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The International Law of Outer Space
No full textSpeaker: Prof Christopher J. Borgen, Co-Director of the Center for International and Comparative Law at St. John\u27s University School of Law; a “core expert” for the “The Woomera Manual on the International Law of Military Space Operations” (2024)
Law Enforcement Responses to Emerging Cyber Threats
No full textSpeaker: Ms. Jessica Nye, Supervisory Special Agent, Supervisor of the FBI Cyber Squad, Raleigh, NC.
Speaker: Mr. Michael F. Easley, Jr., former United States Attorney for the Eastern District of North Carolina
Discussant: Prof. Shane Stansbury, Robinson Everett Distinguished Fellow, Duke Law Schoo
Anticipating a New Modern Skidmore Standard
No full textIntro by Christian
Kristin Hickman, Anticipating A New Modern Skidmore Standard
Discussant Matthew Adle
Anticipating a New Modern Skidmore Standard
Full text linkIn Loper Bright Enterprises v. Raimondo, the Supreme Court overruled Chevron deference but blessed giving agency interpretations of statutes “respect” or “weight” under the Skidmore standard during judicial review. Yet, the Court in Loper Bright offered only a few limited references regarding Skidmore as a doctrine, with little guidance regarding what judicial review under Skidmore ought to look like. The Court might not have felt the need to elaborate, as courts have been applying Skidmore for eighty years. As applied, however, Skidmore is a more complicated doctrine than many people realize. An extensive Skidmore jurisprudence exists, with nuances that at first blush may not seem entirely square with some of the assumptions and reasoning in Loper Bright. The purpose of this Essay is to explore the pre‑Loper Bright status quo of Skidmore review and anticipate some of the questions about Skidmore that will inevitably arise as courts apply it in future cases
The Authoritarian Commons: Neighborhood Democratization in Urban China
No full textBased on six-year fieldwork across China including over 200 in-depth interviews, this book provides an ethnographic account of how hundreds of millions of Chinese homeowners practice democracy in and beyond their condominium complexes. Using interviews, survey data, and a comprehensive examination of laws, policies and judicial decisions, this book also examines how the party-state in China responds to the risks and benefits brought by neighborhood democratization. Moreover, this book provides a framework to analyze different approaches to the authoritarian dilemma facing neighborhood democratization which may increase the regime\u27s legitimacy and expose it to the challenge of independent organizations at the same time. Lastly, this book identifies conditions under which neighborhood democratization can succeed.https://scholarship.law.duke.edu/faculty_books/1035/thumbnail.jp
Discretionary Immigration Detention
Full text linkImmigration detainees challenging immigration judges’ bond decisions are hitting a jurisdictional wall—federal courts are given license to ignore errors that immigration judges make in determining dangerousness and flight risk, because such decisions can be categorized as “discretionary.” This license comes from a 1996 amendment to the Immigration and Nationality Act that removed federal courts’ jurisdiction over discretionary decisions to detain for immigration purposes. Detainees’ important liberty interests are left to the whims of a single immigration judge, who determines bond under conditions representing an implicit bias minefield.
This Article explores the justifications for unreviewable discretion and for stripping federal court jurisdiction over immigration decisions and argues that none of these justifications are applicable when an immigration judge decides whether to detain a person pending their removal proceedings. The Article also suggests manners by which the judiciary can limit the reach of this jurisdiction-stripping statute to ensure that immigration detainees will not face an unclimbable wall when seeking federal court review of their bond decisions
Pick Your Precedent: Bostock, Dobbs, and the Uncertain Reach of Intermediate Scrutiny in United States v. Skrmetti
No full textThe Supreme Court will yet again wade into highly politically charged waters this term when it decides United States v. Skrmetti, a case about gender-affirming healthcare for minors. More specifically, Skrmetti will decide whether SB1, a 2023 Tennessee law that bans gender-affirming care for individuals below age 18, violates the Fourteenth Amendment\u27s Equal Protection Clause. The Tennessee Plaintiffs and the Biden administration, which intervened on their behalf, have argued that SB1 unconstitutionally discriminates on the basis of sex and transgender status. In response, Tennessee has argued that SB1 only uses age and medical purpose—not sex or transgender status—to delineate between lawful versus unlawful medical care.
Two recent blockbuster cases from the Court—Bostock v. Clayton County, which ruled that Title VII\u27s ban on sex discrimination in employment covered discrimination based on sexual orientation and transgender status too, and Dobbs v. Jackson Women\u27s Health Organization, which rejected the constitutional right to abortion—will likely influence the Court\u27s decision. This Commentary discusses how the Court should consider these cases and why it should ultimately find that SB1 violates the Equal Protection Clause. That said, this Commentary also acknowledges that the more likely outcome is a ruling for Tennessee and explores the potential impacts of such a ruling
Chevron Was Not, and Cannot Be, Overruled: The Dullness of Loper Bright
No full textAs expected, the Supreme Court declared, in Loper Bright Enterprises. v. Raimondo, that Chevron is overruled. But the Court did not understand the decision that it claimed to overrule. It focused its criticisms on Chevron\u27s notorious two-step test, but failed to recognize that the decision is a major conceptual advance – the first clear judicial recognition that statutory interpretation is the initial and invariably necessary stage in the process by which administrative agencies enforce the law. Chevron thus revealed a reality that the current Court is powerless to alter. Most administrative statutes are not the normative declarations of the pre-administrative era, but rather instructions to an agency that enable it to implement a social policy. Statutes of this type simply cannot be interpreted by a reviewing court de novo because most of their provisions do not state obligatory rules, but grant discretion to an agency, thereby empowering that agency to formulate the legal requirements that apply to private parties. The Loper Bright decision concedes this, as it must, which renders its opinion incoherent and ineffective. While it will certainly lead to reversals of particular administrative regulations that would previously have been upheld, it cannot change the basic features of our modern administrative state.
The opinion also fails to recognize the essential character of appellate review for administrative decisions, which is not to be part of the primary enforcement process, as it would be for a traditional, court-enforced statute, but to exercise collateral supervision of a separate institution staffed by officials with different training and expertise. This second reality will contribute to the ineffectiveness of Loper Bright because most conscientious courts will simply decline to second-guess the complex and technologically specialized decisions that agencies enact in the course of their enforcement process. Ironically, Loper Bright may inadvertently amplify Chevron\u27s impact in many situations. By abolishing the decision\u27s two-step test, the Court has dispensed with the term ambiguity, an unfortunate misnomer, and allowed reviewing courts to recognize that legislative delegations to agencies are more properly described as open-ended – purposeful delegations to the agency rather than an inaccurate use of language