Emory Law Journal

ELJ OnlineVolume 66
Essays

Transforming the "Thurmond Rule" in 2016

Carl Tobias | 66 Emory L.J. Online 2001 (2016)

Senators vigorously dispute the Thurmond Rule's meaning in the 2016 presidential election year. The Rule is a peculiar tradition. The party not controlling the White House systematically invokes the custom during presidential election years to halt judicial designees' consideration until November with the hope that its standard bearer prevails and, thus, can appoint jurists. This year, Senators Grassley and McConnell characterized the tenet as "flexible," while Grassley declared that nominee confirmations generally end at the summer recess. Because confusion plagues definition of the stricture, and the Rule's incessant use dramatically exacerbates the vacancy crisis, its perpetuation merits scrutiny. Chronic partisanship attends the Thurmond Rule's deployment. The chamber needs to abolish the Rule, or at least codify and confine the approach within the Senate rules until a clear majority who favors abrogation emerges.

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Statutory Junk

David Schoenbrod | 66 Emory L.J. Online 2023 (2017)

Much as "space junk"--the debris that past space missions have left in earth's orbit--can disable a current space mission, obsolete statutory commands that Congress has left on the books can keep an administrative agency from accomplishing its current mission. This statutory junk has proliferated in recent decades because Congress has shifted from giving agencies open-ended authority to commanding them in exacting detail, but often fails to revise these commands after changing circumstances have made the old commands perverse. Congress fails because this delegation allows legislators to shift blame to the agency for harms that statutes do to their constituents. The Chevron doctrine provides agencies some leeway to avoid statutory junk, but is insufficient to cope with the problem. The solution must lie in remedying the root cause of the problem--the legislators' current ability to avoid blame for the perverse consequences of statutory junk.

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