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Agency Delay and the Courts
Full text linkAdministrative delay plagues the modern regulatory state, yet scholars and courts lack a coherent framework for analyzing when delay becomes unlawful and how to remedy it. This Article provides the first comprehensive examination of judicial oversight of agency delay, tracing the evolution from common law mandamus through the delay provisions of the Administrative Procedure Act. It reveals critical distinctions between these mechanisms that courts have increasingly elided, leading to doctrinal confusion and ineffective remedies. On account of the second Trump administration’s Department of Government Efficiency initiatives, this topic takes on unprecedented urgency because administration policies to reduce workforce and restructure the executive branch agencies will rapidly lead to a dramatic increase in delays across the administrative state. This Article makes three contributions. First, it illuminates the forgotten role of mandamus as a check on bureaucratic delay by excavating its development from prerogative writ to modern remedy. Second, it demonstrates how courts have improperly conflated mandamus with APA delay claims, obscuring important differences in their scope, standards, and available relief. Finally, it proposes a new framework for evaluating agency delay that better serves congressional intent while respecting executive branch resource constraints. This framework would replace the malleable and increasingly ineffective factors in the prevailing judicial review standard for agency delay with more structured analysis of agency operations, congressional deadlines, and regulated party impacts. The Article’s insights are intended to help the Judiciary more effectively police the boundary between permissible administrative discretion and unlawful foot-dragging—a critical task as political forces threaten to increase delays across the regulatory state as a consequence of shrinking government
Standing
Full text linkChapter 4 explores the intricacies of the legal principle of standing, its role in climate litigation, and how it impacts the ability of parties to bring climate change-related lawsuits to trial. The author discusses interpretations of standing across different jurisdictions, such as the United States, New Zealand, and countries in Europe, and explains how these interpretations can either impede or facilitate climate litigation. He distils emerging best practice from this analysis, providing an insightful guide for future climate lawsuits. The author then identifies emerging best practice in interpreting standing rules in a flexible manner, thus allowing a broader range of actors to bring climate-related lawsuits and enhancing access to justice
The Looming Threat of Uninsured Nonbank Stablecoins
Full text linkOn May 21, 2025, the U.S. Senate voted to begin final consideration of the “GENIUS Act.” Despite its lofty title, the bill would create grave threats to our financial system and economy by allowing nonbanks to issue stablecoins without the protections provided by federal deposit insurance and other regulatory safeguards governing FDIC-insured banks. The GENIUS Act would set the stage for future runs on stablecoins triggering systemic financial crises and requiring government bailouts.The great majority of global stablecoins promise to maintain parity with the U.S. dollar and are functionally equivalent to bank deposits. Stablecoins are mainly used as payment instruments for speculating in crypto-assets with fluctuating values, like Bitcoin and Ethereum, and facilitating unlawful activities.Despite their promises, stablecoins have been anything but stable. More than 20 stablecoins collapsed between 2016 and 2022, and every leading stablecoin lost its “peg” to the U.S. dollar between 2019 and 2023. Stablecoins (like other uninsured, short-term financial claims) are vulnerable to investor runs whenever investors doubt the ability of issuers to redeem their stablecoins promptly. The GENIUS Act would establish a very weak and inadequate regulatory system for stablecoins, and it would not provide a federally-supervised fund to ensure their repayment.Advocates claim that nonbank stablecoins will improve our payments system and increase financial inclusion. In fact, nonbank stablecoins operating on public blockchains have not shown any ability to deliver fast, reliable, and inexpensive payment services. Public blockchains suffer from lack of scalability and immutability, which prevent them from providing a feasible technology for ordinary payments and other high-volume financial services. Nonbank stablecoins have not demonstrated any capacity to increase financial inclusion, and the crypto industry’s past dealings with underserved communities have been predatory and exploitative.To remove the dangers posed by uninsured nonbank stablecoins, Congress should reject the GENIUS Act and pass legislation mandating that all issuers and distributors of stablecoins must be FDIC-insured banks. That mandate would ensure that stablecoins are offered to the public in a safe, well-regulated manner that protects