Texas A&M Law Review

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Volume 13, Issue 1 (2025)Read More

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Article

2 November 2025

Major Rules in the Courts: An Empirical Study of Challenges to Federal Agencies’ Major Rules

Libby Dimenstein, Donald Goodson, Tyler Szeto

Since at least the 1990s, presidents have seen the administrative state as a key tool, if not the primary one, for achieving policy objectives. At the same time, the administrative state has faced growing scrutiny, particularly from members of the Supreme Court. Given these dynamics, do some administrations’ regulatory actions fare better in court than others? Are there any trends we can see over time? These are some of the questions we sought to answer in the first empirical study of how major rules, as defined under the Congressional Review Act (“CRA”), fare in federal court. We chose major rules for several reasons, namely, the ability to conduct an apples-to-apples comparison across administrations while focusing attention on the most important agency actions. The study of the primary dataset summarized in this Article covers each of the 1,872 major rules issued from the CRA’s enactment in 1996 through the end of the first Trump Administration. To our knowledge, the primary dataset’s roughly 24-year period covering four administrations (two from each party) is the longest continuous time span of any empirical study of agency win rates. The Article’s title is perhaps ironic given that most major rules (78.7%) do not end up in court, which is itself notable because most previous studies of agency win rates focus only on the relatively small percentage of agency actions that end up in court. Our study finds that the challenge rate has steadily increased over time, rising from 16.8% for the Clinton Administration to 28.0% for the first Trump Administration. Courts are thus resolving more challenges to major rules than they once did. Our study also finds lower agency win rates than other studies, which typically report win rates of 60–70%. In contrast, our study finds win rates of 49.4% or 56.9%, depending on the unit of analysis (major rules or controlling opinions resolving challenges to major rules). Our study further finds that win rates declined over time: The Clinton Administration saw 63.0% of its major rules upheld and 63.3% of controlling opinions rule in favor of its major rules; the first Trump Administration saw 32.1% of its major rules upheld and 45.4% of controlling opinions rule in favor of its major rules. The two intervening administrations were in between but closer to the range’s upper end. Our results suggest that, while agency win rates declined over time, the first Trump Administration’s win rates were unusually low. In addition to documenting these agency challenge and win rates, we also collected data on other topics including forum shopping, differences between independent and executive agencies, partisan trends, Chevron deference, and more. We conclude with observations to date on the Biden Administration’s major rules. Because the Biden Administration only recently concluded, and many challenges to its finalized rules remain ongoing, we analyze its major rules separately from our primary dataset. Based on data collected in January and February 2025, agency win rates have not returned to their earlier highs: The Biden Administration has seen 40.5% of its major rules upheld and 45.5% of controlling opinions rule in favor of its major rules. All told, our study suggests that the conventional wisdom that agencies win two-thirds of the time no longer holds true, at least not for major rules. But the vast majority of major rules go unchallenged, revealing that most major rules survive, despite declining trends in agency win rates during the first Trump Administration and Biden Administration.

Article

2 November 2025

A Reemployment Right for People in Pretrial Detention

Jordan Cohen

Job loss is a major collateral consequence of pretrial detention. It frequently results from even short periods of detention and can have cascading and long term effects on income, housing security, family stability, and likelihood of incarceration—all despite the fact that people in pretrial detention are entitled to a presumption of innocence and indeed may never be found guilty of an offense. Given existing racial disparities in arrests, bail determinations, and bail amounts, job loss from pretrial detention further drives racial inequalities in employment and income. While job loss from pretrial detention inflicts substantial social harms and undermines due process, current policy solutions, such as ban-the-box laws, fail to address it. This Article proposes a novel solution, reframing the issue as a matter of protected leave rather than traditional employment discrimination law, and drawing on the unexpected source of the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”). USERRA guarantees deployed service members a right to reemployment upon return from tours of duty. This Article proposes a similar right to reemployment for people released from pretrial detention whose charges are still pending or have resulted in a disposition other than conviction, subject to certain limitations present in USERRA and potential carve-outs for certain charges or job types. Eighty years of experience under USERRA and its predecessors demonstrate that a right to reemployment is practicable for employers and an effective mechanism to ensure job stability during periods of often sudden and unpredictable leave. Such a right would promote fundamental, widely held due process values and counteract the substantial social harms of job loss from pretrial detention.

