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Full-Text Articles in Law

The Living Constitution: Why The Supreme Court Must Part Ways With Exclusionary Eminent Domain, Aaron Mackay Jan 2024

The Living Constitution: Why The Supreme Court Must Part Ways With Exclusionary Eminent Domain, Aaron Mackay

Indiana Law Journal

The Fifth Amendment’s “public use” requirement for takings is no longer a requirement at all. Instead, the meaning of “public use” has been expanded far beyond its original intent and public understanding. The broadening of the “public use” requirement reached its breaking point in Kelo. Since Kelo, state legislatures have responded by restricting eminent domain use to remove “blighted” areas. In effect, contemporary eminent domain reduces the availability of affordable housing, which has exacerbated the affordable housing crisis. This Note explores a constitutionally permissible re-working of the eminent domain doctrine to encourage the provision of affordable housing. Interpreting the “public …


Following The Science: Judicial Review Of Climate Science, Maxine Sugarman Dec 2023

Following The Science: Judicial Review Of Climate Science, Maxine Sugarman

Washington Law Review

Climate change is the greatest existential crisis of our time. Yet, to date, Congress has failed to enact the broad-sweeping policies required to reduce greenhouse gas emissions at the rate scientists have deemed necessary to avoid devastating consequences for our planet and all those who inhabit it. In the absence of comprehensive legislative action to solve the climate crisis, the executive branch has become more creative in the use of its authorities under bedrock environmental statutes to develop new climate regulations. Environmental advocates, states, and industry groups that oppose such regulations or assert that agencies could accomplish more under existing …


Judicial Review Of Teacher-School Board Grievance Arbitration: An Extended Empirical Analysis, Perry A. Zirkel Jun 2023

Judicial Review Of Teacher-School Board Grievance Arbitration: An Extended Empirical Analysis, Perry A. Zirkel

Arbitration Law Review

In recent years, the overall state law framework for teacher-school board collective bargaining has undergone limited revisions. The basic distribution has been that approximately two-thirds of the state laws authorize collective bargaining for public school teachers, with the remaining state laws either silent or prohibitive. During the past fifteen years, a few states have curtailed or eliminated their applicable laws, with the leading respective examples being Wisconsin and Tennessee, and at least one state, Virginia, shifting in favor of collective bargaining.

The courts have added few direct revisions. The Supreme Court’s ruling that agency shop provisions in public sector collective …


No Soy De Aquí, Ni Soy De Allá: U.S. Citizen Children Are Paying The Price For Our Nation's Broken Immigration System (Comment), Daisy J. Ramirez May 2023

No Soy De Aquí, Ni Soy De Allá: U.S. Citizen Children Are Paying The Price For Our Nation's Broken Immigration System (Comment), Daisy J. Ramirez

The Scholar: St. Mary's Law Review on Race and Social Justice

Current immigration polices continue to force mixed-status family separation and do not provide any attainable avenues for immigration relief. Modern immigration law is complex, filled with statutes and regulations that create waste, delay, and confusion among immigrants, their families, and the United States judicial system. As a result, U.S. citizen children are bearing the costs of a faulty immigration system.


Re-Examining Judicial Review Of Delegated Legislation, Wei Yao, Kenny Chng Feb 2023

Re-Examining Judicial Review Of Delegated Legislation, Wei Yao, Kenny Chng

Research Collection Yong Pung How School Of Law

The usage of delegated legislation as a means of governance deserves significant attention, in view of the enormous impact that it is capable of having on the lives of citizens. While reforms to the process of parliamentary scrutiny are an important means of minimising the inappropriate usage of delegated legislation, this paper explores the possibility of drawing more fruitfully upon judicial review as an additional control mechanism. It undertakes a theoretical analysis of what makes delegated legislation distinct from primary legislation and other types of executive action for the purposes of judicial review, with a view towards identifying the proper …


The Roberts Court’S Anti-Democracy Jurisprudence And The Reemergence Of State Authoritarian Enclaves, Reginald Oh Jan 2023

The Roberts Court’S Anti-Democracy Jurisprudence And The Reemergence Of State Authoritarian Enclaves, Reginald Oh

Journal of Race, Gender, and Ethnicity

This Essay argues that the Roberts Court has been a pivotal institutional player in destabilizing constitutional democracy. It has enabled states to freely pursue agendas that are authoritarian in nature. And because authoritarianism is contrary to core principles of the Constitution, the Roberts Court’s constitutional jurisprudence has no basis in the Constitution and must ultimately be rejected.

