16178 research outputs found
Sort by
Flips and Splits in Administrative Law
No full textIn Loper Bright Enterprises v. Raimondo, the Supreme Court discarded the four decades old Chevron deference regime and circumscribed the authority of federal agencies to choose among multiple interpretations of ambiguous statutes. In justifying its ruling, the Loper Bright majority argued that Chevron deference had generated unnecessary regulatory uncertainty by allowing agencies to switch from one interpretation of an ambiguous statute to another. In this respect, Loper Bright marks a move toward temporal uniformity in federal law: Once the courts recognize a certain reading of a statute as “best,” that reading will reign under Loper Bright unless and until Congress repeals or amends the relevant provision. Yet the temporal uniformity of the new Loper Bright regime comes at the cost of greater spatial disuniformity: Loper Bright will predictably produce more frequent conflicts among the regional courts of appeals regarding the reading of ambiguous statutes. Previously, courts applying Chevron asked only whether the agency’s interpretation of an ambiguity was “reasonable”; now, courts must decide whether the agency’s interpretation is correct—a question more likely to generate intercircuit disagreements. Given the Supreme Court’s limited certiorari docket, many of these disagreements are likely to persist for years—in some instances, indefinitely. Loper Bright thus reflects a decision to tolerate fewer “flips” across administrations but more “splits” across circuits. That result, along with the more obvious shift in interpretive authority from agencies to courts, is likely to be among Loper Bright’s most significant long term consequences. Analysis of the flip–split tradeoff sheds light not only on Loper Bright’s lasting effects but also on other debates in public law, including debates over the Supreme Court’s certiorari practice, circuit court confirmations, district court nationwide injunctions, agency nonacquiescence, and—even more broadly—the choice between centralized and decentralized governance of a geographically polarized polity. This Article contributes to those debates by comparing the costs—and potential benefits—of flips and splits along four key dimensions: economic efficiency, regulatory efficacy, learning, and individual choice. A cost benefit analysis of temporal and spatial disuniformity yields the tentative conclusion that Loper Bright, insofar as it recalibrated the balance away from flips and toward splits, shifted administrative law in a desirable direction. More generally, rigorous examination of Loper Bright’s temporal and spatial dimensions can yield lessons that travel well beyond the U.S. administrative law context—lessons that apply to the design of legal institutions in a wide range of narrowly divided societies
Employee Speech v. Workplace Values: A Defense of At-Will Employment and Private Employer Regulation of Political Speech
No full textThe public policy underlying at-will employment—and particularly our collective interest in freedom of choice in the employment relationship—weighs in favor of allowing employers to regulate their employees\u27 political activities and thus align personnel decisions with organizational values.
Beginning with an exploration of the laws that somewhat limit employers\u27 ability to regulate their employees\u27 political activities, this Essay considers the National Labor Relations Act, Title VII of the Civil Rights Act, state anti-discrimination laws, state laws governing captive audience meetings, and state employment protections for political activity.
This Essay applies these laws to three increasingly prevalent employer practices: (1) prohibiting employees from engaging in political advocacy in the workplace; (2) mandating attendance at employer-sponsored political meetings (captive audience meetings); and (3) disciplining employees, or rejecting applicants, based on their political activities outside of work.
Under current law, most private employers are free to regulate political speech and conduct both in and out of the workplace—and this Essay argues that, as a matter of public policy, this is the right outcome. Just as employees are free to choose workplaces that align with their political beliefs and personal values, employers should be free to build their workforces based on those same considerations
I\u27m Guilty, But I\u27m Not a War Criminal! : Fixing Treaty Crimes
No full textThis Article examines the Supreme Court\u27s test for treaty crime constitutionality against the gauntlet of time and application. Treaty crimes are criminal behavior violating statutes penalizing private individuals for disobeying the terms of an international treaty obligation. The current treaty crime test from Bond v. United States has produced inconsistent results resting on shaky constitutional grounds. This Article proposes a new test relying on constitutional delegations of authority and treaty drafting history to determine when a treaty crime statute violates the Tenth Amendment. It measures the new test\u27s effectiveness by applying the test to cases in which the Bond test has produced problematic results.
In the ten years since Bond was decided, courts have clung to its language that a purported treaty crime implicates a federal interest and does not offend the Tenth Amendment if it has the potential to cause mass suffering. That has led lower courts to uphold convictions for minor offenses bearing little relation to treaty prohibitions. Some courts have used this language to overturn convictions for conduct clearly prohibited by treaties and abhorred by the international community. Others have used that test to expand federal authority in areas entirely unrelated to treaty crimes.
