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Congress\u27s Competing Motivations: What Chevron Can Tell Us About Constitutional Acquiescence
Get PDFThis Note asks under what conditions the Supreme Court would find evidence of post- Founding historical practice persuasive in separation of powers debates. This Note focuses on two theories of how evidence of a long-standing historical practice might be relevant in separation of powers disputes: constitutional liquidation and historical gloss. According to both theories, the authority of a long-standing historical practice depends in part on the motivations driving the relevant branch of government to engage in that practice. Current scholarship on constitutional liquidation and historical gloss, however, has not yet explored fully these motivations in a way that recognizes the actual dynamics of interbranch relations.
This Note explores those motivations in detail by examining the motivations driving Congress to grant its interpretive authority to an administrative agency under Chevron. Ultimately, I conclude that Congress faces the same competing motivations when granting its interpretive authority to an administrative agency as when deciding to engage in a long-standing historical practice. As a result, understanding how the Court interprets congressional motivations in the Chevron context should inform how the Court views congressional motivations in the context of constitutional liquidation and historical gloss. Moreover, because Chevron is likely to be reformed in the near future, future changes to Chevron should indicate when and to what extent the Court will find constitutional liquidation or historical gloss persuasive in separation of powers debates
The Methuselah Gene
No full textIn The Methuselah Gene, Michael S. Maurer\u27s mesmerizing medical thriller, Alex Morton, a talented but unorthodox scientist, undertakes the care of little Jimmy Higgins who suffers from one of the rarest diseases in the world, progeria, a genetic mutation that grossly accelerates the aging process. Alex\u27s study of progeria yields staggering discoveries about the mother of all diseases, aging. What Alex does not know is that Mother Nature jealously guards her secrets and that his newly developed therapies will lead to calamitous unintended consequences.https://www.repository.law.indiana.edu/facbooks/1288/thumbnail.jp
Memorial for Jost Delbrück
No full textOn November 6, 2020, Jost Delbruck--the renowned scholar, author, and teacher of public international law who spent almost his whole academic life commuting between the Law School of Kiel University in Germany and Indiana University Maurer School of Law--passed away, only a few days after his 85th birthday. Hundreds of friends, colleagues, pupils, and former students on both sides of the Atlantic mourn for an extraordinary, brilliant, and inspiring person. His close ties to Kiel and Bloomington alike influenced the intellectual life of both Law Schools. The impact of his work remains visible to this day
US-China Transnational Law in a Time of Trade Crisis
Get PDFGrowing transnational business activities have resulted in more rapid transnationalization of American laws. In an era of deglobalization, the way the Trump administration moved away from multilateralism has both gravely impacted international law ordering and triggered responsive (or adaptive) law-making in some of the United States\u27 major trade partners, in particular, China. The recently concluded US-China Trade War has driven up the speed of transnational norm-making and hastened incorporation of American legal principles into Chinese domestic laws. As diplomatic tension between the United States and China intensify, Chinese companies are increasingly becoming targets of sanctions and regulatory enforcement actions led by the U.S. government. The strong deterrence effect of these measures has also resulted in stronger self-policing and compliance in Chinese corporations conducting cross-border business transactions, as well as in responsive law-making taken by the Chinese government to intrude on sovereignty and to combat against unintended effects of US law enforcement. Against this backdrop, this article offers an alternative narrative of the formation of legal ordering in transnational trade through passive and active importing of American law as a \u27law product, giving rise to new and recursive cycles of lawmaking in China. Quite contrary to what previous studies have suggested that unilateralism often leads to donor-dominated transnational legal processes this article argues that the institutional and political structure of contemporary China makes it more receptive to legal transplantation at times of political tension, generating positive externalities to China\u27s staggering market liberalization and legal reforms. Over time, these processes will lead to normative settlements creating a new equilibrium between the United States and China as well as between the public and private spheres in China. Additionally, adopting transnational law theories by focusing on the settlement of legal norms caused by interactions of state and non-state actors warrants the study of comparative law more generally
Unilateral Burdens and Third-Party Harms: Abortion Conscience Laws as Policy Outliers
Get PDFMost conscience laws establish nearly absolute protections for health care providers unwilling to participate in abortion. Providers’ rights to refuse—and relatedly, their immunity from civil liability, employment discrimination, and other adverse consequences—are often unqualified, even in situations where patients are likely to be harmed. These laws impose unilateral burdens on third parties in an effort to protect the rights of conscientious refusers. As such, they are outliers in the universe of federal and state anti-discrimination and religious freedom statutes, all of which strike a more even balance between individual rights and the prevention of harm to third parties. This Article argues that state abortion conscience laws should incorporate limitations similar to those established in the Civil Rights Act and the Americans with Disabilities Act in order to minimize risks to third parties who might be harmed by provider refusals
Enforcing Outbound Forum Selection Clauses in State Court
Get PDFForum selection clauses are a staple of modern business law. Parties agree, ex ante, on where they can sue one another and then rely on the courts to enforce these agreements. Although the number of contracts containing forum selection clauses has skyrocketed in recent years, there is a dearth of empirical information about enforcement practice at the state level. Are there any states that refuse to enforce them? How frequently are they enforced? Under what circumstances, if any, will these clauses be deemed unenforceable? The existing literature provides few answers to these questions.
This Article aims to fill that gap. It surveys more than 200 state statutes and nearly 900 state cases involving outbound forum selection clauses to contribute to the scholarly discussion in two important ways. First, it provides a much needed, and heretofore missing, empirical account of when outbound forum selection clauses will be enforced in state courts. Second, the Article offers a rich descriptive account of why outbound forum selection clauses sometimes go unenforced. It shows that state courts generally refuse to enforce these clauses for one of two reasons: 1) they are contrary to public policy; or 2) they are unreasonable, a famously malleable term that encompasses a relatively stable subset of reasons.
The data presented in this Article offers important insights to actors who interact with outbound forum selection clauses on a regular basis—litigators, judges, and scholars. Armed with this information, litigators can take care to avoid pitfalls that may result in a clause being deemed unenforceable. Judges can gain a better sense for how their colleagues in other states address the myriad challenges posed by these clauses. And scholars can draw upon this data to evaluate whether there exists a difference between state and federal practice in this area and, if so, whether this difference presents a problem under the Supreme Court’s seminal decision in Erie Railroad Co. v. Tompkins
Examining Functionality
No full textProfessor Janis\u27 contribution to this volume is chapter 30 Examining Functionalityhttps://www.repository.law.indiana.edu/facbooks/1280/thumbnail.jp
An Appellate Solution to Nationwide Injunctions
Get PDFDistrict courts have issued an unprecedented number of nationwide injunctions during the Obama and Trump administrations, provoking criticism from the Supreme Court. This Article proposes a change to the Federal Rules of Civil Procedure that addresses the Justices’ concerns without taking the drastic step of eliminating nationwide injunctions entirely. Specifically, this Article recommends amending Rule 65 to allow only the appellate courts to issue injunctive relief that extends beyond the plaintiffs in cases challenging a federal law or policy. In addition to the proposed Rule change, this Article offers a categorization framework for existing proposals addressing nationwide injunctions, classifying them as “Prohibitory Rules,” “Inhibitory Standards,” or “Inhibitory Rules.” The proposal itself takes the form of an Inhibitory Rule