Law Commons^™

The Independent Agency Myth, Neal Devins, David E. Lewis

Faculty Publications

Republicans and Democrats are fighting the wrong fight over independent agencies. Republicans are wrong to see independent agencies as anathema to hierarchical presidential control of the administrative state. Democrats are likewise wrong to reflexively defend independent agency expertise and influence. Supreme Court Justices also need to break free from this trap; the ongoing struggle over independent agencies should be about facts, not partisan rhetoric.

This Article seeks to reframe the fight over independent agencies. By surveying executive branch and independent agency department heads and supervisors during the Obama (2014) and Trump (2020) administrations, we have assembled unique and expansive data …

Normalizing Reproductive Genetic Innovation, Myrisha S. Lewis

Faculty Publications

Many societally accepted techniques were quite controversial at inception and for decades after. For example, historically, dialysis was “unnatural,” vaccination was “the poisoned quill,” and artificial insemination was akin to adultery. Despite social and cultural hurdles, the aforementioned medical techniques have today attained overall public acceptance, permissive legal treatment, and even health insurance coverage in some cases.

Unlike many now-routine treatments like in vitro fertilization (IVF), egg freezing, and organ transplantation, which flourished without significant governmental intervention, today’s controversial medical treatments, especially those involving reproductive genetic innovation, face intense regulatory barriers. Reproductive genetic innovation, which is the combination of IVF …

The Case Against Prosecuting Refugees, Evan J. Criddle

Faculty Publications

Within the past several years, the U.S. Department of Justice has pledged to prosecute asylum-seekers who enter the United States outside an official port of entry without inspection. This practice has contributed to mass incarceration and family separation at the U.S.–Mexico border, and it has prevented bona fide refugees from accessing relief in immigration court. Yet, federal judges have taken refugee prosecution in stride, assuming that refugees, like other foreign migrants, are subject to the full force of American criminal justice if they skirt domestic border controls. This assumption is gravely mistaken.

This Article shows that Congress has not authorized …

The Constitution Of Agency Statutory Interpretation, Evan J. Criddle

Faculty Publications

No abstract provided.

Hierarchically Variable Deference To Agency Interpretations, Aaron-Andrew P. Bruhl

Faculty Publications

When courts review agency action, they typically accord agency decisions a degree of deference. As many courts and commentators have recognized, the law in this area is complicated because it features numerous standards of review, including several distinct regimes for evaluating agencies’ legal interpretations. There is, however, at least one important respect in which uniformity rather than variety prevails: the applicable standards of review do not vary depending on which court is reviewing the agency. Whichever standard governs a particular case—Chevron, Skidmore, or something else—all courts in the judicial hierarchy are supposed to apply that same standard.

This Article proposes …

Private Policing Of Environmental Performance: Does It Further Public Goals?, Sarah L. Stafford

Faculty Publications

Over the past two decades the role of private parties in the policing of environmental regulation has grown dramatically. In some cases the Environmental Protection Agency (EPA) has led this effort. In other situations, private parties have provided the impetus for new policing activities that are conducted independently from the EPA. Private policing can be beneficial when the increased involvement of the private sector either decreases the costs of achieving a particular level of environmental performance or increases environmental performance in a cost-effective manner. Private parties, however, could also divert regulated entities away from regulatory objectives. This Article explores the …

When Delegation Begets Domination: Due Process Of Administrative Lawmaking, Evan J. Criddle

Faculty Publications

No abstract provided.

Outsourcing Enforcement: Principles To Guide Self-Policing Regimes, Sarah L. Stafford

Faculty Publications

No abstract provided.

Mending Holes In The Rule Of (Administrative) Law, Evan J. Criddle

Faculty Publications

No abstract provided.

Fiduciary Administration: Rethinking Popular Representation In Agency Rulemaking, Evan J. Criddle

Faculty Publications

Do administrative agencies undermine popular sovereignty when they make federal law? Over the last several decades, some scholars have argued that rulemaking by unelected agency officials imperils popular sovereignty and that federal law should resolve the apparent tension between regulatory practice and democratic principle by allowing the President to serve as a proxy for the "will of the people" in the administrative state. According to this view, placing federal rulemaking power firmly within the President's managerial control would advance popular preferences throughout the federal system.