consumers and investors and maintains the stability of our financial system. Congress should encourage a more efficient and inclusive payments system by supporting tokenization of deposits on permissioned distributed ledgers administered by FDIC-insured banks, and by requiring FDIC-insured banks to provide basic, low-cost deposit accounts with online payment services to lower-income individuals and families who live in the banks’ designated service areas and meet minimum qualifications for lawful status and financial responsibility.The GENIUS Act would allow Big Tech firms and other commercial enterprises to acquire nonbank stablecoin issuers and use stablecoins to enter the banking business and build financial empires. That outcome would undermine our nation’s longstanding policy of separating banking and commerce and create enormous risks. To keep Big Tech giants and other commercial firms out of banking, Congress should reject the GENIUS Act and require all stablecoin providers to be FDIC-insured banks.The GENIUS Act would permit nonbank stablecoins to become a dangerous new category of “shadow deposits,” thereby creating “Shadow Banking 2.0” (a term coined by Hilary Allen). “Shadow Banking 2.0” would disintermediate FDIC-insured banks by pulling away large amounts of bank deposits, severely impairing the ability of banks to make loans to consumers and Main Street businesses.The GENIUS Act would also allow nonbank stablecoin issuers to inflate a “Subprime 2.0” crypto bubble by offering crypto derivatives. Crypto derivatives would generate multiple, highly-leveraged bets on volatile crypto-assets with fluctuating values. The resulting pile of speculative bets on crypto-assets would resemble the toxic pyramid of bets on subprime mortgages arranged by large financial institutions during the “Subprime 1.0” credit boom of the early 2000s.The collapse of “Subprime 1.0” caused the global financial crisis of 2007-09. The crypto bubble produced by “Shadow Banking 2.0” and “Subprime 2.0” would inevitably cause another crypto crash, with damaging spillover effects on traditional financial markets. It is very doubtful whether federal agencies could arrange costly bailouts without risking a crisis in the Treasury bond market and significant depreciation of the U.S. dollar. In addition to the foregoing dangers, the GENIUS Act has many other deeply-flawed provisions, which provide further reasons for Congress to reject the GENIUS Act and require all stablecoin providers to be FDIC-insured banks
Allies Bridging The Valley Of Death: How NATO’s Defence Innovation Accelerator For The North Atlantic Will Help Maintain NATO’s Technological Edge
Full text linkAround the world, governments hope to leverage procurement for innovation—and then to carry that innovation into sustained production, across the “valley of death” where many innovative technologies fail in development. To access technologies emerging across the Alliance for the common defense, the North Atlantic Treaty Organization (NATO) has launched the Defense Innovation Accelerator for the North Atlantic (DIANA). DIANA nurtures dual use (military and commercial) technologies across the NATO Alliance, and offers important strategies—including funding, accelerator programming, connections with end users and commercial expertise, testing and demonstration opportunities, private investment, and rapid adoption—for technological innovation in public procurement. This article demonstrates DIANA’s potential to complement existing procurement systems and efficiently provide for the adoption of new, commercial technologies by defense and security end users within the NATO Alliance. While presenting the operational model of DIANA, special attention will be given to the “Rapid Adoption Service”—DIANA’s constituent element intended to support agile and rapid development and adoption of innovative solutions by Allies and NATO. DIANA will operationalize the Rapid Adoption Service through a single set of rules supporting contracting vehicles that can be utilized by multilateral, multinational, and bilateral consortia to continue development and eventually procurement of innovative solutions, directly, through national procurement structures, or through partner NATO elements such as the NATO Support and Procurement Agency or the NATO Communications and Information Agency
Policy Brief: The Hagerty-Scott-Lummis-Gillibrand Stablecoin Bill Would Cause Great Harm to Consumers, Investors, Our Financial System, and Our Economy
Full text linkOn February 4, 2025, Senators Bill Hagerty, Tim Scott, Cynthia Lummis, and Kirsten Gillibrand introduced a bill that would create a dangerously weak and deeply flawed regulatory regime for stablecoins. Their bill (the “Hagerty bill”) would allow stablecoins to be offered to the public without the protections provided by federal deposit insurance and other safeguards governing banks insured by the Federal Deposit Insurance Corporation (FDIC). The Hagerty bill would greatly increase the likelihood that future runs on stablecoins would trigger systemic crises requiring costly federal bailouts to avoid great harm to our financial system and economy.
