5033 research outputs found
Sort by
Loper Bright and the Future of Chevron Deference
Get PDFThe question presented in Loper Bright Industries v. Raimondo1 is “[w]hether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.” The Court denied certiorari on another question focused on the merits of the case,2 indicating that at least four of the Justices are anxious to revisit or at least clarify Chevron. It’s about time, although it’s far from certain that the Court will actually follow through with the promise the certiorari grant indicates.3
The decades-long lack of clarity on the Court concerning the status of Chevron deference is a prominent of example of one of the Court’s shortcomings, that it sometimes does a poor job of providing clarity on important issues of federal law. As the head of one of the three branches of the United States government, the Court can and should do better. Thousands of judges, millions of lawyers and hundreds of millions of citizens look to the Court for answers on important questions of law, and the Court is the only organ of government with the power to provide definitive answers. In Loper Bright, the Court should take the opportunity to overrule or clarify the status of Chevron deference and turn over a new leaf by resolving to provide lower federal and state courts with clearer instructions on the status of important federal legal doctrines.
This essay proposes that the Court overrule the Chevron two-step standard of review of agency statutory construction and replace it by reviving deference under the factors announced in the Skidmore case with a twist that preserves Chevron’s greatest virtue, agency freedom to alter its statutory interpretations so long as the agency remains within the zone of reasonable construction. This essay also proposes that the Court clarify the boundary between cases involving statutory construction and cases involving agency policy decisions that are reviewed under the arbitrary and capricious standard articulated in cases such as Motor Vehicles and Overton Park. On this matter, this essay proposes that this boundary be drawn based on a straightforward and in my view simple inquiry into whether the case centers on the correct understanding of a statute (where the Skidmore factors would apply) or the policy implications of the agency’s actions (where arbitrary, capricious review would apply). In my view, this understanding is easier for courts to apply, is more consistent with the structure established by the Administrative Procedure Act (APA) and would focus judicial review on the issues that ought to matter to the parties and the courts.
This essay proceeds as follows. Part I briefly describes the Loper Bright case and the issues involved. Part II examines the current status of Chevron deference, including the turmoil evident in lower federal courts over the correct application of Chevron, the problem of the boundary between Chevron and arbitrary, capricious review and my proposed solution to both sets of problems. Part III looks at other areas of law with similar problems created by the lack of clarity at the Supreme Court level. Part IV concludes
Rahimi, the Second Amendment, Domestic Violence, and Originalism After Bruen
No full texthttps://scholarship.law.bu.edu/clark_speakers/1107/thumbnail.jp
Teaching Antiracism in Evidence Law
No full textThe foundational evidence law course provides abundant opportunities to teach antiracism. This essay shares reasons to teach antiracism in evidence law and a method for doing so. In my dozen years of teaching evidence law, I have found that incorporating antiracism engages students from diverse demographic and ideological backgrounds, trains students to think critically about the law, and encourages an equity mindset. When we fail to teach our students how evidence doctrine and practices replicate and perpetuate racism, we risk inadvertently teaching them that racism is unimportant and acceptable
The People\u27s Champ: Legal Aid from Slavery to Mass Incarceration or Renegade at Law: How Our Legal Industry Creates, Justifies, and Compounds Inequality
No full texthttps://scholarship.law.bu.edu/clark_speakers/1115/thumbnail.jp
Rules & Laws for Civil Actions: 2025 Ed.
Get PDFRules and Laws for Civil Actions is an open-access resource for law students containing the U.S. Constitution, Federal Rules of Civil Procedure, Federal Rules of Evidence, Federal Rules of Appellate Procedure, and selected federal and state statutes. The book was created by a team of faculty members at the University of Iowa College of Law to supplement the study of Civil Procedure, Evidence, Constitutional Law, and other law school courses. In addition to containing the official text, each legal source found in Rules and Laws for Civil Actions is accompanied by an introductory section written by an Iowa Law professor explaining its significance and background. Students are able to access the online and digital versions of the resource free of charge.
