On the Docket’s Preview of the February Supreme Court Arguments
The Court sits down on Tuesday to hear the arguments slated for February. This is the Court’s second to last month before the summer recess, and we have only received four opinions so far this term. For comparison, at this time last year we had six. Although not a huge difference, keep in mind that... Read More
On the Docket’s Preview of the January Supreme Court Arguments
After a, hopefully, relaxing break for the Justices, the Supreme Court will start up the second half of the 2017 Term with a docket packed full of interesting cases. There is no rest for the weary in this Term! The Court starts out by holding oral arguments in pairs. The Court hears two cases on... Read More
Observations from the GWLR Administrative Law Panel
On Friday, October 20, 2017, The George Washington Law Review (“Law Review”) hosted a panel titled, “Evaluating Federal Actions: The Powers, Processes, and Proclamations of Administrative Agencies and the Oval Office” as part of the American Bar Association Section of Administrative Law and Regulatory Practice’s 2017 Administrative Law Conference. The panel brought together Cass Sunstein... Read More
On the Docket’s Preview of the December Supreme Court Arguments
The sitting that everyone has been waiting for is upon us. The Court’s December sitting contains the most talked-about case of the term: Masterpiece Cakeshop v. Colorado Civil Rights Commission. This case will put Justice Kennedy at the forefront of two somewhat conflicting ideals: non-discrimination and free speech/freedom of religion. Should Jack Phillips have been... Read More
Standing Underwater
Daniel A. Fiedler 85 Geo. Wash. L. Rev. 1554 The basic requirements of Article III standing are well known: injury in fact, causal connection between that injury and conduct being complained of, and likelihood that the injury would be redressed by a favorable decision. For cases where an injury has not yet occurred, however, the... Read More
The Administrative Procedure Act’s Stay Provision: Bypassing Scylla and Charybdis of Preliminary Injunctions
Frank Chang 85 Geo. Wash. L. Rev. 1529 Federal courts draw much attention by sweepingly blocking many agency actions with preliminary injunctions. Some of these preliminary injunctions are nationwide, but others are geographically limited. This Essay diagnoses two problems associated with preliminary injunctions in administrative law cases. Nationwide preliminary injunctions, as many commentators point out,... Read More
Arbitrary and Capricious Cost-(Non)Consideration After Michigan v. EPA
Karmina Caragan 85 Geo. Wash. L. Rev. 1514 Initially, Supreme Court decisions suggested a presumption that, absent affirmative congressional intent, agencies should not consider costs when deciding whether to regulate. In the last few years, however, the Supreme Court has departed from this perceived presumption, and instead held that absent clear statutory prohibition agencies may... Read More
Confusion in the Circuit Courts: How the Circuit Courts Are Solving the Mead-Puzzle by Avoiding It Altogether
Daniel S. Brookins 85 Geo. Wash. L. Rev. 1484 Chevron deference is possibly the most discussed legal issue in recent history. Despite this prolific scholarship, relatively little empirical attention has been devoted to Chevron’s impact in the circuit courts. To shed light on the situation in the circuit courts, this Essay addresses the issue of... Read More
When Constitutional Tailoring Demands the Impossible: Unrealistic Scrutiny of Agencies?
Lars Noah 85 Geo. Wash. L. Rev. 1462 Scholars have raised various objections to the last and often decisive (narrow tailoring) prong of the different forms of heightened scrutiny, and these problems may become acute when courts consider constitutional challenges brought against government entities that enjoy far more truncated powers than do legislative bodies. This... Read More
Chevron’s Inevitability
Nicholas R. Bednar & Kristin E. Hickman 85 Geo. Wash. L. Rev. 1392 For over thirty years, Chevron deference has been the target of criticism. Now, some judges and legislators are calling for an end to Chevron, and legal scholars are heralding the doctrine’s retreat. Chevron may be evolving, as common law often does. But... Read More