Today’s Ad Law Reading Room entry is “The Past and Future of Universal Vacatur,” by Mila Sohoni, which was recently published by the Yale Law Journal and posted to SSRN.  Here is the abstract:

Universal vacatur, the judicial power to void a regulation, is a remedy rooted in the foundations of modern administrative law, not an artifact of judicial overreach or creative reinterpretation of the Administrative Procedure Act (APA). This Feature adds to the literature on the historical underpinnings and legal propriety of universal vacatur by mapping the development of universal vacatur from the pre-APA period through the Abbott Labs trilogy. Canvassing the work of courts, Congress, and scholars, this account underscores that universal vacatur is a legitimate part of the remedial scheme of administrative law, grounded in history and sustained by subsequent recognition. After establishing these points, the Feature connects the debate over universal vacatur to another topic of vigorous discussion in contemporary administrative law: the Roberts Court’s recent fortification of the major questions doctrine. The case against universal vacatur leverages the intuition that an individual district court judge should not be able to decide issues of vast economic and political significance by vacating a rule universally absent a clear statement in the APA that the judge possesses that authority. That form of argument resembles the mechanics of the new major questions doctrine. As to their consequences, the two also align: both serve to centralize power in the Supreme Court by weakening actors of our government other than the Supreme Court. Though accepting the case against universal vacatur will certainly place curbs on lower court judges, it would also indulge, and thereby strengthen, the perilous proposition that the Supreme Court should intervene to redistribute congressional allocations of power in ways that centralize its own importance and preferences.

There’s a practice on X (née Twitter) of declaring certain articles to be “self-recommending.” I’m not sure I completely understand the concept, but I take it that the basic idea is that some combination of the article’s topic and its author’s prior work on related topics means reading it is most likely going to be worth your time. If that’s right, Ad Law Reading Room hereby declares Sohoni’s “The Past and Future of Universal Vacatur” to be self-recommending.

For those who’d like a bit more, let’s just say that Sohoni manages to combine an extensive and careful review of the history of universal vacatur with a set of fascinating observations exploring the connections between the critiques of universal vacatur and the major questions doctrine. The article is sure to become a major contribution to the ongoing debate over the propriety of remedies that go beyond the parties at hand.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.