines In The Federal Administrative Court's First Judgments, Ferdinand Wollenschläger

Georgia Law Review

This Article analyzes the first rulings of the highest administrative court in Germany regarding measures aimed at curbing the COVID-19 pandemic. It outlines the architecture of fighting the pandemic, its relevance for judicial protection, and the basic lines of the court’s rulings. It also critically evaluates key issues such as: dealing with pandemic situations as a challenge for the separation of powers and judicial review, proportionality, the significance of expert knowledge, and the need for fundamental rights protection via procedures.

Judicial Review Of Coronavirus Measures In The United Kingdom And France, Duncan Fairgrieve, Francois Lichere

Georgia Law Review

This Article examines the executive measures taken during the coronavirus pandemic and the challenges brought against them before the courts. Adopting a comparative law perspective by contrasting the U.K. and France, the authors compare the principles applied by the courts, the degree of intensity of judicial review, and the deference afforded to public authorities often acting in haste to respond to the public health threat of the pandemic. While it is not easy to explain those differences, institutional, procedural, and socio-legal factors may play a role.

Legal Accountability And Judicial Review During The Covid-19 Pandemic In Aotearoa New Zealand, Dean Knight

Georgia Law Review

The government in Aotearoa New Zealand, like other governments elsewhere, exercised significant and unprecedented power during the COVID-19 pandemic in order to combat the virus and to protect its people. The breadth and depth of the public health response also caused monumental interference in people’s lives. This Article discusses the way judicial review of administrative action was used to hold the government accountable in law for its public health response and provided an avenue for people to pursue grievances. The key phases of the public health response are described, and the types of power exercised are identified. The nature and …

Reassessing Administrative Finality: The Importance Of New Evidence And Changed Circumstances, Gwendolyn Savitz

Cleveland State Law Review

Administrative finality of agency action is generally thought of as a method of avoiding premature judicial review—a claim that the review is too early. But it is also used to prevent judicial review by claiming that the review has now come too late. There are two primary exceptions to this prohibition: new evidence and changed circumstances. However, courts and agencies are reluctant to permit challengers to use these exceptions as often as should be statutorily allowed, an area that scholarship has been neglected.

This Article fills the gap by exploring this aspect of administrative finality, looking at the important government …

Barring Judicial Review, Laura E. Dolbow -- Sharswood Fellow

Vanderbilt Law Review

Whether judicial review is available is one of the most hotly contested issues in administrative law. Recently, laws that prohibit judicial review have sparked debate in the Medicare, immigration, and patent contexts. These debates are continuing in challenges to the recently created Medicare price negotiation program. Yet despite debates about the removal of judicial review, little is known about how often, and in what contexts, Congress has expressly precluded review. This Article provides new insights about express preclusion by conducting an empirical study of the U.S. Code. It creates an original dataset of laws that expressly preclude judicial review of …

The Living Constitution: Why The Supreme Court Must Part Ways With Exclusionary Eminent Domain, Aaron Mackay

Indiana Law Journal

The Fifth Amendment’s “public use” requirement for takings is no longer a requirement at all. Instead, the meaning of “public use” has been expanded far beyond its original intent and public understanding. The broadening of the “public use” requirement reached its breaking point in Kelo. Since Kelo, state legislatures have responded by restricting eminent domain use to remove “blighted” areas. In effect, contemporary eminent domain reduces the availability of affordable housing, which has exacerbated the affordable housing crisis. This Note explores a constitutionally permissible re-working of the eminent domain doctrine to encourage the provision of affordable housing. Interpreting the “public …

John Marshall And Felix Frankfurter: An Icon And A Disappointment?, William E. Nelson

Touro Law Review

This article shows how Chief Justice John Marshall first developed the doctrine of judicial restraint in Marbury v. Madison to assure the public that the Supreme Court would not engage in politically oriented judicial review as colonial courts had in holding Parliament’s 1765 Stamp Act unconstitutional. Justice Felix Frankfurter, in contrast, adopted judicial restraint differently—by reading the scholarship of James Bradley Thayer. This article also shows that Frankfurter did not abandon his commitment to judicial restraint when during his years on the bench it began to serve conservative purposes rather than the progressive purposes it had once served.

