Law Commons^™

Fixing America's Founding, Maeve Glass

Faculty Scholarship

The forty-fifth presidency of the United States has sent lawyers reaching once more for the Founders’ dictionaries and legal treatises. In courtrooms, law schools, and media outlets across the country, the original meanings of the words etched into the U.S. Constitution in 1787 have become the staging ground for debates ranging from the power of a president to trademark his name in China to the rights of a legal permanent resident facing deportation. And yet, in this age when big data promises to solve potential challenges of interpretation and judges have for the most part agreed that original meaning should …

Judicial Credibility, Bert I. Huang

Faculty Scholarship

Do people believe a federal court when it rules against the government? And does such judicial credibility depend on the perceived political affiliation of the judge? This study presents a survey experiment addressing these questions, based on a set of recent cases in which both a judge appointed by President George W. Bush and a judge appointed by President Bill Clinton declared the same Trump Administration action to be unlawful. The findings offer evidence that, in a politically salient case, the partisan identification of the judge – here, as a “Bush judge” or “Clinton judge” – can influence the credibility …

The Case For "Unfair Methods Of Competition" Rulemaking, Rohit Chopra, Lina M. Khan

Faculty Scholarship

A key feature of antitrust today is that the law is developed entirely through adjudication. Evidence suggests that this exclusive reliance on adjudication has failed to deliver a predictable, efficient, or participatory antitrust regime. Antitrust litigation and enforcement are protracted and expensive, requiring extensive discovery and costly expert analysis. In theory, this approach facilitates nuanced and fact-specific analysis of liability and well-tailored remedies. But in practice, the exclusive reliance on case-by-case adjudication has yielded a system of enforcement that generates ambiguity, drains resources, privileges incumbents, and deprives individuals and firms of any real opportunity to participate in the process of …

Recovering The Lost History Of Presidential Removal Law, Jane Manners, Lev Menand

Faculty Scholarship

On March 3, 2020, the Supreme Court heard argument in Seila Law v. CFPB, the biggest removal law case since Free Enterprise Fund v. PCAOB was decided a decade ago. The petitioner challenges the constitutionality of the Consumer Financial Protection Bureau, the independent agency established by the 2010 Dodd-Frank Act (DFA) to protect consumers from harmful financial products. Seila Law, a California firm under investigation by the CFPB for its debt-relief marketing practices, argues that statutory limits specifying that the president can fire the CFPB director only for “inefficiency, neglect of duty, or malfeasance in office” (INM) violate the …

The Roberts Court And Administrative Law, Gillian E. Metzger

Faculty Scholarship

Administrative law today is marked by the legal equivalent of mortal combat, where foundational principles are fiercely disputed and basic doctrines are offered up for “execution.” Several factors have led to administrative law’s currently fraught status. Increasingly bold presidential assertions of executive power are one, with President Trump and President Obama before him using presidential control over administration to advance controversial policies that failed to get congressional sanction. In the process, they have deeply enmeshed administrative agencies in political battles – indeed, for President Trump, administrative agencies are the political battle, as his administration has waged an all-out war on …

Coordinating Injunctions, Bert I. Huang

Faculty Scholarship

Consider this scenario: Two judges with parallel cases are each ready to issue an injunction. But their injunctions may clash, ordering incompatible actions by the defendant. Each judge has written an opinion justifying her own intended relief, but the need to avoid conflicting injunctions presses her to make a further choice – “Should I issue the injunction or should I stay it for now?” Each must make this decision in anticipation of what the other will do.

This Article analyzes such a judicial coordination problem, drawing on recent examples including the DACA cases and the “sanctuary cities” cases. It then …

Why Financial Regulation Keeps Falling Short, Dan Awrey, Kathryn Judge

Faculty Scholarship

This article argues that there is a fundamental mismatch between the nature of finance and current approaches to financial regulation. Today’s financial system is a dynamic and complex ecosystem. For these and other reasons, policy makers and market actors regularly have only a fraction of the information that may be pertinent to decisions they are making. The processes governing financial regulation, however, implicitly assume a high degree of knowability, stability, and predictability. Through two case studies and other examples, this article examines how this mismatch undermines financial stability and other policy aims. This examination further reveals that the procedural rules …

Delegating Or Divesting?, Philip A. Hamburger

Faculty Scholarship

A gratifying feature of recent scholarship on administrative power is the resurgence of interest in the Founding. Even the defenders of administrative power hark back to the Constitution’s early history – most frequently to justify delegations of legislative power. But the past offers cold comfort for such delegation.

A case in point is Delegation at the Founding by Professors Julian Davis Mortenson and Nicholas Bagley. Not content to defend the Supreme Court’s current nondelegation doctrine, the article employs history to challenge the doctrine – arguing that the Constitution does not limit Congress’s delegation of legislative power. But the article’s most …