Administrative Law

“Vacation” at the Farm: Why Courts Should Not Extend “Remand Without Vacation” to Environmental Deregulation

Benjamin W. Tettlebaum

The U.S. Supreme Court has recently made permanent injunctive relief harder to obtain. In Monsanto Co. v. Geertson Seed Farms, the Court reversed a nationwide injunction that prohibited the planting of Monsanto’s genetically modified (GM) Roundup Ready Alfalfa. The Court reaffirmed its holding from Winter v. Natural Resources Defense Council, Inc.… Read More »

Standing in Nuclear Waste: Challenging the Disposal of Yucca Mountain

Meagan Easly

Introduction
For more than two generations, the United States has generated more electricity from nuclear energy than any other country. So how is there still no long-term solution to the well-understood problem of nuclear waste management? This Note examines the nation’s failure to adequately implement a plan for the safe… Read More »

Against Flexibility

David Super - Georgetown University Law Center

This Article seeks to develop a theory of the best timing of legal decisions that is independent of questions about which individuals or institutions should make those decisions.  In doing so, it analyzes law as a productive enterprise.  Like any productive enterprise, law seeks to obtain necessary inputs at the… Read More »

A Third Way: The Presidential Nonsigning Statement

Ross Wilson

Introduction
In my Note, I propose an alternative to the presidential signing statement that has been hotly debated in the literature in recent years.  By re-examining an often-forgotten constitutional method for enacting laws, I conclude that when the President has certain doubts about the constitutionality of a bill Congress has… Read More »

Agency Rulemaking and Political Transitions

Anne Joseph O'Connell - University of California, Berkeley, Law School

Even before President Obama took to the dance floor on the night of his inauguration, his then-Chief of Staff, Rahm Emanuel, had already fired off a memorandum to the heads of federal agencies instructing them not to start or finish any regulations without approval of the new Administration.  Emanuel also… Read More »

How to Rig the Federal Courts

David Law Washington University in St. Louis

Introduction
Few scholars would dispute that the way in which political institutions are designed affects the way that policymakers behave or the kinds of policies that are produced.  Nor can it seriously be argued that courts are somehow an exception to the basic rule that institutional design matters.  It is… Read More »

Plant Closures Cause Job Loss

David M. Driesen - Syracuse University College of Law

David M. Driesen
[This is the third post in a three-part response to Jonathan S. Masur and Eric A. Posner, Against Feasibility Analysis, 77 U Chi L Rev 657 (2010).]

Because plant closures cause job loss, any cost-benefit analysis (CBA) that counts job loss as a consequence relevant to overall well-being… Read More »

How Cost-Benefit Analysis Incorporates and Worsens Feasibility Analysis’s Flaws

David M. Driesen - Syracuse University College of Law

Jonathan Masur and Eric Posner’s neglect of key normative arguments (discussed in my previous post) stems in part from a preoccupation with flaws in the agency practice of feasibility analysis. I agree with Masur and Posner’s characterization of that practice as less than wholly satisfactory and suggested as much in an… Read More »

Prosecuting Immigration

Ingrid V. Eagly - UCLA Law School

The criminal prosecution of immigration—principally for illegal entry and reentry, alien smuggling, and document fraud—has reached an all-time high.  Not since Prohibition has a single category of crime been prosecuted in such record numbers by the federal government.  Immigration, which now constitutes over half of the federal criminal workload, has… Read More »

A Modest Normative Case for Feasible Regulation

David M. Driesen - Syracuse University College of Law

In spite of Jonathan Masur and Eric Posner’s promise to unmask the normative commitments underlying feasibility analysis, their new article, Against Feasibility Analysis, fails to confront key normative arguments about the tendency of widely distributed regulatory costs to render trivial the individual impact on consumers of even high aggregate costs or… Read More »

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