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For decades, American courts have taken for granted that the separation of powers severs the judiciary from prison administration. In its more stringent forms, this idea characterized the so-called "hands-off doctrine." Under the hands-off doctrine, courts would decline to intervene in prison government, even when presented with claims that conditions of life inside prisons were so bad that they violated inmates' constitutional rights. This stringent view fell away over the course of the 1960s and 1970s. But the gist of it survives. The separation-of-powers principle is a pillar of contemporary prison law. It supports vast judicial deference to prison administrators. It tends to rule out injunctive orders that might aim to regulate or remedy conditions of confinement. Courts find prison management to be all but exclusively the political branches' business. This Note discovers an earlier, more reasoned regime. In the thirty-odd years following American independence, the judicial power uniformly came to encompass supervisory authority over prisons. Judges could second-guess the warden. Sometimes they had to. Judges were called upon to appoint prison inspectors, to act on those inspectors' presentments, to frame rules of internal prison government, and to review a sheriff's selection of jailers. In some jurisdictions, on their own motion, they could remove a prison keeper for misbehavior. Nor is that all. The statutes vesting these powers in judges went on the books amid sustained debates over the meaning of the separation of powers, as Founding Era constitutions enshrined that principle. Its major exponents, Thomas Jefferson among them, were sometimes responsible for drafting these statutes and then lobbying for their passage. Across the germinal period of our constitutional and penological history, a ubiquitous, cohesive body of law gave force to the following view: supervision of prison government is consistent with, if not an incident of, a separated judicial power and its exercise. I call it the eyes-on doctrine. This Note argues for its studious revival., NOTE CONTENTS INTRODUCTION 202 I. BENJAMIN RUSH'S ENQUIRY 213 II. THE EYES-ON DOCTRINE IN THE FOUNDING ERA 222 A. Supervisory Authority Vested in Superior Courts 222 1. Virginia 222 2. [...]

I. INTRODUCTION In the Book of Daniel, there is a curious story. (1) Belshaz'zar, king of Babylon in 539 BC, held a great feast to celebrate with his family and [...], The movie, 12 Angry Men, is a fictionalized portrayal of a deliberation in a murder case from inside the jury room. It provides a memorable treatment of the difficulty of deciding a case solely on the evidence admitted, as well as illuminating the dynamics of argument, emotion, and persuasion, particularly where deep-seated passions preclude honest evaluation of the evidence.

INTRODUCTION 2054 I. SCOPING THE PRESIDENT'S CONSTITUTIONAL DELEGATIONS AND 2058 STATUTORY SUBDELEGATIONS A. Delegating Constitutional Powers 2059 B. Subdelegating Statutory Powers 2061 II. THE COSTS OF NATIONAL SECURITY DELEGATIONS AND [...], The President sometimes delegates important constitutional and statutory powers to use force or conduct other national security operations. Although these delegations are understudied, there may be reason for concern. Sometimes the President's national security subdelegations have been unfaithful to Congress's strictures. Sometimes the delegations are high stakes, as where President Eisenhower delegated to seven military officials the authority to launch nuclear weapons. Presidents sometimes even resist seemingly reasonable statutory limits on the power to delegate decisions that could lead the United States into armed conflict. National security delegations can be costly. They may diffuse political accountability for high-stakes decisions. The agent may fail to act in a way that reflects the principal's intent. Inferior officials are generally less sensitive to the full scope of foreign policy concerns that may operate at a given moment. And delegations of war-related decisions to actors below the Secretary of Defense shift control of war from civilian officials to military ones. Classified national security delegations-and congressional efforts to regulate those delegations-raise difficult legal questions, including the extent to which Congress may restrict or require reporting about them. Yet the pressure on the President to delegate authorities to respond to "hyperwar," and the coming autonomy revolution in which the President may delegate decisionmaking to artificial intelligence systems, will keep delegation questions at the fore. This Article analyzes the legal doctrine and historical practice surrounding presidential national security delegations, the costs and benefits of such delegations, and Congress's powers to constrain delegations and subdelegations. After identifying gaps in congressional and even presidential awareness of the full range of existing delegations, it proposes ways in which Congress and the President herself can more consistently surface and structure those delegations.

INTRODUCTION 1956 I. THE DELEGATIONS AND THEIR ELABORATIONS 1959 A. Early Statutes and Institutional Foundations 1960 B. The Statutory Free-Trade and Security Dichotomy 1964 II. CONSTITUTIONALIZING PRESIDENTIAL CONTROL OF 1968 [...], The U.S. Constitution grants Congress the power "[t]o regulate Commerce with foreign Nations," but today the exercise of the foreign commerce power resides primarily with the executive branch. That transfer of control is partly the result of significant delegations of responsibility for managingforeign commerce from Congress to the executive. It is also, however, the result of the securitization of foreign commerce. The executive branch asserts that foreign commerce issues fall under its constitutional powers over foreign affairs, and, thus, that it enjoys authority over foreign commerce that exceeds the scope of congressional delegations. This Article makes three contributions. First, we analyze the development of a trade administrative state charged with managing two sets of broad delegations: to liberalize trade, on the one hand, and to restrict it in the name of "economic security" when the executive deems necessary. Second, we document the way in which the executive branch in recent presidential administrations of both parties has defended those administrations' trade policies in court by arguing that the president's independent constitutional powers over (noncommercial) foreign affairs give him license to exercise power over commerce beyond that delegated by Congress, or that congressional delegations should be construed in his favor. The courts, for their part, have often accepted these claims either directly or indirectly. Third, we propose three statutory reforms that Congress could pass to restore balance to the branches' regulation of foreign commerce: (1) Congress should sunset the president's imposition of tariffs or other trade restrictions pursuant to economic security statutes after 90 or 180 days without the possibility of renewal unless Congress acts; (2) Congress should prohibit the executive branch from relying on any international agreement as the legal basis under which any good or service is imported into the United States, exported from the United States, or regulated while in the United States, unless Congress has either explicitly authorized the agreement in advance or approved it after its conclusion; and (3) Congress should eliminate the Federal Circuit's exclusive jurisdiction over appeals in most trade cases.

