When the sun sets in New York City, it rises in Tokyo. Okay, maybe not exactly, but you get the idea: setting somewhere, rising somewhere else. Now substitute Chevron for N.Y.C. and the Major Questions Doctrine for Tokyo. For the past forty years, administrative law scholars have been arguing over Chevron, and now that the sun has set on that doctrine, it’s time to turn our attention to the new rising sun, the Major Questions Doctrine (“MQD”). The sudden emergence and prominence of the MQD in administrative law has led scholars to ask just what kind of legal doctrine the MQD is. If the voluminous scholarship on Chevron is any indication, there will be much, much more to come.
Sometimes, to figure out what something is, you first have to figure out what it isn’t. That is what Professor Anita Krishnakumar has helped us do with her excellent article What the New Major Questions Doctrine is Not. In this article, Professor Krishnakumar persuasively argues that neither scholars nor jurists have provided convincing characterizations of the doctrine. After illustrating how all attempts thus far to categorize the MQD have failed, she offers her own tentative characterization, recognizing that a definitive answer is impossible because it’s relatively early in the life of the current MQD and because the Court’s opinions invoking the MQD are somewhat inconsistent and unclear, making a definitive characterization impossible. Remind anyone of Chevron scholarship? Continue reading "What the Hell is the Major Questions Doctrine?"
