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defective rule or remand it back to the agency without vacatur (that is, leave the rule in place for the time being).9 This Note makes two arguments about
that Justices in the twenty-first century would not be willing to adhere to history in this context. 9. Duncan v. Bonta, 19 F.4th 1087, 1123 (9th
to consider. They may, where justified, rely on the advice of management and of outside advisors.”); infra Section I.B. 9. E.g., Commodity Futures
data and conduct computations.9 The research is still mostly of the basic variety, although commercial entities have started to show some interest
187 criminal defendants raised Batson challenges, while only 9 prosecutors raised Batson challenges). Prosecutors may be disincentivized from raising
attending more intensely segregated and impoverished schools than they have for generations.”); Orfield et al., supra, at 9 (“In spite of the
and a school board was a public controversy); Lorain Journal Co. v. Milkovich, 474 U.S. 953, 964 n.9 (1985) (Brennan, J., dissenting) (claiming that
taxes, and she pointed out Puerto Rico’s vital need for aid as it has by far the highest level of poverty in the country.9 The majority was uncon- vinced
reprinted in 9 The Library of Original Sources 97, 98 (Oliver J. Thatcher ed., 1907); Adam Winkler, A Revolution Too Soon: Woman Suffragists and the
are FULL PARTICIPATION IN THE YALE LAW JOURNAL 9 ambivalent report being stressed about the choice and the process, avoiding making a decision