Is Originalism Our Law?

By: William Baude

 

This Essay provides a new framework for criticizing originalism or its alternatives—the framework of positive law.

 

Existing debates are either conceptual or normative: They focus either on the nature of interpretation and authority, or on originalism’s ability to serve ...READ MORE

Celebrating Professor Peter L. Strauss

By:  Robert A. Katzmann

 

Our understanding of administrative law owes much to Peter L. Strauss, Betts Professor of Law at Columbia Law School. To be asked to offer a few words at this Symposium in his honor is, for me, a ...READ MORE

Peter L. Strauss, An Introduction

By:  Todd D. Rakoff

 

I first met Peter Strauss some thirty years ago when Clark Byse invited me to join in editing the casebook that Peter had already joined at the invitation of Walter Gellhorn. Since then we’ve slept in each ...READ MORE

 

Congressional Polarization: Terminal Constitutional Dysfunction?

By: Cynthia R. Farina

 

The author coauthored an introduction, entitled The Place of Agencies in Polarized Government, with Gillian E. Metzger to precede her piece. Click here for introduction.

 

Political polarization has become a major focus in contemporary discussions on congressional activity and governance. The tone ...READ MORE

Agencies, Polarization, and the States

By: Gillian E. Metzger

 

The author coauthored an introduction, entitled The Place of Agencies in Polarized Government, with Cynthia R. Farina to precede her piece. Click here for introduction.

 

Administrative agencies are strikingly absent from leading accounts of contemporary polarization. To the extent they appear, it ...READ MORE

Unorthodox Lawmaking, Unorthodox Rulemaking

By:  Abbe R. Gluck, Anne Joseph O’Connell, and Rosa Po

 

The Schoolhouse Rock! cartoon version of the conventional legislative process is dead, if it was ever an accurate description in the first place. Major policy today is often the product of “unorthodox ...READ MORE

 

Chevron Is Dead; Long Live Chevron

By:  Michael Herz

 

The Supreme Court’s decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. continues to obsess academics and courts alike. Despite all the attention, however, the “Chevron revolution” never quite happens. This decision, though seen as transformatively important, is ...READ MORE

Inside Congress’s Mind

By:  John F. Manning

 

In recent years, most would associate “intent skepticism” with the rise of modern textualism. In fact, however, many diverse approaches—legal realism, modern pragmatism, Dworkinian constructivism, and even Legal Process purposivism—all build on the common theme that a ...READ MORE

Presidential Administration and the Traditions of Administrative Law

By:  Thomas W. Merrill

 

American administrative law has long been characterized by two distinct traditions: the positivist and the process traditions. The positivist tradition emphasizes that administrative bodies are created by law and must act in accordance with the requirements of ...READ MORE

 

An Administrative Jurisprudence: The Rule of Law in the Administrative State

By:  Kevin M. Stack

 

This Essay offers a specification of the rule of law’s demands of administrative law and government inspired by Professor Peter L. Strauss’s scholarship. It identifies five principles—authorization, notice, justification, coherence, and procedural fairness—which provide a framework for ...READ MORE

A Place for Agency Expertise: Reconciling Agency Expertise with Presidential Power

By:  Wendy E. Wagner

 

This Essay uses Peter Strauss’s work as a springboard to explore the particularly precarious position of the agencies charged with promulgating science-intensive rules (“expert agencies”) with respect to presidential oversight. Over the last three decades, agencies promulgating ...READ MORE

Identity as Proxy

By:  Lauren Sudeall Lucas

  

As presently constructed, equal protection doctrine is an identity-based jurisprudence, meaning that the level of scrutiny applied to an alleged act of discrimination turns on the identity category at issue. In that sense, equal protection relies on ...READ MORE

 

Bank Resolution in the European Banking Union: A Transatlantic Perspective on What It Would Take

By:  Jeffrey N. Gordon and Wolf-Georg Ringe

 

The project of creating a Banking Union is designed to overcome the fatal link between sovereigns and their banks in the Eurozone. As part of this project, political agreement for a common supervision framework ...READ MORE

Disappearing Legal Black Holes and Converging Domains: Changing Individual Rights Protection in National Security and Foreign Affairs

By:  Andrew Kent

 

This Essay attempts to describe what is distinctive about the way the protection of individual rights in the areas of national security and foreign affairs has been occurring in recent decades. Historically, the right to protection under the ...READ MORE

The Problem of Voter Fraud

By: Michael D. Gilbert

 

Voter-identification laws (“voter ID laws”) have provoked a fierce controversy in politics and public law. Supporters claim that such laws deter fraudulent votes and protect the integrity of American elections. Opponents, on the other hand, argue that ...READ MORE

 

The Freedom of Business Association

By:  James D. Nelson

 

Across the First Amendment, the distinction between for-profit businesses and nonprofit organizations is in trouble. In recent years, courts have rejected this distinction in the context of free-speech challenges to campaign-finance restrictions and free-exercise claims to obtain ...READ MORE

Catalogs

By:  Gideon Parchomovsky & Alex Stein

 

It is a virtual axiom in the world of law that legal norms come in two prototypes: rules and standards. The accepted lore suggests that rules should be formulated to regulate recurrent and frequent behaviors, ...READ MORE

Risky Arguments in Social-Justice Litigation: The Case of Sex Discrimination and Marriage Equality

By:  Suzanne B. Goldberg

 

This Essay takes up the puzzle of the risky argument or, more precisely, the puzzle of why certain arguments do not get much traction in advocacy and adjudication even when some judges find them to be utterly ...READ MORE

 

Narrowing Precedent in the Supreme Court

By:  Richard M. Re

 

“Narrowing” occurs when a court declines to apply a precedent even though, in the court’s own view, the precedent is best read to apply. In recent years, the Roberts Court has endured withering criticism for narrowing in ...READ MORE

Toward a Constitutional Review of the Poison Pill

By:  Lucian A. Bebchuk & Robert J. Jackson, Jr.

 

We argue that the state-law rules governing poison pills are vulnerable to challenges based on preemption by the Williams Act. Such challenges, we show, could well have a major impact on the ...READ MORE