This edition contains amendments to the rules that are scheduled to go into effect on December 1, 2024.https://scholarship.law.bu.edu/books/1376/thumbnail.jp
The Ebb, Flow, and Twilight of Presidential Removal
Get PDFJust as the Roberts Court has been expanding presidential authority to its historic maximum, recent legal scholarship has shown that the Founders intended, to paraphrase Justice Jackson’s famous Youngstown concurrence, a much lower ebb or at least an ambiguous twilight about “executive power,” in contrast to originalists’ unsupported certainties
Reply Brief for Plaintiff-Appellant Rocky Freeman
Get PDFBecause the Probation Office “dropped the ball,” JA199, false information remained in Rocky Freeman’s pre-sentence report for years. The Bureau of Prisons knew or should have known that it was relying on an inaccurate PSR. Yet, it failed to take any action to obtain correct information until Freeman discovered that BOP had been treating him as if he were a contract killer who had murdered two victims—effectively punishing him for acquitted conduct contrary to a court order. Instead of designating Freeman to the lowest-security-level facility for which he was qualified within 500 miles of his family, the United States sent him to the “worst and most dangerous Penitentiary,” 1,500 miles from his family where he was prevented contact with visitors and where another inmate used a long razor blade to cut his face. JA96, 133-34.
Later, BOP put Freeman in solitary confinement for about a year longer than agency rules allowed, basing its decision on false information about the circumstances of Freeman’s case. JA458. And in 2015, Freeman was “bound[], shackled and forced to wear a Black Box for hours without the opportunity to” use a bathroom because BOP relied on the falsehood that he was a contract killer who had killed two victims. JA97, 198. The government doesn’t want to face these facts. But considering them, the law provides a path for Freeman to be made whole and for the government to be held accountable for its negligence.
I. To begin with, remand is required because the district court arbitrarily dismissed the probation-officer defendants after failing to take adequate measures to comply with 28 U.S.C. § 1915(d). The government fights this point with smoke and mirrors, citing cases where in forma pauperis plaintiffs did not comply with court orders to provide accurate service addresses when no facts established that the plaintiffs lacked access to these addresses. The story here couldn’t be more different: The district court ordered the government, not Freeman, to provide addresses for the probation officer defendants, and the government failed to comply. Then the district court penalized Freeman. The government argues that Freeman’s claims against the probation officers won’t succeed under Bivens, but it cannot explain why it would be appropriate for this Court to address the cognizability of these claims now when that affirmative defense has yet to be raised in the district court. This court should apply Section 1915(d) faithfully and allow the case against the probation officers to proceed on remand.
II. The government’s effort to defend the district court’s errors in dismissing Freeman’s Federal Tort Claim Act claim also fails. On the presentment issue, it asks this Court to ignore the FTCA’s text, Supreme Court precedent, the government’s blatant forfeiture, and the relevant implementing regulation. If this Court is unwilling to do all that, it urges the Court to either misapply the summary-judgment standard by drawing inferences in its favor and against Freeman or by penalizing Freeman for having too little evidence even though he hasn’t been given the opportunity to create an adequate record. The government’s years-long efforts to thwart Freeman’s FTCA claim should be rejected
The Nation at Sea: The Federal Courts and American Sovereignty, 1789-1825
No full texthttps://scholarship.law.bu.edu/clark_speakers/1098/thumbnail.jp
The Effects Of Dobbs On Cancer Care
No full textWhen the US Supreme Court overturned Roe v. Wade in 2022, the justices declared more than seven times that the decision would “return the issue of abortion to the people’s elected representatives.” Dobbs v. Jackson Women’s Health Organization suggested this would free the judiciary of a role in abortion policy debates, but quite the opposite has occurred. Overturning constitutional protection for access to abortion has unleashed confusion, chaos, and conflict across states with incompatible laws, between state and federal laws, and at the patient’s bedside. Dobbs did not remove abortion from the dockets: In the first quarter of 2024, the US Supreme Court will hear two new abortion-related cases, one involving Food and Drug Administration (FDA) regulation of mifepristone, the other regarding state law conflicts with the federal Emergency Medical Treatment and Labor Act (EMTALA), which has protected patients with medical emergencies since 1986. The increasing legal chaos after Dobbs has led not only to profound interstate and federal-state conflict, but also deeper fragmentation in US health care, greater health risks for patients living in abortion restrictive states, and shifts in how and where medicine is practiced. Medical care has become more challenging and precarious for people of reproductive age and their providers