Loper Bright Enterprises v. Raimondo: Chevron is Dead; Long Live Skidmore
Professor Pierce discusses the Supreme Court's landmark decision in Loper Bright Enterprises v. Raimondo, which overturns the Chevron deference doctrine. The ruling shifts the emphasis to independent judicial interpretation of statutes, moving away from automatic deference to agency interpretations. This change aligns with the principles of Skidmore v. Swift & Co., promoting a more nuanced approach to judicial review while still respecting agency expertise.
Helpful Industry or Officious Intermeddlers: Assessing U.S. Champerty Law Through the Lens of Third-Party Funding in International Dispute Resolution
Josef Wolfgang Paulson 92 Geo. Wash. L. Rev. 725 International commercial arbitration is experiencing a period of rapid growth as a means of dispute resolution. As arbitration can be an expensive process, there has also been a growth in the practice of third-party funding for arbitration. The old British common law doctrines of maintenance and champerty,... Read More
Antitrust Enforcement in the Pharmaceutical Industry: Analyzing Patents Under the Rule of Reason
Charles W. Schmidt 92 Geo. Wash. L. Rev. 691 American consumers and lawmakers across the political spectrum agree that prescription drug prices are far too high. This Note identifies an antitrust cause of action that could drastically reduce the prices of the most expensive prescription drugs. Under section 1 of the Sherman Antitrust Act (“Section 1”),... Read More
Free Speech Originalism: Unconstraining in Theory and Opportunistic in Practice
Caroline Mala Corbin 92 Geo. Wash. L. Rev. 633 Courts should not apply originalism in freedom of expression cases. Originalists claim that originalism prevents judges from imposing their own views. It does not—not in theory and not in practice. Instead, as the treatment of hate speech bans suggests, it is not principles but outcomes that... Read More
Effectively Irrebuttable Presumptions: Empty Rituals and Due Process in Immigration Proceedings
Tiffany J. Lieu 92 Geo. Wash. L. Rev. 580 Rebuttable presumptions—ones that offer the opportunity to overcome a presumed fact—are a common fixture in U.S. civil law. Some rebuttable presumptions, however, are not in fact rebuttable at all and are instead rebuttable in name only. Nonetheless, courts often take at face value a presumption’s claim... Read More
Representations & Warranties, Fraud, and Risk Shifting: An Analytical Framework
Steven L. Schwarcz 92 Geo. Wash. L. Rev. 549 Do violations of contractual representations and warranties (“R&Ws”) merely shift risk by giving rise to contract-breach damages, or can they also give rise to fraud claims? This question is at the heart of numerous lawsuits, including billions of dollars of securitization-related litigation. Many agreements governing the... Read More
Protecting Teleworkers: Unilateral Conflicts and Statutory Interpretation
Rachel L. Blau 92 Geo. Wash. L. Rev. 516 The COVID-19 pandemic taught us that homes can double as offices. But when a teleworker opens her laptop across state lines from her employer, may she claim the statutory worker protections provided in the employer’s state? Too often, courts misunderstand this recurring problem and refuse to extend... Read More
Religious Protection or Religious Privilege? The Threat Religious Claimants Pose to Protecting Health in the HIV Epidemic
Sydney Fay 92 Geo. Wash. L. Rev. 485 As tensions rise between the right to religious freedom and the rights of LGBTQ persons, a recent challenge to a preventive health service threatens the people’s ability to protect their health. The United States District Court for the Northern District of Texas recently held the mandated insurance coverage... Read More
The New Usury: The Ability-to-Repay Revolution in Consumer Finance
Adam J. Levitin 92 Geo. Wash. L. Rev. 425 American consumer credit regulation is in the midst of a doctrinal revolution. Usury laws, for centuries the mainstay of consumer credit regulation, have been repealed, preempted, or otherwise undermined. At the same time, changes in the structure of the consumer credit marketplace have weakened the traditional alignment... Read More
Modernizing the Power of the Purse Statutes
Eloise Pasachoff 92 Geo. Wash. L. Rev. 359 Two foundational statutes limit the executive branch’s important and necessary work in executing the budget against the backdrop of congressional control: the Antideficiency Act, dating back to the post-Civil War era, and the Impoundment Control Act, which emerged from the Nixon years. This Article, originally written as an... Read More