False Flags and the First Amendment: Lying Through Symbolic Speech
Professor G. Alex Sinha · November 2021 89 Geo. Wash. L. Rev. Arguendo 133 Ivan Hunter, a leader of the right-wing Boogaloo Bois, recently pleaded guilty to participating in a riot when he fired his AK-47 at the Minneapolis Police Third Precinct during a Black Lives Matter protest in May of 2020. Hunter’s target—the home... Read More
Preview of the November 2021 Supreme Court Arguments
The Supreme Court’s November calendar has been in flux as litigation surrounding the controversial Texas statute S.B. 8 has raced to the Court’s attention. Be sure to check this post for updates, as future shifts in the calendar may well be in store. November 2 Houston Community College System v. WilsonNo. 28-804, 5th Cir.Preview by... Read More
An Article I Body to Issue Declaratory Advisory Opinions on Competitor Challenges to Tax Regulations
Lily Ting Hsu 89 Geo. Wash. L. Rev. 1333 Caselaw demonstrates that Article III courts are unwilling to entertain claims brought by third parties that challenge Internal Revenue Service (“IRS”) and Department of the Treasury (“Treasury”) rulings for impermissibly favoring some taxpayers over others. In this Essay, I propose an Article I body that would... Read More
Promises Unfulfilled: Did the Trump Administration Substantially Change the Administrative State?
Amy Orlov 89 Geo. Wash. L. Rev. 1306 In 2019, Professors Robert L. Glicksman and Emily Hammond of The George Washington University Law School examined the Trump Administration’s early regulatory behavior during the first half of Donald Trump’s presidency. In their article, The Administrative Law of Regulatory Slop and Strategy, published in The Duke Law... Read More
Delegating and Regulating the President’s Section 232 and IEEPA Trade Powers
Jacob Reiskin 89 Geo. Wash. L. Rev. 1280 Congress has provided the President extraordinary authority to enact emergency trade remedies. Throughout the Trump Administration, American consumers and manufacturers paid the costs of this delegation. This Essay considers procedural reforms that Congress should pass to ensure that future Presidents do not have unchecked authority to order... Read More
Permissible Derogation: The Common Law and Agency Interpretations Under Chevron
Jalen LaRubbio 89 Geo. Wash. L. Rev. 1261 The common law has undergirded American society since the founding. In recent decades, however, the law surrounding federal administrative agencies has grown massively in importance. Inevitably, instances of conflict between established common law and agency statutory interpretations have arisen and will continue to arise as the administrative... Read More
Remand and Dialogue in Administrative Law
Christopher J. Walker & James R. Saywell 89 Geo. Wash. L. Rev. 1198 A bedrock principle of administrative law is that when a court finds an agency has erred, the court generally remands the action for the agency to consider anew (as opposed to the court deciding the matter itself). The conventional understanding is that... Read More
How Chevron Deference Fits into Article III
Kent Barnett 89 Geo. Wash. L. Rev. 1143 U.S. Supreme Court Justices Clarence Thomas and Neil Gorsuch, along with Professor Philip Hamburger, assert that Chevron deference—under which courts defer to reasonable agency statutory interpretations—violates Article III. Chevron does so because, they argue, it either permits agencies, not courts, “to say what the law is” or... Read More
Nondelegation as Constitutional Symbolism
Kristin E. Hickman 89 Geo. Wash. L. Rev. 1079 The divided Supreme Court in Gundy v. United States and subsequent events have given rise to an expectation that the Court will soon revitalize the nondelegation doctrine by replacing the intelligible principle standard. Some have greeted the prospect of this doctrinal shift with cheers of exaltation,... Read More
Personal Jurisdiction in Climate Change Common Law Litigation Post-Ford
October 6, 2021 Ford Motor Company v. Montana Eighth Judicial District Court, 592 U.S. ___ (2021) (Kagan, J.). Special Edition Response by Jonathan Remy Nash† Geo. Wash. L. Rev. On the Docket (Oct. Term 2020) Slip Opinion | SCOTUSblog Personal Jurisdiction in Climate Change Common Law Litigation Post-Ford A Special Edition Response Recent years have witnessed attempts... Read More