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Abstract. The United States courts are at a loss for what qualifies as religious for protections under the First Amendment. And it makes sense. Who wants to delineate a precise definition distinguishing the religious from the non-religious when an over-inclusive or under-inclusive definition …

Abstract. Federal agency rulemaking is governed by the Administrative Procedure Act (“APA”), which mainly requires public notice and comment and a delayed effective date. Sometimes, that can be a fast process of just a few months; other times, it can take years. However, an exception to APA …

Abstract. Old regs should not be subject indefinitely to litigation that seeks to validate the public right to legal administrative procedure. Instead, the six-year limitations period under 28 U.S.C. § 2401(a) should accrue for an administrative procedure claim when an agency promulgates a …

Abstract. During the New Deal, President Franklin D. Roosevelt declared that the United States was facing a “quiet crisis.” The Supreme Court had struck down his administration’s rules governing the petroleum and poultry industries. Unlike the recent banking panic that had caused the …

Abstract. Under the major questions doctrine, the Supreme Court looks to the “economic and political significance” of an agency’s rule to help determine whether Congress intended to delegate the authority to issue that rule. While the Court has largely settled on a “billions of dollars” threshold…

Abstract. Title IX of the Education Amendments of 1972 prohibits sex discrimination in federally funded education programs. In recent years, the transgender movement has sought to reinterpret Title IX to require treating a person consistent with that person’s gender identity. Two federal courts …

Abstract. This Article will trace out the implications of how preexisting market distortions affect the magnitude of the harm from making an error in antitrust enforcement. This Article will apply well-accepted logic from cost-benefit analysis to show that pro-competitive mergers—or indeed any …

Abstract. The Chicago School of antitrust claims that it made a major contribution beginning in the late 1970s to making antitrust policy coherent and “scientific” by introducing basic economic concepts. It both advanced the Consumer Welfare Standard (a normative economic theory to segregate …

Abstract. In 2014, I published a pair of articles—Administrative Antitrust and Chevron and the Limits of Administrative Antitrust—that argued that the Supreme Court’s recent antitrust and administrative law jurisprudence was pushing antitrust law out of the judicial domain and into the domain of …

Abstract. The Federal Trade Commission (“FTC” or “Commission”) is testing the boundaries of its authority with an enforcement policy that departs from the rule of reason in the antitrust laws and a procedural agenda that prescribes general regulations of business practices. Neither proposition is…