Donald Trump thankfully survived an assassination attempt last weekend and may well win back the presidency in November. What constitutional theories might a second Trump administration advance? Trump himself has suggested one possibility: He has promised to assert a “Constitutional power to stop unnecessary spending through what is known as Impoundment.” In other words, a second-term President Trump would […]
Two weeks ago, the Supreme Court issued two major decisions concerning judicial review of federal agency regulations. Already, plenty of ink has been spilled praising and deriding the decisions. But to understand whether the decisions should make you gleeful or panicked, it is important to understand both their limits and their breadth. In Loper Bright Enterprises […]
Administrative agencies bear principal responsibility for keeping the federal government’s promises by giving effect in the real world to the laws Congress enacts. If administrative law’s goal was to help agencies fulfill this responsibility, its lodestar would be a thick concept of administration. But as a field, administrative law today neglects administration, focusing instead on […]
What determines the effectiveness of corporate compliance programs, and who is accountable when they fail? Scholars and policymakers tend to answer these questions by focusing on internal compliance actors: directors, CEOs, general counsels, chief financial officers, and chief compliance officers. Yet in reality, all these corporate insiders rarely perform compliance tasks on their own. They […]
Even before the pandemic, the 90,000 local governments in the United States faced grim fiscal positions. During the pandemic, revenues cratered, costs increased, and many local governments teetered on the brink. Yet few of them considered filing for bankruptcy, though Chapter 9 of the Bankruptcy Code is designed for local governments. The choice to eschew […]
Under the New Deal framework for money and payments—which had its roots in the National Bank Act of 1864—banks in the United States were governed in many respects as public utilities. Charters were available only where they were consistent with public convenience and need, the usual standard for utilities. Banks enjoyed an exclusive privilege to […]
What determines the effectiveness of corporate boards? Corporate legal scholars usually approach this question by focusing on directors’ incentives, such as counting how many directors are independent or whether the roles of the CEO and Chair are separated. Yet on the ground, the focus has been shifting to directors’ skill sets and experience. Investors, regulators, […]
“Limited liability” is the rule that shareholders are not liable for the debts of the corporations they own. Critics of limited liability argue that it encourages corporations to ignore the harms they cause and cuts off recovery for deserving plaintiffs. Defenders of limited liability reply that it helps the economy by reassuring investors that they […]
The pandemic brought with it the entrenchment of a massively trans-formed cityscape. From car-free streets to widespread private dining in parking spots, what began as a series of temporary municipal authorizations have since transitioned into permanent programs. For some, these urban changes are unalloyed goods—who doesn’t want to drink al fresco at 3pm on a […]
Tell me about despair, yours, and I will tell you mine.Meanwhile the world goes on. – Mary Oliver October Term 2023 ended with a bang. Chevron deference is no more, a gaping hole has been carved into the APA’s statute of limitations, and the Court has once again halted an EPA regulation mid-litigation. This is, to understate matters considerably, a dreary time […]
When the Supreme Court throws out the most cited case in your field, initial reactions may range from despair to elation—strong feelings related to the merits and consequences of the decision—to a more pedestrian variety of consternation: I have to re-write my casebook! As concerns Chevron’s demise, the shift in case-law at the very least warrants the latter form of […]
By immunizing Presidents against criminal liability in some circumstances, the Supreme Court’s recent decision in Trump v. United States limited one form of potential accountability for lawless presidents. Whatever the scope of this immunity, however, the decision left in place one of the most important constraints on the American presidency: the need to act through subordinates to carry out […]
Loper Bright Enterprises v. Raimondo recognizes that Congress may delegate to agencies the authority to exercise discretion in a certain domain, as I have argued. A further question, of both doctrinal and practical significance, is whether those delegations must be express, or instead can also be implied. In an excellent recent online seminar, my esteemed co-author Michael Herz […]
Over the last week, the Supreme Court put the administrative state under significant new scrutiny, signaling a turning point in a larger project of consolidating policy decision-making power in the judiciary. One case to spotlight is SEC v. Jarkesy, which raises questions about the future role of agencies in enforcing statutory violations. The Court in Jarkesy held that […]
Given the amount of commentary being addressed to the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, it would appear that the Chevron decision may continue to be one of the Court’s most-discussed opinions even after its demise. But the Court can, and should, seize the opportunity created by Loper Bright to shrink, rather than expand, the number of “doctrines” that […]