INTRODUCTION 1745 I. THE NONDELEGATION DOCTRINE AND FOREIGN AFFAIRS 1749 A. The Nondelegation Doctrine 1749 B. The Purported Foreign Affairs Exception 1753 II. THE INDEPENDENT POWERS QUALIFICATION 1758 A. The [...], Some of the Supreme Court Justices and scholars who support a reinvigoration of the nondelegation doctrine would allow for an exception for grants of authority relating to foreign affairs. Others have criticized such an exception as unprincipled or as reflecting improper "foreign affairs exceptionalism." This Article argues against a foreign affairs exception to the nondelegation doctrine but contends that the doctrine should be applied less strictly when a statutory authorization relates to an area of independent presidential power. The President has more independent power relating to foreign affairs than domestic affairs, so this limitation on the nondelegation doctrine will do more work in the foreign affairs area. But the President does not have unlimited power over foreign affairs and has some independent constitutional power relating to domestic affairs, so it is inaccurate and potentially misleading to refer to a "foreign affairs" exception. After establishing this point, the Article identifies three circumstances in which independent presidential power reduces nondelegation concerns, which we call "redundant authorizations," "unlocking authorizations," and "independent discretion authorizations." The Article then analyzes a number of broad statutory authorizations relating to foreign affairs and domestic security and finds that some but not all of them can be justified by reference to the President's independent powers. The Article concludes by considering the relevance of this analysis to the application of the major questions doctrine, and it explains why that doctrine likely poses less of a threat to authorizations related to foreign affairs than scholars have maintained.

INTRODUCTION 1847 I. THE RISE OF THE MAJOR QUESTIONS DOCTRINE AND 1849 NONDELEGATION CONCERNS A. The Evolution of the Major Questions Doctrine 1849 B. The Push to Reinvigorate the Nondelegation [...], The Supreme Court's recent expansion of the major questions doctrine has rocked administrative law, throwing into doubt executive agencies' statutory authority for numerous regulations. Some Justices have suggested that they want to go further and reinvigorate the nondelegation doctrine as a constitutional limit on Congress's authority to delegate power to the executive branch. This Article is the first to consider how these developments might put at risk the United States' international commitments. The Article first identifies the role of congressional delegations to the executive branch with respect to the formation and implementation of ex ante congressional-executive agreements, executive agreements pursuant to treaties, sole executive agreements, and nonbinding agreements. It then explains how the Supreme Court's recent decisions might spark challenges to the agreements themselves or to the executive's authority to implement them. Turning from the diagnostic to the prescriptive, the Article takes the Supreme Court's recent cases as a given (problematic though they are) and argues that delegations involving international agreements differ from purely domestically focused delegations in material ways that counsel against applyingthe major questions doctrine or nondelegation doctrines to them. In particular, the existence offoreign state counterparties with whom the executive must negotiate means that Congress cannot simply direct the executive branch on international agreements with the same specificity that it can in domestically focused legislation. Moreover, declaring an existing international agreement or its implementing legislation invalid based on a domestic statutory interpretation doctrine risks causing the United States to violate international law, as well as harmingits reputation as a reliable agreement partner. Treating international agreement-related delegations identically to domestically focused ones would also run counter to long-standing historical gloss from the Supreme Court itself that treats foreign-relations-related issues in exceptional ways. After arguing against using the major questions and nondelegation doctrines to police delegations related to international agreements, the Article proposes steps that the courts, Congress, and the executive branch can each take to ensure that existing and future international agreements are well-grounded in constitutional and statutory law.

INTRODUCTION 1894 I. EXPANSIONIST THEORIES OF THE PRESIDENT AS THE "SOLE ORGAN" OF FOREIGN AFFAIRS 1898 A. The Sole Organ 1898 B. Implications 1902 II. THE STATE DEPARTMENT AND OTHER [...], In United States v. Curtiss-Wright Export Corporation, the Supreme Court famously described the President as having "very delicate, plenary and exclusive power... as the sole organ of the federal government in the field of international relations...." Its description of the President as the "sole organ" of foreign affairs does not come from the text ofthe Constitution, but rather from a speech given by John Marshall in 1800. Yet somehow, and despite much debunking, this notion of the President as the "sole organ" of foreign affairs has become a firm fixture of our constitutional jurisprudence and is frequently invoked by courts and executive branch lawyers. This symposium contribution looks back at nineteenth-century practice to see how heavily it embraced the account of the President as the "sole organ" of foreign affairs. Surprisingly, it shows that many actors in U.S. governmental practice were described as "organs" in relation to foreign affairs--not just the President, but also Cabinet Secretaries, Congress, and courts. These findings indicate constraints on exclusive presidential power and offer a cautionary tale in how constitutional complexity can be lost over time.

