Per Curiam
The Judicial Appointment Process – Michael A. Fragoso
Download PDF The Judicial Appointment Process By Michael A. Fragoso* “What do you call a judicial nominee who only got 51 votes?” “Your Honor.” The judicial appointment process ranks among the most contentious and consequential functions of the federal government. Given the federal courts’ exclusive constitutional role in resolving cases and controversies—including those involving controversial constitutional questions—judicial appointments command considerable attention from the White House, the Senate, and the media. This essay presents a...
read moreFederal Judicial Selection After the 2024 Election – Robert Luther III
Download PDF Federal Judicial Selection After the 2024 Election ROBERT LUTHER III* As Associate Counsel to the President of the United States during the Trump administration, I had the unique opportunity to be at the forefront of the judicial selection process. Based on that experience, I would like to share some thoughts on what I call “judicial fortitude.” This is an important and under-covered quality that is necessary in effective judges. Since President Trump’s impact on the federal judiciary, a relentless assault on the courts has...
read moreUndue Process: Revisited – Anthony Sirven
Download PDF Undue Process: Revisited Anthony Jose Sirven* Introduction Nearly a decade ago, I wrote my law-school note on how there was a tension brewing between IVF and abortion rights.[1] The observation largely being that, because courts had begun enforcing contracts entered among IVF progenitors, providers, and surrogates, they were implicitly (and, at times, explicitly) treating human embryos as a kind of thing that could be owned. After all, one could not lawfully enter, let alone ask courts to enforce, these kinds of agreements...
read moreHayekian Choice of Law Favors a National Solution – Ted Steinmeyer
Download PDF Hayekian Choice of Law Favors a National Solution Ted Steinmeyer* W.D. Carroll, a brakeman working for the Alabama Great Southern Railroad Company, had reason to believe he would win damages from his employer.[1] After all, he had been injured on the job after his coworkers failed to discover a defective link between two freight train cars, and Alabama—his home state, the railroad’s home state, and the state where his coworkers’ negligence occurred—allowed for damages. But Carroll’s injury, though caused in Alabama, occurred only...
read morePractical Applications of the Major Questions Doctrine – Luke A. Wake and Damien Schiff
Download PDF PRACTICAL APPLICATIONS OF THE MAJOR QUESTIONS DOCTRINE Luke A. Wake and Damien Schiff* Introduction According to the major questions doctrine, Congress must speak clearly if it wishes to delegate to an administrative agency the power to decide an issue of great economic or political significance. This represents a marked shift away from the deferential approach the federal courts had generally taken when interpreting statutes in the post-New Deal era. But as others have noted, it arguably harkens back to an earlier mode of...
read morePlacing Legal Context in Context – Chad Squitieri
Download PDF Placing Legal Context in Context Chad Squitieri* In Biden v. Nebraska, Justice Barrett authored a concurrence in which she characterized the major questions doctrine as a linguistic canon that accounts for the “legal context” surrounding delegations of power. Some scholars have critiqued Justice Barrett’s concurrence on the grounds that empirical research suggests that ordinary readers do not account for “majorness” in the way that the major questions doctrine requires. This Essay argues that those critiques miss the mark...
read moreDisparate Impact As a Non-Delegation Violation and Major Question – Alison Somin
Download PDF Disparate Impact As a Non-Delegation Violation and Major Question Alison Somin* The major civil rights laws generally prohibit two types of discrimination. The first and best known is disparate-treatment discrimination, or discrimination actually motivated by race, sex, national origin, or another prohibited characteristic. The second type—disparate impact—is quite different. There, the discriminating actor need not be motivated by the prohibited characteristic. It is enough that the discrimination has an adverse effect on...
read moreThe Major Questions Doctrine: A Check on Presidential Administration – Paul J. Ray
Download PDF The Major Questions Doctrine: A Check on Presidential Administration Paul J. Ray* The major questions doctrine serves an important purpose of administrative law: ensuring Congress knows what it is doing when it delegates to agencies and thus can control its delegations. The doctrine does so by requiring a clear statement that Congress intended an agency to resolve a particular question, a statement whose clarity ensures members of Congress can understand the content of delegations before they delegate. The major questions...
read moreReplacing the Major Questions Doctrine with Originalist Statutory Interpretation – Michael B. Rappaport
Download PDF Replacing the Major Questions Doctrine with Originalist Statutory Interpretation Michael B. Rappaport* As the basis for many recent politically salient Supreme Court cases that have restrained administrative agency authority, the Major Questions Doctrine (MQD) has become an important topic of legal discussion.[1] Although the doctrine has been endorsed by the more conservative Supreme Court Justices, originalist and textualist commentators have disagreed about its validity. Some have defended it either as a substantive canon or...
read moreDoes the Major Questions Doctrine Get Congress Right? – Joseph Postell
Download PDF Does the Major Questions Doctrine Get Congress Right? Joseph Postell Introduction The emergence of the major questions doctrine (MQD) as a “doctrine” has generated enormous scholarly and political backlash. Advocates of the doctrine on the Supreme Court have been accused of using the doctrine to promote “judicial self-aggrandizement,”[1] and as a screen for “politically and ideologically infused judgments”[2] on important policy issues. While much of this criticism focuses on the broader policy implications of the doctrine and...
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