This Note examines the claim that judges have improperly granted summary judgment where a reasonable jury could find for the non-moving party. It begins by reviewing the literature on summary judgment, particularly three opinions the Supreme Court issued in 1986, as well as claims about the propriety of summary judgment in fact- intensive civil rights cases. To test...
Several recent high-profile criminal cases have highlighted the dynamic nature of identity crimes in a modern digital era and the boundaries prosecutors sometimes push to squeeze arguably wrongful conduct into an outdated legal framework. In many cases, two federal statutes—18 U.S.C § 1028 and § 1028A—provide prosecutors with potent tools to aggressively pursue...
When a trademark registered with the Patent and Trademark Office is infringed, section 32 of the Lanham Act provides the trade- mark registrant the opportunity to seek remedies in federal court. Thanks to a broad definition of “registrant,” the Act in fact extends standing beyond the registrant herself to her “legal representatives,” among others. This language...
This Article sets forth the theory of an enduring, evolving separation of powers, one that checks and balances state power in whatever form that power happens to take. It shows how this constitutional commitment was first renewed and refashioned in the 1930s and 1940s, wherein the construction of a secondary regime of administrative checks and balances triangulated...
With a persistent and, in some places, increasing education achievement gap falling along lines of race and class, advocates have often turned to the courts to improve this nation’s public schools. Public law litigation has historically helped to remove some of the most invidious barriers to improvement, but traditional desegregation and school-finance lawsuits have not gone far enough to close the gap. This Note thus seeks to propose a new approach...
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 an account of the rule of law’s demands of administrative governance. Together these principles have intriguing results for the evaluation of administrative...
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 science-intensive rules have worked to enhance the accountability and scientific credibility of their rules by developing elaborate procedures for ensuring both...
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 the law. The process tradition emphasizes that agencies must act in accordance with norms of reasoned decisionmaking, which...
Until the Supreme Court put an end to it in Shelby County v. Holder, section 5 of the Voting Rights Act was widely regarded as an effective, low-cost tool for blocking potentially discriminatory changes to election laws and administrative practices. The provision the Supreme Court left standing, section 2, is generally seen as expensive, cumbersome, and almost wholly ineffective at blocking changes before they take effect. This Article...
With Congress divided over comprehensive immigration reform, federal and subfederal actors have stepped into the breach. In 2012 and 2014, in an effort to counter congressional paralysis, President Barack Obama extended deferred action to millions of undocumented noncitizen children and their parents. In doing so, he reignited debates about the constitutional boundaries of executive power. Among other things, these debates have highlighted the...