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Full-Text Articles in Law
Re-Reading Chevron, Thomas W. Merrill
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.
Towards A Law Of Inclusive Planning: A Response To “Fair Housing For A Non-Sexist City”, Olatunde C.A. Johnson
Towards A Law Of Inclusive Planning: A Response To “Fair Housing For A Non-Sexist City”, Olatunde C.A. Johnson
Faculty Scholarship
Noah Kazis’s important article, Fair Housing for a Non-sexist City, shows how law shapes the contours of neighborhoods and embeds forms of inequality, and how fair housing law can provide a remedy. Kazis surfaces two dimensions of housing that generate inequality and that are sometimes invisible. Kazis highlights the role of planning and design rules – the seemingly identity-neutral zoning, code enforcement, and land-use decisions that act as a form of law. Kazis also reveals how gendered norms underlie those rules and policies. These aspects of Kazis’s project link to commentary on the often invisible, gendered norms that shape …
Taking Appropriations Seriously, Gillian E. Metzger
Taking Appropriations Seriously, Gillian E. Metzger
Faculty Scholarship
Appropriations lie at the core of the administrative state and are becoming increasingly important as deep partisan divides have stymied substantive legislation. Both Congress and the President exploit appropriations to control government and advance their policy agendas, with the border wall battle being just one of several recent high-profile examples. Yet in public law doctrine, appropriations are ignored, pulled out for special legal treatment, or subjected to legal frameworks ill-suited for appropriations realities. This Article documents how appropriations are marginalized in a variety of public law contexts and assesses the reasons for this unjustified treatment. Appropriations’ doctrinal marginalization does not …
Long Live The Common Law Of Copyright!: Georgia V. Public.Resource.Org., Inc. And The Debate Over Judicial Role In Copyright, Shyamkrishna Balganesh
Long Live The Common Law Of Copyright!: Georgia V. Public.Resource.Org., Inc. And The Debate Over Judicial Role In Copyright, Shyamkrishna Balganesh
Faculty Scholarship
In Georgia v. Public.Resource.Org, Inc., the Supreme Court resurrected a nineteenth-century copyright doctrine – the government edicts doctrine – and applied it to statutory annotations prepared by a legislative agency. While the substance of the decision has serious implications for due process and the rule of law, the Court’s treatment of the doctrine recognized an invigorated role for courts in the development of copyright law through the use of principled reasoning. In expounding the doctrine, the Court announced a vision for the judicial role in copyright adjudication that is at odds with the dominant approach under the Copyright …
A Perfectly Empty Gift, Christina D. Ponsa-Kraus
A Perfectly Empty Gift, Christina D. Ponsa-Kraus
Faculty Scholarship
“Almost citizens.” What does that even mean? It’s like being “kind of pregnant,” isn’t it? In other words, nonsense. Citizenship isn’t an “almost” kind of thing. It’s all or nothing. Unless, I suppose, the word “almost” is used in a simple temporal sense – as in, “Our naturalization ceremony is tomorrow. We’re almost citizens! Yay!” There, the phrase “almost citizens” makes sense. Otherwise not. Right?
Wrong. “Almost citizens,” in a sense as ambiguous as it sounds, is what Almost Citizens: Puerto Rico, the U S Constitution, and Empire is about. “Almost citizens” describes what Puerto Ricans were from 1898, when …
Elected-Official-Affiliated Nonprofits: Closing The Public Integrity Gap, Richard Briffault
Elected-Official-Affiliated Nonprofits: Closing The Public Integrity Gap, Richard Briffault
Faculty Scholarship
Recent years have witnessed the growing use by elected officials, particularly state and local chief executives, of affiliated nonprofit organizations to advance their policy goals. Some of these organizations engage in public advocacy to advance a governor’s or mayor’s legislative program. Others operate more like conventional charities, raising philanthropic support for a range of governmental social welfare programs. Elected officials fundraise for these organizations, which are often staffed by close associates of those elected officials, and the organizations’ public communications frequently feature prominently the name or likeness of their elected-official sponsor. As these organizations do not engage in electioneering, they …
Power Transitions In A Troubled Democracy, Peter L. Strauss, Gillian E. Metzger
Power Transitions In A Troubled Democracy, Peter L. Strauss, Gillian E. Metzger
Faculty Scholarship
Written as our contribution to a festschrift for the noted Italian administrative law scholar Marco D’Alberti, this essay addresses transition between Presidents Trump and Biden, in the context of political power transitions in the United States more generally. Although the Trump-Biden transition was marked by extraordinary behaviors and events, we thought even the transition’s mundane elements might prove interesting to those for whom transitions occur in a parliamentary context. There, succession can happen quickly once an election’s results are known, and happens with the new political government immediately formed and in office. The layer of a new administration’s political leadership …
The Big Data Regulator, Rebooted: Why And How The Fda Can And Should Disclose Confidential Data On Prescription Drugs And Vaccines, Christopher J. Morten, Amy Kapczynski
The Big Data Regulator, Rebooted: Why And How The Fda Can And Should Disclose Confidential Data On Prescription Drugs And Vaccines, Christopher J. Morten, Amy Kapczynski
Faculty Scholarship
Medicines and vaccines are complex products, and it is often extraordinarily difficult to know whether they help or hurt. The Food and Drug Administration (FDA) holds an enormous reservoir of data that sheds light on that precise question, yet currently releases only a trickle to researchers, doctors, and patients. Recent examples show that data secrecy can be deadly, and existing laws such as the Freedom of Information Act (FOIA) cannot solve the problem. We present here a wealth of new evidence about the urgency of the problem and argue that the FDA must “reboot” its rules to proactively disclose all …
Constructing Countervailing Power: Law And Organizing In An Era Of Political Inequality, Kate Andrias
Constructing Countervailing Power: Law And Organizing In An Era Of Political Inequality, Kate Andrias
Faculty Scholarship
This Article proposes an innovative approach to remedying the crisis of political inequality: using law to facilitate organizing by the poor and working class, not only as workers, but also as tenants, debtors, welfare beneficiaries, and others. The piece draws on the social-movements literature, and the successes and failures of labor law, to show how law can supplement the deficient regimes of campaign finance and lobbying reform and enable lower-income groups to build organizations capable of countervailing the political power of the wealthy. As such, the Article offers a new direction forward for the public-law literature on political power and …
Anti-Modalities, David E. Pozen, Adam Samaha
Anti-Modalities, David E. Pozen, Adam Samaha
Faculty Scholarship
Constitutional argument runs on the rails of “modalities.” These are the accepted categories of reasoning used to make claims about the content of supreme law. Some of the modalities, such as ethical and prudential arguments, seem strikingly open ended at first sight. Their contours come into clearer view, however, when we attend to the kinds of claims that are not made by constitutional interpreters – the analytical and rhetorical moves that are familiar in debates over public policy and political morality but are considered out of bounds in debates over constitutional meaning. In this Article, we seek to identify the …
The Uncertain Future Of Administrative Law, Jeremy K. Kessler, Charles F. Sabel
The Uncertain Future Of Administrative Law, Jeremy K. Kessler, Charles F. Sabel
Faculty Scholarship
A volatile series of presidential transitions has only intensified the century-long conflict between progressive defenders and conservative critics of the administrative state. Yet neither side has adequately confronted the fact that the growth of uncertainty and the corresponding spread of guidance – a kind of provisional “rule” that invites its own revision – mark a break in the development of the administrative state as significant as the rise of notice-and-comment rulemaking in the 1960s and 1970s. Whereas rulemaking corrected social shortsightedness by enlisting science in the service of lawful administration, guidance acknowledges that both science and law are in need …