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The Minor Questions Doctrine

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Few aspects of administrative law are as controversial as the major questions doctrine—the exception to Chevron deference that bars courts from deferring to an agency’s otherwise reasonable interpretation of an ambiguous statute where doing so has extraordinary policy implications. Proponents of the major questions doctrine believe that the nation’s most significant questions should be decided by Congress, not agencies. The doctrine’s critics, however, counter that there is no sound reason to treat major questions differently from ordinary questions, if such a distinction even exists. The elevation of Justices Neil Gorsuch and Brett Kavanaugh, two major proponents of the major questions doctrine, has reignited the debate. Both the doctrine’s friends and foes expect that the Supreme Court will soon begin more aggressively targeting major questions.

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Missing Decisions

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Significant numbers of federal appellate decisions are missing from Westlaw and Lexis. Bloomberg Law has similar, and similarly incomplete,...

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Legal Tech, Civil Procedure, and the Future of Adversarialism

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“Legal tech” is transforming litigation and law practice, and its steady advance has tapped a rich vein of anxiety about the future of...

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Disaggregating the Policing Function

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Policing imposes serious and extensive harms, from shootings and nonlethal uses of force, to stops, searches, arrests, and incarceration. And many of these harms involve pervasive racial disparities. Scholars and advocates tend to see these harms as collateral to policing and seek to address them with “harm-regulating” tools such as civil rights suits, prosecution of police offcers, elimination of quali”ed immunity, more Department of Justice investigations, civilian review boards, and the like.

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Lone Pine Orders: A Critical Examination and Empirical Evaluation

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Invented in 1986 and now a prominent feature of the mass tort landscape, Lone Pine orders require plaintiffs to provide to the...

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The New Doctrinalism: Implications for Evidence Theory

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This Article revisits and refines the organizing principles of evidence law: case specificity, cost minimization, and equal best. These...

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The Recommendations Clause and the President’s Role in Legislation

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Article II, Section 3 of the Constitution is the source of the President’s recommending function, stating that the President “shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient . . . .” Presidents dating back to George Washington have relied on the Recommendations Clause as a positive source of authority to make legislative recommendations to Congress. In an interesting twist, however, recent administrations have also frequently wielded it as a source of negative power to escape statutory requirements to provide information to Congress.

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The Specification Power

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When agencies implement their statutes, administrative law doctrine describes what they do as interpretation. This raises the question...

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Infinite Arbitration Clauses

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For decades, the Supreme Court has expanded the Federal Arbitration Act (FAA) and companies have placed arbitration clauses in hundreds...

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Estimation Evidence

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This Article radically rethinks the treatment of statistical estimation evidence in civil litigation, focusing for convenience on the federal courts. It proposes an approach that harmonizes legal standards and statistical concepts, replacing the arbitrary and elevated standards of conventional hypothesis testing with an approach that fits what we otherwise think the preponderance standard means.

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