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Denying Deference
Blogs
Before starting law school, I thought most law was established, even stagnant. I knew that certain politicized cases made headlines when overruling precedent. But I learned that many influential cases overturning precedent are not broadly publicized. For instance, the Supreme Court recently decided Loper Bright and Relentless (which were argued in tandem) and by overruling…
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Jarkesy v. SEC—How a Seemingly Boring Fraud Case Begins to Restore the Separation of Powers (and our Individual Rights)
Blogs
“Again, there is no liberty, if the judiciary power be not separated from the legislative and executive.” These words written by Baron de Montesquieu were foundational to the Framers’ concept of separation of powers. In turn, they influenced the very fabric of our government as it exists today. The Framers firmly believed that the judiciary…
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Murthy: Catch Me If You Can
Blogs
Sometimes, a case about standing really is just about standing. But not always. Sometimes a standing analysis reveals, sotto voce (or “esoterically” for all you Straussians1), a flaw in some aspect of the Court’s substantive jurisprudence. I think Murthy2 is one such case. It didn’t really break any new ground on who may bring a claim in federal court,…
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Absolutely Scary: How Cross-Deputization Allows Corrupt State Officials to Enjoy Absolute Immunity
Blogs
For decades, federal law enforcement agencies, such as the U.S. Marshals Service, the FBI, and the DEA, have been in the practice of deputizing state and local law enforcement officers as federal agents to serve on joint state-federal task forces. The stated purpose of these joint task forces is to combine resources to combat issues…
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The ‘Always Done It This Way’ Defense: Why Government Agencies Can't Just Coast on Autopilot
Blogs
When a government agency defends its actions by saying, “But we’ve always done it this way,” it’s worth taking a closer look. This argument is a common theme in the government’s response to legal challenges against agency actions. However, it doesn’t hold as much legal weight as one might think. Longevity and repetition alone don’t…
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Corner Post, Inc. v. Board of Governors: A Major Readjustment for APA Claims
Blogs
True to form, the Supreme Court saved one of its most important decisions for the final opinion day of the 2023 Term. On July 1, 2024, the Court handed down its opinion in Corner Post, Inc. v. Board of Governors. The cries of anguish from supporters of the administrative state were only eclipsed by the…
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