Too Small to Fail: A New Perspective on Environmental Penalties for Small Businesses
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For very helpful feedback and discussion on previous drafts, he thanks Jonathan Mitchell, William Baude, Aziz Huq, Tom Ginsburg, Thomas Miles, Ernest Young, Jared Mayer, Micah Quigley, Eric Wessan, and the participants of the Canonical Ideas in American Legal Thought Seminar. He also thanks the editors of The University of Chicago Law Review for thoughtful comments and edits. Lastly, he thanks his wife, Katrina Lindley, for her indispensable discussion and support.
The Supreme Court’s changing composition and, relatedly, its increasing skepticism for the current structure and pervasiveness of the administrative state have given rise to increased constitutional challenges to agency actions that seem increasingly likely to be successful.
Thanks to David Driesen, Jerry Ellig, Jake Gersen, Daniel Hemel, Jennifer Nou, Cathy Sharkey, David Strauss, Cass Sunstein, Kip Viscusi, and participants at workshops at The University of Chicago Law School and Syracuse Law School for helpful comments, to the Russell Baker Scholars Fund, the David and Celia Hilliard Fund, and the Wachtell, Lipton, Rosen & Katz Program in Behavioral Law, Finance and Economics for research support, and to Mei Ying Barnes, Hanan Cidor, Kathrine Gutierrez, Christina McClintock, Isabella Nascimento, Holly Newell, and Michael Wheat for excellent research assistance.
CBA is a decision procedure whose normative basis is what Professor Matthew Adler and one of us has called weak welfarism. Welfarism is the principle that the well-being of people is morally important.
The default rule for judicial review of agency action is that review is available under the Administrative Procedure Act (APA) for agency actions that are both ripe and final.