This piece proposes that courts should instead consider whether applying a treaty crime statute furthers the object and purpose of the treaty it implements. If conduct offends the underlying treaty\u27s object and purpose, then criminalizing it is a necessary and proper means to effectuate the constitutionally-delegated federal treaty power. If the offense is unrelated to the treaty\u27s object and purpose, then the Tenth Amendment prohibits applying a federal statute to the offense. This test relies on constitutional delegations of authority in the Treaty Clause, Supremacy Clause, and Necessary and Proper Clause. When applied to cases in which Bond\u27s test produces undesirable or even absurd results, this Object and Purpose Test would punish offenses that violate valid treaties, while filtering out minor offenses unrelated to international prohibitions. This new test also closely tracks the international community\u27s standard for treaty compliance, which requires treaty signatories to refrain from upsetting the treaty\u27s object and purpose
Interplanetary Risk Regulation
No full textSpace exploration promises new opportunities but also new risks. After centuries of national settlements and international conflicts on Earth, and the Cold War era of two great power states racing to the Moon, today we see a rapidly proliferating arena of actors, both governmental and non-governmental, undertaking bold new ventures off-Earth while posing an array of new risks. These multiple activities, actors, and risks raise the prospects of regulatory gaps, costs, conflicts, and complexities that warrant reconsideration and renovation of legacy legal regimes such as the international space law agreements. New approaches are needed, beyond current national and international law, beyond global governance. We suggest that interplanetary risks warrant new institutions for risk regulation at the interplanetary scale. We discuss several examples, recognizing that interplanetary risks may be difficult to foresee. Some interplanetary risks may arise in the future, such as if settlements on other planets entail the need to manage interplanetary relations. Some interplanetary risks are already arising today, such as space debris, space weather, planetary protection against harmful contamination, planetary defense against asteroids, conflict among spacefaring actors, and potentially settling and terraforming other planets (whether to conduct scientific research, exploit space mining, or hedge against risks to life on Earth). These interplanetary risks pose potential tragedies of the commons, tragedies of complexity, and tragedies of the uncommons, in turn challenging regulatory institutions to manage collective action, risk-risk tradeoffs, and extreme catastrophic/existential risks. Optimal interplanetary risk regulation can learn from experience in terrestrial risk regulation, including by designing for adaptive policy learning. Beyond national and international law on Earth, the new space era will need interplanetary risk regulation
Restoring Chevron Deference by Statute
No full textThis paper details a solution for legislatively restoring Chevron deference: amend the APA to direct lower federal courts to give deference to reasonable agency decisions but retain nondeferential judicial review by the U.S. Supreme Court. This solution restores most of the practical benefits of Chevron by giving agencies flexibility to implement congressional policy directives with the expertise they have acquired, by maintaining stability in administrative regulation, and by relieving lower federal courts of the burdens of nondeferential review. And retaining nondeferential judicial review in the Supreme Court will preserve the constitutional role of the judicial branch to say what the law is while supplying a backstop against agency overreach
The Rise of Global FCPA Settlements
No full textFor the last two decades, the United States has been the dominant enforcer of anti-bribery norms worldwide. Using the broad extraterritorial jurisdiction granted by the Foreign Corrupt Practices Act (FCPA), the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) have prosecuted domestic and foreign corporations for bribing foreign government officials. This transnational enforcement system has been described as a negative comity regime: foreign governments defer to American prosecutions even if the case involves their nationals. This system has created a robust enforcement environment but often faces foreign resistance to the perceived “American dominance” of the regime. This Article analyzes the recent rise of a new enforcement model: the global FCPA settlement, where multiple governments enter into parallel deferred prosecution agreements or other non-trial resolutions with corporate entities. This enforcement model is now the principal form for concluding “blockbuster” FCPA cases and has significant implications for the evolution of the transnational anti-bribery law regime.
This Article argues that the rise of global settlements results from (1) a greater demand by foreign governments to be involved in foreign bribery resolutions when their national firms are on trial and (2) American prosecutors’ willingness to accommodate this demand when it results in more effective prosecutions (i.e., new cases, more claims, or stronger evidence). This Article contends that the rise of global FCPA settlements marks a significant shift in the international anti-bribery enforcement regime, transitioning from a negative comity to a coordinated comity regime. The global resolution model addresses some of the concerns of the negative comity regime by permitting multiple governments to have a voice in negotiating the level of the penalties, the distribution of the penalties, and any structural reforms that the firm will be required to adopt. It also can potentially increase the effectiveness of the enforcement regime by expanding the geographic scope of the investigations and quality of evidence. This Article additionally discusses the importance of these developments to the Trump Administration’s executive order on FCPA enforcement and the June 2025 DOJ enforcement guidelines