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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 [...]

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 why, first we need to realize that there are actually several distinct nondelegation doctrines. I develop a taxonomy that makes sense of these various doctrines by focusing on the different reasons why a delegation might be problematic. A nondelegation doctrine might be "giver-based" (can Congress delegate this power?), "recipient- based" (can the recipient exercise this power?), or "application-based" (will the application of this power be unjust?). Once we distinguish these doctrines, it becomes apparent that none of them rules out private delegations. On the contrary, some doctrines actually facilitate privatization, because they provide that certain private delegations are exempt from certain constitutional requirements. As for the other doctrines, they do not embody any categorical antiprivate rule. Private status may be practically relevant in some cases, because the factors that matter to the various doctrines (e.g., how much a delegate is constrained, or the presence of bias) might tend to play out differently between the public and private sectors. But this is an empirical question; the same factors can in principle also invalidate public delegations; and attentiveness to these factors shows how to structure private delegations so they are constitutionally permissible. Constitutional law should continue looking to specific objectionable factors rather than the formal public-versus-private question. [ABSTRACT FROM AUTHOR]

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES Plaintiff--Appellee, v. JOSEF K., Defendant--Appellant. No. 25-1883 OPINION Appeal from the United States District Court Hermann Bendemann, [...]

North Carolina State Board of Dental Examiners v. FTC (N.C. Dental) has worked a potential revolution in antitrust law. A revolution because it makes clear that state regulatory agencies dominated by active market participants are not entitled to immunity from federal antitrust liability unless they are actively supervised by the State. But still only a potential revolution, because much depends on what counts as "active state supervision". The story of N.C. Dental is, in large part, the story of how federal courts have tried to define "the State" (for purposes of state-action immunity). N.C. Dental has rejected a labeling approach, a balancing approach, and a sovereignty approach in favor of a financial disinterestedness approach. I argue that this approach isn't obvious from an abstract political-philosophy standpoint but is actually quite sensible as a limited, antitrust-specific definition. Whether state administrative-law judicial review counts as active state supervision has been a topic of recent litigation. I argue that judicial review that is deferential--which is usually the case--can't count. De novo, meritsbased judicial review can count, but it's rare. Moreover, the presence of other accountability-enhancing features shouldn't be considered relevant unless those features are directly related to whether a disinterested official has approved the agency's action on the merits. Finally, I conclude that, in general, the mere availability of judicial review shouldn't be considered active state supervision: it's merely potential, it's costly, and it often must wait until harm is suffered--which discourages its exercise. However, if state judicial review is actually invoked and upholds state regulation on the merits, such judicial review should be considered active state supervision and should confer state-action antitrust immunity. [ABSTRACT FROM AUTHOR]

This Article discusses the intersection of torts, administrative law, and constitutional law--a surprisingly understudied area, given its importance for modern-day tort reform efforts. In several states, based on perceptions of a medical malpractice liability and insurance crisis, reformers have sought to abolish tort liability for medical malpractice--replacing it with an administrative compensation system not based on negligence and roughly similar to workers' compensation. Tort reformers have, in the past, been hindered by state courts that have struck down damages caps and similar reforms on state constitutional theories. Some of the main theories have been state constitutional jury trial rights, access-to-courts rights, and due process/equal protection. Surprisingly, it turns out that workers'-comp-like administrative systems, though more radical than damages caps and similar reforms, seem to have a better chance of being held constitutional--in part because of their similarities with workers' comp, which also abolished certain tort actions and replaced them with a non-negligence-based administrative system, and which has been universally held to be constitutional. This Article analyzes the constitutionality of this sort of administrative compensation system under the Florida, Alabama, and Georgia constitutions, focusing on jury trial rights, access-to-courts rights, and due process/equal protection. [ABSTRACT FROM AUTHOR]

On paper, the non-delegation doctrine, with its demand that congressional delegations of power be accompanied by an "intelligible principle," looks like it might impose some constraints on Congress's delegations of power. In practice, it looks like it doesn't. But this disconnect isn't as stark as it appears: a longstanding but often ignored branch of the doctrine provides that the intelligible-principle requirement is significantly relaxed, or even dispensed with entirely, when the delegate has independent authority over the subject matter. I call this the "Inherent-Powers Corollary". Not only that: even when the delegate lacks independent authority over the subject matter, the intelligible-principle requirement is still relaxed when the subject of the delegation is interlinked with an area where the delegate has independent authority. I call this dubious extension to the Inherent-Powers Corollary the "Interlinking Extension". The non-delegation doctrine applies to any delegate that Congress may choose, including of course the President--but also including courts. Some recent scholars have pointed this out, and have suggested that this implies the invalidity of several statutes that delegate power to the judiciary. However, they have largely ignored the Corollary and Extension, which also apply to courts. In this Article, I argue that, because courts have many inherent or quasi-inherent powers, the Corollary and Extension save many congressional delegations to courts that one might otherwise think suspect. I also explain how the Corollary and Extension cast light on enduring debates among federal courts scholars over the constitutional foundations of the Erie doctrine and the proper scope of federal common law. [ABSTRACT FROM AUTHOR]