This conventional wisdom is misguided. As political scientists have long recognized, the electorate's relative disengagement …

New Governance, Preemptive Self-Regulation, And The Blurring Of Boundaries In Regulatory Theory And Practice, Jason M. Solomon

Faculty Publications

In the literature on "new governance" forms of regulation, the blurring of traditional boundaries is a pervasive but largely implicit theme. This Article makes this theme explicit, and argues that the capacity to blur boundaries is one of new governance's signature strengths. New governance regulation frequently blurs the roles of regulatory actors, the stages of regulation, the modes of regulation, the functions of a regulatory regime; and the structure of the regulatory regime. The Article applies this lens to a series of case studies, and demonstrates how industry attempts at preemptive self-regulation have created opportunities where new governance forms of …

Chevron's Consensus, Evan J. Criddle

Faculty Publications

No abstract provided.

Doing More Or Doing Less For The Environment: Shedding Light On Epa's "Stealth" Method Of Environmental Enforcement, Ronald H. Rosenberg

Faculty Publications

Since the 1970s, environmental protection goals have gone from general statements of political desire to highly articulated systems of environmental regulation implemented by federal, state, and local governments. Environmental statutes have been enacted giving administrative agencies such as the U.S. Environmental Protection Agency (EPA) the responsibility for translating broad policy goals into specific regulatory requirements. Through its enforcement program, EPA seeks to assure that these general goals are achieved by individual actors. This Article examines a recent trend in EPA's practices, increased reliance on internal agency methods of enforcement. The study analyzes EPA's administrative enforcement system with particular emphasis on …

Administrative Judges' Role In Developing Social Policy, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

Law And Governance In The 21st Century Regulatory State, Jason M. Solomon

Faculty Publications

No abstract provided.

Abbott Labs V. Gardner, 387 U.S. 136 (1967), Aaron-Andrew P. Bruhl

Faculty Publications

No abstract provided.

Primer For U.S. Lawyers On European Union Government And Law, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

Not-So-Independent Agencies: Party Polarization And The Limits Of Institutional Design, Neal Devins, David E. Lewis

Faculty Publications

No abstract provided.

The Administrative Judiciary's Independence Myth, James E. Moliterno

Faculty Publications

No abstract provided.

Fiduciary Foundations Of Administrative Law, Evan J. Criddle

Faculty Publications

An enduring challenge for administrative law is the tension between the ideal of democratic policymaking and the ubiquity of bureaucratic discretion. This Article seeks to reframe the problem of agency discretion by outlining an interpretivist model of administrative law based on the concept of fiduciary obligation in private legal relations such as agency, trust, and corporation. Administrative law, like private fiduciary law, increasingly relies upon a tripartite framework of entrustment, residual control, and fiduciary duty to demarcate a domain of bounded agency discretion. To minimize the risk that agencies will abuse their entrusted discretion through opportunism or carelessness, administrative law …

Fcc V. Wncn Listeners Guild: An Old-Fashioned Remedy For What Ails Current Judicial Review Law, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

What Do Snowmobiles, Mercury Emissions, Greenhouse Gases, And Runoff Have In Common?: The Controversy Over "Junk Science", Linda A. Malone

Faculty Publications

No abstract provided.

The Administrative Judiciary's Independence Myth, James E. Moliterno

Faculty Publications

No abstract provided.

Policymaking By The Administrative Judiciary, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

Policymaking By The Administrative Judiciary, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

Judicial Dialogue For Legal Multiculturalism, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

Chevron Deference And Treaty Interpretation, Evan J. Criddle

Faculty Publications

No abstract provided.

The Consequences Of Doj Control Of Litigation Authority On Agency Programs, Michael Herz, Neal Devins

Faculty Publications

No abstract provided.

Control And Governance Of Transmission Organizations In The Restructured Electricity Industry, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

An Extended Hypothetical For Teaching Administrative Law, Charles H. Koch Jr.

Faculty Publications

No abstract provided.