As the use of predictive technology expands, an increasing number of states have passed legislation encouraging or requiring judges to incorporate recidivism risk assessment algorithms into their bail, parole, and sentencing determinations. And while these tools promise to reduce prison overcrowding, decrease recidivism, and combat racial bias, critics have identified a number of potential constitutional issues that stem from the use of these algorithms....
Administrative Law
In early 2018, the federal government announced that it would ask every person in the country about their citizenship status on the 2020 Census. Controversy immediately followed. The Constitution makes the decennial census the federal government’s very first express responsibility; it drove existential questions about represenÂtation and funding in 1790 and has become no less important in the centuries since. Many observers, including several...
Like police officers patrolling the streets for crime, the front lines for most large business regulators—Environmental Protection Agency engiÂneers, Consumer Financial Protection Bureau examiners, and Nuclear Regulatory Commission inspectors, among others—decide when and how to enforce the law. These regulatory monitors guard against toxic air, financial ruin, and deadly explosions. Yet whereas scholars devote considerable attention to police...
Auer deference holds that reviewing courts should defer to agenÂcies when the latter interpret their own preexisting regulations. This docÂtrine relieves pressure on agencies to undergo costly notice-and-comÂment rulemaking each time interpretation of existing regulations is necesÂsary. But according to some leading scholars and jurists, the docÂtrine actually encourages agencies to promulgate vague rules in the first instance, augmenting...
Since its inception more than four decades ago, the Committee on Foreign Investment in the United States (CFIUS) has transformed from a relatively powerless monitoring body to a major regulatory hurdle for cross-border deals. This shift has been accompanied by increasing conÂcerns from scholars and transacting parties regarding CFIUS’s lack of accountability and transparency. Yet, CFIUS’s scope has only continued to widen, as evidenced by...
Until recently, the Supreme Court interpreted the Federal Power Act (FPA) to draw an impermeable boundary between the jurisdiction of the Federal Energy Regulatory Commission (FERC) and those of state public utility commissions. But the Court’s recent decisions in FERC v. Electric Power Supply Association (EPSA) and Hughes v. Talen Energy Marketing, LLC appear to relax the formalistic test tradiÂtionÂally used to resolve...
The SEC’s recent—and controversial—choice to make more frequent use of internal enforcement actions has raised several questions. Some have asked whether the SEC has attempted to advantage itself by prosecuting in-house; others have asked whether the SEC’s internal enforcement scheme is unconstitutional. This Note asks a largely overÂlooked threshold question: Do—and just as importantly, should—federal district courts have parallel...
High drug prices are in the news. In some cases, such as AIDS-treating Daraprim and the life-saving EpiPen, the price increases dramatiÂcally. In other cases, which have received less attention, the price stays high longer than it should. Either way, anticompetitive behavior often lurks behind inflated prices. By delaying price-reducing generic competition, this behavior […]
This Note examines the disparate treatment of greenhouse gas (GHG) emissions in the regulatory cost–benefit analysis and the National Environmental Policy Act (NEPA) review contexts. In Zero Zone, Inc. v. United States Department of Energy, the Seventh Circuit upheld the use of the social cost of carbon (SCC) when agencies consider GHG emissions in their cost–benefit analyses. At the same time, courts have almost uniformly rejected...
Introduction President Donald Trump has quickly marshalled the powers of the presidency to challenge President Barack Obama’s environmental legacy. Facing an increasingly intransigent Congress, the Obama Administration placed significant emphasis on rulemaking and other administrative actions to push its progressive agenda. Whatever the merits of this approach, many of these actions are not safe from […]