Current Articles

Article2 November 2025

Major Rules in the Courts: An Empirical Study of Challenges to Federal Agencies’ Major Rules

Libby Dimenstein, Donald Goodson, Tyler Szeto

Article2 November 2025

Subverting the System: Reducing Sex Offender Recidivism and Aiding Reentry Through the Use of Specialty Courts

Jaymes Fairfax-Columbo, Emma Hamilton, Chelsea Jackson, Lia Knox-Hershey, David DeMatteo

Sex offender policy in the United States is predicated on accomplishing risk reduction and increasing public safety via punishment and incapacitation. Theoretically, accomplishing these goals should lessen the risk that sex offenders pose to society. However, an accumulated research base suggests that sex offender policies are ineffective in that they do not reduce recidivism rates, do not diminish children’s risk of sexual predation, and produce numerous detrimental collateral consequences. Further, current sex offender policies may actively undermine risk reduction by placing factors known to reduce risk level, such as stable housing, employment, and social support, out of the reach of sex offenders. Protecting victims should be one of the most important goals of sex offender policy, yet these laws have not significantly reduced the prevalence and pain of sexual violence. Despite the obvious shortcomings of sex offender policies in the United States, systemic reform does not appear to be on the horizon. However, this Article seeks to explore a way to work within this reality: subverting the system. Accordingly, it first seeks to outline sex offender policies as they currently stand in the United States, focusing on measures including registration, community notification, and residency restriction, while noting the drawbacks to such measures. Second, it offers explanations for why sex offender policies in the United States appear to be shortsighted, as well as offers explanations based in social science for why this short-sightedness is unlikely to change. Third, it explores previous examples of subverting a restrictive system, those of juvenile specialty courts, adult drug courts, and adult mental health courts. Lastly, it pro vides a proposal for subverting the system as regards sex offenders in the form of sex offender specialty courts.

Article2 November 2025

The Role of the Preamble: Evidence from the Constitutional Convention and the Ratification Debates

Stuart Ford

This Article explores the role of the Preamble in constitutional interpretation by looking at how it was perceived at the founding. It does this in three ways. First, it explores how preambles were used in eighteenth-century America. At the time, preambles were almost universally understood to be key to interpreting the laws and constitutions they preceded. This shared understanding forms the backdrop against which the Preamble was received by the founding generation. Second, it looks at the records of the Constitutional Convention for evidence of what role the drafters expected the Preamble to serve. Unfortunately, the records of the Convention shed little light on the drafting of the Preamble or its intended role. Finally, it looks at the public reception of the Constitution after it was published. In the period between the release of its text in September 1787 and the end of the ratification debates in early 1790, the Constitution was debated in letters, pamphlets, newspapers, and at the various state conventions. These public debates shed light on how the founding generation viewed the Preamble. It was virtually universally recognized during the ratification debates that the Preamble listed the goals of the new government. There was also discussion of the role of the Preamble in constitutional interpretation. There were two main camps within that debate. Most Federalists and Anti-Federalists took the position that the Preamble was a direct grant of power and that Congress had the legislative authority to achieve the goals listed in the Preamble. The minority position was that the Preamble would be treated like the preambles of other laws. This camp expected the Constitution to be interpreted to achieve the goals listed in the Preamble but did not consider it a direct grant of power.

