Law Commons^™

The Sec’S Spac Solution, Karen Woody, Lidia Kurganova

Emory Law Journal Online

The SPAC craze has ebbed and flowed over the past few years, creating fortunes and ruining others. The SEC stepped into the mix in 2022 and proposed rules governing SPACs. The proposed rules artfully balance the interests of investor protection while retaining some of the featured characteristics of SPACs as innovative ways to take companies public. This Article details the history of SPACs, including their benefits and risks, and analyzes the SEC’s proposed rules, arguing that the SEC is well within its Congressional authority to regulate SPACs, and that the proposed rules are both well-tailored and necessary.

The Confines Of Federalism On Farmed Animal Welfare, Miranda Groh

Animal Law Review

Although farmed animal advocates have achieved some protection for animals through state and local laws, Congress’s constitutional authority to preempt state law and regulate interstate commerce poses a significant threat to those achievements. Additionally, the practical constraints of the United States’ interconnected food system suggest that national, uniform standards are more desirable than a state-by-state, piecemeal approach to animal welfare. Despite the potential benefits of a state-by-state approach and some obstacles faced at the federal level, this Article argues that long-lasting legal protections for farmed animals should ultimately come from Congress, and that animal advocates should concentrate their efforts there. …

The Limits On Congress's Power To Do Nothing: A Preliminary Inquiry, William P. Marshall

Indiana Law Journal

As Part I of this Essay will show, arguments for limiting Congress’s authority to do nothing are not readily found in history, text, or constitutional structure. Part I concludes, however, that the need for establishing some constitutional limits on congressional inaction is nevertheless compelling because of the seriousness of the dangers involved. Accordingly, Part II goes on to advance an approach that would limit Congress’s power to do nothing in certain circumstances. Specifically, Part II proposes an approach that would limit Congress’s power to do nothing based on the type of power that Congress is (or is not) exercising. Congress …

Executive Action And Nonaction, Tom Campbell

Tom Campbell

Burning The Village To Roast The Pig: Congressional Attempt To Regulate "Indecency" On The Internet Rejected In Aclu V. Reno, James M. Mcgee

Journal of Intellectual Property Law

No abstract provided.

The Nineteenth Amendment Enforcement Power (But First, Which One Is The Nineteenth Amendment, Again?), Steve Kolbert

Florida State University Law Review

No abstract provided.

Chevron Bias, Philip A. Hamburger

Faculty Scholarship

This Article takes a fresh approach to Chevron deference. Chevron requires judges to defer to agency interpretations of statutes and justifies this on a theory of statutory authorization for agencies. This Article, however, points to a pair of constitutional questions about the role of judges – questions that have not yet been adequately asked, let alone answered.

One question concerns independent judgment. Judges have a constitutional office or duty of independent judgment, under which they must exercise their own independent judgment about what the law is. Accordingly, when they defer to agency interpretations of the law, it must be asked …

The Commander In Chief's Authority To Combat Climate Change, Mark P. Nevitt

Faculty Articles

This Article first outlines the myriad national security threats posed by a changing climate, addressing the President’s and Congress’s powers to plan, study, and invest in climate-resilient infrastructure at military installations that are vulnerable to a rise in sea levels. Second, this Article asserts that climate change will stress and test persistent separation of powers concerns at home and abroad. Specifically, the President has less authority to protect military infrastructure domestically in the face of congressional intransigence, but has comparably greater authority as Commander in Chief to respond to climate-induced events abroad. Third, this Article argues that the threat of …

Federalism And Phantom Economic Rights In Nfib V. Sibelius, Matthew Lindsay

All Faculty Scholarship

Few predicted that the constitutional fate of the Patient Protection and Affordable Care Act would turn on Congress’ power to lay and collect taxes. Yet in NFIB v. Sebelius, the Supreme Court upheld the centerpiece of the Act — the minimum coverage provision (MCP), commonly known as the “individual mandate” — as a tax. The unexpected basis of the Court’s holding has deflected attention from what may prove to be the decision’s more constitutionally consequential feature: that a majority of the Court agreed that Congress lacked authority under the Commerce Clause to penalize people who decline to purchase health insurance. …

Congressional Authority To Interpret The Thirteenth Amendment: A Response To Professor Tsesis, Jennifer Mason Mcaward

Jennifer Mason McAward

This essay explores the proper scope of Congress’s power to enforce the Thirteenth Amendment’s prohibition on slavery and involuntary servitude. It reviews the historical context surrounding the drafting of the Thirteenth Amendment enforcement power, and it points to structural constitutional considerations relevant to the understanding of that power. It concludes by suggesting some related topics that deserve further exploration.

Should Federalism Shield Corruption?—Mail Fraud, State Law And Post-Lopez Analysis, George D. Brown

George D. Brown

In this Article, Professor Brown examines the issues that federal prosecutions of state and local officials pose. The analysis focuses on prosecutions under the mail fraud statute and considers the general debate over the proper scope of federal criminal law. Professor Brodin addresses the question of whether a re-examination of mail fraud would focus on constitutional or statutory issues and by utilizing the Supreme Court case United States v. Lopez examines the question of internal limits on the mail fraud statute.

