Volume 81, Issues 4-6



Categorizing Chevron

by Kristin E. Hickman & R. David Hahn

What is the Chevron doctrine? Everyone knows Chevron as a doctrine that has governed judicial review of agency interpretations of ambiguous statutes for more than thirty years. Yet courts and commentators continue to disagree over how the doctrine works and what it requires courts to do. Contributing to the disagreement is a categorization problem: is Chevron a standard of review, a rule of decision, or a canon of construction...

In Memoriam

Ruth Bader Ginsburg, The Great Proceduralist

by Jeffrey S. Sutton

Brooklyn is a place for breaking barriers, as one son and one daughter of the Borough confirm. Jackie Robinson and Ruth Bader Ginsburg did it the same way, out-performing the existing stars and mastering the finer points of the game...


Bespoke Regulatory Review

by Bridget C.E. Dooling

An agency that fails to adequately consider the costs and benefits of its proposed regulatory changes increasingly places its rules at risk upon judicial review. Over the last couple of decades, courts have begun to expect agencies to use regulatory analysis techniques like cost-benefit analysis to justify their regulatory choices. This development poses particularly acute risks for the independent regulatory agencies...


Prometheus: Giving Life to Formal Retrospective Review Through “Thin Rationality” Judicial Review

by Bret Baker

Conceived as a means to regularly prune outdated regulations from agency rulebooks, formal retrospective review is a procedural requirement for administrative agencies to review rules authorized under a given congressional statute on a regular basis. Yet reformed rules proposed under these statutory requirements are often challenged by interest groups and rescinded by courts, wasting agency resources to draft, promulgate, and defend...


Building Legal Walls: Limiting Attorney General Referral Authority Over Immigration Cases

by Brittany Stevenson

President Trump has yet to make good on his campaign promise to build a border wall along the United States-Mexico border. In the meantime, though, his administration has been building legal walls. Stalled negotiations over the fate of Deferred Action for Childhood Arrivals (DACA), the lift of Temporary Protected Status (TPS) for natives of certain countries, Attorney General case certification in twelve cases, and the now-rescinded “child separation policy” have all...


Would You Like to Save Your Game?: Establishing a Legal Framework for Long-Term Digital Game Preservation

by Will White

Since their invention in the 1960s, digital games—also known as video games, computer games, or electronic games—have grown from a quirky digital novelty into a diverse artistic medium, an economic juggernaut, and a mainstream cultural touchstone. As of 2018, around 60% of Americans play some form of digital games daily. Despite the persistent boy’s club nature of the industry and culture around digital games, actual consumption of digital games has gradually become...


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