Two SCOTUS Cases Show How an Unaccountable Administrative State Hurts 'Ordinary People'
Contrary to progressive criticism, curtailing bureaucratic power is not about protecting "the wealthy and powerful."
Judicial deference
SCOTUS Repudiates Doctrine That Gave Agencies a License To Invent Their Own Authority
The Court says Chevron deference allows bureaucrats to usurp a judicial function, creating "an eternal fog of uncertainty" about what the law allows or requires.
SCOTUS Rules SEC's In-House Handling of Securities Fraud Cases Violates the Right to Trial by Jury
The decision rejects a system in which the agency imposes civil penalties after investigating people and validating its own allegations.
Has SCOTUS Replaced One Kind of Unbridled Discretion With Another in Second Amendment Cases?
Although critics say the Court’s current approach is unworkable, it has been undeniably effective at defeating constitutionally dubious gun regulations.
Whether Chevron Stands or Falls, Any Deference Should Be Based Upon Delegation, Not Ambiguity
Some thoughts on the most important issue in Relentless and Loper Bright.
SCOTUS Ponders the Ambiguity of 'Ambiguous' and Other Chevron Doctrine Puzzles
The justices seem inclined to revise or ditch a 1984 precedent that requires deference to executive agencies' statutory interpretations.
The Chevron Doctrine Discomfits the Weak
Excessive judicial deference gives administrative agencies a license to rewrite the law in their favor.
Why Israelis Are Taking to the Streets
The furious response to a seemingly modest reform reflects a broader dispute about the role of courts in a democracy.
A 2007 Debate Provoked by Richard Posner Illuminates the Current Clash Over Judicial Power in Israel
The appeals court judge argued that the Israeli Supreme Court had usurped the role of legislators.
In the Israeli Battle Over Judicial Review, Democracy Is the Problem, Not the Solution
Opponents of the reforms favored by Prime Minister Benjamin Netanyahu's coalition should acknowledge the threat posed by unconstrained majority rule.
Ohio Supreme Court Rejects Deference to Agency Statutory Interpretations
A new opinion concludes Ohio courts need not defer to agency interpretations. The justices are not unanimous, but no justice writes in favor of deference.
Absolute Immunity Puts Prosecutors Above the Law
By giving powerful law enforcement officials absolute immunity from civil liability, the Supreme Court leaves their victims with no recourse.
My New Article on "How Judicial Review Can Help Empower People to Vote with Their Feet"
The article challenges longstanding conventional wisdom claiming that judicial review of democratically enacted laws is at odds with popular political choice.
When Super Deference Is Not So Super
"Super Deference and Heightened Scrutiny" forthcoming in the Florida Law Review
Does the Supreme Court Need Fixing? If So, Why and How?
Decisions that progressives don't like are not necessarily a sign that something has gone horribly wrong.
My Jotwell Review of Lindsay Wiley and Steve Vladeck's "Coronavirus, Civil Liberties, and the Courts"
They argue that courts should engage in "normal," not specially deferential judicial review of coronavirus emergency measures.
Kagan and Gorsuch Clash Over Judicial Deference to the Administrative State
Who will rein in the ever-expanding administrative state?
John Paul Stevens Is Still Trying To Defend the Kelo Debacle
In his new memoir, the retired justice seeks to justify his awful eminent domain ruling.
What Constitutional Lawyers can Learn from Spiderman
Constitutional law could be improved by taking account of the principle that "with great power, comes great responsibility."
What Do Judges Think of Chevron?
It appears that Justice Neil Gorsuch is far from the only one who questions the wisdom of Chevron deference and other findings from a new survey of federal judges.
