Discourse : Upside-down courts, agency adjudication and the rule of law

January 12, 2023 | By JOHN KERKHOFF

It often starts with a knock. Someone comes to the front door holding papers—legal documents—and hands them over. You’re being sued. Even so, you can draw some comfort from the fact that the U.S. promises, at least in theory, equal justice under the law. The Constitution guarantees protections such as a fair trial, an impartial … ...


The Hill : The dismal state of due process at the North Pole (and our federal agencies)

December 26, 2022 | By JOHN KERKHOFF

Every year, millions of kids wake up on Christmas to find that jolly old St. Nick has rendered his verdict on their performance over the past 12 months. Most think of Christmas morning as a time of joy and merriment; in reality, it’s merely the sentencing phase of a kangaroo court overseen by an out-of-touch … ...


In America, the law is king, not unelected bureaucrats

December 14, 2022 | By JOHN KERKHOFF

As support swelled for America’s independence from England, an open question puzzled some hesitant colonists: Who will lead the new country? Thomas Paine had an answer: “In America, the law is king.” And so began a legal tradition like no other. Our written Constitution of limited and enumerated powers put forth a revolutionary id ...


Yale Notice & Comment : Administrative Deference in Ohio

July 13, 2022 | By JOHN KERKHOFF

Administrative law in Ohio has courts and practitioners flummoxed. Less than two years ago on this Blog, Ohio Supreme Court Justice Pat DeWine explained why. The state’s Chevron-like doctrine—which says courts must defer to agency constructions of ambiguous statutes—is in disarray. As Justice DeWine wrote then, not even he could “ar ...


The Orange County Register : Want due process? Don’t look to the California Coastal Commission

February 28, 2022 | By JOHN KERKHOFF

At 76-years-old and now confined to a wheelchair, David Tibbitts has long dreamed of a much-deserved retirement in a home along the California coast. He had run a successful company with his wife, Stephanie, and after years of saving, they finally hoped to enjoy their Golden Years. But that dream has turned into a nightmare … ...


The Hill : FTC tempts legal fate with power grab

November 03, 2021 | By JOHN KERKHOFF

Lina Khan had not even graduated from law school when she came onto the antitrust scene advocating reform that would amount to nothing short of a legal revolution. A few years later, Khan would be sworn in as chair of the Federal Trade Commission (FTC), the powerful independent agency long focused on antitrust enforcement and … ...