Law Commons^™

The Shape Of Citizenship: Extraordinary Common Meaning And Constitutional Legitimacy, David N. Mcneill, Emily Tucker

CPT Papers & Reports

The United States, it is widely believed, is at a moment of constitutional crisis. At no time since the Civil War era has it seemed more likely that what James Madison called the “experiment entrusted to the hands of the American people”—the experiment in democratic constitutional self-governance—will fail. This article argues that one reason for this state of affairs is that the ‘people’ sense that they are no longer active participants in the experiment. While the historical etiology of this crisis is complex, and the forces involved not confined to the US, this article focuses on the crisis in the …

Abandoning Animus, Robert L. Tsai

Faculty Scholarship

This Essay presents a preliminary set of arguments against the legal concept of animus grounded in actual practice. After considering the major reasons advanced in support of the animus approach as well as the main objections, I argue that the end of animus may come once we confront the limits of judicial capacity. First, judges have not been willing or able to resort to the animus rationale to call out bigotry where the evidence of hostility is robust. These failures suggest that projects founded upon judicial review to reduce hateful motivations may be overly optimistic. Second, on the occasions the …

U.S. Department Of Justice Executive Branch Engagement On Litigating The Administrative Procedure Act, Aram Gavoor, Steven A. Pratt

GW Law Faculty Publications & Other Works

The Administrative Procedure Act is a broadly worded statute that has benefitted from caselaw to fill many of its gaps, ambiguities, and inconsistencies. But the case method directs judicial attention to slivers of APA inquiry that are required to resolve cases in as-applied challenges to rules and adjudications. There is another method of APA interpretation that has never been deployed in the statute’s 77-year life—that of intentional collaboration between the executive branch and the judiciary. Acting on their litigation and case management authorities as well as their unique power to persuade the judiciary on questions of administrative procedure, the Attorney …

Taking Care With Text: "The Laws" Of The Take Care Clause Do Not Include The Constitution, And There Is No Autonomous Presidential Power Of Constitutional Interpretation, George Mader

Faculty Scholarship

“Departmentalism” posits that each branch of the federal government has an independent power of constitutional interpretation—all branches share the power and need not defer to one another in the exercise of their interpretive powers. As regards the Executive Branch, the textual basis for this interpretive autonomy is that the Take Care Clause requires the President to “take Care that the Laws be faithfully executed” and the Supremacy Clause includes the Constitution in “the supreme Law of the Land.” Therefore, the President is to execute the Constitution as a law. Or so the common argument goes. The presidential oath to “execute …

The Relevance Of Purpose In Constitutional Equal Protection Challenges To Executive Action, Wei Yao, Kenny Chng

Research Collection Yong Pung How School Of Law

Written constitutions often include generalized guarantees of equal protection which imply a proscription on unconstitutional differential treatment. This paper will examine what the analytical focus ought to be when evaluating challenges to executive action based on such rights, a particularly relevant issue given recent developments in Hong Kong’s and Singapore’s equal protection jurisprudence. These developments suggest that there are three possible analytical focal points, each of which takes a different perspective on the relevance of the executive’s purpose in utilizing differential treatment: (1) the connection between the chosen differentiation and the specific purpose of the challenged executive action; (2) the …

You Be The Judge: Analyzing When The Federal Arbitration Act's Judicial Review Standards Apply In State Court, Max Birmingham

Pepperdine Dispute Resolution Law Journal

This article addresses whether, when the Federal Arbitration Act (“FAA”) governs an arbitration, the FAA’s judicial review standards apply in state court and preempt application of different state law judicial review standards. This argument proceeds as follows: Part I provides an introduction. Part II analyzes the procedural reform intent of the FAA and why the statute seeks to standardize the arbitration process. Part III reviews the judicial review of arbitration awards as promulgated in Hall Street Associates, L.L.C. v. Mattel, Inc. Part IV reviews the generations of FAA cases which have been held to be preempted by SCOTUS. Part V …

Revisiting Remedies And The Legality-Merits Distinction In Singapore Administrative Law: Cbb V Law Society Of Singapore [2021] Sgca 6, Wei Yao, Kenny Chng, Wen Qi Andrea Soon

Research Collection Yong Pung How School Of Law

It is a general principle of administrative law that the courts will not compel a decision-maker to perform a public duty in a particular manner by way of a mandatory order. Notably, in CBB v Law Society of Singapore [2021] SGCA 6, the Singapore Court of Appeal accepted that an exception could be made to this general principle where there was only one reasonable way to perform the public duty in question. Beyond the decision’s obvious ramifications for the law relating to public law remedies in Singapore, this note argues that the Court of Appeal’s reasoning bears significant implications for …