Following The Science: Judicial Review Of Climate Science, Maxine Sugarman

Washington Law Review

Climate change is the greatest existential crisis of our time. Yet, to date, Congress has failed to enact the broad-sweeping policies required to reduce greenhouse gas emissions at the rate scientists have deemed necessary to avoid devastating consequences for our planet and all those who inhabit it. In the absence of comprehensive legislative action to solve the climate crisis, the executive branch has become more creative in the use of its authorities under bedrock environmental statutes to develop new climate regulations. Environmental advocates, states, and industry groups that oppose such regulations or assert that agencies could accomplish more under existing …

Judicial Review Of Teacher-School Board Grievance Arbitration: An Extended Empirical Analysis, Perry A. Zirkel

Arbitration Law Review

In recent years, the overall state law framework for teacher-school board collective bargaining has undergone limited revisions. The basic distribution has been that approximately two-thirds of the state laws authorize collective bargaining for public school teachers, with the remaining state laws either silent or prohibitive. During the past fifteen years, a few states have curtailed or eliminated their applicable laws, with the leading respective examples being Wisconsin and Tennessee, and at least one state, Virginia, shifting in favor of collective bargaining.

The courts have added few direct revisions. The Supreme Court’s ruling that agency shop provisions in public sector collective …

No Soy De Aquí, Ni Soy De Allá: U.S. Citizen Children Are Paying The Price For Our Nation's Broken Immigration System (Comment), Daisy J. Ramirez

The Scholar: St. Mary's Law Review on Race and Social Justice

Current immigration polices continue to force mixed-status family separation and do not provide any attainable avenues for immigration relief. Modern immigration law is complex, filled with statutes and regulations that create waste, delay, and confusion among immigrants, their families, and the United States judicial system. As a result, U.S. citizen children are bearing the costs of a faulty immigration system.

The Roberts Court’S Anti-Democracy Jurisprudence And The Reemergence Of State Authoritarian Enclaves, Reginald Oh

Journal of Race, Gender, and Ethnicity

This Essay argues that the Roberts Court has been a pivotal institutional player in destabilizing constitutional democracy. It has enabled states to freely pursue agendas that are authoritarian in nature. And because authoritarianism is contrary to core principles of the Constitution, the Roberts Court’s constitutional jurisprudence has no basis in the Constitution and must ultimately be rejected.

Instead of taking steps to block authoritarian legislation and promote a fair and open political process, the Court has issued rulings catalyzing and reinforcing the authoritarian impulses of the former Jim Crow states. The Roberts Court has engaged in judicial review reinforcing authoritarianism, …

Major Questions Impede Major Progress--Rebuking The Major Questions Doctrine & West Virginia V. Epa In Minnesota, Michael Warkel

Mitchell Hamline Law Review

No abstract provided.

Situating Structural Challenges To Agency Authority Within The Framework Of The Finality Principle, Harold J. Krent

Indiana Law Journal

No abstract provided.

Partisan Gerrymander Review After Rucho: Proof Is In The Procedure, Kevin Morris

Marquette Law Review

In Rucho v. Common Cause, the U.S. Supreme Court purported to end over three decades of partisan gerrymander review by the federal courts. I believe the Court’ s decision is problematic. Partisan gerrymandering distorts democratic governance through effects that have been increasingly documented, and it seems likely that those effects will compound and continue largely unabated absent the availability of federal judicial review. But my intent is not to argue against Rucho, rather to work within its parameters and overcome it. That means understanding the nature of the problem that the Court wrestled with, recognizing the Court’s structural concerns, and …

You Be The Judge: Analyzing When The Federal Arbitration Act's Judicial Review Standards Apply In State Court, Max Birmingham

