Law Commons^™

The Depravity Of The 1930s And The Modern Administrative State, Gary S. Lawson, Steven Calabresi

Faculty Scholarship

Gillian Metzger’s 2017 Harvard Law Review foreword, entitled 1930s Redux: The Administrative State Under Siege, is a paean to the modern administrative state, with its massive subdelegations of legislative and judicial power to so-called “expert” bureaucrats, who are layered well out of reach of electoral accountability yet do not have the constitutional status of Article III judges. We disagree with this celebration of technocratic government on just about every level, but this Article focuses on two relatively narrow points.

First, responding more to implicit assumptions that pervade modern discourse than specifically to Professor Metzger’s analysis, we challenge the normally unchallenged …

Two Views On The Nationwide Injunction, Jack M. Beermann

Shorter Faculty Works

I feel a bit like Gilligan in one of my favorite episodes of Gilligan’s island. The Professor and the Skipper are having an argument over some issue vital to the castaway’s prospects of being rescued from the island. Gilligan is standing in the middle agreeing with everything both parties to the argument say, and finally the two disputants become fed up with Gilligan’s endorsement of diametrically opposing views and they turn on him. In this Jot, I praise two articles that take conflicting views on an issue vital to the future of administrative law, namely, when should federal courts, confronted …

The Never-Ending Assault On The Administrative State, Jack M. Beermann

Faculty Scholarship

This Article is an exploration of the twists and turns of the never-ending assault on the administrative state. Without attempting to resolve all of the separation of powers controversies that have existed since the beginning of the Republic, this Article examines and analyzes the fundamental constitutional challenges to the administrative state as well as the more peripheral constitutional difficulties involving the administrative state and the nonconstitutional legal challenges that have arisen over the decades. In my view, the legal and political arguments made in favor of major structural changes to the administrative state do not provide sufficient normative bases for …