Why Judges Can't Save Democracy, Robert L. Tsai

Faculty Scholarship

In The Specter of Dictatorship,¹ David Driesen has written a learned, lively book about the dangers of autocracy, weaving together incisive observations about democratic backsliding in other countries with a piercing critique of American teetering on the brink of executive authoritarianism at home. Driesen draws deeply and faithfully on the extant literature on comparative constitutionalism and democracy studies. He also builds on the work of scholars of the American political system who have documented the largely one-way transfer of power over foreign affairs to the executive branch. Driesen's thesis has a slight originalist cast, holding that "the Founders aimed …

Judicial Review Of Scientific Uncertainty In Climate Change Lawsuits: Deferential And Nondeferential Evaluation Of Agency Factual And Policy Determinations, Robert L. Glicksman, Daniel Kim, Keziah Groth-Tuft

GW Law Faculty Publications & Other Works

Scientific determinations are often at the heart of environmental disputes. When those disputes take the form of litigation, the courts may be called on to determine whether an administrative agency’s treatment of the science warrants deference. For several reasons, judges are inclined to apply deferential review to agency factual and policy science-based determinations. Most judges are not trained in the language and methods of science. They may be reluctant to intervene on matters on which their lack of expertise risks producing uninformed judgments. If a statute delegates to an agency the responsibility of making those determinations, courts may be loath …

The New Separation Of Powers Formalism And Administrative Adjudication, Robert L. Glicksman, Richard E. Levy

GW Law Faculty Publications & Other Works

The Supreme Court has entered a new era of separation of powers formalism. Others have addressed many of the potentially profound consequences of this return to formalism for administrative law. This paper focuses on an aspect of the new formalism that has received little attention—its implications for the constitutionality of administrative adjudication. The Court has not engaged in an extensive discussion or reformulation of its separation of powers jurisprudence concerning administrative adjudication since its highly functionalist decision in Commodity Futures Trading Commission v. Schor more than three decades ago, but recent opinions of individual Justices show signs that such a …

Interpretation, Remedy, And The Rule Of Law: Why Courts Should Have The Courage Of Their Convictions, Jack M. Beermann, Ronald A. Cass

Faculty Scholarship

The Supreme Court’s decision in United States v. Arthrex opens a window on a set of issues debated in different contexts for decades. These issues—how to interpret statutes and constitutional provisions, what sources to look to, whether so far as possible to adopt interpretations that avoid declaring actions of coordinate branches unconstitutional, and where such actions are deemed to have been unconstitutional whether to provide remedies that cabin the most significant implications of such a declaration—go to the heart of the judicial role and the division of responsibilities among the branches of government.

Our principal focus, however, is on the …

Judge James A. Wynn, Originalism, And The Juridical/Judicial Role, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Dysfunction, Deference, And Judicial Review, Barry Friedman, Margaret H. Lemos

Faculty Scholarship

This symposium poses a provocative question: Should judges exercising the power of judicial review defer to the political branches as a means of giving voice to the “will of the people”? The inquiry assumes a connection between majority will and the outputs of the political branches—a connection we argue is frayed, at best, in the current political context.

In the first part of this Essay, we highlight how well-known aspects of our political system—ranging from representational distortions in federal and state governments to the relationship between partisan polarization and the behavior of elected officials—call into question whether political outcomes reliably …

Democracy And Disenchantment, Ashraf Ahmed

Faculty Scholarship

During the latter half of the Trump presidency, as it became increasingly clear that the Supreme Court would remain solidly conservative for the foreseeable future, Samuel Moyn and Ryan Doerfler declared war. In popular and scholarly venues, they have steadily built a case for curtailing the power of the nation’s highest court. Their arguments have been both pragmatic and principled. They have underlined, for instance, the risks the Roberts Court poses to progressive goals such as addressing climate change1 and granting student debt relief. More broadly, they object to a “supra-democratic court exercising its current, expansive legislative veto.” For Doerfler …

Judicial Deference Of The Board Of Immigration Appeals’ Regulatory Interpretations In Light Of Kisor V. Wilkie, Melissa Fullmer

St. Mary's Law Journal

Abstract forthcoming.

Department Of Homeland Security V. Regents Of The University Of California And Its Implications, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

The Trump Administration's effort to get rid of Deferred Action for Childhood Arrivals, or DACA, failed before the Supreme Court in Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891, 1896 (2020). In this essay -- based on a presentation given to an American Bar Association section in September 2020 -- I review DACA, the Supreme Court's decision, and its potential legal implications.