A stablecoin is a crypto-asset whose issuer represents that the stablecoin will maintain parity with a designated fiat currency or another referenced asset. The vast majority of global stablecoins are linked to the U.S. dollar and are functionally equivalent to bank deposits. The issuers of those stablecoins promise to redeem them or transfer them to third parties upon the holder’s demand or within a specified time.
Stablecoins have proven to be anything but stable. More than twenty stablecoins collapsed between 2016 and 2022. Each of the world’s leading stablecoins lost its “peg” to the U.S. dollar (or other designated reference value) between 2019 and 2023.
Recent stablecoin runs resemble the runs that occurred on uninsured deposits and other uninsured short-term financial instruments during U.S. financial crises stretching from the nineteenth century through 2023. The Hagerty bill ignores the lessons of those crises by failing to establish a strong and effective regulatory regime for stablecoins, and by failing to provide a credible federally-supervised fund to ensure their timely repayment.
The Hagerty bill would allow issuers of nonbank stablecoins to pay interest and compete with FDIC-insured banks. The bill’s lax regulatory regime would allow stablecoins to pay higher interest rates and divert deposits away from FDIC-insured banks. Thus, the Hagerty bill would undermine our banking system and disrupt the flow of credit from FDIC-insured banks to consumers and Main Street businesses.
The Hagerty bill would also enable Big Tech firms and other commercial enterprises to acquire nonbank stablecoin issuers and use stablecoins as “shadow deposits” to enter the banking business. Big Tech firms would gain access to information about their customers’ financial dealings, thereby leveraging their ability to exploit private customer data.
Congress should reject the Hagerty bill. Congress should instead approve legislation requiring all issuers and distributors of stablecoins to be FDIC-insured banks. That requirement would keep Big Tech firms out of banking and maintain our nation’s longstanding policy of separating banking and commerce. It would also ensure that stablecoins are provided in a safe, well-regulated manner that protects consumers, investors, our financial system, and our economy.
The Hagerty bill has many other defects, which are described in this Policy Brief. Those shortcomings provide additional reasons for Congress to reject the Hagerty bill and require all stablecoin providers to be FDIC-insured banks
Justice Delayed By Design: The Harms of Our Protracted Divorce System
Full text linkDivorce is the termination of a legal relationship. It is necessary for the enforceable division of property and debts between spouses as well as for remarriage. However, it’s not simply a lawsuit. Instead, it most often involves a seismic shift in the very foundations of life and, as such, frequently provokes, exacerbates, and exposes insecurities, instabilities, and vulnerabilities. This legal process also involves a unique relationship between litigants who are former intimate partners—often co-parents—and who are largely unrepresented and therefore engaged in a new form of relationship as opposing parties to a lawsuit. Given these complex dynamics, one might hope that the legal process would be expedited to minimize trauma and to bolster financial stability. Instead, the legal process of divorce is complicated, time-consuming, and rife with pro-cedural and substantive hurdles that result in the majority of divorces languishing in the court system. But unlike most legal system delays, the ponderous pace of the divorce system is not the result of inefficiencies or bugs in the system. To the contrary, many of the divorce system’s delays are deliberate features. Most are expressly intended to slow the pro-cess, compel couples to reconsider their decisions, and ultimately, deter divorces. Others are intended to support pro se litigants, but instead, as implemented, often greatly disadvantage them.