Pepperdine Dispute Resolution Law Journal

This article addresses whether, when the Federal Arbitration Act (“FAA”) governs an arbitration, the FAA’s judicial review standards apply in state court and preempt application of different state law judicial review standards. This argument proceeds as follows: Part I provides an introduction. Part II analyzes the procedural reform intent of the FAA and why the statute seeks to standardize the arbitration process. Part III reviews the judicial review of arbitration awards as promulgated in Hall Street Associates, L.L.C. v. Mattel, Inc. Part IV reviews the generations of FAA cases which have been held to be preempted by SCOTUS. Part V …

Gerrymandering, Entrenchment, And “The Right To Alter Or Abolish”: Defining The Guarantee Clause As A Judicially Manageable Standard, James R. Brakebill

Western New England Law Review

The Guarantee Clause provides that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.” Based on its original public meaning, the guarantee of a republican government protects core political rights and contains readily ascertainable standards founded on majority rule and a prohibition of minority-party entrenchment. The Supreme Court failed to develop a standard for adjudicating partisan gerrymandering claims because the Equal Protection Clause and the “one person, one vote” framework are fundamentally incompatible with the harms associated with partisan gerrymandering. Such claims involve harms to majority rights that strike at the core of …

Judicial Deference Of The Board Of Immigration Appeals’ Regulatory Interpretations In Light Of Kisor V. Wilkie, Melissa Fullmer

St. Mary's Law Journal

Abstract forthcoming.

Why The Congressional Review Act Should Be Repealed, Alex Lipow

William & Mary Environmental Law and Policy Review

The Congressional Review Act (“CRA”) is a procedure that allows the political branches to quickly repeal certain regulations promulgated by administrative agencies without going through the arduous rule-making process traditionally required. Although it had been successfully used only once before 2017, President Trump and Republicans in Congress used the CRA to repeal sixteen regulations in 2017 and 2018 while President Biden and Democrats in Congress used the CRA three times in 2021. Because the CRA has been used rarely, and its central provisions are barely adjudicated in the judiciary, there are interesting legal questions about how expansively the law may …

The Global Rise Of Judicial Review Since 1945, Steven G. Calabresi

Catholic University Law Review

This article expands upon the theory put forth in Professor Bruce Ackerman’s book, Revolutionary Constitutions: Charismatic Leadership and the Rule of Law, in which he posits that twentieth century revolutions in a variety of countries led to the constitutionalization of charisma, thus binding countries to the written constitutions established by their revolutionary leaders.

Constitutional law scholar, Steven G. Calabresi, argues here that world constitutionalism, in fact, existed prior to 1945, and what is especially striking about the post-1945 experience is that the constitutionalism of charisma included not only the adoption of written constitutions, but also the adoption of meaningful …

Clashing Canons And The Contract Clause, T. Leigh Anenson, Jennifer K. Gershberg

University of Michigan Journal of Law Reform

This Article is the first in-depth examination of substantive canons that judges use to interpret public pension legislation under the Contract Clause of the U.S. Constitution and state constitutions. The resolution of constitutional controversies concerning pension reform will have a profound influence on government employment. The assessment begins with a general discussion of these interpretive techniques before turning to their operation in public pension litigation. It concentrates on three clashing canons: the remedial (purpose) canon, the “no contract” canon (otherwise known as the unmistakability doctrine), and the constitutional avoidance canon. For these three canons routinely employed in pension law, there …

Seamen, Railroad Employees, And Uber Drivers: Applying The Section 1 Exemption In The Federal Arbitration Ace To Rideshare Drivers, Conor Bradley

University of Michigan Journal of Law Reform

Section 1 of the Federal Arbitration Act (FAA or the Act) exempts “seamen, railroad employees, [and] any other class of workers engaged in foreign or interstate commerce” from arbitration. In 2019, the Supreme Court held in New Prime Inc. v. Oliveira that this provision exempted independent contractors as well as employees. This decision expanded the reach of the section 1 exemption and may affect the relationship between ridesharing companies, such as Uber, and their drivers. Previously, ridesharing companies argued that courts must enforce the arbitration clauses in their employment contracts because their workers were independent contractors and, therefore, section 1 …

