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Disability exists regardless of whether a doctor has confirmed its existence. Yet in the American workplace, employees are not disabled, or entitled to reasonable accommodations, until a doctor says so. This Article challenges the assumption that requests for reasonable accommodations must be supported by medical proof of disability. It proposes an accommodation process that accepts an individual’s assessment of their disability and defers to their accommodation preferences. A documentation-free model is not alien to employment law. In evaluating religious accommodations, employers, and courts, take a hands-off approach to employees’ representations that their religious beliefs are sincere. Disability deserves the same deference. This Article also contributes a novel analysis of agency guidance, exploring how its support of medical documentation requirements conflicts with legislative intent and the American with Disabilities Act’s rejection of the medical model of disability. Documenting disability has its price. It requires access to affordable healthcare and a relationship with a medical provider willing to confirm disability’s existence. Documentation requirements may delay an urgently-needed accommodation—one that would, for example, permit an employee to work from home. Until documentation requirements are relaxed, if not eliminated, disabled employees may be forced to work in dangerous conditions, or not work at all.

Policymakers in India deferred including a regime for cross-border insolvencies in the otherwise comprehensive Insolvency and Bankruptcy Code of 2016. Since then, the government has proposed adopting the UNCITRAL model law on cross-border insolvencies, spurring a flurry of discussion and debate about the design of that particular regime and other possible alternatives. It appears likely, although not certain, that the country will soon adopt the model law. This symposium Essay focuses on an important question of implementation, i.e., that the effectiveness of any approach to cross-border insolvency depends not only on the design of the applicable legal regime but also on other various institutional factors. Chief among these factors in India will be the performance of the National Company Law Tribunals that are charged with employing the regime to resolve cross-border insolvencies. As an initial matter, these tribunals will need to develop expertise in the growing jurisprudence related to the UNCITRAL model law. Furthermore, any modern approach to cross-border insolvencies, and especially the UNCITRAL model law, is premised on a high degree of international cooperation, efficient communication and coordination, predictability, and, occasionally, the exercise of deference to foreign jurisdictions and judicial actors. The tribunals have limited experience with this kind of highly cooperative and deferential approach to cross-border commercial litigation, so the underlying institutional capacity to employ the regime as designed will need to be developed over time. Policymakers should anticipate that after the legal design of India’s cross-border insolvency regime is settled, careful attention should be given to implementing it by, among other things, helping the NCLT develop the necessary expertise and an institutional commitment to facilitating cross-border insolvencies under the new regime.

For decades, members of the Chicago Police Department (CPD) engaged in a protracted campaign of corruption, terror, and violence against Black and brown Chicagoans. Intermittent efforts to reform or otherwise rein in the CPD invariably fell short. In late 2014, a CPD officer murdered a 17-year-old Chicagoan, Laquan McDonald. CPD officials and city leaders attempted to whitewash the killing as a justified use of deadly force, but—thanks to the work of local organizers and a national pressure campaign—McDonald’s death instead led to a yearlong investigation by the federal Department of Justice (DOJ). Ordinarily, such an investigation would have resulted in a federal lawsuit to enjoin unconstitutional police practices; after the election of the stridently pro-police candidate Donald Trump to the Presidency, the prospect of federally monitored reform in Chicago seemed extinguished. But Illinois’ attorney general was undaunted—and instead launched a groundbreaking litigation that would bring CPD under federal supervision for years to come. The largest reformist and abolitionist movement—indeed, the largest protest movement—in American history erupted this past summer in response to police violence against and unwarranted killings of Black and brown people. Given the moral urgency of the participants’ demands and the necessity of protecting Black lives from state violence, this Article argues that the states must respond by following Illinois’ lead. It contends that 42 U.S.C. § 1983, the statute at the heart of the state’s suit, provides a tenable basis upon which states may sue to obtain police reform with federal-court oversight. It posits as well that the states may overcome the limitations on Section 1983 relief imposed by Lyons, the daunting standing requirements instituted by Lujan, and the specter of federal field preemption through the doctrine of parens patriae, which holds that sovereign entities are entitled to special deference in obtaining federal standing on their citizens’ collective behalf. The Article concludes by calling the states to this greater project—that is, repurposing Section 1983 as a mechanism for obtaining for marginalized communities legal redress that would be otherwise unavailable—and by framing police reform as a necessary step on a path toward police abolition.

The role of courts has been rather significant in the COVID-19 pandemic, weakening the theory that the judiciary is not equipped to manage emergencies and contribute to govern crisis management. Although the analysis shows that differences exist across countries, depending on institutional varieties and political contexts, the experience of COVID-19 has shown that, even in times of emergency, courts can adapt, and provide the necessary balance to the power shift towards the executives. Both action and inaction affecting fundamental rights have been scrutinised, with different intensity across countries, to ensure that governments took the necessary measures to contrast the pandemic, taking into account fundamental freedoms and the rule of law. Deference to political decision-making has varied across jurisdictions and along the multiple phases of the health crisis. Differences in the balancing have emerged compared to ordinary times. Uncertainty has played a major role, calling for new strategies in regulatory, administrative and judicial decision making, and new balances between precaution and evidence-based approaches. The role of scientific evidence in political and administrative decision-making has been at the core of judicial review aimed at ensuring transparency and procedural accountability. Proportionality and reasonableness with multiple conceptual variants, partly associated with the different national legal traditions, have been used to scrutinise the legality of restrictive governmental measures. Courts are likely to continue playing a significant but different role in the years to come, when liability issues and recovery measures will likely become the core of litigation.

The following article titled—A Country Divided: Refining the Ministerial Exception to Balance America’s Diversity—proposes an alternative approach to the current ministerial exception doctrine. The lower courts routinely struggle to apply the ministerial exception, as adopted in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC and Our Lady of Guadalupe School v. Morrissey-Berru. And that is because the Supreme Court’s current approach is unworkable, overbroad, and confusing. But the need for clarity has never been greater. Bostock v. Clayton County—which expanded discrimination protections for sexual orientation and gender identity under Title VII—will lead to increased unemployment discrimination litigation. These disputes will include a growing number of religious institutions and the selection and termination of their leaders. Thus, the ministerial exception must be reformed to balance American diversity of thought while protecting religious liberty. The ministerial exception should be reformed in three ways. First, courts should narrowly construe “religious institutions.” A narrow definition of “religious institutions” accomplishes two things: (1) it ensures that the exception remains rooted in its historical purpose; and (2) it allows religious institutions to have broader discretion to determine who a minister is. These both act as counterweights to a rebuttable presumption approach to defining ministers. Second, courts should use a rebuttable presumption approach to define “ministers.” Courts should give religious institutions more deference to make ministerial determinations because they are generally better positioned to assess an employee’s religious function. But courts cannot give complete deference to religious institutions. Thus, a rebuttable presumption approach strikes a balance. Religious institutions receive increased deference, while courts maintain a level of scrutiny over religious institutions. Finally, courts should also implement a procedural review of ministerial exception disputes. A procedural review allows courts to ensure that religious institutions utilize fair procedures to terminate their employees, even when the ministerial exception applies. It serves as one final safeguard against ministerial exception abuse and ensures fairness to fired employees. The ministerial exception needs a balanced approach—one that is fair to all Americans.

