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Articles 61 - 90 of 520
Full-Text Articles in Law
“Nationwide” Injunctions Are Really “Universal” Injunctions And They Are Never Appropriate, Howard Wasserman
“Nationwide” Injunctions Are Really “Universal” Injunctions And They Are Never Appropriate, Howard Wasserman
Faculty Publications
Federal district courts are routinely issuing broad injunctions prohibiting the federal government from enforcing constitutionally invalid laws, regulations, and policies on immigration and immigration-adjacent issues. Styled “nationwide injunctions,” they prohibit enforcement of the challenges laws not only against the named plaintiffs, but against all people and entities everywhere.
The first problem with these injunctions is one of nomenclature. “Nationwide” suggests something about the “where” of the injunction, the geographic scope in which it protects. The better term is “universal injunction,” which captures the real controversy over the “who” of the injunction, as courts purport to protect the universe of all …
Chevron Step Two's Domain, Kent H. Barnett, Christopher J. Walker
Chevron Step Two's Domain, Kent H. Barnett, Christopher J. Walker
Scholarly Works
An increasing number of judges, policymakers, and scholars have advocated eliminating or narrowing Chevron deference—a two-step inquiry under which courts defer to federal agencies’ reasonable interpretations of ambiguous statutes the agencies administer. Much of the debate centers on either Chevron’s domain (i.e., when Chevron should apply at all) or how courts ascertain statutory ambiguity at Chevron’s first step. Largely lost in this debate on constraining agency discretion is the role of Chevron’s second step: whether the agency’s resolution of a statutory ambiguity is reasonable. Drawing on the most comprehensive study of Chevron in the circuit courts, this Essay explores how …
Improving Regulatory Analysis At Independent Agencies, Cary Coglianese
Improving Regulatory Analysis At Independent Agencies, Cary Coglianese
All Faculty Scholarship
Each year, independent regulatory agencies—such as the Federal Communications Commission, Nuclear Regulatory Commission, and Securities and Exchange Commission—issue highly consequential regulations. When they issue their regulations, however, they do not have to meet the same requirements for analysis that apply to other agencies. Consequently, courts, policymakers, and scholars have voiced serious reservations about a general lack of high-quality prospective analysis of new regulations at independent agencies. These agencies’ track records with retrospective analysis of their existing regulations raise similar concerns. In this article, I approach the quality of regulatory analysis at independent agencies as a policy problem, assessing the current …
Delaware's Retreat, Randall Thomas, James D. Cox
Delaware's Retreat, Randall Thomas, James D. Cox
Vanderbilt Law School Faculty Publications
The 1980’s is appropriately considered the Golden Age of Delaware corporate law. Within that era, the Delaware courts won international attention by not just erecting the legal pillars that frame today’s corporate governance discourse but by interjecting a fresh perspective on the rights of owners and the prerogatives of managers. Four decisions stand out within a melodious chorus of great decisions of that era - Revlon , Inc. v. MacAndrews & Forbes Holding, Inc., Weinberger v. UOP, Inc., Unocal Corp. v. Mesa Petroleum Co., and Blasius Industries, Inc. v. Atlas Corporation. We refer collectively to the decisions as the Golden …
Delaware's Retreat: Exploring Developing Fissures And Tectonic Shifts In Delaware Corporate Law, James D. Cox, Randall S. Thomas
Delaware's Retreat: Exploring Developing Fissures And Tectonic Shifts In Delaware Corporate Law, James D. Cox, Randall S. Thomas
Faculty Scholarship
No abstract provided.
Rethinking Family-Court Prosecutors: Elected And Agency Prosecutors And Prosecutorial Discretion In Juvenile Delinquency And Child Protection Cases, Joshua Gupta-Kagan
Rethinking Family-Court Prosecutors: Elected And Agency Prosecutors And Prosecutorial Discretion In Juvenile Delinquency And Child Protection Cases, Joshua Gupta-Kagan
Faculty Scholarship
Like criminal prosecutors, family-court prosecutors have immense power. Determining which cases to prosecute and which to divert or dismiss goes to the heart of the delinquency system’s balance between punishment and rehabilitation of children and the child protection system’s spectrum of family interventions. For instance, the 1990s shift to prosecute (rather than dismiss or divert) about 10 percent more delinquency cases annually is as significant a development as any other. Yet scholars have not examined the legal structures for these charging decisions or family-court prosecutors’ authority in much depth.
