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Full-Text Articles in Law
Antitrust Rulemaking: The Ftc’S Delegation Deficit, Thomas W. Merrill
Antitrust Rulemaking: The Ftc’S Delegation Deficit, Thomas W. Merrill
Faculty Scholarship
The Federal Trade Commission’s (FTC’s) recent assertion of authority to engage in legislative rulemaking in antitrust matters can be addressed in terms of three frameworks: the major questions doctrine, the Chevron doctrine, and as a matter of ordinary statutory interpretation. The article argues that as a matter of ordinary statutory interpretation the FTC has no such authority. This can be seen by considering the structure and history of the Act and is confirmed by the 1975 Federal Trade Commission Improvements Act. Given that the result follows from ordinary statutory interpretation, it is unnecessary for courts to consider the other two …
The Major Questions Doctrine: Right Diagnosis, Wrong Remedy, Thomas W. Merrill
The Major Questions Doctrine: Right Diagnosis, Wrong Remedy, Thomas W. Merrill
Faculty Scholarship
The Supreme Court’s “major questions” doctrine has been attacked as an attempt to revive the nondelegation doctrine. The better view is that this statutory interpretation responds to perceived failings of the Chevron doctrine, which has governed court-agency relations since 1984. This article criticizes the major question doctrine and proposes modifications to the Chevron doctrine that would partially correct its failings while preserving the traditional interpretive role of courts.
Chevron'S Ghost Rides Again, Thomas W. Merrill
Chevron'S Ghost Rides Again, Thomas W. Merrill
Faculty Scholarship
Professor Gary Lawson has offered a remarkable account of the fate of the Chevron doctrine during a recent year in the Supreme Court, from August 2021 to June 2022. When one examines lower court decisions, petitions seeking review of those decisions, briefs filed by the parties, and transcripts of oral arguments, Chevron made frequent appearances during the year. But when one reads the published opinions of the Court, one finds virtually no reference to Chevron. Based on the published opinions of the Court, it was as if the Chevron decision did not exist.
The status of Chevron as a …