In contrast to the extant club-theoretic literature on religiously motivated terrorism, this paper articulates a theory of violent extremist religious sects (VERSs) that explicitly incorporates a supernatural motive for religiosity. This approach is in deference to the widely acknowledged primacy of the desire to procure supernatural rewards as a motive for religiosity and is motivated by the need for a more fulsome explanation of the marginal impact of religiosity on the efficacy of VERSs than is available in the extant club-theoretic literature. The explicit incorporation of a supernatural motive in this paper dictates that VERSs should be treated as faith intermediaries and the resulting theoretical analysis explains a trifecta of observations about VERSs and religiously motivated terrorism that hitherto have not been explained within a single unifying framework. In particular, the theory yields internally compatible explanations for: the location of any given religious sect in violence space and thereby the evolution of religious sects from benign to violently extreme; the mechanisms via which the commitment enhancement technologies VERSs deploy enhance commitment of their operatives; and the marginal impact of religiosity on VERSs’ efficacy which explains their high lethality relative to that of their secular counterparts

תקציר בעברית: מינוי של דירקטורים בחברות ציבוריות מהווה את אחד המהלכים החשובים והמרכזיים בדיני החברות והממשל התאגידי. כידוע, הדירקטורים מגבשים את האסטרטגיה של החברה ומפקחים על ההנהלה הביצועית שלה. ככלל, בתי המשפט נוטים לכבד את שיקול הדעת של הדירקטורים. על-כן, חשיבותו של המחקר בנוגע לאופן שבו דירקטורים מתמנים בחברות ציבוריות, היא ברורה.מאמר זה מבוסס על מחקר אמפירי שבחן את הליכי מינוי הדירקטורים ב- 125 החברות הגדולות בישראל בשנים 2015 - 2019. המאמר מציג ממצאים ונתונים ייחודיים בנוגע למינוי הדירקטורים, ובתוך כך מציג נתונים ביחס לדפוסי ההצבעה של המשקיעים המוסדיים ועומד על התפקיד שהם ממלאים, ביחד עם חברות הייעוץ למוסדיים. English Abstract: Corporate directors’ elections lie at the core of corporate governance. The board of directors is tasked with the mission of shaping and overseeing corporate policies and operations. Courts, for their part, give significant deference to board decisions, and do not substitute their judgement for that of the board (unless it is shown that the board’s decision involves a breach of fiduciary duty). Hence, the importance and relevance of research that explores the way directors are elected, is quite clear. Using a dataset of director elections at Tel-Aviv 125 companies (composed of proxy statements and voting results for director elections) from 2015 until 2019, we examine how directors are being elected in public companies listed in Israel. We provide novel and unique data on the voting patterns for director elections and explore the existing role played by the Israeli institutional investors and proxy advisors in the context of director elections.

I was in “the room where it happens” when Kentucky enacted a new photo ID law for voting. And I lived to tell the tale. This Article recounts the evolution of Kentucky’s voter ID law, which could have been one of the strictest ID laws in the country but ultimately became one of the mildest. The inside story of how that occurred is itself interesting, but the Article also relates it to a theory of deliberative democracy, or a legislative process that benefits from debate, negotiation, and compromise from various voices, making the final enactment more legitimate. The Article traces the history of the voter ID law, explaining the significant substantive changes that occurred during the legislative process. Next, the Article analyzes the litigation over the bill, which was focused on its implementation during the pandemic and not about the substance of the new law—showing that even opponents accepted its main substantive components. Finally, the Article relates the Kentucky story to a legislative theory of deliberative democracy. The Kentucky process mostly worked because, even though Republicans had the votes to pass the most stringent law possible, they instead moderated in response to opposition from Democrats and advocacy organizations. That moderation made the process more legitimate and created a better substantive outcome. The Article suggests that, to encourage a stronger legislative process, courts could give slightly more deference to a state that passes an election law with indicia of deliberative democracy. Voter ID laws are unnecessary: they do not root out any fraud that exists and can disenfranchise voters. But the Kentucky experience shows that not all voter ID laws are created equal. If the political reality meant that a new voter ID law was inevitable, the Kentucky version—with its various exceptions and fail-safe protections—is about as good as one can expect. Further, its passage opened the door to other pro-voter reforms. Perhaps the Kentucky model—and the deliberative democracy process it exhibits—can lower the temperature in other states.

In 2012 the Government made a number of controversial changes to the Immigration Rules, which it claimed would ‘comprehensively reform’ Article 8. This paper examines the judicial response, arguing that the courts ‘fell into line’, adapting human rights law to the Government’s aims through unprincipled and opportunistic techniques, whilst inflicting hardship and injustice on working-class British citizens in particular. Four key moves are identified. First, the courts created an ‘incapable’ test which immunised the rules from in principle challenges. Second, Lord Bingham’s Article 8 test in which the reasonableness of any family member relocation was a central consideration was replaced with a far less family-friendly test. Third, the courts adopted an ultra-lax rationality test at common law, even when the ‘fundamental rights’ of British citizens were engaged. Finally, the courts identified immigration policy as the ‘constitutional responsibility’ of the executive.

In my article The End of Deference: How States (and Territories and Tribes) Are Leading a (Sometimes Quiet) Revolution Against Administrative Deference Doctrines, I conducted a survey or all 50 states to look at how state deference doctrines had developed over the past several years. I found a striking trend away from deference and towards either a wholesale or partial rejection of deference. At the end of that survey, I outlined several additional areas for research and exploration on the topic of state deference. In particular, I suggested the need for additional research into how the justifications for deference at the state and federal level differ and whether this difference in rationale has an impact on why deference is either embraced or rejected. In this article, I catalog and highlight arguments against deference at both the federal and state level. Because there is a lack of scholarly focus on state deference, I also briefly catalog and highlight some arguments made in favor of deference. Ultimately, there are a few unique arguments that are made at the state level, in particular a focus on the unique separation of powers demands of various state constitutions. But overall, what is most striking is how closely the arguments at the state level parallel and expand on those made on the federal level. The arguments in favor of deference are similar arguments that would not be out of place in federal opinions. There is accordingly still a whole range of arguments both for and against deference at the state level that have not yet been carefully examined by the judiciary.

This chapter, written for the Oxford Handbook on the Israeli Constitution, provides an overview and critique of the protection of free expression in Israel. I argue that protection of speech of in Israel has been almost exclusively reserved to the judiciary, particularly the Supreme Court, in the face of suspicion and sometimes hostility to free expression in the legislature and the executive. This duality can be traced to a security-driven colonialist paradigm dominant during Israel's first years, which still maintains its hold on legal consciousness. According to this paradigm, security considerations are paramount and legitimate speech restrictions. Whereas this is the case in many if not all jurisdictions, in Israel security considerations have been understood in an expansive and expanding way, thus serving to increase speech restrictions. Over the years, the Supreme Court has increasingly resisted the security-based paradigm. Yet even after partly breaking with that paradigm, developments in Israel, underscored by a permanent state of emergency, have all but guaranteed that security-based considerations receive a great deal of deference, even when security is merely a cover for preserving Israel’s constitutional identity and ideological hegemony. Thus the conflicting approaches to free speech generate, on the one hand, a right that commands broad consensus in the abstract, but on the other hand, a right whose standing is still precarious. This chapter thus tells the story both of the protection and the vulnerability of speech protection in Israel, amidst these competing poles. The chapter provides a brief account of the history of speech protection in the years prior to the establishment of Israel and the legal status at independence. It then describes the early protection of speech, centering on the seminal Kol Ha’am case and the paradigm shift it embodied. It explains how the Court relied on the core of Kol Ha’am to upgrade its protection of speech more generally. This upgrade was further elevated after Israel’s constitutional revolution. Finally, I argue that new restrictions on speech paint a more complex picture of protection, noting how by restricting speech Israel is seeking to preserve its constitutional identity as a Jewish state.

This article provides a constitutionally grounded understanding of the vexing principle of ‘national procedural autonomy’ that haunts the vindication of EU law in national court. After identifying tensions and confusion in the debate surrounding this purported principle of ‘autonomy’, the Article turns to the foundational text and structure of Union law to reconstruct the proper constitutional basis for deploying or supplanting national procedures and remedies. It further argues that much of the case law of the Court of Justice of the European Union may be considered through the lens of ‘prudential avoidance’, ie the decision to avoid difficult constitutional questions surrounding the principle of conferral. As the last Part shows, a constitutional understanding of ‘national procedural authority’—not ‘autonomy’—helps clear up some persistent puzzles, and provides critical guidance for when deference to national procedures and remedies is appropriate, and when such deference is misplaced. Comparative references inform the argument along the way.