Article2 November 2025

A Reemployment Right for People in Pretrial Detention

Jordan Cohen

Article2 November 2025

The Case for “Constructive Gridlock” in Independent Agencies

Jeffrey Manns

Critics of President Trump have alleged that he has reduced independent agencies to mere extensions of the executive branch during his second term. The reality is that Democratic and Republican presidents routinely leverage the opportunity to reshape independent agencies in openly partisan ways because presidents have majority control of the appointments for the leadership of virtu ally all agencies. I examine a large data set of independent agency votes from the Obama and first Trump terms to show that independent agency commissioners vote in predictably partisan ways when addressing substantive policy changes. The partisan design of independent agencies undercuts agency claims to “independence.” As a result, substantive policy changes at independent agencies generally become transient victories that are likely to be reversed by the next administration from the opposing party. I make the case for restoring a degree of independence to independent agencies by institutionalizing “constructive gridlock” in their leadership. I call for creating an even split in independent agency commissioners from the two major political parties. Gridlock between the two major political parties is almost uniformly panned as a problem plaguing our legislative process. Our current Congress epitomizes the potential dysfunctionality of legislative gridlock with divided government and high levels of partisanship leading to a dearth of statutes and frustration at inaction. But I argue that creating partisan balance in the leadership of independent agencies would have positive policy effects and legitimize decisions made by unelected leaders. Institutionalizing an even partisan division in the leadership of independent agencies would necessitate bipartisanship for agency action and pressure elected leaders in Congress to act when independent agency leaders cannot overcome their ideological differences. This approach would further an underlying purpose of independent agencies for appointees from both major political parties to work jointly to legitimize rulemaking and adjudications. Well-known safeguards exist to foster the autonomy of independent agency appointees from the executive and legislative branches. But I argue that the majoritarian structure of (almost all) independent agency commissions and the partisan nature of the appointments process ensure that politics, rather than bipartisanship and independence, prevail when the stakes matter. To prove this point, I have gathered a data set of over 5,000 commissioner votes by the Securities and Exchange Commission (“SEC”), Nuclear Regulatory Commission (“NRC”), and Federal Election Commission (“FEC”) from the Obama and Trump administrations. I compare the impact of three-two partisan splits in commissioners (SEC and NRC) with three-three commissioner political splits (the notable institution with partisan balance—the FEC). A large majority of votes in the SEC and NRC on uncontroversial issues are unanimous. However, I show that the partisanship inherent in the majoritarian structure of independent agencies is clear in the subset of ideologically driven votes concerning substantive policy changes. In contrast, the FEC is more frequently affected by strategic, partisan gridlock of commissioners, which often stops votes from happening about controversial election issues. Critics may deride stalemates as a sign of independent agency failure. But I argue that independent agency gridlock concerning politically charged questions shows the virtues of political balance by taking divisive political issues out of the hands of unelected appointees and sending them back to the democratically elected leaders in Congress. I use game theory to illustrate the potential impact of the shift to political balance in independent agencies. Using a range of prisoner’s dilemma simulations, I show how parity in political leadership may increase the potential for agency deadlocks concerning politically divisive questions, while also increasing the payoffs from bipartisanship. At first glance, greater deadlocks may appear to create a potential bias towards the status quo of regulation, which may incentivize the side that benefits to dig in their heels. But the nature of evolving regulatory challenges frequently requires changes even to settled frameworks, which would pressure commissioners to work on building bipartisan consensus. At the same time, divisive questions may lead to lasting impasses among independent agency commissioners. The logic of partisan balance in the leadership of independent agencies would be to place the onus on Congress and the President to address enduring regulatory stalemates through the legislative process. That does not necessarily mean that Congress will address regulatory gridlock. Rather, the more important the issues that independent agencies fail to resolve, the higher the degree of pressure that elected leaders in Congress would face to act.

Article2 November 2025

Causation’s Due Process Dimensions

Cassandra Robertson, Charles Rhodes

For decades, courts have grappled with the tension between compensating victims of mass harms and maintaining fairness to defendants when causation is difficult to prove. This Article argues that the Supreme Court’s due process jurisprudence provides a relevant framework for navigating this tension. We contend that the Court over the last three decades has established a consistent Fourteenth Amendment due process approach in punitive damages and personal jurisdiction cases, which is rooted in antecedents tracing to the nineteenth century and relies on a nexus of interests that balances individual rights, state interests, and federalism concerns. This framework, we argue, has significant implications for evaluating the constitutionality of state tort doctrines like market-share liability and innovator liability, which challenge traditional notions of causation. Our analysis reveals that these doctrines may be vulnerable in some applications to constitutional challenge under the Court’s modern due process approach. We trace the evolution of the Court’s jurisprudence, demonstrating how it emphasizes the relationship between a plaintiff’s harm, a defendant’s conduct, and the forum state’s interest. Applying this framework to market-share and innovator liability, we suggest that tort causation itself may have constitutional dimensions. This finding has far-reaching implications for mass tort litigation and could reshape how courts approach cases involving multiple actors and attenuated chains of causation. By bridging the gap between due process jurisprudence and tort law, this Article offers a new perspective on longstanding debates about liability in complex cases and provides a roadmap for courts navigating these challenging waters.

