91 Texas L. Rev. See Also 123

Professor Cole responds to Jennifer Laurin’s article on reforming forensic science by targeting the crime scene rather than the laboratory.

91 Texas L. Rev. See Also 115

Professor Prakash responds to Robert Delahunty and John Yoo’s article on the constitutionality of the Obama Administration’s deferred action policy.

91 Texas L. Rev. See Also 101

Professor Murphy responds to Jennifer Laurin’s article on reforming forensic science by targeting the crime scene rather than the laboratory.

91 Texas L. Rev. 1283

The Supreme Court’s feverishly anticipated decision in National Federation of Independent Business v. Sebelius regarding the constitutionality of the Patient Protection and Affordable Care Act (“Obamacare”) produced three main holdings concerning two critical provisions of the Act.  The first two holdings concerned the “individual mandate” that requires most Americans to maintain “minimum essential” health insurance.  The third holding concerned “the Medicaid expansion,” which expanded the class of persons to whom the states must provide Medicaid coverage as a condition for receiving federal funds under the Medicaid program. In a 7–2 decision, the Court struck down this provision as an impermissible condition on the provision of federal funds to the states.  Of these three holdings, the third—concerning what is often called Congress’s “conditional spending power”—is apt to have the most far-reaching consequences beyond health care.

In this Article, Professor Berman advances four main arguments.  First, insofar as the majority rested its holding of unconstitutionality on the ground that the amount of funds that a state would lose by not agreeing to the condition was so great as to compel the states to accept, that is a highly dubious rationale.  Second, it does not necessarily follow that the Court’s bottom-line conclusion was wrong.  A more promising rationale for that conclusion would be the one merely hinted at by the Chief Justice: Congress’s threat to withhold all Medicaid funds from a state if it did not agree to provide for a new class of beneficiaries would constitute the constitutional wrong of coercion if animated or infected by a bad purpose.

Third, the basic principles that govern whether a conditional spending offer from the national government to the states is unconstitutionally coercive are not particular to the conditional spending context.  Instead, they lie at the heart of a general solution to the ubiquitous puzzle of “unconstitutional conditions”—that is, the puzzle regarding whether and under what circumstances it is constitutionally permissible for government to condition a benefit on an offeree’s exercising or not exercising its constitutional rights in some preferred way.  Fourth, application of these general “trans-substantive” principles to the instant case suggests that the Medicaid expansion probably was coercive and therefore the Court was probably right—though not for the reasons it gave—to hold that that provision exceeds our best understanding of constitutional limits on Congress’s power.

91 Texas L. Rev. 1349

When should courts defer to agency interpretations of statutes, and what measure of deference should agencies receive?  Administrative law recognizes two main deference doctrines—the generous Chevron standard, and the stingier Skidmore standard—but Supreme Court caselaw has not offered a bright-line rule for when each standard applies.

Many observers have concluded that courts’ deference practice is an unpredictable muddle.  This Article argues that it is really a lottery, in the sense the term is used in expected utility theory.  Agencies cannot predict which deference standard a court will apply or with what effect, but they have a sense for how probable the different possible outcomes are.  This Article presents empirical support for the “deference lottery” hypothesis, and then conducts a simple game theory analysis to understand how judicial review bears on agency behavior in statutory interpretation under deference lottery conditions.

The Article concludes that, in fact, the deference lottery can function as a flexible tool for managing agency behavior.  The lottery can curb agency opportunism by imposing a risk that agencies’ interpretations of statutes will face elevated scrutiny rather than Chevron deference.  This analysis offers a new perspective on deference doctrine, and in particular on the Supreme Court’s Mead decision, which sets out the standard for when Chevron applies.  Mead’s vagueness, widely derived as a bug, may in fact be a feature.  Still, the deference lottery can backfire badly if Skidmore is applied too stringently, as the Article shows.

91 Texas L. Rev. 1397

Chander and Sunder review Julie E. Cohen’s Configuring the Networked Self: Law, Code, and the Play of Everyday Practice.

91 Texas L. Rev. 1413

Golden reviews Christina Bohannan & Herbert Hovenkamp’s Creation Without Restraint: Promoting Liberty and Rivalry in Innovation.

91 Texas L. Rev. 1425

Neuborne reviews Tamara R. Piety’s Brandishing the First Amendment: Commercial Expression in America.

91 Texas L. Rev. 1447

Redish and Siegal review Tamara R. Piety’s Brandishing the First Amendment: Commercial Expression in America.

91 Texas L. Rev. 1475

In this Essay, Kapeliuk and Klement respond to Robert G. Bone’s article on party rulemaking in litigation, further focusing on the divergence between ex ante and ex poste agreements.  It then explores the public implications of party rulemaking.