This Article shows how family-court prosecutors’ roles have never been fully …
Bankruptcy’S Uneasy Shift To A Contract Paradigm, David A. Skeel Jr., George Triantis
Bankruptcy’S Uneasy Shift To A Contract Paradigm, David A. Skeel Jr., George Triantis
All Faculty Scholarship
The most dramatic development in twenty-first century bankruptcy practice has been the increasing use of contracts to shape the bankruptcy process. To explain the new contract paradigm—our principal objective in this Article-- we begin by examining the structure of current bankruptcy law. Although the Bankruptcy Code of 1978 has long been viewed as mandatory, its voting and cramdown rules, among others, invite considerable contracting. The emerging paradigm is asymmetric, however. While the Code and bankruptcy practice allow for ex post contracting, ex ante contracts are viewed with suspicion.
We next use contract theory to assess the two modes of contracting. …
Still Living After Fifty Years: A Census Of Judicial Review Under The Pennsylvania Constitution Of 1968, Seth F. Kreimer
Still Living After Fifty Years: A Census Of Judicial Review Under The Pennsylvania Constitution Of 1968, Seth F. Kreimer
All Faculty Scholarship
The year 2018 marked the fiftieth anniversary of the Pennsylvania Constitution of 1968. The time seems ripe, therefore, to explore the Pennsylvania Supreme Court’s exercise of judicial review under the 1968 Pennsylvania Constitution. This Article constitutes the first such comprehensive exploration.
The Article begins with an historical overview of the evolution of the Pennsylvania Constitution, culminating in the Constitution of 1968. It then presents a census of the 372 cases in which the Pennsylvania Supreme Court has vindicated distinctive Pennsylvania Constitutional rights under the Constitution of 1968.
Analysis of these cases leads to three conclusions:
1. Exercise of independent constitutional …
Rights As Trumps?, Jamal Greene
Rights As Trumps?, Jamal Greene
Faculty Scholarship
Rights are more than mere interests, but they are not absolute. And so two competing frames have emerged for adjudicating conflicts over rights. Under the first frame, rights are absolute but for the exceptional circumstances in which they may be limited. Constitutional adjudication within this frame is primarily an interpretive exercise fixed on identifying the substance and reach of any constitutional rights at issue. Under the second frame, rights are limited but for the exceptional circumstances in which they are absolute. Adjudication within this frame is primarily an empirical exercise fixed on testing the government’s justification for its action. In …
Chevron In The Circuit Courts: The Codebook Appendix, Kent H. Barnett, Christopher J. Walker
Chevron In The Circuit Courts: The Codebook Appendix, Kent H. Barnett, Christopher J. Walker
Scholarly Works
For our empirical study on the use of Chevron deference in the federal courts of appeals, we utilized the following Codebook. This Codebook draws substantially from the codebook appended to William Eskridge and Lauren Baer's pathbreaking study of administrative law's deference doctrines at the Supreme Court. Our research assistants and we followed the instructions below when coding judicial decisions. To address questions as they arose and to ensure consistent coding, we maintained close contact with each other and our research assistants throughout the project and clarified the Codebook to address additional issues. Further details concerning our methodology (and its limitations) …
Can Courts Save Us From Unconstitutional Government Conduct?, John M. Greabe
Can Courts Save Us From Unconstitutional Government Conduct?, John M. Greabe
Law Faculty Scholarship
[Excerpt] "We are living in a troubled time. Across the political spectrum, there is a great deal of concern that government officials have been derelict in honoring their oaths to support and defend the Constitution."