Instead of taking steps to block authoritarian legislation and promote a fair and open political process, the Court has issued rulings catalyzing and reinforcing the authoritarian impulses of the former Jim Crow states. The Roberts Court has engaged in judicial review reinforcing authoritarianism, …


Rotting Under The Bridge - How False Data Is Polluting Administrative Rulemaking, Nicholas Bryner, Victor B. Flatt Jan 2023

Rotting Under The Bridge - How False Data Is Polluting Administrative Rulemaking, Nicholas Bryner, Victor B. Flatt

Journal Articles

In response to legislative gridlock, Presidents have increasingly relied on policy made by administrative action, leading to major swings occurring when the political party of the presidency changes. These policy disputes have spilled into the third branch with a concomitant increase in legal challenges seeking judicial review of such actions. At the same time, since the 1980s, both Republican and Democratic administrations have made cost-benefit analysis the currency of federal rulemaking in the executive branch.

The combination of cost-benefit analysis requirements and increased litigation over rulemaking has increased the importance of economic and scientific justifications in both the original promulgation …


Major Questions Impede Major Progress--Rebuking The Major Questions Doctrine & West Virginia V. Epa In Minnesota, Michael Warkel Jan 2023

Major Questions Impede Major Progress--Rebuking The Major Questions Doctrine & West Virginia V. Epa In Minnesota, Michael Warkel

Mitchell Hamline Law Review

No abstract provided.


The Shape Of Citizenship: Extraordinary Common Meaning And Constitutional Legitimacy, David N. Mcneill, Emily Tucker Jan 2023

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 …


Situating Structural Challenges To Agency Authority Within The Framework Of The Finality Principle, Harold J. Krent Jan 2023

Situating Structural Challenges To Agency Authority Within The Framework Of The Finality Principle, Harold J. Krent

Indiana Law Journal

No abstract provided.


Abandoning Animus, Robert L. Tsai Jan 2023

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 Jan 2023

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 Oct 2022

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 Jul 2022

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 May 2022

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, Kenny Chng, Wen Qi Andrea Soon Mar 2022

Revisiting Remedies And The Legality-Merits Distinction In Singapore Administrative Law: Cbb V Law Society Of Singapore [2021] Sgca 6, 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 …


Judge James A. Wynn, Originalism, And The Juridical/Judicial Role, Michael E. Tigar Jan 2022

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 Jan 2022

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 …


The New Separation Of Powers Formalism And Administrative Adjudication, Robert L. Glicksman, Richard E. Levy Jan 2022

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 …


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 Jan 2022

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 …


Why Judges Can't Save Democracy, Robert L. Tsai Jan 2022

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 …


Interpretation, Remedy, And The Rule Of Law: Why Courts Should Have The Courage Of Their Convictions, Jack M. Beermann, Ronald A. Cass Jan 2022

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 …


Democracy And Disenchantment, Ashraf Ahmed Jan 2022

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 Oct 2021

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.


Why The Congressional Review Act Should Be Repealed, Alex Lipow Oct 2021

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 …


How Chevron Deference Fits Into Article Iii, Kent H. Barnett Oct 2021

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 …


Department Of Homeland Security V. Regents Of The University Of California And Its Implications, Brian Wolfman Oct 2021

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 …


Shifting Standards Of Judicial Review During The Coronavirus Pandemic In The United States, Wendy K. Mariner Sep 2021

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 Jul 2021

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 May 2021

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 …