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Vested Rights, “Franchises,” and the Separation of Powers

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Modern courts and commentators have had trouble distinguishing the kinds of decisions that require “judicial” power from the adjudicative tasks that Congress can authorize administrative agencies to perform in the course of “executing” federal law. In a prior article (Adjudication in the Political Branches, 107 COLUM. L. REV. 559 (2007)), I sought to explain traditional doctrines on that topic. For much of American history, Congress could authorize executive-branch agencies to administer and dispose of “public rights” belonging to the federal government or the people collectively, and Congress also could give agencies conclusive authority with respect to the administration of “privileges” that federal law gave private individuals or entities. But the political branches did not have similar sway over vested private “rights.” Only true courts could conclusively determine either that a private person had forfeited such rights or that the claimed rights had never vested in the person to begin with.

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The Supreme Court as Bad Teacher

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Since the 1950s, prominent constitutional law professors have often invoked the notion that the Supreme Court acts as an educational...

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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...

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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, coverage. Across most of the circuits, at least twenty-five percent or more of the courts’ self-reported merits terminations, which predominately include unpublished decisions, never make their way to these databases.
Since at least 2007, when a rule change permitted citation to unpublished decisions from the federal appellate courts, scholars widely have assumed that commercial databases for legal research capture nearly all—if not, in fact, all—federal appellate merits decisions whether designated for publication in the Federal Reporter or not. Although scholars have long considered how publication practices shape access to court decisions—especially at the district court level—this is the first work to analyze and document widespread shortcomings of commercial database access to unpublished federal appellate decisions.

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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....

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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 court prima facie evidence of injury, exposure, and specific causation—sometimes early, and usually on pain of dismissal. Though they’ve taken root in a hazy space outside of the Federal Rules of Civil Procedure, these case management orders are frequently issued, and they play an important role in the contemporary litigation and resolution of mass torts. But although Lone Pine orders are common, potent, and increasingly controversial, they have mostly fallen under the academic radar. Even their key features are described inconsistently by commentators and courts. This Essay pulls back the curtain. Drawing on a unique hand‐coded dataset, this Essay describes the origin and evolution of Lone Pine orders, sketches poles of the debate surrounding their use, and offers empirical evidence regarding their entry, content, timing, and effect.

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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...

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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 of how much deference courts ought to give to such agency interpretations of law. This Article claims, however, that something else is usually going on when agencies implement statutory schemes. Although agencies interpret law, as they must, as an incident to enforce the law, agencies also exercise another power altogether: an interstitial lawmaking, gap‐filling, policymaking power, a power that I shall call the “specification power.” This Article aims to advance existing accounts of agency activity and judicial deference by demonstrating that agencies exercise distinct powers of law‐interpretation and law‐specification when implementing a statutory scheme. Most significantly, it provides a constitutional account for why agencies may exercise this specification power as a formalist matter, even if they cannot have final say over the interpretation of law. If this account is correct, then calls to overturn modern judicial deference may be overblown if agencies are usually exercising their powers not of interpretation, but of specification.

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