Our society’s traditional support for the institution of heterosexual marriage—which one can enter after little more than the mere submis-sion of a form—has informed the structure of the divorce system and has resulted in a series of procedural hurdles to discourage divorce. This Article enters a conversation about the relationship between religion, morality, tradition, and the procedural impediments to divorce and begins a conversation about how those impediments most harm those located at the intersection of poverty and gender bias. These conversa-tions are critically important now, as national political efforts to restrict access to divorce have reemerged. Specifically, this Article analyzes the procedural impediments to efficient divorce actions and the harm those impediments cause to all, but particularly to our system’s most vulnerable litigants—disproportionately low-income women. After illustrating that these procedural delays have not resulted in preserving marriages and instead have enhanced the risk of harm, this Article analyzes a range of system changes that take into account the often-emergent nature of divorces, the unique relationship between the parties, and the support processes that would better meet the particular needs of divorce litigants and their families, as well as the court system generally. These statutory and procedural innovations seek to create an expeditious path to perma-nent resolution of divorce cases for all litigants. They include eliminating or greatly reducing waiting periods, shifting the presumption in divorce cases to limited discovery, providing expedited mediation opportunities, and creating the statutory right to expedited divorces for those for whom delay would cause particular harm. These statutes would operate much like domestic violence protection order statutes, acknowledging the par-ticular vulnerabilities of those seeking protection and the unique nature of judicial intervention in the context of intimate family relationships
The Future of the Duty to Engage in Reasoned Decision Making: The Choice Between a Textual Approach and a Pragmatic Approach
No full textIn this contribution to a symposium on the future of the duty to engage in reasoned decision making, Professor Pierce argues that the Supreme Court faces a decision whether to retain the present robust version of the duty to engage in reasoned decision making and to extend it to actions taken by the president or to abandon or greatly weaken it. He urges the Court to retain and expand the scope of the duty to include actions taken by the president. He expresses concern, however, that the Court may instead abandon or significantly weaken the duty
Feature Comment: Bid Protests in the U.S. Procurement System: Part II—Percipient.ai, Debriefings and Agency-level Protests
No full textThis is the second part of a two-part series. Part I, 67 GC ¶ 216, reviewed several reform proposals being considered by Congress. This Feature Comment (a) assesses the courts’ role in bid protest reform in light of the U.S. Court of Appeals for the Federal Circuit’s en banc decision in Percipient.ai, (b) reviews the potential benefits of expanded debriefings, and (c) explains how agency-level bid protests could be reformed, using agencies’ own best practices, to make them more effective
Durability, Flexibility and Plasticity in the U.N. Convention on the Law of the Sea
Full text linkThe overall resilience of the U.N. Convention on the Law of the Sea during the forty years since its adoption in 1982—its durability, its flexibility and its plasticity in the face of myriad challenges that have unfolded over time—is largely attributable to certain design features within the Convention, to a willingness to ‘bend’ the Convention toward practical outcomes when necessary, and to the foresight of the drafters in closely tying the Convention to other agreements and standards, as well as to the general field of international law, so that the Convention might evolve as the world evolves. There are risks in flexibility and plasticity; in measured doses they promote resilience, while if taken too far they can erode confidence and support in the regime. Ultimately, such resilience rests on the good faith of States and other relevant actors in pursuing common ground in regulating a common space
Congressional Testimony: Problems with the SEC\u27s Climate Disclosure Proposal
Full text linkThis Congressional testimony, requested by the House Financial Services Committee, identifies the fatal flaws embedded in the SEC\u27s controversial climate disclosure rule, To summarize some primary problems, the Proposal: disregards evidence that most individual investors buy stocks primarily to save, not to influence climate policy; does not address the millions of individual American investors who need the SEC’s protection as they save for education, homes, retirement, and philanthropy; and ignores conflicts of interest between large asset managers and their beneficiaries—ordinary Americans—who have different preferences and goals.
In addition, the Proposal mandates irrelevant and burdensome disclosures that would harm investors by: forcing companies to disclose information about the greenhouse gas emissions of their suppliers, employees, and customers, which is useless to investors; making companies report climate impact, not just climate risk, which investors do not need; imposing millions of dollars in annual costs on companies with no clear benefit for investors (or the climate); compelling the disclosure of information that is inherently speculative and uncertain, as likely to mislead investors as to inform them; spurring lawsuits over disclosure adequacy, which wastes resources even when baseless; discouraging companies from being publicly traded, which deprives ordinary investors of opportunities and frustrates capital formation; and usurping state corporate law and company business judgment, which undermines investor rights and interests.
Furthermore, the Proposal faces legal challenges under: the major questions doctrine, as it lacks clear Congressional authorization for its significant policy reach, as suggested in cases since the Proposal was issued, especially West Virginia v. EPA; the First Amendment, for compelling company speech on controversial matters; and the Administrative Procedure Act, as it solves no problem within the SEC’s mandate, and includes no proper cost-benefit analysis, perils that led another SEC rule to be vacated last month