I INTRODUCTION This article addresses whether, as a matter of constitutional doctrine, it is permissible for an Australian court to administer measures that are 'punishments' by the accepted legal definition, [...], Garlett v Western Australia [2022] 96 ALJR 888 ('Garlett') was a missed opportunity for the High Court of Australia to confirm a simple proposition: the scheme for the exercise of separated judicial power laid down in Ch III of the Constitution precludes any non-criminal punishment by courts. In Garlett, all but one Justice rejected or doubted that Ch III has this effect. This article identifies and resolves two points of contention that have impeded recognition that Ch III categorically precludes non-criminal punishment by courts. In doing so, it demonstrates that Ch III's exclusive vesting of separated judicial power in courts supports a more 'joined up' way of thinking about permissible court functions across the Australian federation than was seen in Garlett.

Part 1 of 2 TABLE OF CONTENTS INTRODUCTION 1268 I. INNOVATION IN ADMINISTRATIVE LAW: CHEVRON AND SKIDMORE 1276 A. Agency Innovation Under Chevron 1276 B. The Demise of Chevron in [...], The Supreme Court of the United States has generally been a very aggressive enforcer of legal limitations on governmental power. In various periods in its history, the Court has gone far beyond enforcing clearly expressed and easily ascertainable constitutional and statutory provisions and has suppressed innovation by the other branches that do not necessarily transgress widely held social norms. Novel assertions of legislative power, novel interpretations of federal statutes, statutes that are in tension with well-established common law rules, and state laws adopted by only a few states are suspect simply because they are novel or rub up against tradition. In periods of governmental innovation and assertions of expanded authority, this aggression becomes evident and perhaps more robust. In recent years, the Court has created new barriers to government innovation even as government is confronted with serious threats to the health and welfare of mankind. Chief among this new set of limitations on the power of federal administrative agencies is an interpretive device that has become known as the Major Questions Doctrine (MQD). This doctrine purports to be based on a traditional view of legislative intent and judicial role, but in reality it resonates more with conservative anti-regulatory political views. Under this new doctrine, the Court rejects agency assertions of regulatory authority when it finds that the agency's action would have major social and economic effects and lacks crystal clear congressional authorization. Ironically, because the MQD has no basis in the Administrative Procedure Act or prior law, the Court has in effect created a major new doctrine of administrative law severely limiting agency authority without clear authorization from Congress. The Court has also suppressed agency innovation by confining Chevron deference to unimportant issues of statutory construction. Chevron, for all of its faults, has the virtue of validating agency policy innovation so long as Congress had not clearly denied agency authority. This reform to Chevron, together with the creation and application of the Major Questions Doctrine, in effect accomplishes the aim of some Justices to impose a more robust nondelegation doctrine, making agency innovation even more difficult. In addition, the Court has worked to prevent innovation in other areas of law, such as agency structure, gun control, and the spending power, preventing the state and federal governments from taking action to deal with pressing social problems. The current Court has truly become an anti-innovation Court.

Part 2 of 2 B. The Spending Power and Coercion Perhaps the most striking recent example of the Court imposing its will over that of Congress is its rejection of [...]

FEATURE CONTENTS INTRODUCTION 2308 I. TAKING STOCK OF THE DEBATE 2316 II. UNIVERSAL VACATUR, BEFORE AND AFTER THE APA 2322 A. Pre-APA Cases and the Meaning of Set Aside 2327 [...], Universal vacatur, the judicial power to void a regulation, is a remedy rooted in the foundations of modern administrative law, not an artifact of judicial overreach or creative re-interpretation of the Administrative Procedure Act (APA). This Feature adds to the literature on the historical underpinnings and legal propriety of universal vacatur by mapping the development of universal vacatur from the pre-APA period through the Abbott Labs trilogy. Canvassing the work of courts, Congress, and scholars, this account underscores that universal vacatur is a legitimate part of the remedial scheme of administrative law, grounded in history and sustained by subsequent recognition. After establishing these points, the Feature connects the debate over universal vacatur to another topic of vigorous discussion in contemporary administrative law: the Roberts Court's recent fortification of the major questions doctrine. The case against universal vacatur leverages the intuition that an individual district court judge should not be able to decide issues of vast economic and political significance by vacating a rule universally absent a clear statement in the APA that the judge possesses that authority. That form of argument resembles the mechanics of the new major questions doctrine. As to their consequences, the two also align: both serve to centralize power in the Supreme Court by weakening actors of our government other than the Supreme Court. Though accepting the case against universal vacatur will certainly place curbs on lower court judges, it would also indulge, and thereby strengthen, the perilous proposition that the Supreme Court should intervene to redistribute congressional allocations of power in ways that centralize its own importance and preferences.