Chevron skepticism is in vogue in legal academia, as Professors Shoba Wadhia and Christopher Walker’s recent entry in the genre demonstrates. They place their project within the broader academic trend of arguing for limitations on the application of deference to various administrative decisions, but their aim is ultimately narrower—to show that “this case against Chevron has * * * its greatest force when it comes to immigration.” The Professors are incorrect. Immigration adjudication presents one of the strongest cases for deference to administrative adjudication. This case is founded in the text of the statute itself and its myriad general and specific delegations of authority to the Attorney General, the expertise of the agency which has honed its interpretive enterprise through adjudicating tens of thousands of cases annually, and the ultimate political accountability of the agency head in immigration adjudication. For these reasons, the Supreme Court has applied Chevron deference to immigration adjudications since the very foundation of that framework. Although they advance an interesting contrarian thesis, the Professors ultimately provide no sound basis for retreating from four decades of established jurisprudence.

This paper explores the role of the Israeli Supreme Court in exercising judicial review of COVID-19 control measures. It argues that the Court exhibited changes in its review methods and an adaptation of its role (and its demands from the other branches of government) throughout this prolong crisis. At the first stage, the Court focused on protecting institutional democratic safeguards, while exercising judicial restraint and greater deference than usual in its substantive review of the content of COVID-19 measures. The second stage, as time has passed, was characterized by greater judicial intervention, and growing propensity to hold COVID-19 measures unconstitutional, based on a combination of stricter substantive judicial review and an increased demand for an evidentiary and scientific basis to justify infringement of rights. The Israeli case therefore demonstrates the question of the changing role of judicial review in general (and of evidence-based judicial review in particular) during prolonged emergencies.

This chapter comparatively assesses the various standards of review major international courts and tribunals set in science-intensive environmental litigation. The overview of case law suggests that relevant fora have become gradually more inclined to apply more intrusive standards to assess the science-based positions of the parties. The reasonableness assessment of the ICJ, the coherence review of the WTO and the consistency test of the EU judiciary will be evaluated more closely in this contribution. It will be argued that these standards of review are structurally similar and share important epistemic characteristics, the analysis of which will lie at the center of this chapter. This contribution will challenge the view that international judges ought to grant a wide measure of deference to states in making scientific claims by proposing normative justifications for intrusive and science-intensive standards of review from the perspective of epistemic legitimacy.

The growing reliance on guidance — a kind of provisional “rule” that invites its own revision or qualification — marks a break in the development of the administrative state on the order of the transition from regulation by case-by-case adjudication to regulation by notice-and-comment rulemaking in the 1960s and 1970s. Where rulemaking aimed to correct social shortsightedness by the application of science in the service of law, guidance enables lawful action in the public interest when both science and law are recognized as themselves in need of continual correction. Guidance is the kind of law of which uncertainty admits. The centrality of guidance to contemporary administration, in turn, calls into question politically progressive defenses of the administrative state. These defenses ground the legality and legitimacy of administrative decisionmaking in the technical authority of professional administrators and the democratic authority of their political superiors, two forms of authority that are harmonized and largely self-disciplined by internally-generated hierarchical norms, which also serve as a shield against intrusive judicial review. Today, such deference to authority and hierarchy seems incautious, even reckless. Even when understood as a strategic bargain, necessary to protect the autonomy of the administrative state from a judiciary suspected — often rightly — of congenital animosity to administration itself, the progressive defense resembles a pact with the devil. The emerging law of guidance, and the reality of uncertainty to which it responds, points toward a different, and more defensible, conception of the administrative state: one that is aware of its own fallibility; that routinely invites challenges to its technical and political authority; and that continually responds to these challenges with reasons that are legible to the courts and to the public at large.

In 1905, the Supreme Court rendered two landmark decisions on the scope of individual liberty—Jacobson vs. Massachusetts and Lochner v. New York. The first denied a substantive due process claim and has become the go-to citation in COVID-19 cases. The other upheld a substantive due process claim—but was later overruled and thrown in the dustbin of constitutional history. Yet to address the broad restrictions on liberty caused by current and foreseeable pandemic responses, it is worth noting that the Lochner Court is the Jacobson Court and that the cases were decided within months of each other. The latter’s broad deference to public health authority lived side-by-side with a broader conception of individual liberty. At a time when state police power has imposed unprecedented limitations on individuals’ ability to provide for themselves in dignity, Lochner should be brought out of lockdown. This Essay argues that whatever Lochner’s failings, the rationales for its overruling subsequent are largely inapplicable to the current COVID-19 restrictions. Unlike the laws occasionally struck down by the Lochner Court, shut down orders and the like have an economic effect, but are not economic policy. They regulate people's ability to make a living even more than most economic laws. Lockdown measures are accompanied by a governmental power to determine, often on inscrutable grounds, what callings are sufficiently important or "essential" to some undefined notion of social good to be carried on. This may be one of the broadest assertions of sovereign authority in peacetime. Yet in a post-Lochner world, we lack the constitutional language to deal with the potential danger to liberty implicated by such measures. At the same time, the Jacboson/Lochner juxtaposition demonstrates that taking work-related liberties seriously does not mean jettisoning deep deference to public health measures, especially in infectious emergencies. Lochner is often criticized as an attempt by the Court to second-guess legislative judgements about economic policy and redistribution. This Essay shows that a more modest, focused version of the Lochner doctrine is much better suited to traditional police power measures (such as health and safety) that nonetheless have significant effects on people’s ability to pursue their callings and support themselves. (Lochner itself was the opposite—an economic regulation dressed up as public health measure.) This Essay presents a model for a "little Lochner" that would allow for constitutional scrutiny of unprecedented non-economic policies that broadly interfere with people's ability to pursue their callings, while taking seriously courts' limited expertise and society's need to protect itself for virological externalities.

The Supreme Court's casual statement in Baltimore Gas and Electric Co. v. NRDC, 462 U.S. 87 (1983) that reviewing courts should be "most deferential" to agency predictions "on the frontiers of science" has spawned a liner of cases in the lower courts that rubber stamp agency decisions with what amounts to "no look" judicial review. This development is criticized on a number of legal and policy grounds. It is suggested that the increasing reliance on algorithms and other forms artificial intelligence makes it particularly important for the Supreme Court to clarify the proper standard of review in agency cases involving science.

This Article argues that the World Trade Organization’s Appellate Body (AB), or a successor body, must become more transparent in justifying its decision to rely (or not) on prior decisions. The AB’s practice of precedent — which the United States cited as a cause of its decision to paralyze the AB by blocking new appointments — is similar to how it has approached “likeness” in nondiscrimination cases. It placed a lot of weight on whether two cases (or products) are sufficiently similar to be compared, and it spent relatively less time substantively justifying its treatment of prior cases. Because the WTO does not have a system of stare decisis, the AB and WTO panels generally must explain why they find prior decisions persuasive, rather than simply relying on similarity to justify carrying prior interpretations forward. The Article begins by examining and evaluating the results of a new study from Jeffrey Kucik and Sergio Puig, the first study to use a large dataset to study the AB’s use of precedent. The Article then advances a framework for how WTO dispute panels should evaluate the relevance of prior cases in future disputes. The proposed approach would treat the comparison of cases as merely a threshold inquiry. If two cases are sufficiently alike and one party contests the applicability of the prior decision, then a tribunal must substantively justify its treatment of the prior decision in light of a variety of factors. In some instances, the result may be that the AB or a panel acknowledges that a prior interpretation was wrong and should not be followed. Openly analyzing the persuasive value of prior cases, and acknowledging when those cases should not be followed, would better promote the goals of relying on prior decisions — promoting predictability, transparency, and coherence in the law’s application — as compared to deference to prior decisions based only on the similarity of two disputes.

