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58 UIC L. Rev. 1 (2024-2025)

handle is hein.journals/jmlr58 and id is 1 raw text is: 2024 SECTION 5 REVISIONS: THE VOYAGE HOME OR THE WRATH OF KHAN? KARL T. MUTH* & AVERY E. BOWEN** I. IN TRODU CTION ................................................................ . 2 II. EXAMPLES OF PROBLEMATIC WHAT-IFS .......................... 8 III. A FLAWED TWO-PRONG TEST ....................................... 10 IV. THE EIGHTH CIRCUIT'S TEST......................................... 12 A. Test as Applied in Community Blood Bank ......... 14 B. Test as Applied in Alliance Housing..................... 15 C. No Need for More Tests ......................................... 17 D. If Another Test, Don't Choose the Eighth Circuit Test ............................................................................... . 1 9 V. BROADLY: THE PROBLEM OF INCONSISTENT, DISPARATE D ETERM INATIONS ......................................................... 21 VI. CONCLUSION: HIGH STAKES IN THEORY, LOW STAKES IN P RA CTICE ? .................................................................... . 23 * Lecturer, Northwestern Pritzker School of Law and Northwestern University. Lecturer, the University of Chicago Booth School of Business. Affiliated Scholar, the Cambridge Centre for International Research. The views and positions expressed here represent Prof. Muth's views only and may not be the views of clients or institutions with whom Muth has been, or is now, affiliated (his current employer(s) and/or client(s)). The topic of this Article is currently subject to litigation and potential future alteration or amendment; the Authors have made best efforts to ensure statements of law are correct at the time of publication. For context, this Article's drafting follows the Supreme Court's decision in Corner Post v. Federal Reserve (July 1, 2024), the United States District Court for the Middle District of Florida's decision in Properties of the Villages v. FTC (August 14, 2024), and the late August outcome in Ryan v. SEC (August 20, 2024, an Order with nationwide effect), but predates and does not predict, or purport to predict, the appellate resolution of these disputes. Note that at the time of this writing, the Ryan matter incorporates no discussion of the major questions doctrine (avoiding this by suggesting the plaintiff may succeed in establishing that the FTC exceeded its statutory authority), distinguishing the Texas and Florida matters, though the Authors anticipate and expect the question of statutory authority may enter the Florida discussion on appeal and the question of major questions may enter the Texas discussion, also. At the time of this Article's final drafting on 12 September 2024, the FTC's Rule did not come into effect as planned on 4 September 2024, but it is unclear when, if ever, any version of the FTC's rule will traverse the concerns raised in Ryan and other litigation (including litigation yet to be commenced) and take effect. ** Research Assistant to Prof. Muth; Ms. Bowen's contributions to this Article do not reflect the views or analysis of her employer, Simpson Thacher & Bartlett LLP, nor its partners or clients. Prof. Muth and Ms. Bowen would like to thank the University of Illinois Chicago's Law Review editors for so quickly reviewing this Article and for both substantive and style edits that contributed substantially to the strength of various drafts; both Authors, as fellow University of Illinois alumni, were especially happy to place this Article with this Law Review. 1

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