INTRODUCTION 649 I. CONTEMPORARY CRITICISM OF AGENCIES 655 A. The Fixation of Critics on Agency Powers to Coerce the Citizenry 656 B. The Welcome Return to Analyzing Agency-Citizen Relationships 659 [...], The administrative state is under attack. Judges and scholars increasingly question why agencies should have such large powers to coerce citizens without adequate democratic accountability. Rather than refuting these critics, this Article accepts that in scrutinizing the massive powers that agencies hold over citizens, these critics have a point. However, their solution--to augment the powers of Congress or the President over agencies to instill indirect democratic accountability--is one step too quick. We should first examine whether direct democratic accountability of agencies by the citizenry is possible. This Article excavates the nineteenth-century European intellectual history following the rise of the modern administrative state as inspiration to illuminate how agencies can improve their democratic credentials to justify their powers over the citizenry. While such thinkers might seem far afield of current public law discussions, this unlikely group of nineteenth-century legal and political theorists has already extensively theorized contemporary concerns about agencies coercing citizens without proper democratic accountability. These theorists, whom I call administrative "radicals," presented a much bolder conception of the role of agencies in governance than contemporary critics. Instead of stripping agencies of their powers, the radicals proposed democratizing the administrative state so the citizens could instill direct democratic accountability over the agencies that coerced them. Importantly, the radicals influenced the first generation of American administrative law scholars, who looked to these radicals to figure out how to democratize the nascent American administrative state. The radical tradition inspires us to transform the relationship between agencies and the citizenry and rethink how agencies fit within the separation of powers and administrative law. Instead of viewing agencies as stuck in the middle of a perpetual tug-of-war between Congress and the President, the radical tradition encourages us to focus on agencies themselves by shaping the relationships between agencies and the citizenry to instill direct democratic accountability. Under this radical separation of powers framework, the people serve as the common source of accountability for Congress, the President, and the administrative state. In doing so, embracing radical administrative law mitigates scholarly and judicial concerns that have inspired the revival of the nondelegation doctrine, elimination of removal protections, and the expansion of the major questions doctrine. The radical tradition also reinvigorates discussions of political equality in administrative law and suggests a reduced judicial role in policing the substance of agency decisions.

I. INTRODUCTION In its recent decision in West Virginia v. EPA, (1) the U.S. Supreme Court struck down the Environmental Protection Agency's ("EPA") expansive interpretation of a provision in the [...], In its recent decision in West Virginia v. EPA, the U.S. Supreme Court struck down administrative rules attempting to dramatically transform the electrical power generating industry. The Court's decision rested on its major questions doctrine, which states that on important enough matters the intent of Congress must be clearly expressed. This doctrine goes against the prevailing trend of deference toward the administrative state, as expressed through the permissive nondelegation and Chevron doctrines. While the major questions doctrine seeks to retain some congressional control over important issues, it nonetheless attracts much criticism on an array of grounds. This article proposes an alternative that both addresses the criticism levied against the major questions doctrine and seeks to achieve greater congressional control over agency action. That alternative involves a reinvigoration of the nondelegation doctrine.

I. INTRODUCTION At the federal level, the nondelegation doctrine--prohibiting the delegation of legislative power from Congress to the executive branch--is one of the most debated yet least enforced of constitutional [...], The United States Constitution's separation of powers doctrine is foundational to the operation of the United States government. In theory, the nondelegation doctrine exists to preserve the separation of powers amongst the three branches of government. The doctrine's purpose is to give sole lawmaking authority to Congress, while yet allowing it to delegate rulemaking authority to an administrative agency, but only if it provides an "intelligible principle" to guide and constrain the agency's rulemaking. While on the surface this appears to be a high standard, the United States Supreme Court has not struck down a law promulgated by an administrative agency for violating the nondelegation doctrine since 1935. Therefore, at the federal level, the nondelegation doctrine is rather dead. Nevertheless, a recent study has suggested that at the state level the nondelegation doctrine is very much alive. This paper analyzes South Dakota caselaw and finds that, since 1935, the South Dakota Supreme Court has struck down numerous administrative rules for violating the nondelegation doctrine. This paper suggests that, if South Dakota is any indication of the viability of the nondelegation doctrine in the other forty-nine states, the nondelegation doctrine is in fact alive and well in the states.

I. INTRODUCTION 420 II. WAGE THEFT AND ITS EFFECTS 421 A. What is Wage Theft? 421 B. The History of Wage Theft 422 C. The Effect of Wage Theft on [...], Wage theft is a problem affecting workers around the world, including the United States. Wage theft not only affects workers generally; it disproportionately affects low-wage workers. While there has been a lack of criminal prosecution historically, some jurisdictions changed direction in recent years by enacting stricter wage theft laws and prosecuting wage theft as a criminal offense. However, the change in direction comes with challenges for both workers and prosecutors and criticisms that the criminal justice system is not the appropriate vehicle through which to seek redress. In order to address the challenges and criticisms associated with wage theft prosecution, help workers, and create more widespread adoption, this Note will conclude by proposing that prosecutors enact four directives: (1) implementing an office-wide policy, (2) creating dedicated units, (3) collaborating with other institutions, and (4) targeting specific industries.

