Law Commons^™

Major Contradictions At The Roberts Court, Edward L. Rubin

Vanderbilt Law School Faculty Publications

The Roberts Court may well overturn the Chevron doctrine this Term, despite the affection for stare decisis that Chief Justice Roberts himself expressed in the related case of Kisor v. Wilkie. Against that backdrop, Professors Jodi Short and Jed Shugerman offer an analysis of why the Court’s major questions doctrine, a predecessor to interring Chevron, is inconsistent with another group of the Court’s opinions, which the authors describe as the Court’s presidentialism.

Their analysis is incisive. While addressed to a Court that has a rather cavalier attitude toward doctrinal coherence, the article’s convincing empirical evidence may encourage the Justices to …

Representative Rulemaking, Jim Rossi, Kevin Stack

Vanderbilt Law School Faculty Publications

The dominant form of lawmaking in the United States today-—notice-and-comment rulemaking—-is not a representative process. Notice-and-comment simply invites public participation, leaving the overall balance of engagement with the proposed regulations to the choices of individuals, public interest groups, trade groups, and regulated businesses. The result is a predictable one: In most rulemakings, industry voices dominate, and in many rulemakings, there is no participation by citizens or public interest groups. This representation deficit must be taken seriously. The basic rationales for a notice-and-comment rulemaking process depend upon some level of representation for those affected. The goal of providing the agency with …

Copyright Fiduciaries: Problems And Solutions, Jessica Silbey

Faculty Scholarship

Andrew Gilden & Eva E. Subotnik, Copyright’s Capacity Gap, 57 U.C. Davis L. Rev. __ (forthcoming, 2023), available at SSRN (Aug. 9, 2023).

In this forthcoming article, Andrew Gilden and Eva Subotnik begin an important conversation about an underexplored area of copyright law. Their focus is copyright law’s inconsistent treatment of mental capacity. Under copyright law, copyright authors can produce valuable copyrighted work but those same authors may lack the legal capacity to make decisions about if, when, or how to exploit that work. For example, children and people with mental illness or disability can be copyright authors, but …

The Role Of U.S. Government Regulatioms, Bert Chapman

Libraries Faculty and Staff Presentations

Provides detailed coverage of information resources on U.S. Government information resources for federal regulations. Features historical background on these regulations, details on the Federal Register and Code of Federal Regulations, includes information on individuals can participate in the federal regulatory process by commenting on proposed agency regulations via https://regulations.gov/, describes the role of presidential executive orders, refers to recent and upcoming U.S. Supreme Court cases involving federal regulations, and describes current congressional legislation seeking to give Congress greater involvement in the federal regulatory process.

Congressional Oversight Of U.S. Government Programs, Bert Chapman

Libraries Faculty and Staff Presentations

Provides detailed overview of how the U.S. Congress conducts oversight of federal agency programs. Contents include a letter from a member of Congress to an agency head concerning an environmental development in Indiana, information on the foundations of congressional oversight, details on how Congress may require agency reports on various subjects in public laws, an example of a congressionally mandated report by the Department of Defense, documentation of congressional funding of individual federal agencies, examples of congressional committee hearings, congressional committee issuance of oversight and investigative reports which may include dissenting opinions, Congressional Budget Office cost estimates on congressional committee …

Against The Chenery Ii "Doctrine", Gary S. Lawson, Joseph Postell

Faculty Scholarship

The Supreme Court’s 1947 decision in SEC v. Chenery Corp. (“Chenery II”) is generally taken as blanket authorization for agencies to make law through either adjudication or rulemaking if their organic statutes permit both modes. We think this is an overreading of the doctrine. The decision in Chenery II need not be read so broadly, and there are good reasons to read it more narrowly. The most important reason is that agency lawmaking through adjudication presents serious constitutional concerns involving due process of law and subdelegation of legislative power, at least if the agency action deprives people of life, liberty, …

The Market-Essential Role Of Corporate Climate Disclosure, George S. Georgiev

Faculty Articles

This Article focuses on capital market efficiency as an often-downplayed legal rationale for mandating corporate climate disclosure, and explores it alongside the notion of investor demand, which has assumed a prominent and, increasingly, contested role in debates on climate disclosure. Because market efficiency (encompassing both securities price accuracy and overall capital market allocative efficiency) is generally unobservable, many commentators have instead emphasized the highly visible investor demand for climate-related disclosure as evidenced by shareholder proposals, voting behavior, stewardship policies, and public statements. Unfortunately, investor demand can be disputed, fairly or unfairly, because investor preferences are heterogeneous, dynamic, and difficult to …

Artificial Intelligence And Contract Formation: Back To Contract As Bargain?, John Linarelli

Book Chapters

Some say AI is advancing quickly. ChatGPT, Bard, Bing’s AI, LaMDA, and other recent advances are remarkable, but they are talkers not doers. Advances toward some kind of robust agency for AI is, however, coming. Humans and their law must prepare for it. This chapter addresses this preparation from the standpoint of contract law and contract practices. An AI agent that can participate as a contracting agent, in a philosophical or psychological sense, with humans in the formation of a con-tract will have to have the following properties: (1) AI will need the cognitive functions to act with intention and …

"Grossly Negligent Utilities," "Unimaginable Property Damage" And The Scope Of Liability Insurers' Duty To Indemnify Subrogated Property Insurers - Probative And Empirical Inferences From Courts' Divided Subrogation And Indemnification Decision, Willy E. Rice

Faculty Articles

Each year, extreme weather, natural disasters and allegedly "grossly negligent" investor-owned utilities concurrently destroy property, persons and lives. In the wake, billions of dollars are lost. Given utilities' general immunity under the judicially created filed-rate or filed-tariff doctrine, residential and commercial owners are precluded from filing ordinary negligence actions against utilities. Thus, many injured consumers try to settle their property-loss claims with their insurers. Some property insurers satisfy the "make-whole" doctrine and cover all losses. Most insurers, however, refuse to settle any claim. Or, they partially compensate the insureds. Yet, an overwhelming majority of property insurers are increasingly filing subrogation …

Loper Bright And The Future Of Chevron Deference, Jack M. Beermann

Faculty Scholarship

The question presented in Loper Bright Industries v. Raimondo¹ is “[w]hether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.” The Court denied certiorari on another question focused on the merits of the case,² indicating that at least four of the Justices are anxious to revisit or at least clarify Chevron. It’s about time, although it’s far from certain that the Court will actually follow through with the promise the certiorari grant indicates.^{3 …}