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.”
Tradition is most well known today for starring in blockbuster Supreme Court cases about controversial social issues, notably abortion and firearms...
We examine how well citation metrics correspond to a market valuation of legal scholars in lateral hiring. We find that professors’ citation counts...
The storm clouds hovering above public and private universities in the United States are neither divine judgement nor a day of reckoning. Rather, they...
Enforcement is costly, so sometimes states choose not to enforce their laws. We study this choice under rules and under standards. We show that...
This Article tells the inside story of the rise, spread, and evolution of trust and safety. We bring unique perspectives to this story. One of us...
American political leadership skews decidedly older than the population as a whole. President Donald Trump turned 80 years old on June 14, 2026. The...
Article II of the Constitution says that “[t]he executive Power shall be vested in a President of the United States of America.” Of course, the...
In Trump v. CASA, the Supreme Court held that district courts do not have the authority to issue “universal” injunctions that protect nonparties...
Few constitutional issues have been as significant to the first 100 days of the second Trump Administration as the question whether the President may...
On April 24, 2024, the United States Department of Justice (DOJ) issued its final rule, Nondiscrimination on the Basis of Disability; Accessibility of...
We are living in a dangerous inverted world. Abusers claim the mantle of victimhood while pummeling their victims with abuse. Would-be authoritarians...
This month, Norway marked the 80th anniversary of its liberation from Nazi Germany, and the United States will commemorate the same anniversary of...
Following the Supreme Court’s momentous decision last term in Loper Bright Enterprises v. Raimondo, much of the scholarly discussion has focused on...
Musk’s attempts to gain access to agency databases is an egregious violation of the act, which protects personal information from abuse.
Under the...
The notion of insurance as a regulatory device has become a prominent trop in recent years. In the US, a leading article by insurance law Professors...