Remedial Restraint In Administrative Law, Nicholas Bagley
Remedial Restraint In Administrative Law, Nicholas Bagley
Articles
When a court determines that an agency action violates the Administrative Procedure Act, the conventional remedy is to invalidate the action and remand to the agency. Only rarely do the courts entertain the possibility of holding agency errors harmless. The courts’ strict approach to error holds some appeal: Better a hard rule that encourages procedural fastidiousness than a remedial standard that might tempt agencies to cut corners. But the benefits of this rule-bound approach are more elusive, and the costs much larger, than is commonly assumed. Across a wide range of cases, the reflexive invalidation of agency action appears wildly …
High-Stakes Interpretation, Ryan D. Doerfler
High-Stakes Interpretation, Ryan D. Doerfler
All Faculty Scholarship
Courts look at text differently in high-stakes cases. Statutory language that would otherwise be ‘unambiguous’ suddenly becomes ‘less than clear.’ This, in turn, frees up courts to sidestep constitutional conflicts, avoid dramatic policy changes, and, more generally, get around undesirable outcomes. The standard account of this behavior is that courts’ failure to recognize ‘clear’ or ‘unambiguous’ meanings in such cases is motivated or disingenuous, and, at best, justified on instrumentalist grounds.
This Article challenges that account. It argues instead that, as a purely epistemic matter, it is more difficult to ‘know’ what a text means—and, hence, more difficult to regard …
Soft Supremacy, Corinna Barrett Lain
Soft Supremacy, Corinna Barrett Lain
Law Faculty Publications
The debate over judicial supremacy has raged for more than a decade now, yet the conception of what it is we are arguing about remains grossly oversimplified and formalistic. My aim in this symposium contribution is to push the conversation in a more realistic direction; I want those who claim that judicial supremacy is antidemocratic to take on the concept as it actually exists. The stark truth is that judicial supremacy has remarkably little of the strength and hard edges that dominate the discourse in judicial supremacy debates. It is porous, contingent- soft. And the upshot of soft supremacy is …
From Parliamentary To Judicial Supremacy: Reflections In Honour Of The Constitutionalism Of Justice Moseneke, Peter G. Danchin
From Parliamentary To Judicial Supremacy: Reflections In Honour Of The Constitutionalism Of Justice Moseneke, Peter G. Danchin
Faculty Scholarship
No abstract provided.
Republicanism And Natural Rights At The Founding, Jud Campbell
Republicanism And Natural Rights At The Founding, Jud Campbell
Law Faculty Publications
Today we tend to think about natural rights as non-positivist claims to limits on governmental authority — typically claims derived from religion, morality, or logic. These “rights,” by their very definition, exist independent of governmental control. Indeed, that is what makes them “natural.” This Essay, responding to Randy Barnett's Our Republican Constitution, sketches a different view of Founding-Era natural rights, their relationship to governmental authority, and their enforceability. With the exception of certain “rights of the mind,” natural rights were not really “rights” at all, in the sense of being determinate legal privileges or immunities. Rather, embracing natural rights meant …
Judicial Power, The Judicial Power Project And The Uk, Paul Craig
Judicial Power, The Judicial Power Project And The Uk, Paul Craig
Articles by Maurer Faculty
It is axiomatic that all power requires justification, and that is equally true for judicial power as for other species thereof. This article is primarily concerned with judicial power in the UK. The subject will be approached through consideration of the Judicial Power Project, which has been critical of the courts, much of this being sharp-edged, and fierce. There is repeated talk of judicial overreach and consequent legitimacy crisis, as the courts are said to encroach on terrain that is properly the preserve of the political branch of government.