Introduction I. A Spectrum of Public Trust Interpretations A. American Courts B. Other Jurisdictions C The Canadian Public Trust Pre-Climate Litigation D. The La Rose Rejection II. Boom: Public Trust [...], Over the past few years, Canadian courts have heard the first climate change cases. These claims have been commenced on behalf of youth and future generations who allege that governments have failed to meet or, otherwise, uphold greenhouse gas reduction targets under the Paris Agreement. This novel area of litigation has brought forth creative legal arguments to expand or re-envision existing doctrines in order to place blame for what continues to be a warming planet and increasingly unstable ecosystems. This article investigates the public trust doctrine. In Canadian courts, the doctrine's limited and arguably parochial interpretation has diverged from its understanding in other jurisdictions. Now, it appears to be at a crossroads. On the one hand, it can lay the foundation for robust climate litigation for years to come via common law, constitutional law, or even natural law interpretations. On the other hand, it could wither away into irrelevance as, even if it is recognized as part of Canadian law, it would be relegated to its historical origins as a property law doctrine that guarantees that natural resources can be accessed by the public--not a doctrine that obligates governments to protect natural resources for current and future generations. Arguably the public trust doctrine sits alone as a potential tool to hold government and even corporate actors to account for their exceptional contributions to a warming planet. Currently, the tension in Canadian courts lies with how broadly to interpret the doctrine, particularly in light of past opinions that span from obiter comments in Canfor to the doctrines recent rejection in La Rose. For an expansive public trust doctrine that could be applied in climate litigation, Canadian courts would construe governments as being responsible for the continued enjoyment of inherently public resources, including the air, atmosphere, forests, and all navigable waters. Pursuant to that understanding the doctrine would serve as a cause of action for claims brought by individuals against governments as well as for claims brought by governments against arms-length corporations.

For many penal abolitionists, criminal courts have been complicit in mass incarceration. This Article argues that, unlike abolitionists, criminal justice minimalists should consider criminal courts part of the solution rather than the problem. Minimalist scholars have focused on advancing wide-scale public policy proposals, such as extensive decriminalization, through the work of legislatures. While such proposals are generally desirable, their sweeping nature may sometimes raise concerns over excessive risks to public safety and political feasibility. The shortcomings of promoting minimalism through legislatures highlight the advantages of criminal courts. By virtue of their case-by- case adjudication, criminal courts can play a key role in ensuring that governments exercise their penal powers only as a last resort, while remaining sensitive to the unique circumstances of each individual case. Their ability to exercise discretion and consider specific contexts and situations allows them to apply minimalist principles more fairly and in less objectionable ways politically. The Article points to three complementary potential principles that minimalism-oriented courts can and should adhere to: de minimis, ultima ratio (last resort), and penal restraint. It also proposes how the values and goals of criminal justice minimalism can inform the design of each principle. Together and apart, these principles empower courts to play a major role in reducing the overreach of criminal law., TABLE OF CONTENTS INTRODUCTION I. WHY SHOULD CRIMINAL COURTS BE CENTRAL TO MINIMALIST EFFORTS? A. The Shortcomings of Focusing Solely on the Minimalist Legislature B. The Promise of Minimalist Criminal [...]

INTRODUCTION 3 I. HEIEN V. NORTH CAROLINA 5 II. STUDY RESULTS 8 A. General Findings 8 B. Particular Findings 12 1. Requiring and Determining Legal Ambiguity 12 2. Determining Objective [...], In Heien v. North Carolina, the Supreme Court held that individuals can be seized on the basis of reasonable police mistakes of law. In an opinion authored by Chief Justice Roberts, the eight-Justice majority held that the Fourth Amendment's prohibition of "unreasonable" seizures does not bar legally mistaken seizures because "[t]o be reasonable is not to be perfect." Concurring, Justice Kagan, joined by Justice Ginsburg, emphasized that judicial condonation of police mistakes of law should be "exceedingly rare." In a solo dissent, Justice Sotomayor fairly "wonder[ed] why an innocent citizen should be made to shoulder the burden of being seized whenever the law may be susceptible to an interpretive question." This Article provides the first empirical study of state and lower federal court cases applying Heien (from the day it was decided in mid-December 2014 through mid-June 2023). Of the over 270 cases examined, a large majority (over two-thirds) deemed unlawful police seizures reasonable, belying Justice Kagan's expectation that such cases would be "exceedingly rare." Moreover, the study makes clear that Heien is being applied well beyond the context in which it arose--an auto stop for a suspected equipment violation. Courts regularly rely on Heien to justify unlawful stops for a broad array of other, often more serious offenses and to justify unlawful arrests of individuals, far more significant intrusions on physical liberty that allow officers to conduct searches. Courts also forgive police mistakes of law regarding Fourth Amendment doctrine, such as the contours of consent and the permissibility of warrantless blood draws. Finally, the study demonstrates that courts lack any consistent analytic rubric for assessing whether a police mistake of law is reasonable, including the critically important foundational question of who (judges, laypersons, or police) should serve as the benchmark "audience" when assessing whether a mistake of law is reasonable. In addition to exploring the study's results, the Article uses Heien to assess the adverse real-world consequences of what would appear an uncontroversial decision by a near-unanimous Court. Heien not only augmented the already troublingly expansive police discretionary authority to seize individuals without warrants; it also significantly undermined the rule of law and undercut separation of powers. By condoning police mistakes of law, the Court at once weaponized statutory ambiguity for use against citizens and encouraged rational ignorance among police, lessening their incentive to learn the scope of the laws they enforce.