Expanding The Administrative Record: Using Pretext To Show "Bad Faith Or Improper Behavior", Laura Boyer

University of Colorado Law Review

This Comment argues that courts should more readily permit extra-record discovery when preliminary signs of pretext strongly suggest "bad faith and improper behavior" by agency decision-makers. 3 1 Section L.A sets the scene by describing the basic mechanics of litigation challenging agency decisions. Section I.B shifts focus by examining two recent Supreme Court decisions that illustrate the Court's struggle to review executive action where an agency seems to have offered a pretextual justification. Part II then shows how agencies' reliance on pretextual justifications is becoming a growing and serious problem-especially within the Trump Administration-and describes a 2017 decision by the …

In Defense Of (Circuit) Court-Packing, Xiao Wang

Michigan Law Review Online

Proposals to pack the Supreme Court have gained steam recently. Presidential candidate Pete Buttigieg endorsed a court-packing plan at the start of his campaign, and several other candidates also indicated a willingness to consider such a plan, including Senators Elizabeth Warren and Amy Klobuchar. Legal scholars have similarly called upon Congress to increase the size of the Supreme Court, particularly following the heated confirmations of Justices Neil Gorsuch and Brett Kavanaugh. These suggestions for Court reform have only gotten more pronounced with the recent passing of Justice Ruth Bader Ginsburg, the subsequent nomination of Judge Amy Coney Barrett, and the …

The "Directive" Prong: Adding To The Allied-Signal Framework For Remand Without Vacatur, T. Alex B. Folkerth

Michigan Journal of Environmental & Administrative Law

“Remand without vacatur” is an administrative law remedy that allows courts reviewing agency actions with minor legal defects to leave the action in place while the agency fixes the defect. Courts use a two-prong test from the 1993 D.C. Circuit case Allied-Signal, Inc. v. U.S. Nuclear Regulatory Commission to determine whether or not to vacate the action pending remand. Allied-Signal’s “deficiency” prong directs the court to consider how bad the defect is. The “disruption” prong directs the court to consider how much havoc will be wreaked by the vacation of the action while the agency is fixing the defect. …

Keeping Faith With Nomos, Steven L. Winter

Touro Law Review

No abstract provided.

Preserving The Nationwide National Government Injunction To Stop Illegal Executive Branch Activity, Doug Rendleman

University of Colorado Law Review

No abstract provided.

Maralex Resources, Inc. V. Barnhardt, Bradley E. Tinker

Public Land & Resources Law Review

In Maralex Resources v. Barnhardt, Maralex and property owners brought an action to protect private property from BLM inspections of oil and gas lease sites. The Tenth Circuit looked at the plain meaning of a congressional statute and held in favor of Maralex, finding that BLM lacked authority to require a private landowner to provide BLM with a key to inspect wells of their property. The Tenth Circuit held BLM has the authority to conduct inspections without prior notice on private property lease sites; however, it is required to contact the property owner for permission before entering the property.

Beyond Samuel Moyn's Countermajoritarian Difficulty As A Model Of Global Judicial Review, James T. Gathii

Vanderbilt Journal of Transnational Law

This Article responds to Samuel Moyn's critique of judicial review and his endorsement of judicial modesty as an alternative. By invoking the countermajoritarian difficulty, Moyn argues that judicial overreach has become an unwelcome global phenomenon that should be reexamined and curbed. I reject Moyn's claim that this kind of judicial modesty should define the role of courts for all time. By applying the countermajoritarian difficulty beyond its United States origins, Moyn assumes it is an unproblematic baseline against which to measure the role of courts globally. Moyn's vision says nothing about when it would be appropriate for courts to rule …

The Asylum Makeover: Chevron Deference, The Self-Referral And Review Authority, Jessica Senat

Touro Law Review

No abstract provided.