In 2018, ATF promulgated a regulation that banned bump stocks, a mechanical attachment for semiautomatic rifles that simulates the continuous, rapid-repeat firing of a fully automatic firearm or machinegun. Litigation challenging the rule commenced immediately, and two of the cases have reached the federal circuit courts, though the cases have received little academic attention. A striking feature of the bump stock litigation is that it has not centered around Second Amendment rights, though the rule constitutes a significant regulation of firearms, as hundreds of thousands of bump stocks are (or were) in circulation. Instead, the main cases have focused on important but unsettled issues in administrative law. The bump stock cases will create precedent on the applicability of Chevron deference to agency interpretations of statutory terms, especially for the doctrines of Chevron waiver by the government, whether Chevron should apply to regulations that pose potential criminal sanctions for violators, and the murky distinction between “purely” interpretive rules and legislative rules that are both interpretive and have the force of law. Thus, apart from the rule being the first new federal restriction on firearm ownership in many years, the litigation surrounding the rule could change the trajectory of the Chevron doctrine in federal courts. This Article will provide the first in-depth study and academic analysis of these issues through the lens of the D.C. Circuit’s decision in the bump stock litigation, and will argue that this court, along with the Tenth Circuit on a parallel case, have reached the correct conclusions on the proper parameters of Chevron deference.

This study examines what factors explain Americans’ attitudes toward the development of facial recognition technology (FRT) as well as uses of it by law enforcement to identify criminal suspects, identify potential terrorists, and monitor public protests. The theoretical framework posits that members of the public draw on their value predispositions along with media messages to form attitudes toward the technology. The analyses drew on original data from two nationally representative surveys of the U.S. public conducted in 2020, amid a series of controversies about racial equity in policing. The results demonstrate that political ideology, trust in government, trust in scientists, deference to scientific authority, and beliefs about police predicted attitudes toward FRT. In addition, the analyses yielded evidence that overall television viewing and crime television viewing cultivate attitudes toward FRT. The findings carry implications for understanding the future trajectory of public opinion toward the technology.

Amicus submits this brief in support of neither party to provide the Court with background on the origins and evolution of the state-secrets privilege. The English and American cases decided before United States v. Reynolds, 345 U.S. 1 (1953), as well as the decisions before and after the enactment of the Foreign Intelligence Surveillance Act of 1978 (FISA), produce several observations that may help the Court to resolve this case. First, both Reynolds and earlier English and American case law treat state secrets as an evidentiary privilege rather than a substantive rule of decision. As with other privileges, upholding an assertion of state secrets means that the case should continue, if possible, without the privileged information. Totten v. United States, 92 U.S. 105 (1876), in contrast, states a different rule of narrow applicability resting on the secrecy inherent in certain government contracts, as the Court made clear in General Dynamics Corp. v. United States, 563 U.S. 478, 485, 490 (2011), and Tenet v. Doe, 544 U.S. 1, 9-10 (2005). Second, although the judiciary affords the executive branch deference in asserting state secrets, courts consistently acknowledge their own, critical role in ensuring that those invocations of privilege are justified. Third, courts strive to find ways to avoid dismissing cases whenever possible. Often that means using in camera procedures to evaluate a defense, as in then-Judge Scalia’s opinion in Molerio v. FBI, 749 F.2d 815, 822 (D.C. Cir. 1984). Fourth, although dismissal based on the state-secrets evidentiary privilege finds no support in early English or U.S. cases before FISA (outside of the inapposite Totten line), a few post-FISA decisions have dismissed lawsuits regardless of their merits on the grounds that further litigation presents too great a risk of exposing state secrets. Those decisions underscore how rare that severe result should be. And they are confined primarily to circumstances in which state secrets are central, such as extraordinary rendition or defamation, where the truth or falsity of statements

This Article offers a new conceptual framework to understand the connection between law and violence in national emergencies. It is by now well-established that governments often commit state violence in times of national security crisis by implementing excessive emergency measures. The Article calls this type of legal violence “Emergency-Affirming Violence.” But Emergency Violence can also be committed through governmental non-action. This type of violence, which this Article calls, “Emergency-Denying Violence,” has come to stark light in the crisis of the COVID-19 pandemic. The Article offers a new taxonomy to better understand the phenomenon of Emergency Violence. Using 9/11 and COVID-19 as examples, the Article proposes that there are two types of Emergency Violence: Emergency-Affirming Violence and Emergency-Denying Violence. Emergency-Affirming Violence occurs when the government (1) declares and emphasizes the magnitude of an emergency; (2) calls for robust deference to experts; and (3) aggressively pursues emergency measures. Emergency-Denying Violence, by contrast, occurs when the government (1) denies or minimizes the existence of an emergency; (2) ignores or undermines experts; and (3) declines to take significant emergency measures. The Article demonstrates how the three branches of government can engage in both types of Emergency Violence. Analyzing the legal responses to the two national crises of 9/11 and COVID-19 side-by-side, the Article underscores the vulnerable individuals and communities against whom Emergency Violence is unleashed via both Emergency-Affirming and Emergency-Denying Violence. The Article proposes a principle of Emergency Non-Violence to guide public response to the next emergency.

The research paper entitled –“Role of AI in Banking” elucidates how in a promptly digitizing world, Artificial Intelligence has emerged as the future of banking, propagating the power of advanced data analytics in order to withstand fraudulent transactions and improve deference. It incorporates deep learning, predictive analytics, as well as machine learning for enabling an enhanced banking experience. AI assists in fraud detection, credit risk assessment, reduction of costs as well as risk management. Alongside these aspects, the sector is also leveraging for battling with frauds and hacks while simultaneously abiding with KYC and AML compliance regulations.

We examine federal judicial cases involving non-religious civil-liberties challenges to COVID-19-related public health orders from the start of the pandemic to June 29, 2021. Consistent with the tradition of judicial deference toward the state during emergencies, we find a high level of success for governments. However, governments did lose in 13.7% of the cases, and in those losses, there is evidence of partisan or ideological influence. Republican-appointed judges were more likely to rule in favor of challengers when they brought claims based on gun rights and property rights, while Democratic-appointed judges were more likely to rule in favor of challengers when they brought claims based on abortion rights. We conclude by arguing that courts should exercise greater deference to public health orders issued during emergencies.

Like so much else in our politics, the administrative state is fiercely contested. Conservatives decry its legitimacy and seek to limit its power; liberals defend its necessity and legality. Debates have increasingly centered on the doctrine of Chevron deference, under which courts defer to agencies’ reasonable interpretations of ambiguous statutory language. Given both sides’ increasingly entrenched positions, it is easy to think that conservatives have always warned of the dangers of deference, while liberals have always defended its virtues. Not so. This Article tells the political history of deference for the first time, using previously untapped primary sources including presidential and congressional archives, statements by interest groups, and partisan media sources. It recounts how the politics of deference have varied over time, even though the issue is often framed in terms that resist evolutionary analysis. As the administrative state grew in the 1970s, conservatives in Congress sought to rein in deference, while liberals defended it. These positions reversed in the 1980s, as the Reagan Administration relied on flexible readings of statutes in service of its deregulatory efforts, including in the Chevron case itself. After a period of political detente, the 2010s witnessed a resurgence of conservative opposition and liberal support for Chevron, driven largely by the ascendance of libertarian interests in the Republican Party and the increasingly central role of administrative policymaking to the agenda of the Democratic Party. The Article then develops a framework for understanding the shifting politics of deference. It argues that the politics of deference are the politics of regulation: for nearly a half-century, partisans and interest groups have viewed doctrinal debates as inexorably tied to interests in policy outcomes. Positions about Chevron have varied based on which party controls the presidency and the ideological makeup of the federal courts. But the parties are also asymmetrically reliant on the administrative state, and thus on judicial deference. Liberals depend on deference to advance their regulatory goals in the face of an often-gridlocked Congress, while conservatives have many paths to accomplishing their deregulatory ends. The conservative turn against the so-called “deep state” and Chevron’s non-application in areas where conservatives most favor deference (such as national security) further exacerbate the partisan split on the doctrine. And Chevron has become a rhetorical cudgel in broader partisan debates about the legality and legitimacy of the administrative state as a whole. Unless these dynamics change, Chevron deference will continue to have a political valence. And so long as the doctrine is understood to create winners and losers, partisans and interest groups will fight to ensure its survival or hasten its demise.

