Per Curiam

The Delegation Doctrine – Jonathan H. Adler

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The Delegation Doctrine – Jonathan H. Adler

Download PDF THE DELEGATION DOCTRINE Jonathan H. Adler* After Gundy v. United States[1] the Supreme Court seemed poised to revive the nondelegation doctrine.[2] Four justices expressed a willingness to consider nondelegation arguments in a future case, and they were joined by a fifth just a few months later.[3] It was only matter of time before five justices would vote to limit the extent to which Congress could delegate core legislative power to administrative agencies.[4] Reports of the nondelegation doctrine’s resuscitation were greatly...

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Doctrinal Crossroads: Major Questions, Non-Delegation and Chevron Deference – Donald F. McGahn

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Doctrinal Crossroads: Major Questions, Non-Delegation and Chevron Deference – Donald F. McGahn

Download PDF Doctrinal Crossroads: Major Questions, Non-Delegation and Chevron Deference Donald F. McGahn* Thank you for the kind introduction and the opportunity to speak to you today.  And thank you to the Pacific Legal Foundation—these sorts of conferences are massive undertakings, and require countless hours of thankless work and worry.  I also must note that I am here today on my own accord, not on behalf of any client or my law firm.  But of course, if a future President should make the mistake of nominating me for something in the...

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Doctrinal Crossroads: Major Questions, Non-Delegation, and Chevron Deference

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Doctrinal Crossroads: Major Questions, Non-Delegation, and Chevron Deference

JLPP: Per Curiam and the Pacific Legal Foundation are proud to present a symposium: Doctrinal Crossroads: Major Questions, Non-Delegation, and Chevron Deference which was held at Harvard Law School on January 25, 2024. The essays in this symposium, authored by academics and practitioners alike, attempt to elucidate a deeper examination of the origins of the major questions doctrine, its theoretical underpinnings, and its compatibility (or incompatibility) with earlier precedent. The essays in this symposium can be accessed at the following...

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Hon. Robert H. Bork Memorial Lecture: Toxic Political Polarization and the Judiciary – Judge Thomas B. Griffith

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Hon. Robert H. Bork Memorial Lecture: Toxic Political Polarization and the Judiciary – Judge Thomas B. Griffith

Download PDF Toxic Political Polarization and the Judiciary Judge Thomas B. Griffith (ret.)* I am honored to be here today and especially to speak in a lecture series that honors the memory of Judge Robert H. Bork. We are all indebted to Ed Whelan for his Confirmation Tales column. Forgive my self-indulgence in telling you my story. It features Judge Bork in a prominent role. Although it was far from a pleasant experience, my Senate confirmation experience was smooth sailing compared to the tempestuous proceedings others have endured. For...

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The Missing Endpoint of Rule 609(b) – Bobby Levine

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The Missing Endpoint of Rule 609(b) – Bobby Levine

Download PDF The Missing Endpoint of Rule 609(b) Bobby Levine* Introduction Federal Rule of Evidence 609(b) (“609(b)”) limits when a lawyer can impeach a witness using their prior criminal convictions.[1]  To impeach a witness with a prior conviction that is more than 10 years old, there is a heightened standard for admissibility.  The judge must find that its probative value “substantially outweighs its prejudicial effect.”[2]  That language may sound familiar.  It is a specialized application of the far less demanding threshold of Rule...

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Distinguishing Administrative Delegations from Constitutional Offices – Yonatan Gelblum

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Distinguishing Administrative Delegations from Constitutional Offices – Yonatan Gelblum

Download PDF Distinguishing Administrative Delegations from Constitutional Offices Yonatan Gelblum* Introduction Although the use of administrative delegations to assign caretaking duties at federal agencies in the vacancies context has attracted the attention of courts and commentators,[1] the routine reliance by political appointees on delegations to career civil servants of broad authority over rulemaking, adjudication, and enforcement has drawn less attention.  The few contemporary appellate courts and commentators to have touched on the...

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Checking Out [of] Acheson Hotels – Michael E. Rosman

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Checking Out [of] Acheson Hotels – Michael E. Rosman

Download PDF Checking Out [of] Acheson Hotels Michael E. Rosman* This brief essay explores a few of the strange features of the Supreme Court’s recent case of Acheson Hotels, LLC v. Laufer.[1] That case involved a requirement under an Americans with Disabilities Act (ADA) regulation that hotels identify the features of their accommodations to allow individuals with disabilities to assess whether the accommodation would meet their needs. The Court dismissed the appeal of Acheson Hotels on mootness grounds.[2] I briefly explore the peculiar way...

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The Next Big States’ Rights Case Might Not Be What You Think – O.H. Skinner & Beau Roysden

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The Next Big States’ Rights Case Might Not Be What You Think – O.H. Skinner & Beau Roysden

Download PDF The Next Big States’ Rights Case Might Not Be What You Think A Supreme Court Petition Out Of Hawaii Could Reshape The State Sovereignty Landscape O.H. Skinner & Beau Roysden* The arguments have ended for the 2023 U.S. Supreme Court term, with blockbusters soon to be decided.  As some of us start to look over the horizon to the 2024 Supreme Court term, which is just starting to come into focus, there is a blockbuster state sovereignty case from the Hawaii Supreme Court that is looming as a potential addition to the argument...

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Textualism and the Eighth Amendment – Judge Thomas M. Hardiman

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Textualism and the Eighth Amendment – Judge Thomas M. Hardiman

Download PDF Textualism and the Eighth Amendment Judge Thomas M. Hardiman* Thank you for the generous invitation to be part of the Laurence Silberman Distinguished Judicial Lecture Series. Judge Silberman was my administrative law professor at Georgetown over thirty years ago. Unfortunately, at that time I had neither an appreciation for the value of judicial clerkships nor an understanding of the privilege of being taught by one of the lions of the D.C. Circuit. I’m sorry that Judge Silberman isn’t with us to comment on my remarks—no doubt...

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BASIC RIGHTS AND INITIATIVE PETITION 23-07: ARE THE PREBORN “NATURAL PERSONS” UNDER THE FLORIDA CONSTITUTION? – David H. Thompson

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BASIC RIGHTS AND INITIATIVE PETITION 23-07: ARE THE PREBORN “NATURAL PERSONS” UNDER THE FLORIDA CONSTITUTION?  – David H. Thompson

Download PDF Basic Rights and Initiative Petition 23-07: Are the Preborn “Natural Persons” Under the Florida Constitution? David H. Thompson* An initiative petition entitled “Amendment to Limit Government Interference with Abortion” has been circulating in Florida since May 2023. The proposed amendment, which would effectively ban pro-life legislation, recently garnered enough signatures to trigger review by the Florida Supreme Court. At oral argument, Florida’s Chief Justice asked whether an unborn child is covered by the basic equality...

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