Congressional Authority To Interpret The Thirteenth Amendment: A Response To Professor Tsesis, Jennifer Mason Mcaward

Journal Articles

This essay explores the proper scope of Congress’s power to enforce the Thirteenth Amendment’s prohibition on slavery and involuntary servitude. It reviews the historical context surrounding the drafting of the Thirteenth Amendment enforcement power, and it points to structural constitutional considerations relevant to the understanding of that power. It concludes by suggesting some related topics that deserve further exploration.

The Pursuit Of Perfection: Congressional Power To Enforce The Reconstruction Amendments, A. Christopher Bryant

Faculty Articles and Other Publications

In June 2009 the Supreme Court avoided a decision on the constitutionality of the Voting Rights Act's preclearance requirement, while at the same time managing to foreshadow that provision's ultimate demise. In a separate opinion, Justice Thomas announced that he would have reached the issue and invalidated the preclearance requirement. Conceding that unconstitutional racial discrimination in the administration of elections continued to be an unfortunate reality, he asserted that Congress was not permitted to pursue "perfect compliance" with the Constitution's mandate via the use of "broad prophylactic legislation."

Justice Thomas's statement accurately, though to be sure rather starkly, expressed an …

Congressional End-Run: The Ignored Constraint On Judicial Review, Luke M. Milligan

Georgia Law Review

This Article identifies an untended connection between
the research of legal academics and political scientists. It
explains how recent developments in constitutional theory,
when read in good light, expose a gap in the judicial
politics literature on Supreme Court decision making. The
gap is the "congressional end-run."
End-runs occur when Congress mitigates the policy cost
of adverse judicial review through neither formal limits on
the Court's autonomy nor substitution of its constitutional

interpretationfor that of the Court, but through a different
decision which cannot, as a practical if not legal matter,
be invalidated by the Court. End-runs come in several …

The Hobbesian Constitution: Governing Without Authority, Gary S. Lawson, Guy I. Seidman

Faculty Scholarship

One case in American legal history, perhaps more than any other, starkly presents in a single package many of the most fundamental issues of American structural constitutionalism: the principle of enumerated powers, the concept of limited government, and the place of the United States in a world of sovereign nations. It raises foundational questions about the powers of all major institutions of the national government and serves as an ideal acid test for differing conceptions of the Constitution-and indeed of the American nation-state. In terms of its theoretical scope and consequences, it is one of the most important cases ever …

Will Jewish Prisoners Be Boerne Again? Legislative Responses To City Of Boerne V. Flores, Yehuda M. Braunstein

Fordham Law Review

No abstract provided.

The Expansion Of Federal Legislative Authority, Terrance Sandalow

Book Chapters

During the 190 years since the Constitution's adoption, the legislative authority of the Congress has greatly expanded. In the beginning, Congress's powers were closely circumscribed, but over the years the boundaries by which they were initially confined have been almost entirely obliterated. Congress has ceased to be merely the legislative authority of a federal government; it has for all practical purposes acquired the legislative authority of a unitary nation. Especially in the economic sphere, it is only a small exaggeration to say that Congress now possesses plenary authority.

Of course, Congress need not-and, in fact, does not--exercise all the power …

The National Executive And The Use Of The Armed Forces Abroad, John Norton Moore

International Law Studies

No abstract provided.

Characterization Of Interstate Arrangements: When Is A Compact Not A Compact, David E. Engdahl

Michigan Law Review

The real increase in the use of "compacts" is still very recent, so there has as yet been little significant litigation concerning these instruments. For this reason, relatively few lawyers have had sufficient exposure to the subject to discover what an unhappy state the law of "compacts" is in. However, if the present trend toward their increased use continues, interstate authorities and agencies founded upon "compacts" may be expected to become as familiar to the average lawyer as conventional governmental agencies are today. This article is not intended to anticipate all of the legal problems which are sure to arise …

Attachment And Garnishment In The Federal Courts, Brainerd Currie

Michigan Law Review

Personal injuries allegedly caused by the negligent manufacture of safety fuses used in blasting operations in a coal mine were suffered by Raymond Davis, apparently a citizen of Arkansas. The manufacturer, Ensign-Bickford Company, was a Connecticut corporation that could not be personally served with process within Arkansas. But it happened that two foreign corporations, amenable to process in the state, were indebted in substantial amounts to Ensign-Bickford Company. Accordingly, counsel for Davis, invoking the diversity jurisdiction, filed an action in the District Court for the Western District of Arkansas. Without issue of summons, the plaintiff, in conformity with Arkansas statutes, …

Constitutional Law - The Delegation Of Federal Legislative Power To Executive Or Administrative Agencies

Michigan Law Review

The range of governmental activity, ever expanding both because of the adoption of new functions and because of the increase in proportions of the old, has developed a frequent need for supervision by specialized administrative agencies. In addition to the normal trend toward increased administrative control, present-day economic difficulties have provided additional impetus in that direction. Hence the question of how far Congress can go in turning over its duties to executive or administrative agencies has become of immediate and vital concern.