The question whether the term “set aside” in the Administrative Procedure Act (APA) authorizes a federal court to vacate a rule universally—as opposed to setting aside the rule solely as to the plaintiffs—is a significant and contested one. This Essay traces the history of the statutory term “set aside” from its origins in the 1906 passage of the Hepburn Act to its 1946 placement in the APA. During this era, Congress repeatedly used the term “set aside” in agency review statutes. This Essay argues that, in doing so, Congress did not intend to depart from the underlying remedial framework created by the law of judgments and equity. The traditional approach limited the ability of a stranger to litigation to enforce a judgment previously obtained by another, even if the stranger proceeded on the same legal theory. The Essay explains how that traditional approach continues to apply in challenges to agency “adjudications” and offers some reasons for why the same approach ought to apply in challenges to those agency actions that are categorized as “rulemakings.”
The per se rule against specific enforcement of personal service contracts is well established under Anglo-American contract law. At the same time...
This essay considers the future of public-private collaboration in the wake of the Murthy v. Missouri litigation, which cast doubt on the...
History and precedent tell us that the just compensation requirement has been implemented by a complex network of remedies providing multiple avenues...
The Supreme Court has overruled Chevron v. Natural Resources Defense Council, finally interring a doctrine of statutory interpretation that it had...
Celebrating Charles Ogletree, Jr. comes naturally to so many people because he served not only as a tireless champion of equality and justice, but...
State public utility commissions are at the forefront of the clean-energy transition. These state agencies, which have jurisdiction over energy...
The Administrative Procedure Act’s standard-of-review provision instructs reviewing courts to “decide all relevant questions of law, interpret...
Gradualism should have won out in Dobbs v. Jackson Women’s Health, exerting gravitational influence on the majority and dissenters alike. In general...
In 2021 the Uniform Law Commission (ULC) gave final approval to the Uniform Cohabitants' Economic Remedies Act (UCERA). The Act provides a framework...
“Dignity” is a rallying cry of social and political movements worldwide. It also appears in legal doctrine and scholarship. But the meaning of dignity...
On November 5, an anti-environmentalist faction led by and supporting Donald Trump prevailed in the national elections. The policy assaults by Trump &...
Federal administrative agencies are one of the primary policymaking venues in the United States. One of the core features of U.S. administrative...
On December 15, 2023, the U.S. Court of Appeals for the Fifth Circuit issued its decision in Illumina, Inc. v. FTC. Although the court vacated and...
On January 17, the Supreme Court heard arguments in what are potentially the most significant commercial law cases of the last decade. In the...
There is a live debate going on over whether antitrust should take a broader view of the economics of market concentration. When antitrust reformers...
This casebook aspires to help students understand and think systematically about the techniques of statutory interpretation. It blends exposition with...
In an era defined by partisan rifts and government gridlock, many celebrate the rare issues that prompt bipartisan consensus. But extreme consensus...
The idea of institutionalism figures prominently in today’s debates about the role of federal courts in American democracy. For example, Chief Justice...