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MOST RECENT PRINT ISSUE

Volume 81, Issues 4-6

2021


Article

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...

Article

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...

Note

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Conceived as a means to regularly prune outdated regulations from agency rulebooks, formal retrospective review is a procedural requirement for administrative agencies to review rules authorized under a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 Yet reformed rules proposed under these statutory requirements are often challenged by interest groups and rescinded by courts, wasting agency resources to draft, promulgate, and defend...

Article

The Unconstitutionality of Government Propaganda

by Caroline Mala Corbin

Government propaganda—the government’s deliberate dissemination of false claims on matters of public interest—has increasingly become a source of concern in the United States. Not only does the current presidential administration disseminate propaganda at a rate unprecedented in the modern era, so that Americans now live in an age of government-created “alternative facts,” but the internet and social media have made it possible to find receptive audiences...

Article

Constitutional Law for NIMBYs: A Review of “Principles of Home Rule for the 21st Century” by The National League of Cities

by David Schleicher

Model laws play an extremely important role in the history of “home rule” for local governments in the United States. So it is of no small moment that the National League of Cities (NLC) proposed a new Model Constitutional Home Rule Article (the Model Article) last February. Unfortunately, the Model Article is severely flawed...

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