Lawyer.2d
View PDF SYMPOSIUM THE ADMINISTRATIVE PROCEDURE ACT: FAILURES, SUCCESSES, AND DANGER AHEAD Emily S. Bremer* Introduction The Administrative Procedure Act (APA) is a profoundly important statute. Enacted in 1946 and rarely amended since that time, it provides the statutory backbone for the field of administrative law.1 Imbued with quasi-constitutional character, the APA has been recognized as a […]
View PDF SYMPOSIUM THE PATH OF ADMINISTRATIVE LAW REMEDIES Aditya Bamzai* The question whether the term “set aside” in the Administrative Procedure Act (APA) authorizes a federal court to vacate a rule universally—as opposed to setting aside the rule solely as to the plaintiffs—is a significant and contested one. This Essay traces the history of the […]
View PDF SYMPOSIUM A LACK OF UNIFORMITY, COMPOUNDED, IN IMMIGRATION LAW Jill E. Family* The Administrative Procedure Act (APA) is known for bringing standardization to federal agency behavior. The APA’s framework for adjudication, however, is lax and incomplete. It provides standards, but only meaningfully for formal adjudication, and Congress rarely requires agencies to follow the APA’s formal […]
View PDF SYMPOSIUM LIBERALISM AND ORTHODOXY:A SEARCH FOR MUTUAL APPREHENSION Brandon Paradise* & Fr. Sergey Trostyanskiy** Introduction This Article seeks to evaluate and contextualize recently intensifying Christian critiques of liberalism’s intellectual and moral claims. Much of this recent critique has been from Catholic and Protestant quarters.1 Christianity’s third major branch—Orthodox Christianity—has not played a prominent role in […]
View PDF SYMPOSIUM CATHOLIC LIBERALISM AND THE LIBERAL TRADITION Kathleen A. Brady* Introduction Criticisms of liberalism are nothing new. All political traditions have their detractors, and as in the past, today’s critics of liberalism include those on the left and right as well as religious believers and those without religious affiliations.1 However, in very recent years, far-reaching […]
View PDF SYMPOSIUM CHRISTIANS AND/AS LIBERALS? Steven D. Smith* Introduction Christianity and liberalism were made to fit each other, like hand and glove. According to some interpretations, anyway. Liberal constitutionalism, with its commitments to freedom and equal human dignity, is the political system that reflects and embodies Christian commitments;1 and the constitutional legal order that accompanies liberalism,2 centrally including […]
View PDF SYMPOSIUM NATURAL LAW, PARENTAL RIGHTS, AND THE DEFENSE OF “LIBERAL” LIMITS ON GOVERNMENT:AN ANALYSIS OF THE MORTARA CASE AND ITS CONTEMPORARY PARALLELS Melissa Moschella* This Article explores parallels between integralists’ defense of the Mortara case (in which Pius IX removed a child from his parents’ care in order to provide him with a […]
View PDF SYMPOSIUM TENDER AND TAINT: MONEY AND COMPLICITY IN ENTANGLEMENT JURISPRUDENCE Amy J. Sepinwall* Because liberalism is concerned with individual freedom, it finds that one person is responsible for the conduct of another only under very narrow circumstances. To a large extent, the law reflects this narrow conception of complicity. There is however one glaring exception […]
View PDF SYMPOSIUM RELIGIOUS POLITICAL ARGUMENTS, ACCESSIBILITY, AND DEMOCRATIC DELIBERATION Paul Billingham* Christian critics of liberalism, and especially of contemporary public-reason liberalism, often argue that it objectionably excludes religious voices form the public square, by requiring citizens to bracket their religious convictions when they engage in democratic deliberation. In response, liberals often deny that their views […]
View PDF RESPONSE WHOSE LIBERALISM, WHICH CHRISTIANITY? Jonathan Chaplin* Introduction The papers in this intriguing Symposium all face the perplexing challenge of negotiating a way through the thicket of divergent definitions of both “liberalism” and “Christianity.” At a time when “Christianity” is thought to be, for some, fundamentally at odds with “liberalism,” or for others, liberalism’s […]
View PDF RESPONSE CONTINGENCY AND CONTESTATION IN CHRISTIANITY AND LIBERALISM Michael P. Moreland* What is the relationship of Christianity to liberalism? Answers include: Liberalism is a product of the moral legacy of Christianity, such as the dignity of individual human persons, equality, rights, perhaps even some forms of democratic institutionalism. Or liberalism is a hostile reaction against […]
View PDF SYMPOSIUM “IT IS TASH WHOM HE SERVES”:DENEEN AND VERMEULE ON LIBERALISM Andrew Koppelman* When men and women identify what are in fact their partial and particular causes too easily and too completely with the cause of some universal principle, they usually behave worse than they would otherwise do. —Alasdair MacIntyre1 I love coming […]
View PDF SYMPOSIUM “THE ARC OF THE MORAL UNIVERSE”: CHRISTIAN ESCHATOLOGY AND U.S. CONSTITUTIONALISM Nathan S. Chapman* The role of social and religious sentiment, which was once so critical in the life of our societies, has been largely taken over by law.1 Introduction At the heart of American constitutionalism is an irony. The United States is […]
View PDF ARTICLE THE STRUCTURE OF CRIMINAL FEDERALISM Erin C. Blondel* Scholars and courts have long assumed that a limited federal government should stick to genuinely “federal” crimes and leave “local” crimes to the states. By that measure, criminal federalism has failed; federal criminal law largely overlaps with state crime, and federal prosecutors regularly do seemingly […]
View PDF ARTICLE SPECIFIC PERFORMANCE: ON FREEDOM AND COMMITMENT IN CONTRACT LAW Hanoch Dagan* & Michael Heller** When should specific performance be available for breach of contract? This question—at the core of contract—divides common-law and civil-law jurisdictions and it has bedeviled generations of comparativists, along with legal economists, historians, and philosophers. Yet none of these disciplines has […]
View PDF ARTICLE THE LIMITATIONS OF PRIVACY RIGHTS Daniel J. Solove* Individual privacy rights are often at the heart of information privacy and data protection laws. The most comprehensive set of rights, from the European Union’s General Data Protection Regulation (GDPR), includes the right to access, right to rectification (correction), right to erasure (deletion), right to […]
View PDF ARTICLE CONGRESSIONAL POWER, PUBLIC RIGHTS, AND NON–ARTICLE III ADJUDICATION John M. Golden* & Thomas H. Lee** When can Congress vest in administrative agencies or other non–Article III federal courts the power to adjudicate any of the nine types of “Cases” or “Controversies” listed in Article III of the United States Constitution? The core doctrine holds that […]
View PDF ARTICLE A PROPHYLACTIC APPROACH TO COMPACT CONSTITUTIONALITY Katherine Mims Crocker* From COVID-19 to climate change, immigration to health insurance, firearms control to electoral reform: state politicians have sought to address all these hot-button issues by joining forces with other states. The U.S. Constitution, however, forbids states to “enter into any Agreement or Compact” with each […]
View PDF ARTICLE THE LIMITS OF CHURCH AUTONOMY Lael Weinberger* American courts apply “church autonomy doctrine” to protect the self-governance of religious institutions, based on both of the First Amendment’s religion clauses. Church autonomy’s defenders have sometimes described the doctrine as establishing distinct spheres of sovereignty for church and state. But critics have argued that church autonomy […]