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Call for Papers -- Junior Scholars Colloquium

Timothy Courtney January 11, 2017
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We are pleased to announce a Call for Papers for our sixth annual Junior Scholars Colloquium, which is tentatively scheduled for June 23-25, 2017 at Loews Annapolis Hotel in Annapolis, Maryland. The Junior Scholars Colloquium provides eight junior faculty members (as defined in the submission criteria below) with the opportunity to present competitively selected, unpublished papers and receive comments from more senior faculty members to help improve their scholarship.

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Supreme Court Columns

The Constitution Says Nothing About Behavioral Economics

Timothy Courtney January 10, 2017
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Federalist Society member Todd Zywicki is in the Wall Street Journal:

Behavioral economics has taken the academy by storm over the past two decades. The Obama administration has even looked to the discipline—which posits that psychological biases frequently lead consumers to make bad economic decisions—to shape government policy. But is behavioral economics relevant to interpreting the Constitution? That’s the novel claim raised by Expressions Hair Design v. Schneiderman, which the Supreme Court will hear Tuesday.

Full article (for subscribers) 

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U.S. Department of Justice seal

Will Trump Have the First Numerate Administration?

James Scanlan January 04, 2017
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On November 28, 2016, the Department of Justice (DOJ) filed an amicus curiae brief urging the Supreme Court not to grant a writ of certiorari for review of the Fifth Circuit decision in Veasey v. Abbottstriking down a Texas voter ID law.  Given the likely views of the Trump administration on voter ID laws, if the Court grants review, DOJ may well file a brief in support of the petitioner.  Such brief would present the matter rather differently from the agency’s recent filing. [Read More]

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Agency Doesn't Need Public Permission to Withdraw Proposed Regulations
Photo Credit: NRDC (link)

Federal Regulation, Judicial Stays, and the Right to Appeal

J. Kennerly Davis, Brian Taylor Goldman January 03, 2017
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The election results have raised serious doubts about the future of President Obama’s Clean Power Plan (“CPP” or “Plan”).  During the campaign, President-elect Trump repeatedly moved to kill the Plan outright.

There are, of course, many legal complexities associated with the requirements of the Clean Air Act and federal administrative procedure.  Observers differ about the options available to the new administration, and about whether the Plan will actually be repealed or simply modified to some extent. [Read More]

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Exceptionalism by Michael B Mukasey

When Enforcing the Constitution Means Rejecting Precedent: A Reply to Greg Weiner

Evan Bernick December 30, 2016
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Part bull, part man, and nourished by Athenian blood, the minotaur has been the stuff of nightmares for millennia. It is to be doubted, however, that anyone has put it to more terrifying use than the French political scientist Bertrand de Jouvenel , who deployed the minotaur as a symbol of a particularly menacing kind of government power—arbitrary power, unconstrained by principles of law and hostile to individual rights.

In a recent essay at Liberty & Law, Greg Weiner trots out Jouvenel’s minotaur to frighten readers about the supposed menace of “a jurisprudence of ‘wrong the day that it was decided’”—that is, a judicial approach whereby judges reconsider and reject decisions that never did reflect an accurate understanding of the law. This judicial approach has been recommended by both Randy Barnett and Mark Tushnet, albeit on the basis of fundamentally differing understandings of the Constitution and of judicial duty. Warns Weiner, “the judicial Minotaur does not differ from other variants of the all-consuming creature . . . having been forged for one hand to brandish, [judicial power] will ultimately be wielded by another.” [Read More]

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FCC Front Door

An Obama mandate to trim outmoded rules is one Trump should keep

Randolph J. May December 21, 2016
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Here’s the way I began my commentary, “One Obama Executive Order That Makes Sense,” published on December 19 in the Washington Times:

In July 2011, President Barack Obama actually issued an executive order that, at least on paper, makes good sense. It’s Executive Order 13579, ‘Regulation and Independent Regulatory Agencies,’ urging independent agencies such as the Federal Communications Commission to establish plans for periodic retrospective reviews aimed at eliminating outmoded regulations.

E.O. 13579 followed on the heels of an earlier Obama executive order requiring executive branch agencies to engage in retrospective reviews to eliminate outdated, no longer necessary regulations. In the case of so-called independent agencies, President Obama (supposedly) could not “order” that the agencies undertake retrospective reviews, so E.O. 13579 simply “urges” them to do so. [Read More]

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A Baker's Dozen Reasons to Oppose Sentencing "Reform" - By William G. Otis

Silvester v. Harris: Watered-Down Intermediate Scrutiny

Joseph Greenlee December 20, 2016
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In Silvester v. Harris, the Ninth Circuit Court of Appeals upheld a California law requiring a 10-day waiting period for all firearm purchases, as applied to purchasers who already own a firearm and concealed carry permit holders. The plaintiffs argued that they should be able to possess their purchased firearm as soon as their background check is completed. The government argued that the 10-day waiting period provides a much needed “cooling off” period, even when the purchaser already owns a firearm. [Read More]

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