The failure of the Trump Administration to eliminate DACA may have had significant political consequences, and it surely had immediate and momentous consequences for many of DACA’s hundreds of thousands …

How Chevron Deference Fits Into Article Iii, Kent H. Barnett

Scholarly Works

U.S. Supreme Court Justices Clarence Thomas and Neil Gorsuch, along with Professor Philip Hamburger, assert that Chevron deference-under which courts defer to reasonable agency statutory interpretations-violates Article III. Chevron does so because, they argue, it either permits agencies, not courts, "to say what the law is" or requires judges to forgo independent judgment by favoring the government's position. If they are correct, Congress could not require courts to accept reasonable agency statutory interpretations under any circumstances. This Article does what these critics, perhaps surprisingly, do not do-situates challenges to Chevron within the broad landscape of the Court's current Article III …

Why The Congressional Review Act Should Be Repealed, Alex Lipow

William & Mary Environmental Law and Policy Review

The Congressional Review Act (“CRA”) is a procedure that allows the political branches to quickly repeal certain regulations promulgated by administrative agencies without going through the arduous rule-making process traditionally required. Although it had been successfully used only once before 2017, President Trump and Republicans in Congress used the CRA to repeal sixteen regulations in 2017 and 2018 while President Biden and Democrats in Congress used the CRA three times in 2021. Because the CRA has been used rarely, and its central provisions are barely adjudicated in the judiciary, there are interesting legal questions about how expansively the law may …

Shifting Standards Of Judicial Review During The Coronavirus Pandemic In The United States, Wendy K. Mariner

Faculty Scholarship

Emergencies are exceptions to the rule. Laws that respond to emergencies can create exceptions to rules that protect human rights. In long lasting emergencies, these exceptions can become the rule, diluting human rights and eroding the rule of law. In the United States, the COVID-19 pandemic prompted states to change rules governing commercial and personal activities to prevent the spread of the coronavirus. Many governors’ executive orders were challenged as violations of the constitutionally protected rights of those affected. Judges are deciding whether emergencies can justify more restrictions than would be permitted in normal circumstances and whether some rights deserve …

The Unmeritorious ‘Legality’/‘Merits’ Distinction In Singapore Administrative Law, Benjamin Joshua Ong

Research Collection Yong Pung How School Of Law

The Singapore courts often state that judicial review of executive decision-making ought only to involve an inquiry into the ‘legality’ of a decision or the ‘decision-making process’, and not the ‘decision itself’ or its ‘merits’ – let us call this the ‘Distinction’. This paper argues that the Distinction should be expunged from Singapore law. The Distinction has its roots in English case law which aimed to prevent the courts from arbitrarily substituting their decision for the executive’s by reason of mere disagreement. But Singapore case law has gone further and treated the Distinction as a general principle applicable to all …

Legitimacy, Flexibility And Administrative Law, Soochan Ahn

Maurer Theses and Dissertations

This dissertation reassesses the importance of flexibility in ensuring the legitimacy of the administrative state and argues how administrative law should accommodate the ever-growing agency discretion without sacrificing the legitimacy of the agencies. Flexibility results from an agency’s exercise of its interpretative power with statutory ambiguities and is the most significant ingredient of the modern administrative state. However, flexibility does not mean anything goes. There should be limits. The proper latitude of judicial review is the essential device that makes the administrative state legitimate. From the perspective of a traditional approach of U.S. administrative law, giving agencies flexibility evokes the …

Unrules, Cary Coglianese, Gabriel Scheffler, Daniel Walters

Faculty Scholarship at Penn Carey Law

At the center of contemporary debates over public law lies administrative agencies’ discretion to impose rules. Yet, for every one of these rules, there are also unrules nearby. Often overlooked and sometimes barely visible, unrules are the decisions that regulators make to lift or limit the scope of a regulatory obligation, for instance through waivers, exemptions, and exceptions. In some cases, unrules enable regulators to reduce burdens on regulated entities or to conserve valuable government resources in ways that make law more efficient. However, too much discretion to create unrules can facilitate undue business influence over the law, weaken regulatory …

The Global Rise Of Judicial Review Since 1945, Steven G. Calabresi

Catholic University Law Review

This article expands upon the theory put forth in Professor Bruce Ackerman’s book, Revolutionary Constitutions: Charismatic Leadership and the Rule of Law, in which he posits that twentieth century revolutions in a variety of countries led to the constitutionalization of charisma, thus binding countries to the written constitutions established by their revolutionary leaders.

