Lawyer.2d
View PDF ARTICLE Reversing Incorporation Ilan Wurman* It is originalist gospel that the Fourteenth Amendment’s Privileges or Immunities Clause was intended, at a minimum, to incorporate the Bill of Rights against the states. This Article revisits forty years of scholarship and concludes that this modern consensus is likely mistaken. Reconstructing antebellum discourse on fundamental rights […]
View PDF ARTICLE The Myth of the Federal Private Nondelegation Doctrine Alexander Volokh* Judges and scholars have often claimed that delegations of governmental power to private parties are constitutionally prohibited. However, such a “private nondelegation doctrine” is elusive, if not nonexistent. To understand why, first we need to realize that there are actually several distinct […]
View PDF ARTICLE Harmful Precautions Ronen Perry* According to the conventional definition of reasonableness, commonly known as the Hand formula, a person acts unreasonably (hence negligently) toward another if they fail to take precautions whose cost for the actor is lower than the expected loss for the other that these precautions can prevent. While law-and-economics […]
View PDF ARTICLE What Twenty-First-Century Free Speech Law Means for Securities Regulation Helen Norton* Securities law has long regulated securities-related speech—and until recently, it did so with little, if any, First Amendment controversy. Yet the antiregulatory turn in the Supreme Court’s twenty-first-century Free Speech Clause doctrine has inspired corporate speakers’ increasingly successful efforts to resist […]
View PDF ARTICLE Against the Chenery II “Doctrine” Gary S. Lawson* & Joseph Postell** The Supreme Court’s 1947 decision in SEC v. Chenery Corp. ( Chenery II) is generally taken as blanket authorization for agencies to make law through either adjudication or rulemaking if their organic statutes permit both modes. We think this is an overreading of […]
View PDF ARTICLE RULE 4 AND PERSONAL JURISDICTION Scott Dodson* State-court personal jurisdiction is regulated intensely by the Fourteenth Amendment’s Due Process Clause, which the Court has famously used to tie state-court personal jurisdiction to state borders. Although the Fourteenth Amendment doesn’t apply to federal courts, the prevailing wisdom is that federal courts nevertheless are […]
View PDF KEYNOTE ADDRESS REMARKS AT NOTRE DAME LAW SCHOOL Brett M. Kavanaugh* During the Notre Dame Law Review’s 2023 Federal Courts Symposium, students and faculty gathered in the McCartan Courtroom in Eck Hall for a conversation with Justice Kavanaugh. Dean G. Marcus Cole moderated and fielded questions from attendees. Highlights from the event, adapted for print, are […]
View PDF SYMPOSIUM THE APA AS A SUPER-STATUTE:DEEP COMPROMISE AND JUDICIAL REVIEW OF NOTICE-AND-COMMENT RULEMAKING William N. Eskridge Jr.* & John Ferejohn** The Administrative Procedure Act of 1946 (APA) is a “super-statute,” creating a robust, enduring governance structure for the modern regulatory state. An emerging literature on “APA originalism” maintains that some of the judge-created rules […]
View PDF SYMPOSIUM INTERPRETING THE ADMINISTRATIVE PROCEDURE ACT:A LITERATURE REVIEW Christopher J. Walker* & Scott T. MacGuidwin** The modern administrative state has changed substantially since Congress enacted the Administrative Procedure Act (APA) in 1946. Yet Congress has done little to modernize the APA in those intervening seventy-seven years. That does not mean the APA has remained unchanged. Federal […]
View PDF SYMPOSIUM VACATUR, NATIONWIDE INJUNCTIONS, AND THE EVOLVING APA Ronald M. Levin* The courts’ growing use of universal or nationwide injunctions to invalidate agency rules that they find to be unlawful has given rise to concern that such injunctions circumvent dialogue among the circuits, promote forum shopping, and leave too much power in the […]
View PDF SYMPOSIUM TEXTUALISM AND THE ADMINISTRATIVE PROCEDURE ACT Kristin E. Hickman* & Mark R. Thomson** Introduction Justice Kagan famously said that “we’re all textualists now.”1 She exaggerated, of course, but not by much. As she and others have recognized, the Supreme Court today approaches statutory interpretation differently than it did forty or fifty years ago, with […]
View PDF SYMPOSIUM MAKING SENSE OF ABSENCE:INTERPRETING THE APA’S FAILURE TO PROVIDE FOR COURT REVIEW OF PRESIDENTIAL ADMINISTRATION Noah A. Rosenblum* Federal governance is increasingly characterized by presidential direction of administration. Yet the main statute that governs court review of administrative action, the Administrative Procedure Act, has strikingly little to say about the President. This Essay […]
View PDF SYMPOSIUM MOVEMENT ADMINISTRATIVE PROCEDURE Evan D. Bernick* Introduction On April 4, 1946, The Potters Herald, a Thursday weekly dedicated to labor and union news, published an editorial warning readers of pending legislation “which may seriously affect labor” despite not containing a “single word about labor” in its text.1 This legislation would empower “anti-labor judges” to […]