Administrative Law

After the Fall: A New Framework To Regulate “Too Big to Fail” Nonbank Financial Institutions

Alison M. Hashmall

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 »

Codified Canons and the Common Law of Interpretation

Jacob Scott

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 »

Learning to Live with Unequal Justice: Asylum and the Limits to Consistency

Stephen H. Legomsky - Washington University School of Law

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 »

Reforming the State Secrets Privilege

Beth George

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 »

The Case for Limiting Federal Preemption of State Environmental Regulations

Brian T. Burgess - Law Clerk to Judge Guido Calabresi

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 »

Does Media Consolidation Stifle Viewpoints?: How the Supreme Court Can Provide an Answer

Daniel E. Ho & Kevin M. Quinn

When Rupert Murdoch launched his failed bid for Newsday last year at a price of $580 million consumer groups were up in arms.  Common Cause assailed the proposed acquisition as “a step back that will hurt our democracy.” S. Derek Turner of Free Press charged, “New York, like the rest of… Read More »

Temporary-Effect Legislation, Political Accountability, and Fiscal Restraint

George K. Yin - University of Virginia School of Law

The proper duration of legislation has become highly controversial ever since the enactment of many temporary tax laws during the George W. Bush Administration.  Most observers believe that passage of “temporary-effect” legislation—laws with an explicit expiration date or “sunset” feature—permits the cost of legislation to be misrepresented and allows its… Read More »

Chevron’s Mistake

Lisa Schultz Bressman - Vanderbilt Law School

In 1984, the Supreme Court issued an opinion that set forth a framework for addressing the problem of ambiguity in statutes that delegate authority to administrative agencies. That opinion, Chevron U.S.A. v. Natural Resources Defense Council, is the most famous case in administrative law. The Court stated that a reviewing court… Read More »

Institutional Design for Lawmaking and Climate Change: Restraining the Present to Liberate the Future

Richard J. Lazarus - Georgetown University Law Center

During the next four years, the new President, Barack Obama, and new Congress are expected to join together in the first serious effort in the United States to enact sweeping national legislation to address global climate change.  If they are successful, federal climate legislation will be the first major environmental… Read More »

Federalism Accountability: “Agency-Forcing” Measures

Catherine M. Sharkey - N.Y.U. School of Law

Federal preemption of state tort law is a multifaceted topic. In Federalism Accountability: “Agency-Forcing” Measures, I tackle the federalism dimension of the contentious preemption debate: Congress’s and federal agencies’ respective abilities to serve as loci of meaningful debate with state governmental entities about the impact of federal regulatory schemes on… Read More »