INTRODUCTION 574 I. THE CATEGORIES OF LOCAL PROSECUTOR REMOVAL MECHANISMS 577 A. Recall Elections 579 B. Impeachment 581 C. Judicial Proceedings 584 D. Oversight Commission and Pending Legislation 586 II. [...], As demonstrated by the threatened, attempted, and successful removal of elected prosecutors nationwide, the balance that has traditionally existed between local prosecutors and state officials has turned into a power struggle over where to draw the line between prosecutorial discretion and prosecutorial misconduct. Because of this changing dynamic, the mechanisms for removing local prosecutors have entered the national spotlight and have set up a conflict between the discretion of prosecutors and of those who seek to remove them. This conflict has resulted in removal decisions that are used to target political adversaries rather than as a legitimate check on abuses of prosecutorial power. This Comment argues that the current mechanisms for removing elected prosecutors allow officials and voters to substitute their discretion for that of the prosecutor. This dueling exercise of discretion disrupts the necessary exercise of prosecutorial discretion and makes the removal procedure liable to abuse rather than an effective tool for addressing misconduct. In response, it suggests a model framework for prosecutorial removal that reduces the likelihood that the process will be used arbitrarily but is still effective for voters seeking to hold prosecutors responsible for misconduct. This Comment also provides a new resource for prosecutors, researchers, voters, and other stakeholders who seek to understand the process for removing local prosecutors and the implications of doing so.

Every couple of years, it seems, the debt limit shows up to wreak havoc in American law and public finance. By capping the face value of government securities that can be "outstanding at one time," the statutory limit regularly threatens the Treasury's ability to raise the revenue needed to fund required government spending. Brinksmanship over the limit has shut down the government, cost the country billions of dollars, and mired financial markets in uncertainty. And yet, despite its obvious and longstanding importance, the limit remains poorly understood. Commentators attribute its beginnings to 1917 and 1941, before which it is assumed that Congress itself designed each debt instrument and did so only during rare emergencies. For some, the presumed recency of the limit makes it easy to dismiss. It is regarded as a quixotic provision that can and should yield to more significant spending mandates, or a provision that is itself unlawful--at odds with the Fourteenth Amendment's cryptic command that public debts "shall not be questioned." For others, the limit is regarded as either a cataclysmic threat to the financial system, or a necessary hindrance to runaway government spending, or both. We are warned, by politicians and commentators alike, that a binding debt limit will lead to default, and the cratering of the American economy--and also that having no limit would be an "irresponsible" concession to our profligate spending instincts. But each piece of this conventional wisdom is wrong. Debt limits--authorities for the Executive Branch to borrow that come with limits attached--have existed since 1790, and flow naturally from the Constitution's reservation of the borrowing power to Congress. I provide a corrective account of those early limits and draw on public laws and Treasury borrowing records to provide an overview of the Executive Branch's borrowing authority between 1790 and 1910. That historical excavation has important doctrinal and policy implications for how we think about public finance today and helps clear the myth and confusion surrounding the debt limit. Under current doctrine, the limit is lawful. It is a form of statutory direction and commitment that was common at the ratification of both the Constitution and the Fourteenth Amendment. The limit is binding. When the limit conflicts with spending provisions, longstanding practice suggests that it is spending--and not the limit--that must yield. And, finally, the implications of the modern limit remain woefully misunderstood. There is no good reason to think that default follows from a binding limit: tax revenue is more than sufficient to cover debt service. But there is excellent reason to think that the modern limit has become so divorced from its original appropriations purpose--which was to make spending cheaper, not harder--that the case for reform is ripe., Table of Contents I. THE STRUCTURE AND DEVELOPMENT OF THE LIMIT A. How to Conceptualize Debt Limits B. Why Constitutionalize and Limit Borrowing? C. Debt Limits Before 1917 1. The [...]

INTRODUCTION In 1856, Eunice Newton Foote's breakthrough experiment identified the heat-trapping effects of carbon dioxide. (1) More than a century later, in 1988, Dr. James Hansen testified before Congress on [...], Climate change is the greatest existential crisis of our time. Yet, to date, Congress has failed to enact the broad-sweeping policies required to reduce greenhouse gas emissions at the rate scientists have deemed necessary to avoid devastating consequences for our planet and all those who inhabit it. In the absence of comprehensive legislative action to solve the climate crisis, the executive branch has become more creative in the use of its authorities under bedrock environmental statutes to develop new climate regulations. Environmental advocates, states, and industry groups that oppose such regulations or assert that agencies could accomplish more under existing statutory authorities often turn to litigation as a remedy. As more climate-related cases are litigated, judges will be tasked with evaluating an increasing volume of scientific research and factual determinations by federal agencies that inform environmental regulations. Many judges, however, are generalists, and may lack the scientific expertise to navigate climate science presented by parties without additional resources. This Comment examines how judges can be responsive to science when issuing opinions and orders in climate litigation. It identifies the conundrum that arises when generalist judges are tasked with reviewing technical, political, and sometimes uncertain climate science. This Comment explores the standard of judicial deference that judges may provide to federal agencies. It also discusses potential tools judges could rely on when conducting a "hard look" review of agency science. This Comment concludes that to follow the best available science, judges may need to use a variety of tools to review agency science and afford the appropriate level of judicial deference to agencies. Parties advocating for climate action should keep these different tools and approaches in mind when pursuing climate litigation.

