Samuel R. Bagenstos (University of Michigan Law School) has posted The “Nerd Circuit”: Creating a New Court for Regulatory Challenges on SSRN. Here is the abstract:
In recent years, opponents of new Executive Branch initiatives have developed a standard playbook for tying up those initiatives in court: Bring a lawsuit in a hand-picked court chosen for its likelihood of being hostile to the initiative at issue, and obtain immediate, nationwide relief. Even if the relief is only preliminary in nature, it will have the effect of stopping the initiative in its tracks. To many observers, the answer to this problem seems obvious: Either create rules for random assignment of judges to challenges to new regulations, or centralized assignment of those challenges to a single court. This essay, prepared for a symposium on discrete reforms that would improve administrative law, argues that random assignment alone will not solve the problem—because the problem is not simply forum- or judge- shopping. The problem is the way the rules permitting forum- and judge-shopping interact with the overall anti-regulatory tilt of the federal courts—up to and very much including the Supreme Court. This essay argues that the best way to address the broader problem is to channel all challenges to new rules to a single court—and for that court to be a newly-created Article III tribunal, with jurisdictional rules that will help to avoid the anti-regulatory bias of the current federal judiciary. The essay describes what those rules might look like and considers possible objections to the proposal. Ultimately, though, the new Regulatory Circuit should be understood as an experiment, with a sunset provision designed to require Congress to reconsider the new court in 20 years. Although there is no structure of judicial review that will be perfect—and any structure will become less perfect over time as conditions change and various interests adapt and respond to the opportunities it opens up—the Regulatory Circuit offers real promise as a means of promoting democracy and the rule of law.
Highly Recommended!
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