Article2 November 2025

That Old College Try: Judge-Made Monopolies in the Market for Affinity Goods

John Rothchild

There is a large market for goods such as t-shirts, coffee mugs, posters, and baseball caps that are emblazoned with the names and symbols of culturally prominent institutions—universities, athletic teams, musical bands, automobile brands. We buy, wear, and display those goods to express our affinity with the referenced institution. The owners of the trade symbols that adorn these items, which this Article refers to as “affinity goods,” jealously guard what they claim is their sole right, under the trademark laws, to authorize the use of their symbols as decoration. They have brought numerous lawsuits aimed at establishing and enforcing this claimed right, and in the majority of cases have been successful. The result is a monopolized market for goods decorated with these trade symbols. This Article argues that courts that have granted trademark owners monopoly control over decorative uses of their trade symbols have misapplied trademark law, to the detriment of would-be competitors and of consumers. The root cause of their misapplication of the law is an antipathy to what they consider free-riding by these would-be competitors, who seek to extract value from the goodwill that universities, athletic teams, and others have attached to their trade symbols. But this misunderstands the premises of trademark law and the free-enterprise system. Free-riding is generally permissible and even celebrated as a form of competition that spreads benefits throughout society. The exceptions to the permissibility of free-riding, created by the intellectual property laws, are narrow, and they do not grant trademark owners control over decorative uses of their trade symbols. Once the courts begin rejecting the claims of trademark owners that trade mark law grants them the exclusive right to control the use of their symbols to decorate affinity goods, competitors will introduce their own unauthorized merchandise, resulting in lower prices and a broader selection. Appropriate labeling and prominent disclosures will assure that consumers are aware that these goods are not authorized by the trademark owner. Trademark owners can still promote the products they have authorized as the “officially licensed” ones, and consumers who value that imprimatur will know which products to buy and which to avoid.

Article2 November 2025

Thermtron: The Unsexy Case the Current Court Should Overturn (Statutory Stare Decisis Be Damned)

Christine Tamer

Since 1887, Congress has created an impenetrable dike wall to stop appellate review of remand orders in 28 U.S.C. § 1447(d), which provides: “An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise . . . .” Then, in 1976, the Supreme Court held “that § 1447(d) does not mean what it says” and, thereby, punctured not a tiny hole, but a big one in Congress’s dike wall that had been impenetrable for nearly 90 years. While you won’t find Thermtron—an unsexy jurisdictional case—on any list of the worst Supreme Court decisions, Thermtron was and is (in a word) disastrous, and the time is ripe to overturn it (statutory stare decisis be damned). Not only is it almost universally agreed that Thermtron was “egregiously wrong as a matter of law” when decided, the fallout from Thermtron has been and still is uncontainable. The Supreme Court has stepped in nine times to interpret § 1447(d), and, despite nine opinions on the applicability and meaning of § 1447(d) post-Thermtron, there are still serious circuit splits and confusion. This Article outlines the many current splits and state of confusion in the inter mediate courts. It also conducts a deep dive into the most recent circuit court of appeals cases—those from January 1, 2022, to February 1, 2025—with the goal of understanding how intermediate appellate courts are presently dealing with the Thermtron fallout, and also specifically why and how § 1447(d) issues are still arising. It concludes that the vast majority of the cases where the courts of appeal are reviewing remand orders lack even a good-faith basis for appeal, such that the Thermtron effect has been (and still is) that defendants are delaying justice with “routine” review of remand orders opposite Congress’s intent. This Article then, applying the Supreme Court’s most recent opinion involving statutory stare decisis, argues that Thermtron should be overturned because it is the poster child for a case worthy of departing from statutory stare decisis. Last, this Article conducts an analysis of the current Court and argues that, if presented squarely with the question as to whether this Court should overturn Thermtron, it is likely that the answer would be “yes” for a majority of the Court.

Popular Articles

Article

27 December 2024

Federal Rule of Evidence 702: A History and Guide to the 2023 Amendments Governing Expert Evidence

Mark Behrens, Andrew Trask

Federal Rule of Evidence 702 was amended effective December 1, 2023. The Rule was amended to clarify and emphasize that expert testimony may not be admitted unless the proponent demonstrates to the court by a preponderance of the evidence that the proffered testimony meets all of the Rule’s admissibility requirements. The amendment was necessitated by decisions by many federal courts incorrectly applying the reliability requirements set forth in Rule 702(b) and (d) and declaring that expert testimony is presumed to be admissible. Rule 702 was also amended to prevent “overstatement” by experts. Rule 702(d) now emphasizes that an expert’s opinion must stay within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology. The Article discusses the widespread misapplication of Rule 702 since it was last amended in 2000. The Article then discusses the march toward the 2023 amendment with a detailed history of the amended Rule’s development. Next, the Article discusses the amended Rule and some early decisions showing how the Rule is to be applied. The Article also suggests some principles for litigants and courts to keep in mind as they apply Rule 702. The Article concludes by calling on judges to embrace their gatekeeping obligation and to faithfully apply the text of Rule 702 over any obsolete case law to the contrary.