INTRODUCTION I. JURYLESS TRIBUNALS AND THE CONSTITUTION A. Juryless Tribunals at the Founding B. Unpacking the Seventh Amendment II. THE JURYLESS ADMINISTRATIVE STATE A. The Unrestrained Public Rights Carveout B. [...], This Article argues that the administrative state's most acute constitutional fault is its routine failure to comply with the Seventh Amendment. Properly understood, that Amendment establishes an independent limitation on congressional authority to designate jurisdiction to juryless tribunals, and its dictate as to "Suits at common law" refers to all federal legal rights regardless of forum. Agencies' use of binding, juryless adjudication fails these requirements and must be reformed. But this does not mean dismantling the administrative state; it is possible (indeed, necessary) to solve the jury problem while maintaining modern government. To that end, this Article advances a structural theory of the Seventh Amendment that situates the civil jury as an institution within the modern administrative state. It contends that the Seventh Amendment's demands can be met either by providing a jury trial within administrative adjudication in the first instance, or by providing a de novo jury trial in an Article III court afterward. And it unearths and presents historical and judicial support for both approaches. The Article further considers the consequences of incorporating lay participation into the work of expert agencies and shows that the disruptive impact likely would be minimal. It concludes by arguing that reintroducing the jury will increase the procedural legitimacy of the administrative state and, perhaps, its substantive accuracy and effectiveness, too.

Introduction There is an unresolved question whether the state enforcement of federal law is compatible with the structure of government that the Constitution creates for the United States. Commentators have [...]

Administrative law ordinarily presumes that someone hurt by 'arbitrary and capricious' agency action may seek relief in federal court unless Congress says otherwise. Administrative law does the opposite, however, when the harmful agency action happens to be one 'allocating a lump-sum appropriation' (whatever that means). When it comes to spending programs that courts deem to fit in this ill-defined category, agency actions are presumptively immune from judicial review, insulated from the safeguards of administrative law no matter how arbitrary. This Article looks behind the superficial, technocratic simplicity of the presumption of unreviewability through a novel, person-sensitive study of its origins and effects driven by the subordination question--'who pays?' This study reveals that the presumption is founded on a historical fiction--a 'tradition' of refusing review that the Supreme Court invented thirty years ago (in Lincoln v. Vigilj in order to reverse district court and appellate rulings invalidating the termination of the Indian Children's Program by President Reagan's Department of Health & Human Services. The Vigil presumption is far from self-executing. Instead lower courts, following the Supreme Court's lead, have in practice targeted the Vigil presumption toward Native Americans. Thirty-seven percent of cases to which courts apply the presumption are brought by Tribes. Fifteen percent are brought by prisoners. No other group faces the presumption with any regularity. Moreover, because the presumption is limited to discretionary spending programs, it is inherently targeted toward those who rely on such programs rather than the market or mandatory entitlements, that is, the nation's most vulnerable. In light of the Article's findings about the origins and disparate impacts of the Vigil presumption, the presumption should be considered an Indian Law doctrine, not just an administrative law doctrine--and it should be abandoned. The policy justifications that the Supreme Court offered alongside its fictitious historical claim in inventing it (which scholars have previously cited approvingly) do not actually turn out to be persuasive on their own terms, let alone in the face of the lopsided practical operation revealed by the Article. Scholars may debate how much protection administrative law should provide to people injured by agency action, but there is no good reason that we should have one administrative law for most everyone and another, second-class administrative law for Tribes, prisoners, and others who rely on discretionary federal spending programs., Table of Contents I. The Story of Lincoln v. Vigil A. The Indian Children's Program B. District Court and Tenth Circuit Order Reinstatement C. Supreme Court Forecloses Review 1. Briefs [...]

In war powers analysis, reliance on the interpretive method of historical practice, also called the "gloss of history," has made history a technology of the forever war. This approach draws [...]

The Supreme Court's 1947 decision in SEC v. Chenery Corp. (Chenery II) is generally taken as blanket authorization for agencies to make law through either adjudication or rulemaking if their [...]

Judges and scholars have often claimed that delegations of governmental power to private parties are constitutionally prohibited. However, such a "private nondelegation doctrine" is elusive, if not nonexistent. To understand [...]

TABLE OF CONTENTS INTRODUCTION I. THE ORIGINS AND IMPACT OF THE TRADITION OF LOCAL CONTROL A. The Context and Reasoning of Milliken v. Bradley B. Why Milliken and the Tradition [...], In Milliken v. Bradley, the Supreme Court declared "local control" the single most important tradition of public education. Milliken and other related cases developed this notion of a tradition, which has frustrated attempts to achieve equitable school funding and desegregation through federal courts. However, despite its significant impact on American education, most scholars have treated the "tradition of local control" as doctrinally insignificant. These scholars depict the tradition either as a policy preference with no formal legal meaning or as one principle among many that courts may use to determine equitable remedies. This Note argues that the Supreme Court conceived of the tradition not merely as good policy or remedial law but as a principle that was supported by multiple freestanding constitutional provisions. It shows how the policy and remedial law explanations for the tradition do not fully explain the Court's reasoning. It then demonstrates that the Court located the tradition in the federal Constitution's guarantees of substantive due process, the right to vote, federalism, and the separation of powers.