Constitutional law scholar, Steven G. Calabresi, argues here that world constitutionalism, in fact, existed prior to 1945, and what is especially striking about the post-1945 experience is that the constitutionalism of charisma included not only the adoption of written constitutions, but also the adoption of meaningful …

The Constitution And Democracy In Troubled Times, John M. Greabe

Law Faculty Scholarship

Does textualism and originalism approach positively impact democracy?

Clashing Canons And The Contract Clause, T. Leigh Anenson, Jennifer K. Gershberg

University of Michigan Journal of Law Reform

This Article is the first in-depth examination of substantive canons that judges use to interpret public pension legislation under the Contract Clause of the U.S. Constitution and state constitutions. The resolution of constitutional controversies concerning pension reform will have a profound influence on government employment. The assessment begins with a general discussion of these interpretive techniques before turning to their operation in public pension litigation. It concentrates on three clashing canons: the remedial (purpose) canon, the “no contract” canon (otherwise known as the unmistakability doctrine), and the constitutional avoidance canon. For these three canons routinely employed in pension law, there …

Seamen, Railroad Employees, And Uber Drivers: Applying The Section 1 Exemption In The Federal Arbitration Ace To Rideshare Drivers, Conor Bradley

University of Michigan Journal of Law Reform

Section 1 of the Federal Arbitration Act (FAA or the Act) exempts “seamen, railroad employees, [and] any other class of workers engaged in foreign or interstate commerce” from arbitration. In 2019, the Supreme Court held in New Prime Inc. v. Oliveira that this provision exempted independent contractors as well as employees. This decision expanded the reach of the section 1 exemption and may affect the relationship between ridesharing companies, such as Uber, and their drivers. Previously, ridesharing companies argued that courts must enforce the arbitration clauses in their employment contracts because their workers were independent contractors and, therefore, section 1 …

Two Constitutional Rights, Two Constitutional Controversies, Michael J. Perry

Faculty Articles

My overarching aim in the Article is to defend a particular understanding of two constitutional rights and, relatedly, a particular resolution of two constitutional controversies. The two rights I discuss are among the most important rights protected by the constitutional law of the United States: the right to equal protection and the right of privacy. As I explain in the Article, the constitutional right to equal protection is, at its core, the human right to moral equality, and the constitutional right to privacy is best understood as a version of the human right to moral freedom. The two controversies I …

Due Process In Antitrust Enforcement: Normative And Comparative Perspectives, Christopher S. Yoo, Yong Huang, Thomas Fetzer, Shan Jiang

Faculty Scholarship at Penn Carey Law

Due process in antitrust enforcement has significant implications for better professional and accurate enforcement decisions. Not only can due process spur economic growth, raise government credibility, and limit the abuse of powers according to law, it also promotes competitive reforms in monopolized sectors and curbs corruption. Jurisdictions learn from the best practices in the investigation process, decisionmaking process, and the announcement and judicial review of antitrust enforcement decisions. By comparing the enforcement policies of China, the European Union, and the United States, this article calls for better disclosure of evidence, participation of legal counsel, and protection of the procedural and …

Curing The First Amendment Scrutiny Muddle Through A Breyer-Based Blend Up? Toward A Less Categorical, More Values-Oriented Approach For Selecting Standards Of Judicial Review, Clay Calvert

UF Law Faculty Publications

This Article argues that the United States Supreme Court should significantly alter its current categorical approach for discerning standards of judicial review in free-speech cases. The present system should become nondeterminative and be augmented with a modified version of Justice Stephen Breyer’s long-preferred proportionality framework. Specifically, the Article’s proposed tack fuses facets of today’s policy, which largely pivots on distinguishing content-based laws from content-neutral laws and letting that categorization determine scrutiny, with a more nuanced, values-and-interests methodology. A values-and-interests formula would allow the Court to climb up or down the traditional ladder of scrutiny rungs – strict, intermediate or rational …

What People Want, What They Get, And The Administrative State, Cristie Ford

All Faculty Publications

Social perceptions of the state and of regulation are badly polarized right now. On one hand, the modern administrative state is under attack. Some modern populists criticize the modern state for being antidemocratic, unaccountable, even tyrannical. Paradoxically, others criticize it for very different reasons: because it is ineffective, or because it binds economies and societies up in “red tape”. On the other hand, the need for a modern, properly-resourced, effective administrative state is also clearer than ever. The financial crisis taught hard lessons about the limits of self-regulation and the need for public sector actors to safeguard the public interest. …