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Volume 77, Issue 5


Article

Visions of Vermont Yankee

by  Adam Crews

Vermont Yankee is having a renaissance that few are noticing. That canonical 1978 case conventionally stands for the proposition that agencies are generally free to fashion their own procedures. Although one might think that today’s Supreme Court would view that pro-agency doctrine skeptically, the opposite is true. In the last ten years, many of the…

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Antitrust’s North Star: The Continued and Nameless Judicial Deference Toward the Merger Guidelines

by  Mahshad Badii

In December 2023, the Department of Justice and the Federal Trade Commission issued the eighth iteration of the Merger Guidelines—guidance documents that outline the antitrust agencies’ priorities when reviewing a merger or acquisition. These documents are not legally binding. And yet over the past fifty years, courts have heavily relied upon the Guidelines to decide…

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On “Mere” Constitutional Rights: The Emerging Conflict Between State Legislative Privilege and the Fourteenth Amendment

by  Ross Snyder & Lilly Weidhaas

Legislative privilege shields legislators from discovery on acts related to their legislative functions. While the Constitution’s Speech or Debate Clause affords this privilege to federal legislators, protections for state legislators instead arise from the federal common law. The Supreme Court has long recognized that the state privilege yields to important federal interests—including the need to…

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Watering Down Enforcement: Inadequate Criminal Liability in State Clean Water Act Programs

by  Victor Y. Wu

Environmental criminal liability plays an important role in deterring corporate polluters and motivating regulatory compliance. Accordingly, the Clean Water Act (CWA) requires states to apply criminal enforcement standards at least as stringent as the federal standards. For decades, however, the U.S. Environmental Protection Agency (EPA) has been undermining CWA enforcement by approving state permit programs…

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Recent Online Essays

The Coming Assault on Categorical Gun Prohibitions

Introduction Lower courts are grappling with challenges to what were, until recently, settled Second Amendment laws—most notably, the federal laws prohibiting felons and those involuntarily committed from purchasing or possessing firearms. These categorical prohibitions are two of the most prominent so-called “federal prohibitors.” People who fall into one or more of the prohibited categories may…

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California, an Island?

Lincoln L. Davies and Stephanie Lenhart warn that the energy future of the Western United States will be determined by the choices California makes over the next two years. Davies and Lenhart urge California to move towards a regional western electricity market to improve energy efficiency, reliability, and sustainability, and to avoid isolating California’s electricity market.

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The Pardon Power and Federal Sentence-Reduction Motions: A Response to Yost and Flowers

In his response to Ohio Attorney General Dave Yost and former Ohio Solicitor General Benjamin Flowers, Jaden Lessnick argues that the federal sentence-reduction statute (18 U.S.C. § 3582(c)(1)(A)) is not preempted by the presidential pardon power. Lessnick contends that the statute does not offend the traditional separation-of-powers principle, and preemption is not justified under the unitary executive theory.

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Alternative Action After SFFA

Prof. Kim Forde-Mazrui of the University of Virginia responds to Sonja Starr’s print Article, The Magnet School Wars and the Future of Colorblindness. Forde-Mazrui argues that even if courts adopt the “ends-colorblindness” framework described by Starr, “alternative action” policies meant to promote diversity may still be constitutionally permissible.

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The Making of the A2J Crisis

Access to justice has become a defining legal and political issue. In this Essay, Nora Freeman Engstrom and David Freeman Engstrom work to identify the cause of the Access to Justice Crisis.

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