Law Commons^™

Formalism And Deference In Administration Law, Kristen E. Hickman, Jide O. Nzelibe, Thomas W. Merrill, Philip A. Hamburger, Jennifer Walker Elrod

Faculty Scholarship

The topic for discussion is formalism and deference in administrative law. As we know, the landmark case of Chevron v. Natural Resources Defense Council has changed the face of modern administrative law. The panel will address the rightness and limitations of Chevron deference, especially in the context of agency decisions on the scope of the agencies’ jurisdictional mandates. Should the federal courts defer, or should they not defer in this context? We need guidance. Justices Scalia and Thomas recently differed from Chief Justice Roberts and Justices Kennedy and Alito on these issues. Who is right, and why? Does the answer …

Agora: Reflections On Zivotofsky V. Kerry : Historical Gloss, The Recognition Power, And Judicial Review, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

Introduction To Agora: Reflections On Zivotofsky V. Kerry, Curtis A. Bradley, Carlos M. Vazquez

Faculty Scholarship

No abstract provided.

Constitutionalism Outside The Courts, Ernest A. Young

Faculty Scholarship

This essay is a chapter to be included in the forthcoming Oxford Handbook on the U.S. Constitution. Using the actions of Arkansas Governor Orville Faubus during the Little Rock crisis of 1957 and the U.S. Supreme Court’s subsequent decision in Cooper v. Aaron as a lens, it explores constitutional interpretation and enforcement by extrajudicial institutions. I explore the critique of Cooper’s notion of judicial supremacy by departmentalists like Walter Murphy, empirical scholars skeptical of judicial efficacy like Gerald Rosenberg, and popular constitutionalists like Larry Kramer and Mark Tushnet. I also consider four distinct institutional forms of extrajudicial constitutional interpretation and …

Separations Of Wealth: Inequality And The Erosion Of Checks And Balances, Kate Andrias

Faculty Scholarship

American government is dysfunctional: Gridlock, filibusters, and expanding presidential power, everyone seems to agree, threaten our basic system of constitutional governance. Who, or what, is to blame? In the standard account, the fault lies with the increasing polarization of our political parties. That standard story, however, ignores an important culprit: Concentrated wealth and its organization to achieve political ends. The only way to understand our current constitutional predicament – and to rectify it – is to pay more attention to the role that organized wealth plays in our system of checks and balances.

This Article shows that the increasing concentration …