In this Article, we consider what type of institution should provide legal transition relief and analyze the form that it should take. These questions are of great importance because the issue of legal transition relief—whether and how an institution should compensate parties because a change in the law adversely affects… Read More »
Mariano-Florentino Cuéllar’s “Securing” the Nation: Law, Politics, and Organization at the Federal Security Agency is both a work of history and a reminder of echoes of the past in contemporary policymaking. It compares the great post-9/11 bureaucratic reorganization, which created the Department of Homeland Security (DHS), with one great… Read More »
The past decade has witnessed a surge of interest in Carl Schmitt’s controversial assertion that the rule of law inevitably bends under the demands of state necessity during national emergencies. According to Schmitt, legal norms cannot constrain sovereign discretion during emergencies because “the precise details of an emergency cannot be… Read More »
Americans listening to one of President Franklin Roosevelt’s fireside chats on a cabinet-sized radio in the late 1930s could not have imagined the eventual birth of the Internet technology used to disseminate this Article. They would have been hard pressed to imagine the spectacular growth of East Asian economies, or… Read More »
The structure of the digital economy will depend on a seemingly obscure debate about the jurisdiction of the Federal Communications Commission (FCC). Congress established the FCC during the New Deal and vested it with authority over all interstate communication by wire or radio. Seventy-six years later, the FCC faces critical… Read More »
This Editorial summarizes my forthcoming Note, 85 N.Y.U. L. REV. (forthcoming June 2010), in which I assert that our current regulatory structure is suboptimal in its regulation of the systemic risk created by the failure of large, interconnected “nonbank” financial institutions (in general, a nonbank financial institution is any institution that… Read More »
Statutory construction generally involves rules of thumb that are said to allow readers to draw inferences about the meaning of a particular statute. These “canons of construction” (also known as maxims of interpretation) guide the methods and sources used in statutory interpretation and are usually deployed according to an interpreter’s… Read More »
This Article is about consistency in adjudication. I explore why consistency matters, what its determinants are, and whether it can be substantially achieved at a price that is worth paying.
This Article is also about the United States asylum adjudication system. Asylum challenges the national conscience in distinctive ways. It… Read More »
This Editorial summarizes a forthcoming Note that investigates the problems associated with the state secrets privilege, describes the inherent problems in currently proposed reforms, and suggests a new direction for effective reform of the doctrine.
The state secrets privilege is a common-law privilege that allows the federal government to withhold… Read More »
States have exhibited leadership in environmental policy, addressing issues of national and global scope. But this leadership is threatened by federal ceiling preemption—federal laws that prevent states from adopting regulations that are stricter than federal standards.
Environmental law scholars argue that federal ceiling preemption has pernicious effects. These scholars fail, however,… Read More »