Can nature or natural objects hold rights or be legal persons? Accounts arguing for the legal personhood of natural objects often rely on what is termed the Anything-Goes Approach: more or less any entity can be a legal person, if the legislator or some other appropriate legal actor declares the entity a legal person. The article scrutinizes two arguments that are used to justify the Anything-Goes Approach. According to the Deference Argument, it is up to the legal authorities to determine which entities can be legal persons. Therefore, more or less anything can be a legal person. According to the Corporate Argument, if the law can treat entities like corporations as legal persons, then surely it can treat virtually any entity as a legal person. The article argues that neither of these arguments work, and that natural objects in fact likely cannot be legal persons. Instead, legal arrangements purporting to extend legal personhood to natural objects should be analyzed, for instance, as foundations with collective beneficiaries.

In the past decade, psychological and behavioral studies have found that individual commitment to contracts persists beyond personal relationships and traditional promises. Even take-it-or-leave it consumer contracts get substantial deference from consumers — even when the terms are unenforceable, even when the assent is procedurally compromised, and even when the drafter is an impersonal commercial actor. Indeed, there is mounting evidence that people import the morality of promise into situations that might otherwise be described as predatory, exploitative, or coercive. The purpose of this Article is to propose a framework for understanding what seems to be widespread acceptance of regulation via unread terms. I refer to this phenomenon as “term deference” — the finding that people defer to the term, even when the assent is perfunctory, and even when the term is unfair. The framework I propose is a motivated reasoning explanation: when it feels better to believe that contracts are fair and that assent is reliable, people are more likely to hold those beliefs. In order to predict when contractual fairness will be especially psychologically urgent, I draw on an extensive body of psychological literature on the preference for believing in a just world, or for being satisfied with the status quo. When a phenomenon or a system appears implacable and unavoidable, it is psychologically less stressful to believe that the system is good. “System justification” is a well-documented psychological phenomenon that predicts when individuals will be motivated to hold beliefs that support the status quo, even when the status quo redounds to their own disadvantage. The two studies reported here manipulate the pressure to support the status quo — to believe that firms are reasonable and contract law is fair — by varying the term’s enforceability, its consequences, and its history. The findings show the predicted patterns, that increased psychological pressure to support the status quo increases beliefs that the status quo is good and fair. These results also align with the prediction that pressure to justify the status quo is not only a psychological state, but also a trait. That trait, highly associated with political conservatism, is reflected in the results suggesting a stronger motivation to justify the status quo among subjects who report that they are more politically conservative. The results here have implications not only for contract law, but also for how we understand self-interest in legal decision-making, and for the legal understandings of consent and compliance.

In federal civil litigation, decisionmaking power is shared by juries, trial courts, and appellate courts. This Article examines an unresolved tension in the different doctrines that allocate authority among these institutions, one that has led to confusion surrounding the relationship between appellate courts and civil juries. At base, the current uncertainty stems from a longstanding lack of clarity regarding the distinction between matters of law and matters of fact. The high-stakes Oracle-Google litigation--which is now before the Supreme Court--exemplifies this. In that case, the Federal Circuit reasoned that an appellate court may assert de novo review over a jury's verdict simply by characterizing a particular issue as legal rather than factual. But this approach misperceives the approach demanded by Rule 50 of the Federal Rules of Civil Procedure, which permits judicial override of a jury's verdict only when "a reasonable jury would not have a legally sufficient evidentiary basis" to reach such a verdict. Rule 50's reasonable-jury standard does not permit de novo review of a jury's verdict on a particular issue. Rather, it requires deference to the jury's conclusion on that issue unless the reviewing court can explain why principles of substantive law or other aspects of the trial record render that verdict unreasonable. This deferential standard of review faithfully implements the text and structure of the Federal Rules and respects the jury's role in our federal system. Yet, it also preserves appellate courts' ability to provide meaningful clarification that will guide future decisionmakers.

By the middle of March, the Democratic primary had effectively ended and the enormity of the Covid-19 pandemic and its human and economic cost began to sink in. The response to the pandemic had already been thoroughly politicized several weeks earlier such that news and information about the pandemic were mediated by political media systems. While the rest of the American media ecosystem focused on describing the pandemic, its economic costs, and criticizing the president for his response, conservative media presented a thoroughly partisan view of events and proactively defended and supported the actions and inactions of the president. For audiences of conservative media, information about the pandemic was communicated not through politically neutral public health authorities but was instead filtered and propagated through media channels shaped by many decades of partisan politics. The mainstream media coverage of the pandemic that got the most attention was highly critical of the president’s response, which may have deepened the politically-rooted differences in perspectives on the pandemic. Compared to conservative media, there was far greater deference among media sources on the center and left to views and perspectives of public health authorities and experts. This report, based on an ecosystem-wide analysis of political media coverage, spans the period of March, April, and May, when the spread and magnitude of the pandemic in the United States became clear, and the response of the government was communicated to the public and debated in the media. In March, coverage of the pandemic dominated political media on both sides of the political spectrum, though significantly less so on the right. The proportion of media attention to the pandemic diminished in April and May on the left. On the right, attention to the pandemic dropped off steeply. In April, conservative media and their audiences devoted substantial attention to coverage of the allegations of sexual harassment by Tara Reade against Joe Biden. In May, there was far more attention in conservative media to relitigating the origins of the Russia investigation under the banner of Obamagate than to the pandemic, which had already exacted a terrible cost and was nowhere near being under control. The collective judgment of the conservative media ecosystem was that this largely unsubstantiated storyline rooted in grievance politics was more deserving of the attention of the American public. For Biden supporters, the drop in attention to Covid-19 was picked up by negative coverage of the Trump administration on other issues. Sanders supporters followed a similar path until the death of George Floyd at the end May took up their attention. This was not replicated in the Biden set. Consistent with our findings in January-February, at the peak of the primaries season, Sanders supporters here too appear more focused on progressive issues, while Biden supporters are largely focused on criticism or rejection of Trump. The basic asymmetric and polarized structure of American political media has changed little over the past several years, and this time period is no exception. The potent role of conservative media in the election victory of Trump in 2016 rested on two distinct factors: first, Trump’s success in securing favorable coverage and strong support in conservative media, and second, the success that conservative media had in influencing media coverage outside of conservative media. The willingness of conservative media and audiences to defend and support Trump is clearly evident during these months. Trump continued to receive strong support in conservative media, which acted to divert, deflect, and reframe negative coverage, despite the rash of negative coverage criticizing the administration’s response to the pandemic. The evidence also points to a further isolation of conservative media in American political discourse and a system less able to shape discourse and coverage outside of its own confines, leaving Americans in more starkly divided epistemic worlds. The administration-friendly narratives about the pandemic and Obamagate got little to no traction outside of conservative media. This finding matches what we found in a prior report in which we describe the inability of conservative media to shape coverage of the Hunter Biden scandal outside of right-wing media during January and February 2020, a pattern that is repeated in October 2020. Neither President Trump nor conservative media have lost their ability to influence the media agenda. For example, in a recent report we describe how Trump was able to create a controversy about mail-in voter fraud that prompted media coverage across the political spectrum. The sexual harassment allegations lodged by Tara Reade against Joe Biden ultimately got a public airing—something conservative media pushed hard on. Despite the fact that the impetus to address this topic came also from the left, the media attention garnered in conservative media was not matched in the center and left. The key difference is that while President Trump and conservative media can still make news, their power to interpret and frame the narrative around key events beyond conservative media is more constrained than in 2016. The asymmetric credibility gap between conservative media and the rest of the media ecosystem appears to have deepened. And professional media seem to succumb less readily to the “bias of balance” problem that had bedeviled much of mainstream coverage of Hillary Clinton’s campaign in 2016. There is plentiful evidence of disinformation in political discourse among partisan media and on social media. The problem is far more acute on the right than the left and considerable attention on the far right is tied to the growing QAnon conspiracy. This development is a troubling symptom of the state of political discourse in the United States and translates into real-world costs. However, the impact of top-down propaganda and disinformation is still a greater problem in the United States, particularly so in relation to Covid-19, as tens of millions of Americans have taken unnecessary risks and helped spread the pandemic because they were misinformed about the dangers of contracting the disease and the value of measures deemed effective by public health authorities in reducing the chance of infection, such as social distancing or mask wearing. Many people, including public health specialists and the general public, have come to the conclusion that compared to the relative successes of other countries in addressing the Covid-19 pandemic, the United States response has been a failure, costing innumerable lives and leaving tens of thousands with long-term health problems, while deepening and extending the economic and social consequences of the pandemic. A large minority of Americans fundamentally disagree with this assessment. These divergent worldviews, the symptom of a larger epistemic crisis in the United States tied to asymmetrically polarized media systems, greatly complicate efforts to effectively meet such collection action challenges, and undermine democratic governance. In this paper, we describe how American media ecosystems are able to sustain such different worldviews and contribute to the mishandling and miscommunication of the pandemic. This report is the second in a series of reports that cover the months running up to the November election.

