Law Commons^™

Can The Fourth Amendment Keep People "Secure In Their Persons"?, Bruce A. Green

Faculty Scholarship

No abstract provided.

Re-Reading Chevron, Thomas W. Merrill

Faculty Scholarship

Though increasingly disfavored by the Supreme Court, Chevron remains central to administrative law doctrine. This Article suggests a way for the Court to reformulate the Chevron doctrine without overruling the Chevron decision. Through careful attention to the language of Chevron itself, the Court can honor the decision’s underlying value of harnessing comparative institutional advantage in judicial review, while setting aside a highly selective reading that unduly narrows judicial review. This re-reading would put the Chevron doctrine – and with it, an entire branch of administrative law – on firmer footing.

Symposium: The Puzzling And Troubling Grant In Kisor, Gillian E. Metzger

Faculty Scholarship

From one perspective, the Supreme Court’s decision to grant review in Kisor v. Wilkie is not surprising. Dating back at least to Justice Antonin Scalia’s 2011 concurrence in Talk America v. Michigan Bell Telephone Co., through Decker v. Northwest Environmental Defense Center in 2013 and Perez v. Mortgage Bankers Association in 2015, there’s been growing interest on the Supreme Court’s conservative wing in overturning Auer deference, or the doctrine that an agency’s interpretation of its own regulation is “controlling unless plainly erroneous or inconsistent with the regulation.” The campaign to overturn Auer v. Robbins then stalled, with the court denying …

Constitutional Exaptation, Political Dysfunction, And The Recess Appointments Clause, Jay D. Wexler

Faculty Scholarship

The so-called Recess Appointments Clause of the Constitution provides that: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”1 As of only a few years ago, I considered this clause so minor and quirky that I included it in a book about ten of the Constitution’s “oddest” clauses, right alongside such clearly weird provisions as the Title of Nobility Clause and the Third Amendment.2 Though I recognized that the Recess Appointments Clause was probably the least odd …

The Rise And Rise Of The Administrative State, Gary S. Lawson

Faculty Scholarship

The post-New Deal administrative state is unconstitutional, and its validation by the legal system amounts to nothing less than a bloodless constitutional revolution. The original New Dealers were aware, at least to some degree, that their vision of the national government's proper role and structure could not be squared with the written Constitution: The Administrative Process, James Landis's classic exposition of the New Deal model of administration, fairly drips with contempt for the idea of a limited national government subject to a formal, tripartite separation of powers. Faced with a choice between the administrative state and the Constitution, the architects …

Supreme Court's Tilt To The Property Right: Procedural Due Process Protections Of Liberty And Property Interests, Jack M. Beermann, Barbara A. Melamed, Hugh F. Hall

Faculty Scholarship

The Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution provide important protections against government oppression. They provide that government may not deprive any person of "life, liberty or property" without due process of law. In recent decisions, the Supreme Court has appeared willing to strengthen its protection of traditional property interests yet weaken its protection of liberty interests.

It has long been accepted, albeit with controversy, that due process has both procedural and substantive elements. This essay concerns the procedural elements. Procedural due process analysis asks two questions: first, whether there exists a liberty …

Choosing Judges The Democratic Way, Larry Yackle

Faculty Scholarship

A generation ago, the pressing question in constitutional law was the countermajoritarian difficulty.' Americans insisted their government was a democratic republic and took that to mean rule by a majority of elected representatives in various offices and bodies, federal and local. Yet courts whose members had not won election presumed to override the actions of executive and legislative officers who had. The conventional answer to this apparent paradox was the Constitution, which arguably owed its existence to the people directly. Judicial review was justified, accordingly, when court decisions were rooted firmly in the particular text, structure, or historical backdrop of …