It is by the same token important that the critics are …
Chevron In The Circuit Courts, Kent H. Barnett, Christopher J. Walker
Chevron In The Circuit Courts, Kent H. Barnett, Christopher J. Walker
Scholarly Works
This Article presents findings from the most comprehensive empirical study to date on how the federal courts of appeals have applied Chevron deference—the doctrine under which courts defer to a federal agency’s reasonable interpretation of an ambiguous statute that it administers. Based on 1,558 agency interpretations the circuit courts reviewed from 2003 through 2013 (where they cited Chevron), we found that the circuit courts overall upheld 71% of interpretations and applied Chevron deference 77% of the time. But there was nearly a twenty-five-percentage-point difference in agency-win rates when the circuit courts applied Chevron deference than when they did not. Among …
Internal Administrative Law Before And After The Apa, Gillian E. Metzger, Kevin M. Stack
Internal Administrative Law Before And After The Apa, Gillian E. Metzger, Kevin M. Stack
Faculty Scholarship
From his early work on social security to more recent scholarship excavating the first hundred years of administrative life in the United States, Professor Jerry L. Mashaw has forcefully argued for the centrality of “internal administrative law.” Internal administrative law, as Mashaw elaborates the term, is the set of practices, procedures, and pronouncements that administrative agencies adopt to structure their work. In his view, understanding administrative institutions and their promise for systemic legality depends upon recognizing their internal administrative law. Yet, as Mashaw observes, despite its importance, internal administrative law remains at the outskirts of the field of administrative law …
Doing Gloss, Curtis A. Bradley
Doing Gloss, Curtis A. Bradley
Faculty Scholarship
It is common for courts, the political branches, and academic commentators to look to historical governmental practices when interpreting the separation of powers. There has been relatively little attention, however, to the proper methodology for invoking such “historical gloss.” This Essay contends that, in order to gain traction on the methodological questions, we need to begin by considering the potential justifications for crediting gloss. For judicial application of gloss, which is this Essay’s principal focus, there are at least four such justifications: deference to the constitutional views of nonjudicial actors; limits on judicial capacity; Burkean consequentialism; and reliance interests. As …
Harmful, Harmless, And Beneficial Uncertainty In Law, Scott Baker, Alex Raskolnikov
Harmful, Harmless, And Beneficial Uncertainty In Law, Scott Baker, Alex Raskolnikov
Faculty Scholarship
This article examines the impact of four types of law-related uncertainty on the utility of risk-neutral agents. We find that greater legal or factual uncertainty makes agents worse off if enforcement is targeted (meaning that greater deviations from what the law demands lead to a greater probability of enforcement), or if sanctions are graduated (meaning that greater deviations from what the law demands result in higher sanctions). In contrast, agents are indifferent to changes in detection uncertainty induced by variation in enforcement resources or to changes in sanction uncertainty arising from legally irrelevant factors. Finally, risk-neutral agents benefit from greater …
Chevron's Interstitial Steps, Cary Coglianese
Chevron's Interstitial Steps, Cary Coglianese
All Faculty Scholarship
The Chevron doctrine’s apparent simplicity has long captivated judges, lawyers, and scholars. According to the standard formulation, Chevron involves just two straightforward steps: (1) Is a statute clear? (2) If not, is the agency’s interpretation of the statute reasonable? Despite the influence of this two-step framework, Chevron has come under fire in recent years. Some critics bemoan what they perceive as the Supreme Court’s incoherent application of the Chevron framework over time. Others argue that Chevron’s second step, which calls for courts to defer to reasonable agency interpretations of ambiguous statutory provisions, amounts to an abdication of judicial responsibility. …
The Supreme Court, Madhav Khosla, Ananth Padmanabhan
The Supreme Court, Madhav Khosla, Ananth Padmanabhan
Faculty Scholarship
Over time, the Supreme Court of India has evolved from being a court of law to a major institutional actor in the political arena. The present chapter analyses this transition by directing external and internal lenses on the court’s functioning. The external lens reveals engagement by the Court with legislative and executive domains of governance, and the current concerns of transparency and accountability that it faces. The internal lens scrutinizes the Court’s success as a court of law and its capability to streamline the judicial process such that the judicial system lives up to the legitimate expectations of the litigant …
What Lurks Below Beckles, Leah Litman, Shakeer Rahman
What Lurks Below Beckles, Leah Litman, Shakeer Rahman
Articles
This Essay argues that if the Supreme Court grants habeas relief in Beckles v. United States, then it should spell out certain details about where a Beckles claim comes from and who such a claim benefits. Those details are not essential to the main question raised in the case, but the federal habeas statute takes away the Supreme Court’s jurisdiction to hear just about any case that would raise those questions. For that reason, this Essay concludes that failing to address those questions now could arbitrarily condemn hundreds of prisoners to illegal sentences and lead to a situation where the …