How should an African American respond to a race-based police stop? What approach, disposition, or tactic will minimize his risk within the context of the police stop of being subject to police violence? This Essay advances a conversation among criminal procedural theorists about citizen agency within the field of police-administered criminal procedure, highlighting “The Talk” that parents have with their African American children regarding how to respond to police seizure. It argues that the most prominent version of The Talk — the one in which parents call for absolute deference to police authority in the event of a police stop — may be as reasonable as it is ineffective. If African Americans, as a matter of course, respond to the race-based stop with unqualified submission to police authority, the race-based stop becomes a tidy and efficient exercise, the ease of which is likely to raise the rate at which African Americans are stopped and battered by police. Blanket conformity would seem to create a deleterious feedback loop for this targeted racial cohort. African Americans could instead opt for a discrete, transactional form of nonconformity in response to the race-based stop — one that accords with the principle of police accountability. Rather than reflexive submission, when subject to such stops African Americans could follow a nonconformist protocol that includes a request for the name and badge number of the seizing officer(s) followed by the filing of a formal complaint. I identify these and similar discretionary maneuvers taken during and after the race-based police stop as “administrative nonconformity.” Such practices require an alternative disposition toward the race-based stop — a reformulation of the African American procedural habitus.

When interpreting punitive regulations that are ambiguous, lower courts face a seemingly stark choice: Either they follow the Supreme Court’s instruction in Kisor v. Wilkie and defer to the enforcing agency’s typically more severe interpretation, or they rely on the venerable rule of lenity—also endorsed by the Supreme Court—and adopt the less severe interpretation. This choice need not be made: Kisor deference and lenity do not clash when properly applied because these two doctrines operate at different ambiguity thresholds. Lenity tips in favor of defendants when a regulation’s meaning is subject to “reasonable doubt,” whereas agency deference only applies when a regulation is “genuinely ambiguous”—a more searching standard. Lenity, therefore, must apply before agency deference. This order of operations makes sense both of the doctrines and their justifications. Lenity’s constitutional underpinnings—in particular, the due process requirements of “fair notice” and conviction “beyond a reasonable doubt”—take precedence over the lower-order policy rationales behind agency deference.

The origin story of environmental law begins with judges working valiantly to protect the environment, but ultimately, out of an apparent necessity, passing responsibility to legislators and regulators. There is truth to the story, but it ignores important aspects of the demonstrated expertise, creativity, and dynamism of common law judges. Given the trajectory of the environmental law narrative, judges today too anxiously defer to legislative and regulatory policy, and we have come to expect, sometimes champion, this shirking of environmental responsibility. But this logic of deference is unpersuasive in an age where legislators and regulators also struggle, and most often fail, to address environmental issues like climate change. This chapter urges that, instead of minimizing the role of judges, there is immense need to rediscover the possibilities of common law environmental protection. There is need to write a new origin story in which courts, legislators, and regulators carry shared responsibility. The threat of climate change demands a turn to courts for a variety of services, not least, adjudication that uncovers individual suffering and declaration of norms of right and responsibility. The judge’s role in candidly attending to these meaningful decisions can be the catalyst for much needed political action.

A year ago, in Canada (Citizenship and Immigration) v Vavilov, the Supreme Court of Canada fundamentally reshaped Canadian administrative law. Drawing on the approximately 1,500 cases in which this landmark decision has already been cited, I analyze how the Vavilov framework has been operationalized. In turn, I assess the implications of Vavilov for the application of the reasonableness standard, the selection of the standard of review and remedial discretion. Vavilov has made significant changes to the Canadian law of judicial review of administrative action. Reasonableness review is now characterized by justification, demonstrated expertise, responsiveness and contemporaneity. Many decision-makers long accustomed to deference are going to have to recalibrate their decision-making practices. Some deference persists on statutory appeals, as appellate courts classify issues within decision-makers' expertise as questions of mixed fact and law subject to the highly deferential standard of palpable and overriding error. Where, however, appeals are brought on questions of law or jurisdiction, there is much less scope for deference. In terms of remedial discretion, judges have largely been restrained in refusing to remit unreasonable decisions, though there are worrying signs of judicial activism in this regard. Overall, the roll-out of the Vavilov framework has been relatively smooth, with judges abiding by the spirit of Vavilov, that is, the simplification and clarification of Canadian administrative law.

In Borrowdale v Director-General, New Zealand's High Court made a declaration that, for its first nine days, New Zealand's COVID lockdown was not lawfully authorised. The High Court dismissed two other, and more widely framed, causes of action. In this brief commentary, we suggest two things. The first is that, despite the finding of illegality, the overall result in Borrowdale was predicated on a high degree of deference to executive power. The second is that this is regrettable. It constitutes a dangerous precedent available to future governments regardless of the merits of the underlying measures.

My novel claim is that there must be an accounting of how the judiciary has employed the theory of the social contract to dehumanize large swaths of poor persons and people of color. I argue that it is the judiciary, even more so than the legislatures, that has enabled and encouraged the police to engage in deep-seated injustices every single day. I will show that social contract talk is deeply embedded in judicial decisionmaking and policy articulation in the criminal justice realm. The judiciary’s social contract talk is the language of inclusion and exclusion; either you are protected under the contract, or you are not. The judiciary’s deference to police discretion and immunization of the police from accountability has allowed the police to decide which persons are compliant or in breach of this metaphor, but with real-world, devastating consequences. On a minute-by-minute basis, instant-by-instant, the police decide who is protected and who is a threat. Luckily, the time for judicial accountability seems right. Several state supreme courts – Alaska, California, Illinois, Maine, Massachusetts, New Jersey, Oregon, Rhode Island, Tennessee, and Washington, as well as several other individual justices of these courts and others – acknowledged their roles in facilitating racial injustice in the summer of 2020. These courts and judges seemingly stand ready to act, but they also need a roadmap for action. The political theories of Indigenous nations could help fill the gap. Consider Anishinaabe political theory. Anishinaabe political theory is inclusive. One is “in” by default. Anishinaabe political theory is over-inclusive as well, in that everything we can perceive in the world is “in.” There is no “contract” talk. Anishinaabe political theory guarantees what social contract talk promises but fails to deliver. Moreover, the American judicial notion of a social contract unhelpfully assumes that chaos is the baseline condition because people are inherently violent and selfish. Anishinaabe political theory assumes that harmony is the baseline condition. Anishinaabe governance divides powers and responsibilities of tribal leaders. There is no winner-take-all, majority rule decisionmaking. Anishinaabe political philosophy rejects the police as mere warriors. Violence and internal security do not mix in Anishinaabe government. Imagine a criminal justice system where a police officer conducting a well visit, who finds a person in need of assistance because of an addiction, and leads the government’s response in assisting that person, rather than criminalizing that person. Imagine a criminal justice system where the police officer who catches a thief in the act is charged with investigating the reasons behind the theft, and leads the government’s response in ensuring that the thief’s poverty is alleviated and the victim’s loss is compensated. Imagine a police department that heals as well as protects and serves.

