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Washington and Lee Law Review Online

Abstract

This Response considers Evan Zoldan’s argument, set forth in his recently-published Article, that one can find a coherent principle underlying the vexing case of United States v. Klein in the idea that government is prohibited from what Zoldan calls “self-dealing.” The promise is a seductive one: Klein, and in particular its language prohibiting Congress from dictating “rules of decision” to courts, has puzzled scholars for generations. As Zoldan explains, other understandings of Klein all encounter significant obstacles in the form of precedent that rebut other explanations of what that case really means.

Unfortunately, Zoldan’s valiant and careful effort encounters serious difficulties of its own. His self-dealing prohibition arguably conflicts with an early post-Klein case, Eslin v. District of Columbia, and conflicts even more seriously with the Court’s most recent case to consider Klein, Patchak v. Zinke, which was decided after Zoldan published his article. There is also reason to question the practical workability and conceptual coherence of the self-dealing prohibition Zoldan offers.

But Patchak also offers hope for those, like Zoldan, who see worth in the possible normative values implicit in Klein. Patchak featured a not-insignificant line-up of justices who expressed sympathy with a meaningful reading of Klein as a limit on Congress’s power to legislate in hyper-specific ways and ways that leave no role for judicial analysis. Ironically, then, while Patchak calls into serious question Zoldan’s solution to the Klein puzzle, it also offers hope that the Court might eventually embrace a more meaningful Klein principle.

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