Introduction 280 I. Reconsidering Historical Analogues for the Gun Violence Epidemic 282 A. Separation of Powers, the Legislative Role, and the Relevance of Silence 284 B. Characteristics of Contagion 285 [...], Gun violence is widely considered a serious public health problem in the United States, but less understood is what this means, if anything, for evolving Second Amendment doctrine. In New York Pistol & Rifle Association, Inc. v. Bruen, the Supreme Court held that laws infringing Second Amendment rights can only be sustained if the government can point to sufficient historical analogues. Yet, what qualifies as sufficiently similar, a suitable number of jurisdictions, or the most important historical eras all remain unclear. Under Bruen, lower courts across the country have struck down gun laws at an alarming pace, while scholars and jurists continue debating the so-called true meaning of centuries-old firearm restrictions at times when slavery existed, women could not vote, and it took Thomas Jefferson longer to travel from Washington, D. C. to Williamsburg, VA than it currently takes to fly to the other side of the planet. This approach ignores the historical relevance of the government's authority, if not outright duty, to respond to public health crises even if constitutional rights were implicated. The lack of historical laws related to mass shootings, large capacity magazines, and bullets designed to expand inside the body reflects the drastic evolution of gun violence rather than an impenetrable Second Amendment scope. Indeed, while state police powers to protect public health and safety preexist the Constitution, gun violence would have hardly been a priority for elected officials historically. Thus, the absence of robust, widespread gun regulations hardly reflects a consensus understanding of Second Amendment protections. Instead, examining accepted government restrictions for public health crises such as infectious diseases may provide better insight into the scope of authority to limit constitutional rights to protect the public. A public health law lens also helps to clarify that cementing policy options to emerging public health problems lacks historical pedigree.

I am honoured to give this lecture which acknowledges the special contribution of Professor George Winterton to constitutional law scholarship in Australia. Professor Winterton was a scholar, a teacher, a [...]

I INTRODUCTION Fa'amatai can be understood as the indigenous political system of Samoa that governs customary hierarchies between indigenous chiefs, their families and their village. (1) Fa'amatai is an integral [...], The 2020 Land and Titles Court (LTC) reforms in Samoa were a catalyst for the constitutional crisis that sent shockwaves through the Pacific. This article analyses what the debate surrounding these reforms, as well as the reforms themselves, reveal about fa'amatai (Samoa's indigenous political system). Due to the reforms, LTC decisions can no longer be appealed to the Supreme Court, removing the ability for customary decisions to be balanced against constitutional individual rights. The debate around these reforms often hinged on whether constitutional rights impeded the exercise of customary authority. This article identifies the different hierarchical structures of customary authority in Samoa and articulates how they have evolved to accommodate the LTC and constitutional rights. It argues that, as fa'amatai has evolved to survive colonisation, the LTC itself and to some degree individual constitutional rights have come to form a core part of the fa'amatai today.

CONTENTS I Introduction II Situating the Debate A The Constitutional Turn in Statutory Interpretation B The Constitutional Status of the Principle of Legality C Crawford's Account III An Unrecognisable Principle [...], As part of what can now be recognised as an increasing 'constitutional turn in the law and literature of statutory interpretation, Lisa Burton Crawford has recently provided an 'institutional justification for the principle of legality. There are, however, significant limits to Crawford's justification for the principle, which mean that the principle that survives on Crawford's account is so weak as to be barely recognisable. This responsive article identifies the limits to Crawford's account before posing an improved institutional justification for the robust principle of legality as it exists today.

CONTENTS I The Institutional Justification for the Principle of Legality II A Constitutional Turn? III Responding to Murphy's Critique IV Conclusion It is a great thing to see one's work [...], This article defends the 'institutional account' of the principle of legality published in a previous volume of the Melbourne University Law Review against the criticisms made by Julian R Murphy in this issue. The principle of legality is best understood as a judge-made tool for protecting judge-made law, justified by the constitutional role of the courts as both the makers of the common law and the interpreters of legislation. Intentionalist and democracy-enhancing' accounts of this interpretative presumption are both flawed, and it is far from clear that the alternative approach to the principle that Murphy briefly sketches would be legitimate or sound.

TABLE OF CONTENTS I. SEPARATION OF POWERS AND THE REMOVAL POWER II. THE COMMERCE CLAUSE III. THE ASSAULT ON CHEVRON AND STATUTORY INTERPRETATION DEFERENCE TO ADMINISTRATIVE INTERPRETATION A. The Erosion [...]

INTRODUCTION Sentencing doctrine has consequences. Consider United States v. Moses and United States v. Campbell (2) which the Fourth Circuit decided a mere twelve days apart. Each opinion was well [...], Under Kisor v. Wilkie, courts must defer to agencies' interpretations of regulations when certain conditions are met. Lower courts continue to diverge, however, when it comes to the deference due the United States Sentencing Commission's commentary. The Supreme Court has declined to come to the circuits' aid. Commission commentary interprets its Guidelines. Guidelines are necessarily subject to the Administrative Procedure Act's notice-and-comment requirements and congressional control; commentary is not. Given the heightened stakes inherent in sentencing, some argue that the rule of lenity should apply when a court considers deferring to commentary. This Note argues that such an approach should not be adopted. Kisor adequately protects the constitutional concerns underlying the rule of lenity. Judges should not use lenity to undercut policy judgments that Congress entrusted to the Commission. When there are legitimate reasons beyond those accounted for by Kisor to withhold deference in a given case, courts should instead carefully scrutinize whether an advisory note interprets or expands the relevant Guideline. This is an inquiry that the APA requires judges to make, and it preserves a meaningful role for judges in the Kisor framework.

At the dawn of the federal deportation system, the nation's top immigration official proclaimed the power to authorize deportation arrests "an extraordinary one" to vest in administrative officers. He reassured [...]