This article conducts an empirical study of habeas cases involving Certificates of Appealability ("COA") in the Fifth and Eleventh Circuit. Notably, the study provides critical insight into the standard being used to resolve and the reasons for denying these applications. Two trends emerge in the data that are arguably a product of AEDPA deference: the tendency for courts to interpret §§ 2254(d) and (e) as calling for merits analysis at the COA stage and the tendency for courts to issue brief COA orders that rely principally on deference to lower court findings. After identifying AEDPA deference at the COA stage as the main culprit of systematic COA denials, this article proposes a doctrinal shift that may achieve a more limited inquiry that encourages further review of constitutional claims.

Emily Bazelon argues in her excellent book, Charged, that “[t]he movement to elect a new kind of prosecutor is the most promising means of reform . . . on the political landscape.” While I share Bazelon’s enthusiasm for prosecutors committed to using empirical evidence to guide their policymaking, instead of reflexively supporting the most punitive policies because those measures traditionally played well with voters, I am less optimistic this new breed of so-called progressive prosecutors will make a significant dent in mass incarceration. In this review, I explain why. Bazelon is right that prosecutors have enormous discretion to decide how criminal law will be applied, but the deference they have received in the past corresponded to their decisions to use that discretion to seek severe punishments. In this review, I document the resistance to prosecutors seeking to decarcerate. The forces pushing back come from outside and inside the office. We have seen opposition efforts from police departments, judges, other prosecutors, elected officials, the media, and line prosecutors within these offices. For this movement to be truly transformative, these prosecutors will need to do more than seek to exercise the vast discretion of their offices more wisely than their predecessors. They will need spearhead institutional changes, including changes that limit the leverage prosecutors have over defendants. This review provides a summary of what some of those checks should look like. In addition to providing a list of needed reforms, this can serve as a checklist to evaluate prosecutors who claim to be progressive. If they are not putting their full support behind these institutional changes, one should question just how progressive they are. But even if prosecutors pursue all these changes, we should recognize that they cannot dismantle mass incarceration their own. Real change is going to require shifts in police departments, the judiciary, the legislature, and governor’s offices. Most fundamentally, transforming punishment in America will require the public to change its understanding about what policies are most effective for crime control. Prosecutors have long lobbied for the get-tough approach as the way to address crime, so this new breed of prosecutor needs to take the lead in explaining why punishment is not the answer to deeper social problems that lead to crime and violence.

The Supreme Court has recently signaled its interest in developing a new nondelegation test, one that would have courts more aggressively police Congress’s delegations of power to agencies. This could represent a death knell for significant climate action. The technical and scientific complexity of climate change mean that it is a problem uniquely suited to redress by expert agencies. If Congress is not permitted to delegate authority to agencies to address climate change, then it will be difficult for meaningful action against climate change to be taken at the federal level. With this threat in mind, this Article evaluates the emerging basis for the Court’s new nondelegation test: Chevron. The Court has hinted that it will look to two rules developed under Chevron to guide its revived nondelegation doctrine: the major questions doctrine and the jurisdictional exception that Chief Justice Roberts laid out in City of Arlington. By grounding the long-extinct nondelegation doctrine in the robust body of Chevron jurisprudence, the Court could give the nondelegation doctrine a legitimacy and specificity that a freeform version would lack. This Article argues, however, that transplanting the rules of Chevron to the nondelegation context would be doctrinally and logically incoherent. The Article first explains how the Court’s Chevron jurisprudence is based on a particular legal fiction about congressional delegation of authority to agencies. The Court has used this legal fiction to derive limiting principles for the application of Chevron deference, such as the major question doctrine and the City of Arlington jurisdictional exception. Importantly, Chevron’s limiting principles and the legal fiction underlying them are based on a principle of legislative supremacy, i.e., the understanding that Congress is supreme in the realm of policymaking, and thus courts’ role in interpreting statutes is to be agents of Congress. By contrast, the nondelegation doctrine as it is envisioned by the current Court relies on a notion of judicial supremacy: It imagines that courts have the final say as to what is acceptable policymaking, regardless of Congress’s intentions. Transferring Chevron to the nondelegation context would therefore amount to a categorical error. As a result, the Article concludes that, given the incompatible institutional framework underlying Chevron’s rules, the Court must look elsewhere for inspiration and support for its new nondelegation test.

This Essay provides the first comprehensive analysis of the numerous election law cases that the Supreme Court and the federal appellate courts decided in 2020. The picture is bleak. Instead of protecting the constitutional right to vote, the Supreme Court and lower federal appeals courts unduly deferred to state legislatures in how to run the election, with little concern for the difficulties voters faced during a pandemic. In at least twenty-eight cases the Supreme Court and federal appellate courts espoused this undue deference standard. Appellate courts reversed at least 18 cases where the district courts had issued pro-voter decisions. The courts did not explicitly overrule the familiar Anderson-Burdick test for the right to vote, but it applied it unfaithfully and without any rigor, failing to require states to identify the “precise interests” that their laws promote or why it was “necessary” to burden voters’ rights. This mode of analysis devalues the right to vote, the most fundamental right in our democracy. Several justices and one appellate court also reinvigorated the “independent state legislature” doctrine to defer to states’ election rules, without regard for the right to vote. If the courts do not alter their jurisprudence, then the only solution may be robust federal legislation or a constitutional amendment that enshrines the right to vote in the U.S. Constitution and requires states to justify, with specificity, any infringements on that right.

The immigration rule of lenity has haunted immigration jurisprudence since its initial iteration in 1947. But as with any spectral entity, its existence is more ephemeral than real. The rule was meant to be a tie-breaker of sorts, a canon that where a provision of the immigration laws was ambiguous, the courts should impose the more lenient construction. It has never, however, been the dispositive basis for a holding of the Supreme Court. Rather, to the extent it has been referenced, it has been trotted out only as a rhetorical device to sanction a decision reached on other grounds. Even this rhetorical role has been called into question with the advent of Chevron deference. The raison d’etre of the rule was to provide the basis of decision when the court was confronted with two equally plausible interpretations of a statutory provision. Chevron now fills that gap, and there seems no room left for the immigration rule of lenity in modern administrative law. Rather than continue to allow this outmoded rule of decision to stalk argumentation in immigration cases, the Supreme Court should simply euthanize and inter the rule at the earliest opportunity.

The Trump administration’s efforts to weaken regulations are in tension with cost-benefit analysis, which in many cases supports those regulations or otherwise fails to support the administration’s deregulatory objectives. Rather than attempting to justify its actions as a matter of policy preferences, the administration has responded by erecting procedural hurdles to new regulations, concocting flawed cost-benefit analyses, and interpreting statutes so as to evade cost-benefit analysis. We evaluate these efforts, and conclude that the procedural hurdles may well be an effective means for slowing down regulation but not for eliminating existing regulations; that courts are unlikely to approve deregulation based on flawed cost-benefit analyses; and (most importantly) that the statutory interpretation route — which we call “Chevronizing around cost-benefit analysis" — creates novel challenges for courts, as it pits traditional Chevron deference against a trend in favor of pushing agencies to regulate based on cost-benefit analysis.

The appellate stage of the proceedings before the Extraordinary Chambers in the Courts of Cambodia (ECCC) has received more limited attention than its pre-trial and trial process. In order to partially remedy this gap, this article highlights the unique features of the ECCC appellate system and how the Supreme Court Chamber (SCC) has given them effect in practice. Firstly, I consider the SCC’s restricted jurisdiction over immediate appeals and failed attempts by its judges to extend such appeals to jurisdictional questions. Secondly, I discuss the scope and powers of appellate review by the SCC in respect of alleged errors of law and fact, focusing on its innovative formulation of the standard of review of factual errors. This qualified deference standard has proven to be of broader import as it has informed the International Criminal Court Appeals Chamber's majority approach in the Bemba case. Thirdly, I focus on the SCC’s intervention in one area, namely the ECCC’s personal jurisdiction, and its reading of the ‘most responsible’ parameter as a non-jurisdictional and judicially unreviewable criterion. Taking cues from these landmark decisions, I appraise the SCC’s role in delivering fair and expeditious justice and securing the viability of the ECCC’s mission while acknowledging the more contentious aspects of its track record without which no account of its emerging legacy would be complete or balanced.

