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IV. As we explain therein, adopting the petty offense distinction helps mitigate these criticisms because (i) there is greater uniformity across
and the number of presiding Justices therefore even), there arises the possibility of a tie vote on that case’s merits. In cases arising under the
about when to apply the test, what its factors mean, and how its factors fit together.27 These disputes are not just fact bound—they go to the
employers exert less control over the manner in which they perform their duties6—has been excluded entirely from critical workplace regulations.7
protect from liability those defendants who did not know that they were interacting with the government and that, consequently, their cooperation
for voters to assess their self-interest. 9 Moreover, members of the President’s party fear stand- ing up to the President—even if they privately
under that law. These terms take us into terra incognita. The debates at the time of McCulloch show that even then, there was deep uncertainty about how
greatest risk. Judgment on the issue turns on the assessment of tournaments themselves. If they perform their intended functions, they will both create
3d 1330, 1333 (Fed. Cir. 2013). 90. See generally Adrian Vermeule, The Judiciary Is a They, Not an It: Interpretive Theory and the Fallacy of
under these kinds of authorities, they know firsthand how the government is using each one of them. They know, in other words, how the authorities are