Thursday, August 16, 2018

It's Alive! Iuliano and Whittington on the Nondelegation Doctrine

Jason Iuliano, Olin-Searle Fellow in Law at the University of Pennsylvania Law School, and Keith E. Whittington, William Nelson Cromwell Professor of Politics at Princeton University, Department of Political Science, have posted The Nondelegation Doctrine: Alive and Well, which appeared in volume 93 of the Notre Dame Law Review (2017):
The nondelegation doctrine is dead. It is difficult to think of a more frequently repeated or widely accepted legal conclusion. For generations, scholars have maintained that the doctrine was cast aside by the New Deal Court and is now nothing more than a historical curiosity. In this Article, we argue that the conventional wisdom is mistaken in an important respect. Drawing on an original dataset of more than one thousand nondelegation challenges, we find that, although the doctrine has disappeared at the federal level, it has thrived at the state level. In fact, in the decades since the New Deal, state courts have grown more willing to invoke the nondelegation doctrine. Despite the countless declarations of its demise, the nondelegation doctrine is, in a meaningful sense, alive and well.
If this paper treats the alleged “death” of the nondelegation doctrine, this earlier article reexamines the doctrine’s “life.

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