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Full-Text Articles in Law
Chevron And Stare Decisis, Kent Barnett, Christopher J. Walker
Chevron And Stare Decisis, Kent Barnett, Christopher J. Walker
Articles
This Term, in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. U.S. Department of Commerce, the Supreme Court will expressly consider whether to overrule Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.—a bedrock precedent in administrative law that a reviewing court must defer to a federal agency’s reasonable interpretation of an ambiguous statute that the agency administers. In our contribution to this Chevron on Trial Symposium, we argue that the Court should decline this invitation because the pull of statutory stare decisis is too strong to overcome.
Enacted Legislative Findings And The Deference Problem, Daniel A. Crane
Enacted Legislative Findings And The Deference Problem, Daniel A. Crane
Articles
The constitutionality of federal legislation sometimes turns on the presence and sufficiency of congressional findings of predicate facts, such as the effects of conduct on interstate commerce, state discrimination justifying the abrogation of sovereign immunity, or market failures justifying intrusions on free speech. Sometimes a congressional committee makes these findings in legislative history. Other times, Congress recites its findings in a statutory preamble, thus enacting its findings as law. Surprisingly, the Supreme Court has not distinguished between enacted and unenacted findings in deciding how much deference to accord congressional findings. This is striking because the difference between enactedness and unenactedness …
Election Law's Lochnerian Turn, Ellen D. Katz
Election Law's Lochnerian Turn, Ellen D. Katz
Articles
This panel has been asked to consider whether "the Constitution [is] responsible for electoral dysfunction."' My answer is no. The electoral process undeniably falls well short of our aspirations, but it strikes me that we should look to the Supreme Court for an accounting before blaming the Constitution for the deeply unsatisfactory condition in which we find ourselves.
The Dormant Commerce Clause And The Hormones Problem, Donald H. Regan
The Dormant Commerce Clause And The Hormones Problem, Donald H. Regan
Book Chapters
It is obvious that no anti-discrimination regime can stop at forbidding explicit discrimination of the relevant sort. If only explicit discrimination is forbidden, lawmakers who want to discriminate can hide their discriminatory intentions behind facially neutral classifications that are nonetheless chosen because they differentially burden the protected class. So, we must be prepared to invalidate some facially neutral laws that have "discriminatory effect" or, as American lawyers often call it, "disparate impact." On the other hand, we cannot possibly invalidate all laws which have a disparate impact on a protected class; many perfectly reasonable laws adopted for completely innocent purposes …
Dna As Evidence: Viewing Science Through The Prism Of The Law, Peter Donnelly, Richard D. Friedman
Dna As Evidence: Viewing Science Through The Prism Of The Law, Peter Donnelly, Richard D. Friedman
Articles
In this article, we analyze a problem related to DNA evidence that is likely to be of great and increasing significance in the near future. This is the problem of whether, and how, to present evidence that the suspect has been identified through a DNA database search. In our view, the two well-known reports on DNA evidence issued by the National Research Council (NRC) have been badly mistaken in their analysis of this problem. The mistakes are significant because the reports have carried great authority with American courts; moreover, the DNA Advisory Board of the FBI has endorsed the second …
Dna Database Searches And The Legal Consumption Of Scientific Evidence, Peter Donnelly, Richard D. Friedman
Dna Database Searches And The Legal Consumption Of Scientific Evidence, Peter Donnelly, Richard D. Friedman
Articles
DNA evidence has transformed the proof of identity in criminal litigation, but it has also introduced daunting problems of statistical analysis into the process. In this Article, we analyze a problem related to DNA evidence that is likely to be of great and increasing significance in the near future. This is the problem of whether, and how, to present evidence that the suspect has been identified through a DNA database search. In our view, the two well-known reports on DNA evidence issued by the National Research Council ("NRC"), each of which has carried great authority with the American courts on …
Authority And Responsibility: The Jurisprudence Of Deference, Joseph Vining
Authority And Responsibility: The Jurisprudence Of Deference, Joseph Vining
Articles
he connection between authority and responsibility is such that the one cannot be thought of without the other. In legal method, close reading and rereading of a text marks it as an authoritative text; the presupposition of mind which is necessary to close reading is presupposition of a responsible mind. In the working of institutions that embody authority, the disposition to follow the decisions and statements of a person responsible for a matter inevitably rests upon a presupposition that the decisions and statements followed are those of the responsible person. As that presupposition fades with bureaucratization of decision and writing, …
Judicial Review Of Labor Arbitration Awards: A Second Look At Enterprise Wheel And Its Progeny, Theodore J. St. Antoine
Judicial Review Of Labor Arbitration Awards: A Second Look At Enterprise Wheel And Its Progeny, Theodore J. St. Antoine
Articles
Logic, so the cliche goes, is not the life of the law. But logic is very much like the DNA of the law-the structural principle without which all is sprawl and muddle. In the last ten years a controversy has raged over the role of the labor arbitrator in issuing awards, and the role of the courts in reviewing and enforcing those awards. This controversy has largely taken the form of a continuing debate among scholars and practicing arbitrators at the annual meetings of the National Academy of Arbitrators. With due respect to the thoughtful and experienced persons who have …