The Roundtable
Welcome to the Roundtable, JLPP’s online blog featuring student commentary on current cases and legal developments!
If you are interested in becoming a Staff Writer or Contributing Writer for the Roundtable, e-mail Notes Editors Kyle Reynolds (mreynolds@jd18.law.harvard.edu) or Chadwick Harper (charper@jd19.law.harvard.edu).
To Vacate or Not to Vacate: Some (Still) Unanswered Questions in the APA Vacatur Debate – Judge Kathryn Kimball Mizelle
Download PDF To Vacate or Not to Vacate: Some (Still) Unanswered Questions in the APA Vacatur Debate Hon. Kathryn Kimball Mizelle* Introduction Section 706(2) of the Administrative Procedure Act provides that federal courts reviewing agency action “shall” “hold unlawful and set aside agency action . . . found to be . . . not in accordance with law.”[1] For decades, federal courts have understood this provision to authorize vacatur of unlawful agency rules or regulation.[2] In my own Court, the meaning of “set aside” became relevant in Health...
read moreThe Relevance of “In Common Use” After Bruen – Jamie G. McWilliam
Download PDF The Relevance of “In Common Use” After Bruen Jamie G. McWilliam* Introduction The Supreme Court in Bruen clarified many of the issues plaguing post-Heller Second Amendment doctrine, most notably that the two-step interest balancing test previously accepted by the circuit courts that combined history and means-end scrutiny was contrary to the analysis performed in Heller.[1] Instead, the Court laid forth a different two-step analysis grounded in text and history: “When the Second Amendment’s plain text covers an...
read moreBeyond Locke and Towards a More Accurate Intellectual History of American Constitutionalism – Elias Neibart
Download PDF Beyond Locke and Towards a More Accurate Intellectual History of American Constitutionalism Elias Neibart* Although he died in 1704, John Locke lives on in judicial opinions. His name and the ideas he purportedly propagated are peppered throughout reporters. Indeed, Locke and his political thought played a major role in the Indiana Supreme Court’s recent decision in Members of the Medical Licensing Board of Indiana v. Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, Inc.[1] There, the state’s highest...
read moreBreaking Barriers or Breaking Bad? The FTC’s Proposed Ban on Noncompete Agreements in Employment Contracts -Alexander Raskovich, Bruce H. Kobayashi, Abbott B. Lipsky Jr., Joshua D. Wright, and John M. Yun
Download PDF Breaking Barriers or Breaking Bad? The FTC’s Proposed Ban on Noncompete Agreements in Employment Contracts Alexander Raskovich, Bruce H. Kobayashi, Abbott B. Lipsky Jr., Joshua D. Wright & John M. Yun* On January 19, 2023, the Federal Trade Commission (“FTC”) issued a Notice of Proposed Rulemaking (“NPRM”) on noncompete agreements (“NCAs”) in employment contracts,[1] proposing a rule that would ban virtually all NCAs. NCAs restrict employees’ mobility to obtain other jobs upon termination of current employment. Typically, NCA...
read moreConstitutional Administration and Collective Bargaining: A Symposium
JLPP: Per Curiam is proud to present Constitutional Administration and Collective Bargaining: A Symposium on Philip Howard’s Not Accountable. The essays in this symposium, authored by renowned academics, review and critique the ideas expressed in Howard’s Not Accountable: Rethinking the Constitutionality of Public Employee Unions. The essays in this symposium can be accessed at the following links: Constitutional Administration and Collective Bargaining: A Symposium on Philip Howard’s Not Accountable – Adam J. White Not So Fast...
read moreAlternative Ways to Define Public Accountability – Paul R. Verkuil
Download PDF Alternative Ways to Define Public Accountability Paul R. Verkuil* In Not Accountable—Rethinking the Constitutionality of Public Employee Unions, Phillip Howard fires another broadside at the failures of government and its employees. Under his Common Good reform coalition,[1] Howard has rallied the public behind injustices caused by bureaucratic systems that stifle creativity and create impenetrable barriers to sensible decision-making, leading to “the rule of nobody.” Using “common sense” analysis to expose government failures,...
read morePhilip Howard’s Not Accountable: Rethinking the Constitutionality of Public Employee Unions – Peter H. Schuck
Download PDF Philip Howard’s Not Accountable: Rethinking the Constitutionality of Public Employee Unions Peter H. Schuck* Philip Howard is the epitome of a public citizen. From his lofty perches as a senior partner of one of the country’s most distinguished law firms and a civic leader in New York City, Howard has long practiced his strong dedication to the public interest, broadly defined. He is the author of several earlier best-selling books, most notably The Death of Common Sense: How Law is Suffocating America (1994), as well as many...
read morePublic Unions and the Constitutional Order – Julia D. Mahoney
Download PDF Public Unions and the Constitutional Order Julia D. Mahoney* In Not Accountable: Rethinking the Constitutionality of Public Employee Unions, [1] Philip K. Howard sounds the alarm about the power and influence of public employee unions. In his view, American democracy “no longer works because public unions have turned the constitutional hierarchy upside down,” with government officials now answering not to voters but to public employees.[2] The results? Howard does not hold back: “Bad schools, unaccountable police, and other...
read moreNot So Fast Philip – Donald Elliott
Download PDF Not So Fast Philip Donald Elliott* Philip K. Howard has written another provocative, iconoclastic book. In Not Accountable, he extends his critique of our legal system that began in The Death of Common Sense in 1994, and continued through four books, including my personal favorites, Life Without Lawyers and The Rule of Nobody. Howard’s overarching vision is that our society has become rule-bound. According to Howard, we need to return to a bygone golden age — which he never quite identifies — in which he imagines that managers...
read moreConstitutional Administration and Collective Bargaining: A Symposium on Philip Howard’s Not Accountable – Adam J. White
Download PDF Constitutional Administration and Collective Bargaining: A Symposium on Philip Howard’s Not Accountable Adam J. White* Some constitutional powers are also constitutional duties. Perhaps the most famous is the president’s responsibility to “take Care that the Laws be faithfully executed.”[1] The Constitution assigns this duty to the president, and the president alone. “But the President alone and unaided could not execute the laws,” Chief Justice Taft wrote for the Court in Myers v. United States.[2] “He must execute them by the...
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