Administrative Law

When an agency declines to defend the constitutionality of its structure, the court must determine whether it can decide the issue despite the parties’ agreement. Building on case law and scholarship about the adversity requirement, this Comment proposes a multifactor framework for courts to use when making this decision. Pursuant to this framework, if a court finds that separation of powers concerns and pragmatic considerations related to judicial economy and the protection of affected nonparty interests counsel in favor of proceeding to the merits, it should appoint an amicus curiae to raise adverse arguments before deciding the issue.

In February of this year, we published a call for the government to relaunch the federal Gun Control Act’s § 925(c) petition process, which empowers anyone subject to a federal restriction (“disability”) on their ability to purchase or possess firearms to apply to the Department of Justice for restoration of their gun rights.

The Trump Justice Department has moved with some dispatch to relaunch the program—using a workaround we suggested in our piece. In this short Essay, we propose several improvements to the proposed regulation.

This Case Note argues that categorizing college athletes as employees would, under a faithful application of Title IX and the court’s reasoning in Johnson, take wage payments outside the purview of Title IX’s equal opportunity requirement for athletes. Instead, Title IX as applied to college employees would govern, along with the other relevant employment discrimination laws. Under these statutes, it would likely be permissible for colleges to pay athletes in revenue-generating sports more than those athletes in nonrevenue sports.

District courts should consider the value of percolation in a given case as part of their analysis in deciding whether to grant a § 1404(a) motion. The value of doing so is even more pronounced in cases with a clear pattern of repeat-player defendants moving for transfer for no apparent reason other than convenience—and perhaps a more amenable court. In such cases, district courts should directly weigh the benefits of percolation against those of judicial economy.

Under the Supreme Court’s contemporary approach to constitutional meaning, there is a surprising degree of doubt about whether key aspects of the Federal Reserve (“Fed”)—its independence from Congress and the President, and even its power to create money—are constitutional. In particular, we propose that the structure and monetary authority of the Fed can be justified by Article I, Section 8 borrowing power, and by the Public Debt Clause of the Fourteenth Amendment. In 1935, eight members of the Court agreed that these provisions require credible commitments: to meaningfully exercise the borrowing power, Congress must be able to promise creditors it will not undermine the value of its debts. We argue that judicial enforcement of sovereign promises is unlikely to fulfill this goal. Instead, the exercise of monetary authority by independent central banks is the most promising current solution to the credible sovereign borrower problem.

Public policy must address threats that will manifest in the future. Legislation enacted today affects the severity of tomorrow’s harms arising from biotechnology, climate change, and artificial intelligence. This Essay focuses on Congress’s capacity to confront future threats. It uses a detailed case study of financial crises to show the limits and possibilities of legislation to prevent future catastrophes. By paying insufficient attention to Congress, the existing literature does not recognize the full nature and extent of the institutional challenges in regulating systemic risk. Fully recognizing those challenges reveals important design insights for future risk legislation.

This Essay compares a judicial revolution that is happening to one that is not. Both the change and the status quo are being managed by the current Supreme Court. That Court has, when it comes to administrative law, shown a capacity to revisit everything. But when it comes to securities regulation, it has resisted change. What is the explanation for this divergent approach between general regulation, which the Court has sought to police, and securities regulation, which the Court has left alone? Some scholars have argued that the Supreme Court is simply uninterested in securities regulation, but the Court now hears proportionately more securities cases than it once did. Others dispute the premise that the Court supports corporate America. And, of course, the Roberts Court could change its approach to securities regulation in time. But I think the divergence suggests that the Court wants to police public rights and rights against the state but is less interested in reformulating the standards for private disputes, such as disputes between shareholders and managers.

This Essay argues for the development of more robust—and balanced—law that focuses not only on the risks, but also the potential, that AI brings. In turn, it argues that there is a need to develop a framework for laws and policies that incentivize and, at times, mandate transitions to AI-based automation. Automation rights—the right to demand and the duty to deploy AI-based technology when it outperforms human-based action—should become part of the legal landscape. A rational analysis of the costs and benefits of AI deployment would suggest that certain high-stakes circumstances compel automation because of the high costs and risks of not adopting the best available technologies. Inevitably, the rapid advancements in machine learning will mean that law soon must embrace AI; accelerate deployment; and, under certain circumstances, prohibit human intervention as a matter of fairness, welfare, and justice.

This Essay concerns the evolving relationship between the economy and the methods society deployed to legitimate, control, and channel economic behavior, especially religion and law. Using the recently published work of three eminent academics—Benjamin Friedman, Jonathan Levy, and William Novak—it addresses first the changes in thought necessary to legitimate acquisitive economic behavior and the consequent centering of law as the secular replacement for religion. As capitalism fostered wider markets, as its evolution embodied industrialism and commercialism, it created problems that the regulatory state could not handle. In America, the transition from regulatory to administrative state was complicated by its federal structure and background democratic egalitarian yearnings. Friedman, Levy, and Novak illustrate and elucidate aspects of that evolution. This Essay suggests that reading them together explains more than each separately, and ends by noting how the tensions they explain usefully add to our understanding of American law, and, coincidentally, the potentially transformational administrative law decisions of the Supreme Court in the 2023–2024 term.

Courts, litigants, and scholars should not be confused by the ongoing debate about nationwide or so-called “universal” injunctions: the proper scope of remedies under the Administrative Procedure Act (APA) and other statutes providing for judicial review of agency action is “erasure.” This Article aims to save scholars’ recent progress in showing the legality of stays and vacatur under the APA from muddled thinking that conflates these forms of relief with other universal remedies that face growing criticism.