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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.
Jurisdiction Stripping Circa 2020: What The Dialogue (Still) Has To Teach Us, Henry P. Monaghan
Jurisdiction Stripping Circa 2020: What The Dialogue (Still) Has To Teach Us, Henry P. Monaghan
Faculty Scholarship
Since its publication in 1953, Henry Hart’s famous article, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, subsequently referred to as simply “The Dialogue,” has served as the leading scholarly treatment of congressional control over the federal courts. Now in its seventh decade, much has changed since Hart first wrote. This Article examines what lessons The Dialogue still holds for its readers circa 2020.
Considering Political Alternatives To "Hard Look" Review, Peter L. Strauss
Considering Political Alternatives To "Hard Look" Review, Peter L. Strauss
Faculty Scholarship
That is absolutely right. I am sufficiently confused by the facts that are already on the table – two of them in particular. One (the dog that I thought was barking in that interesting first chart Don Elliott put up, on which he did not remark), is that the first two periods of judicial review he showed us had 337 and 294 cases of judicial review each; for the third period, for the same length of time, the figure is about 800. Something is going on there. The other is just a square conflict that our moderator is much better …
Was There A Baby In The Bathwater? A Comment On The Supreme Court's Legislative Veto Decision, Peter L. Strauss
Was There A Baby In The Bathwater? A Comment On The Supreme Court's Legislative Veto Decision, Peter L. Strauss
Faculty Scholarship
Examining the Supreme Court's recent decisions in the legislative veto case, Professor Strauss stresses the importance of a distinction no Justice observed between use of the veto in matters affecting direct, continuing, political, executive-congressional relations, and use of the veto in a regulatory context. Only the latter, he argues, had to be reached by the Court; and only the latter presents the constitutional difficulties that troubled the Court. The utility of the veto in the political context makes the opinions' sweep regrettable.