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Article

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Delegation and Democracy: Comments on David Schoenbrod, 20 Cardozo Law Review 775 (1999)

Abstract

I know David Schoenbrod, and he is no Owen Fiss. Yet, if the United States Supreme Court were to resurrect the nondelegation doctrine as Professor Schoenbrod proposes, it would radically increase judicial power over vast areas of American life at the expense of the "political" branches (as we quaintly call them). Fiss, my beloved but occasionally misguided colleague, would probably applaud this change, but Professor Schoenbrod, usually so sensible about such things, would surely deplore it. Fortunately, the Court is most unlikely to adopt Professor Schoenbrod's perverse proposal. Besides, even if the Court did revive the nondelegation doctrine, it would surely want to neuter it. Like Buddy, our First Dog, the Court lacks the balls to do what the doctrine would require. So much the better for the Court-and for the rest of us (though not for poor Buddy).

Date of Authorship for this Version

1999

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