In 1973, experts Homer Kripke and John Slain published a seminal study titled “The Interface Between Securities Regulation and Bankruptcy.” That lengthy analysis, contributed by, respectively, a former Securities and Exchange Commission official and a professor of law, examined the status quo and concluded that investors were receiving unfair priority vis-a-vis creditors in bankruptcy proceedings administered under the federal Bankruptcy Code. Focusing on the traditional “absolute priority rule,” the study pointed out that the Securities and Exchange Commission (SEC) support for the investor priority was unfounded and urged deference to the notion of general creditors coming first. Since then, a host of developments has complicated both the analysis and the traditional view of Kripke and Slain. First, the pivotal determination of “rescinding shareholder” has been made complex by, inter alia, an expanded notion of “sophisticated investor” occasioned by phenomena such as “crowdfunding.” Second, stock swaps, hedges, repurchase agreements and other hybrid responses to financier discomfort have clouded the definition of “investor.” Finally, the explosive growth of cryptocurrencies (and the ventures that would sell, distribute, trade or package them) has highlighted the need for a new, softer line between creditor and investor. Accordingly, the present authors re-visit the “absolute priority rule” with a view towards historic SEC involvement with Bankruptcy law and contemporary classification of some cryptocurrency-related entities as securities issuers. The article concludes that in light of the existing provisions and interpretations, the “absolute priority rule” examined through the lens of today’s innovative securities should be rethought to give investors in initial coin offerings creditor status. Whether the reader agrees or not is likely subordinated to the need for a conversation on the most egalitarian response – under both the securities laws and the Bankruptcy Code – to the investor’s claim for in pari passu treatment normally reserved for creditors, and likewise the general creditors’ opposition to sharing a legally enforceable priority.

Ireland has been in the grip of a housing crisis for several years. Lately, there have been mounting calls for a referendum to introduce a right to housing in the Constitution. Regardless of the merits of this proposal, it stems, in part, from a perception that the Constitution in its current form inhibits the Oireachtas from taking radical steps to remedy the housing crisis. We argue instead that legal interpretations of constitutional case law have over-estimated the degree to which the courts will protect individual property rights at the expense of the common good. In Part I, we outline the case law relating to the protection of property rights in the Constitution, and identify a number of key principles. We conclude from an examination of Irish case law that the courts have, largely, deferred to the Oireachtas in restricting individual property rights in favor of the common good, provided any measures are designed to achieve a clear social objective, are not based on arbitrary or discriminatory considerations, and respect fair procedures. In addition, we note that the courts have been particularly deferential to Oireachtas in taking steps to secure the common good in times of crisis. In Part II, we examine some of the Bills proposed in the Oireachtas over the last several years to address Ireland’s housing crisis and assess, in light of case law, the likelihood that they might have been found constitutional. Despite the wide deference shown by the courts to the Oireachtas in limiting property rights in favor of the public interest, we note that in response to these Bills, the Government has often declared itself to be acting on the basis of legal advice to the effect that radical housing reform would necessarily prejudice the individual property rights of landlords. This has meant that, in reality, the wide provision for legislating for the pressing needs of the public has been diminished in favor of prioritizing individual property rights. This does not correlate with the attitude espoused by the courts. We argue that there is little to suggest that the courts would view constitutional property rights as posing a barrier to radical housing reform, should appropriate safeguards be included. In Part III, we conclude that successive Governments have continued to rely on a narrow understanding of property rights case law to justify a constrained role for the State in the housing market. While this is a perfectly valid political preference, we suggest that it is not a constitutional principle.

When emergency health measures have impinged on constitutional rights, judges have often turned to a 1905 Supreme Court case decision, Jacobson v. Massachusetts, which upheld a state law requiring smallpox vaccination. Courts are all over the map on how to apply Jacobson.. Some have viewed Jacobson as providing a special constitutional standard during epidemics. As this paper shows, history doesn’t support that view. Other judges have used “business as usual” constitutional analysis that ignore the crisis conditions under which the government must contend with today. During a pandemic, the government confronts a fast-changing situation presenting risks of catastrophic loss of life, under conditions of uncertainty. Similar conditions prevail in national security cases. There, courts apply the normal constitutional tests but give extra deference to the government. Many though not all of the reasons are similar to the coronavirus situation. The lesson would be to utilize the usual tests, but with allowances for the government’s need to take precautionary actions despite high uncertainty.

Justice Thomas has recently argued that the Court's 2005 Brand X decision (that he authored) should be overruled. This short article considers a way that the Brand X doctrine might be limited or cabined if the Court does decide to revisit the precedent. The doctrine provides that a prior judicial precedent interpreting a statute will not prevent a subsequent agency interpretation from receiving Chevron deference unless the precedent finds the statute to be unambiguously contrary to the agency interpretation. This article analyzes a potential limitation briefly suggested by Justice Stevens in his Brand X concurrence: that the doctrine might have limited application when the relevant prior precedent emanates from the Supreme Court rather than a circuit court.

The number of administrative law texts is vast. The approach of this one, now in its second edition, is simple. It is: (1) to focus on the richest and most canonical cases; (2) to provide more extensive extracts of them than most casebooks; and (3) to keep the notes to a bare minimum. This manuscript reflects the current state of the law as of February 2021, but also includes some older classics that many contemporary casebooks cut. The text includes older cases because they are foundational; because they frequently lay out core concepts clearly; and because arguments about historical practices and precedents currently enjoy substantial weight in administrative law discourse. Students whose knowledge of caselaw only goes back a couple of decades will be ill-equipped to make or parry arguments rooted in older legal developments.

This chapter is concerned with deference as a concept in EU law, and the way in which it informs judicial review. The analysis is divided into four parts. The second part is concerned with the meaning of deference. There is discussion as to why it is important to disaggregate the meaning of the concept from the word itself, which is followed by explication of the relationship between the concept and the standard of judicial review employed by the courts. The third part addresses the relationship between the concept of deference, and the rule of law. The basic normative connection is that it operates as a control device to help determine the intensity of judicial review, and hence the degree of judicial control over public power that is warranted. There is further refinement of the factors that should be taken into account when determining this issue. The fourth part considers the concept of deference in EU law, which is evident in three doctrinal contexts: review for proportionality, review for manifest error, and review for human rights. The role played by deference is then examined in greater detail in relation to proportionality and manifest error review. The final substantive part of the chapter contains reflections on the intensity of review in EU law, and the degree of deference that the EU courts are willing to accord to the administration. The chapter concludes with points relating directly to the application of these precepts to agencies.

Chevron v. NRDC has stood for more than 35 years as the central case on judicial review of administrative agencies’ interpretations of statutes. Its contours have long been debated, but more recently it has come under increasing scrutiny, with some—including two sitting Supreme Court justices—calling for the case to be overturned. Others praise Chevron, calling deference necessary or even inevitable. All seem to agree the doctrine is powerful and important. This standard account is wrong, however. Chevron is not the influential doctrine it once was and has not been for a long time. It has been eroded from the outside as a series of exclusions have narrowed its scope, and has been hollowed out from the inside as Justices have become ever more willing to find clear meaning in statutes, thereby denying deference to agencies. In recent years, agencies have won only a handful of statutory interpretation cases, and none in more than four years. Only once since 2015 has deference been outcome-determinative. At the Supreme Court level (though not, for now, in the circuit courts), deference is dead. The once-crystal Chevron has turned to mud. As a result, however, it is less likely to be formally overturned than widely believed—critics of deference and of administrative power on the Court would gain little. Instead, Chevron’s future is likely to be one of further decline, at least in the short term. This has implications for major policy areas like climate change, health care, and immigration where regulatory policy is necessary and challenges are likely to reach the Court.