An Empirical Study Of Implicit Takings., James E. Krier, Stewart E. Sterk
An Empirical Study Of Implicit Takings., James E. Krier, Stewart E. Sterk
Articles
Takings scholarship has long focused on the niceties of Supreme Court doctrine, while ignoring the operation of takings law "on the ground" in the state and lower federal courts, which together decide the vast bulk of all takings cases. This study, based primarily on an empirical analysis of more than 2000 reported decisions ovcr the period 1979 through 2012, attempts to fill that void. This study establishes that the Supreme Court's categorical rules govern almost no state takings cases, and that takings claims based on government regulation almost invariably fail. By contrast, when takings claims arise out of government action …
Administrative Law: The U.S. And Beyond, Cary Coglianese
Administrative Law: The U.S. And Beyond, Cary Coglianese
All Faculty Scholarship
Administrative law constrains and directs the behavior of officials in the many governmental bodies responsible for implementing legislation and handling governance responsibilities on a daily basis. This field of law consists of procedures for decision making by these administrative bodies, including rules about transparency and public participation. It also encompasses oversight practices provided by legislatures, courts, and elected executives. The way that administrative law affects the behavior of government officials holds important implications for the fulfillment of democratic principles as well as effective governance in society. This paper highlights salient political theory and legal issues fundamental to the U.S. administrative …
Against Administrative Judges, Kent H. Barnett
Against Administrative Judges, Kent H. Barnett
Scholarly Works
The single largest cadre of federal adjudicators goes largely ignored by scholars, policymakers, courts, and even litigating parties. These Administrative Judges or “AJs,” often confused with well-known federal Administrative Law Judges or “ALJs,” operate by the thousands in numerous federal agencies. Yet unlike ALJs, the significantly more numerous AJs preside over less formal hearings and have no significant statutory protections to preserve their impartiality. The national press has recently called attention to the alleged unfairness of certain ALJ proceedings, and regulated parties have successfully enjoined agencies’ use of ALJs. While fixes are necessary for ALJ adjudication, any solution that ignores …
Minimally Democratic Administrative Law, Jud Mathews
Minimally Democratic Administrative Law, Jud Mathews
Journal Articles
A persistent challenge for the American administrative state is reconciling the vast powers of unelected agencies with our commitment to government by the people. Many features of contemporary administrative law — from the right to participate in agency processes, to the reason-giving requirements on agencies, to the presidential review of rulemaking — have been justified, at least in part, as means to square the realities of agency power with our democratic commitments. At the root of any such effort there lies a theory of democracy, whether fully articulated or only implicit: some conception of what democracy is about, and what …
Dear I.R.S., It Is Time To Enforce The Campaigning Prohibition. Even Against Churches, Samuel Brunson
Dear I.R.S., It Is Time To Enforce The Campaigning Prohibition. Even Against Churches, Samuel Brunson
Faculty Publications & Other Works
In 1954, Congress prohibited tax-exempt public charities, including churches, from endorsing or opposing candidates for office. To the extent a tax-exempt public charity violated this prohibition, it would no longer qualify as tax-exempt, and the IRS was to revoke its exemption.
While simple in theory, in practice, the IRS rarely penalizes churches that violate the campaigning prohibition and virtually never revokes a church's tax exemption. And, because no taxpayer has standing to challenge the IRS's inaction, the IRS has no external imperative to revoke the exemptions of churches that do campaign on behalf of or against candidates for office.
This …
Disciplinary Regulation Of Prosecutors As A Remedy For Abuses Of Prosecutorial Discretion: A Descriptive And Normative Analysis, Samuel J. Levine, Bruce A. Green
Disciplinary Regulation Of Prosecutors As A Remedy For Abuses Of Prosecutorial Discretion: A Descriptive And Normative Analysis, Samuel J. Levine, Bruce A. Green
Scholarly Works
Although courts have traditionally relied primarily on prosecutors’ individual self-restraint and institutional self-regulation to curb prosecutors’ excesses and redress their wrongdoing, aspects of prosecutors’ conduct can be regulated externally as well. One potential source of external regulation is professional discipline. As lawyers, prosecutors are regulated by state courts, which oversee processes for disciplining lawyers who engage in misconduct. In responding to prosecutors’ wrongdoing, courts generally express a preference for professional discipline over civil liability, which is limited by principles of absolute and qualified immunity. Likewise, courts favor professional discipline over adjudicatory remedies such as reversal of criminal convictions or suppression …