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Full-Text Articles in Law

Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang Oct 2018

Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang

Faculty Scholarship at Penn Law

Our aim in this essay is to leverage archival research, data and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, as a means to illuminate the prospects for retrenchment in the current political landscape. We follow the scheme of the book by separately considering the prospects for federal litigation retrenchment in three lawmaking sites: Congress, federal court rulemaking under the Rules Enabling Act, and the Supreme Court. Although pertinent data on current retrenchment initiatives are limited, our historical data and comparative institutional perspectives should afford a basis for informed prediction. Of course, little in ...


Deference To Deference: Examining The Relationship Between The Courts And The Political Branches Through Judicial Deference And The Chevron Doctrine, Christopher Yao Jun 2018

Deference To Deference: Examining The Relationship Between The Courts And The Political Branches Through Judicial Deference And The Chevron Doctrine, Christopher Yao

Honors Theses

Judicial review of agency rulemaking sits atop a nexus between all three branches of American government, the legislature, the executive, and the judiciary. Chevron v. NRDC (1984), a landmark case in administrative law, and its resulting doctrine of strong judicial deference to agencies in their interpretations of statute, are paradoxical in their creation. Although Chevron was decided at the height of Reagan-era deregulation, it greatly enhanced the power of administrative agencies, allowing them to reinterpret the meaning of their statutory directives as needed to justify changes to regulations with less scrutiny from the courts. It is only in recent years ...


Separation Of Powers In Comparative Perspective: How Much Protection For The Rule Of Law?, Peter L. Strauss Jan 2018

Separation Of Powers In Comparative Perspective: How Much Protection For The Rule Of Law?, Peter L. Strauss

Faculty Scholarship

Writing about separation of powers with particular attention to the contrasting American and British views at the time of Trump and Brexit has been challenging and illuminating. The essay takes as its third framework the constrained parliamentarianism Prof. Bruce Ackerman celebrated in his essay, The New Separation of Powers, 113 Harv. L. Rev. 633 (2000), and briefly considers its relative success in Australia, France, and Germany, and failure in Hungary and Poland, in achieving “separation of powers” universally understood ends, the prevention of autocracy and preservation of human freedoms. That courts and judges would not be political actors, that governments ...