Comment

1 January 2015

A Religious Right to Discriminate: Hobby Lobby and “Religious Freedom” as a Threat to the LGBT Community

Travis Gasper

The Supreme Court in its 2014 decision in Burwell v. Hobby Lobby broadly expanded so-called religious freedom protections in the Religious Freedom Restoration Act (“RFRA”) by striking down a provision of the Affordable Care Act requiring employers to provide health insurance coverage for certain methods of contraception. In doing so, the Court opened the floodgates for employers to claim an exemption based upon any “sincerely held” religious belief. Without inquiry into the sincerity of that belief, businesses and corporations are free to adopt or assert beliefs that could lead to increased discrimination against employees. This is especially troublesome for marginalized groups like the LGBT community, which is already on the receiving end of discrimination under the pretext of religious exemptions. To correct any future misuse of these exemptions, Congress should amend RFRA to permit courts to assess the belief being asserted and contrast it with the potential harm if an exemption is allowed. The purpose of RFRA is to ease the burden faced by people of faith forced to go against their religious beliefs if they obey a certain statute. Easing this burden should focus on heady moral dilemmas, not mere inconveniences. Amending RFRA can ensure it maintains its initial purpose of protecting religious freedom, while not being used as a tool to perpetuate discrimination.

Article

1 January 2016

Fixed vs.Floating Non-Participating Oil & Gas Royalty in Texas: And the Battles Rage On . . .

Christopher Kulander

The author discusses fixed and floating non-participating oil and gas royalty in Texas and concludes that royalty cases will continue to be heard by the courts.

Article

1 January 2016

The Law and Politics of Firearms Regulation in Reconstruction Texas

Mark Frassetto

In District of Columbia v. Heller, Justice Scalia instructed that the historical understanding of the right to keep and bear arms should inform our present day understanding of the Second Amendment. This means an accurate accounting of the history of firearms regulation is essential for understanding the scope of the Second Amendment. The current state of scholarship on Second Amendment history paints post-Civil War firearms regulations as racist efforts by Southern states to prevent blacks from defending themselves against racial violence. This reading distorts the historical record by ignoring the actors responsible for numerous gun laws across the former Confederacy. This article is, in part, a response to such inaccurate accounts. More fundamentally, this article provides an in-depth account of the political views of the Republican Unionists, who followed their ratification of the Fourteenth Amendment with strict regulation on publicly carrying firearms to protect freedmen from racial violence. This article’s account of Texas history makes clear that the Republican Unionists who ratified the Fourteenth Amendment held a narrow view of the right to carry firearms in public, and believed public carry could be broadly regulated. By contrast, it was the Southern Democrats — who had fought relentlessly against the Fourteenth Amendment after losing the Civil War — who advocated an expansive view of the right to carry guns in public, a view which gun rights proponents continue to espouse today.

Arguendo (Online)

10 January 2019

Whose Land Is It Anyway? Navigating Ghana's Complex Land System

Aimee Kline, Élan Moore, Elizabeth Ramey, Kevin Hernandez, Lauren Ehrhardt, Megan Reed, Morgan Parker, Samantha Henson, Taylor Winn, Taylor Wood

This Article dives into Ghana’s complex land-registration system, which is influenced by both statutory and customary law. Section II discusses Ghana’s statutory land laws. Section III provides a brief overview of Ghana’s customary land laws. Section IV discusses several obstacles within Ghana’s land-administration system.

Comment

30 April 2021

The Growing Monopoly in the Corn Seed Industry: Is It Time for the Government to Interfere?

Bethany K Sumpter

How a company conducts business is often a consumer concern. Individuals have accused company after company of monopolistic behavior. These individuals have also criticized the Department of Justice for not stopping a monopoly from forming in a specific industry. An example is the corn seed industry, where stakeholders have accused companies of monopolistic behavior. Recent mergers and acquisitions in the corn seed industry have left fewer companies in control, and because of this consolidation, individuals are urging the government to act. This Comment argues that, while the corn seed industry is on the road to containing a monopoly, the industry does not yet contain enough characteristics to warrant a government response. However, when a monopoly does form, the government should, and likely will, act.