Law Commons^™

Transition Administration, Michael Herz, Katherine A. Shaw

Faculty Articles

The period from November 3, 2020 to January 20, 2021, was unlike any presidential transition in our history. President Donald Trump refused to accept his ballot-box defeat, instead battling to overturn the election’s outcome. This dramatic public campaign was waged in state and federal courts, state legislatures, the offices of state and local election officials, the Department of Justice, and finally the halls of Congress, where on January 6, 2021, a mob incited by the President stormed the Capitol with the explicit goal of preventing the final counting of electoral votes for Joe Biden. These efforts had more mundane and …

Mass Comments’ Opportunity Costs, Michael Herz

Faculty Online Publications

Agencies, courts, and academics agree that notice-and-comment rulemaking is not a referendum. But that conceptualization presents a challenge when an agency is confronted with mass comments. If agencies are not counting but reading comments, and if mass comments are duplicative and often devoid of content beyond a strong expression of values or preference, then what do they add?

Comment Of Proposed Department Of Labor Regulations On Esg Investing, Prudence And Loyalty, Edward A. Zelinsky

Faculty Testimony

DOL’s proposed regulations about ERISA’s fiduciary duties of prudence and loyalty weaken the protection of America’s workers and retirees. Accordingly, these proposed regulations should be amended to delete the imprudent, unproven and ambiguous term “ESG,” to add more balanced examples which reduce misperceptions of ERISA’s fiduciary duties, and to expunge altogether the concept of tie-breaking which violates the duty of loyalty by encouraging the pursuit of collateral benefits.

The fundamental claims of ESG advocates are economically implausible. Such advocates assert that they consistently outperform and manipulate competitive markets. This claim is unpersuasive.

ESG proponents assert that a person making an …

Chevron Flip-Flops Of A Different Sort - Understanding The Shifting Politics Of Deference, Michael E. Herz

Faculty Online Publications

Like vaccinations, voter fraud, guns, taking a knee, and, well, everything, views on Chevron deference have become not just ideologically tinged but ideologically determined. Progressives are Chevron enthusiasts; conservatives are Chevron skeptics. Chevron is under siege, and the battle lines are familiar. Yet, on its face, Chevron is politically neutral. It increases agency power at the expense of judicial power; whether that is politically helpful depends on whether your team controls the White House or if it controls the courts. Furthermore, the current ideological array has not always been the case. When Chevron was decided, the enthusiasts were …

Who Defends: Judge Sutton's Vision And The Challenge Of A Plural Executive, Katherine A. Shaw

Faculty Online Publications

It’s no secret that this is a perilous moment for American democracy. We’re nine months out from a deadly attack on the U.S. Capitol, launched with the explicit goal of disrupting the peaceful transfer of power following the 2020 presidential election. Congress appears gridlocked on basic questions of debt and spending, and the possibility of a default before the end of the year remains a live one, with the covid pandemic still ongoing. The U.S. Supreme Court is facing an unprecedented legitimacy deficit in the eyes of the public. Election experts warn that future American elections, including the 2024 election, …

Fraudulent Transfers And Juries: Was Granfinanciera Rightly Decided?, David G. Carlson

Faculty Articles

In 1989, the Supreme Court ruled that a third party recipient of a fraudulent conveyance had a Seventh Amendment right to a jury trial when a bankruptcy trustee brought suit for a money judgment under Bankruptcy Code section 550(a). This was because, in 1791, an English bankruptcy trustee would have brought fraudulent transfer litigation in a court of law (not a court of equity) and would have obtained a money judgment. I maintain that the Supreme Court committed the classical logical error of Quaternio Terminorum—a false analogy. The analogy was that American bankruptcy trustees are like 18th century English bankruptcy …

Defending "Universal Vacatur" - Nationwide Injunctions For Administrative Law, Michael E. Herz

Faculty Online Publications

The nationwide injunction has seized the imagination of courts and law professors in recent years. Not surprisingly, JOTWELL’s pages screens have given it extensive attention. Recent jots have described important work by Samuel Bray (twice), Amanda Frost (also twice), Russell Weaver, and Alan Trammell that attacks, defends, or theorizes nationwide (or “universal”) injunctions. Jack Beermann, in praising Bray and Frost, did have one complaint: “As an administrative law nut, I wish they both grappled more with the meaning of the APA’s instruction that reviewing courts should ‘hold unlawful and set aside’ unlawful agency action.” Mila Sohoni has now filled that …

Courts Beyond Judging, Michael C. Pollack

Faculty Articles

Across all fifty states, a woefully understudied institution of government is responsible for a broad range of administrative, legislative, law enforcement, and judicial functions. That important institution is the state courts. While the literature has examined the federal courts and federal judges from innumerable angles, study of the state courts as institutions of state government — and not merely as sources of doctrine and resolvers of disputes — has languished. This Article remedies that oversight by drawing attention for the first time to the wide array of roles state courts serve, and by evaluating the suitability of both the allocation …

Majestic Law And The Subjective Stop, Kyron J. Huigens

Faculty Articles

Justice John Paul Stevens subscribed to "a majestic conception" of the Constitution. This Article articulates and defends that vision. Majestic law and legal reasoning characteristically involve frank moral reasoning, such as one finds in the Eighth Amendment's "evolving standards of decency" test for proportionate punishment, or in Due Process formulations such as an appeal to "immutable principles of justice, which inhere in the very idea of free government." Majestic law employs moral values, norms, and judgments in legal reasoning, taking them on their own terms. Majestic legal reasoning does not weigh revealed preferences for decency, for example. It asks whether …