Killing Zombies at the Justice Monastery

Chevron's last meal.

By and

A case before the Supreme Court may bring the axe to the long zombified Chevron deference. Sarah and David also take a look at:

-North Carolina’s flip-flops on gerrymandering might delay the inevitable

-A 94-year-old’s legal fight against property seizure gets a hearing

-Is the distinction between History and Tradition a bait and switch?

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  1. Cbmcanally

    Excited to hear some of the law school advice at the end of the pod. I am a rising 2L and curious what your advice is regarding experiential courses. Should I take Appellate or Trial Adv or stick to substantive law courses?

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    Michael McGuire

    Love hearing an ad being inserted right in the middle of one of Mr. French’s sentences.

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    Chris Lynch

    Re: history and tradition
    At first I was thinking this was like the redundancy in "cease and desist", which are sort of a tradition in the legal profession. (See what I just did?) And there were Venn diagrams in which tradition either was or was not a part of history. David suggested that maybe tradition includes things like myth--outside of history, but which are also obviously not applicable in the context of judicial interpretation.

    Here's my simple take as a word nerd and former copy editor: there is a sense of "tradition" which is like "custom", which individual customs/traditions are illuminated by certain turns of phrase which illuminate principles of fairness, justice, etc. which are highly valued but also widely violated. In other words, a noble principle may be vitiated by a history of corruption or poor implementation.
    For examples of this, look at the phrases we use as titles for our laws. E.g., "castle doctrine" or "stand your ground". These call to mind certain simple notions which people have long carried around in their heads, but whose actual implementation and history are more nuanced or just plain disturbing.

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  4. Helbock

    Any rules that apply to the judges should apply to all elected politicians and all gov employees. All of the above should be required to fill out the same forms regarding their finances. Lets start out with not allowing elected politicians to use campaign contributions to hire members of their immediate or extended family members for any purpose.

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    OK Steele

    https://www.heritage.org/courts/commentary/trump-hits-another-home-run-supreme-court-pick-brett-kavanaugh
    If anyone struggles with Chevron, this speech from Justice Kavenaugh really helped me understand it.

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    Mary Beth Gilbert

    I skimmed the comments and read the one about the cost of law school and the debate about whether it's worth it to take on over $200,000 in debt (Cost for UVa with living expense is $100,000 PER YEAR; $110,000 PER YEAR for Harvard Law) to attend a top school or go to a lower ranked school and get out with much less debt. I realize David and Sarah are Harvard grads and great legal minds. But even the above average minds cannot get into Harvard, or UVa, AND afford to go. Any room for this discussion in AO?

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      Sarah Isgur vertical-nib Author

      I'm not sure I totally follow the question. Both David and I took out loans. If you work in public interest, your loans are forgiven at every top law school at this point. So right off the bat, if you know you want to be a prosecutor, its an easy choice. Otherwise, you're working in a job that pays a starting salary of $200,000/year. So that's why the question isn't really affordability. Anyone can take out the loans. If you go to a top tier school, you can easily get a $200k/year job, which makes paying off those loans fairly quick and easy. The question is whether you go to a lower ranked school, take out less in debt, but run the risk that you aren't able to get a $200K/year job. That's where the math/risk assessment comes in!

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        Mary Beth Gilbert

        Thanks for the reply! I think I would tell anyone who can get into Harvard or another top TEN law school to go. As one commenter said, he went to Washington & Lee, a top twenty school, and did not have loans forgiven, did not get/want a job at a $200,000/year firm (2100+ billable hours/year) and his loans will last his lifetime. I attended UT Austin, a top twenty school and they did NOT forgive loans for public interest work. I question whether “every top law school” forgives loans for, and what qualifies as, “public interest” jobs that get loans forgiven. I have a friend who was a COUNTY prosecutor but that job did not qualify for recent federal loan forgiveness, and her law school did not forgive loans. My husband is a partner at a small law firm in Houston that represents school districts (great first amendment issues) and they do not pay $200,000/year for associates. They lose great associates they have trained to the big labor and employment firms like Greenberg Traurig all the time. Overall, I think costs for college and law school have exceeded what people can repay, and there is a huge swath of people in the middle who are unsure about ROI for non-top ten schools. Again, thanks for taking the time to reply!

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        1. Avatar photocircle-angle-nib
          Sarah Isgur vertical-nib Author

          Ah yes! I think we agree. If you don’t get into a T14 school, then the ROI becomes very different. (And I do think, as of the last 4 years or so, all t14 forgive loans if you spend 10 years in public interest work but I’m open to being wrong about a few holdouts). This is why by and large I tell people not to go to law school unless and until they know what they want to do. Bc if you’re going to a good but not t14 school the roi shifts dramatically. The loans are still nearly as high but the expected earnings drop through the floor. It’s also why I shake people when they explain to me why they’re going to a lower ranked school bc they got a partial scholarship. Even in the first handful of years, that scholarship difference disappears as soon as you put starting salaries into the equation.

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            Mary Beth Gilbert

            I hope all people applying to law school are getting this kind of advice before diving in, especially the importance of knowing what you want to do with a law degree. Not right for Advisory Opinions, but there is a lot of discussion to be had about law firm economics in a time when many clients don't want to pay for partners and senior associates to train young lawyers, which was the model when I practiced law. Midsize and small firms with smaller clients cannot pay associates as much as the large firms. Young attorneys these days do not want to bill even 1800 hours a year for less than $200,000. Thanks for two great podcasts and several great newsletters every week!

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    Tomadonna

    Guess who's back?!?!

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    Lawyer.Tksmall

    Concerning avoiding legal bullies, the advice of the late great Prof. Crea was perfect, "Don't drop your briefcase and run…".

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    Ben Connelly

    Charlottesville, VA! The best city in all of Virginia! Can’t speak to the law school specifically, but UVA is a great place to go to school.

    Speaking of law schools - the thing about the justices teaching law school classes hit home. My mother is a federal bankruptcy judge and teaches bankruptcy law at her alma mater. There’s no conflict of interest in that. I’m not even sure what the conflict would be. And even if it’s not bankruptcy (which I realize is different than other areas of the law), how on earth would teaching a seminar cause a judge to have a conflict of interest?

    Chevron delenda est!

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  10. Bradgreenwald

    David is still taking shots at "Text, History, and Tradition" and claiming that the old levels of scrutiny should suffice. But where do they come from and how can they be justified constitutionally? Would love to hear a pod segment on that!

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