Law Commons^™

Rulemaking By Ambush: How Prohibitions Against It Became Dead Letters, Arthur G. Sapper

Brigham Young University Journal of Public Law

No abstract provided.

Reclaiming Humphrey’S Executor: Expertise And Impartiality In The Ftc, Thomas Smith

Brigham Young University Journal of Public Law

The commissioners of the Federal Trade Commission (FTC) sit just beyond the president’s removal power, for now. The U.S. Supreme Court has all but overruled Humphrey’s Executor, which declared the constitutionality of the FTC’s statutory protections from at-will presidential removal. Recent rulings in Seila Law, Free Enterprise Fund, and Collins held that restrictions on the president’s removal of various government agency officials are unconstitutional. Despite these cases, the Court has not directly overruled Humphrey’s Executor, and in theory, its precedent still provides the FTC commissioners with protection from the president’s removal power. However, the modern FTC is easily distinguishable from …

Osha’S Covid-19 Vaccine Mandate: Why Justice Gorsuch’S Analysis Of The Mandate As An Elephant In A Mousehole Misses The Mark, Wyatt Rex Allred

BYU Law Review

Administrative law doctrines such as Chevron seek to strike a balance between adequate delegated power and sufficient checks on such power. The major questions doctrine reinforces the latter. Recent decisions finding major questions, however, have shown a departure from textualist principles, which formed the doctrine s foundation. Justice Gorsuch's opinion in NFIB v. OSHA is an example of this desertion of textualist principles and should thus be viewed as an improper application of the major questions doctrine. Rather than remodeling the major questions doctrine, textualist judges should acknowledge that this form of anti-textual analysis is nothing short of a revival …

Remand Without Vacatur And The Ab Initio Invalidity Of Unlawful Regulations In Administrative Law, John Harrison

BYU Law Review

An important administrative law doctrine developed by the lower federal courts called remand without vacatur rests on a mistaken premise. Courts that embrace the doctrine maintain that when they find that a federal agency regulation is unlawful, they have discretion to remand the regulation without vacating it. The remand gives the regulatory agency an opportunity to correct the flaws that render the regulation unlawful. When a regulation is remanded but not vacated, the courts assume the regulation binds regulated parties despite its illegality. Unlawful regulations, however, are in general void ab initio, just as unconstitutional statutory rules are void ab …

All The Tenacity Of Original Sin: Agencies And Courts Continue To Place The Burden Of Persuasion On Defendants In Violation Of The Apa And Supreme Court Precedent, Arthur Sapper

Brigham Young University Journal of Public Law

No abstract provided.

Engineering The Modern Administrative State: Political Accommodation And Legal Strategy In The New Deal Era, Daniel B. Rodriguez, Barry R. Weingast

BYU Law Review

Administrative constitutionalism in the United States has been characterized by tension and accommodation. The tension reflects the unsettled nature of our constitutional scheme, especially with regard to separation of powers, and also the concern with agency discretion and performance. Still and all, we have accommodated administrative constitutionalism in fundamental ways, through a constitutional jurisprudence that, in the main, accepts broad delegations of regulatory power to the bureaucracy and an administrative law that oversees agency actions under procedural and substantive guidelines. This was not always the case. In this Article , part one of a larger project, we revisit the critical …

The Little Statute That Gets No Respect: How Courts Have Ignored The Administrative Procedure Act With Respect To Whether Pre-Enforcement Challenge Provisions Are Exclusive, Arthur Sapper

Brigham Young University Journal of Public Law

No abstract provided.

Big Agriculture And Harm To Minority Communities: How Administrative Civil Rights Complaints Are The Solution, Morgan Drake

BYU Law Review

No abstract provided.

Stakeholder Collaboration As An Alternative To Cost-Benefit Analysis, Karen Bradshaw

BYU Law Review

This Article compares and contrasts cost-benefit analysis with “collaborative analysis” in agency decision-making. While mathematical models drive cost-benefit analysis, ongoing stakeholder negotiations drive collaborative analysis. Cost-benefit analysis relies on economists inputting numerical values into a model, whereas collaborative analysis relies on the diverse perspectives of groups and individuals affected by an agency’s decision. Administrative law scholars have exhaustively researched cost-benefit analysis while overlooking widespread agency reliance on collaborative analysis. This Article advances the novel observation that legislatures and courts sometimes treat collaborative analysis and cost-benefit analysis as interchangeable.

Administrative law scholars might find it unorthodox, even irresponsible, to equate the …

Deregulation Defanged: An Empirical Review Of Federal Deregulatory Policy And Its Legal Obstacles, Jack Thorlin

Brigham Young University Journal of Public Law

No abstract provided.

Enforcement Piggybacking And Multistate Actions, Elysa M. Dishman

BYU Law Review

Civil enforcement in the United States is uniquely “multienforcer.” Numerous public and private enforcers including federal agencies, state attorneys general (AGs), and private litigants have overlapping authority to enforce myriad federal and state laws. Ideally, enforcers would complement one another’s efforts and use their comparative enforcement advantages to broaden the scope of enforcement and act as a check on underenforcement. But in reality, enforcers are often attracted to the same targets—large, public, deep-pocketed corporations. This means that multiple enforcers may pursue essentially the same enforcement action, arising from the same series of events and against the same target. Redundant enforcement …

The Stock Exchange As Multi-Sided Platform And The Future Of The National Market System, Steven Mcnamara

BYU Law Review

Since Regulation National Market System (Regulation NMS) came into force a decade ago, computer technology has transformed the stock markets. While Regulation NMS benefited investors by lowering stated transaction costs, it also created today’s complex and fragmented trading system. An increasing amount of trading now occurs off-exchange in dark pools and other “non-lit” venues, and hidden costs proliferate. In addition to the profits taken by high-frequency traders, these include the defensive costs of the technological arms race, the possibility of another “Flash Crash,” public suspicions of “rigged” stock markets, reduced allocative efficiency, and rising proprietary data fees paid by stockbrokers …

Transparent Review Of Agency Immigration Decisions, Kyler Mccarty

BYU Law Review

No abstract provided.

The Deliberation Paradox And Administrative Law, William R. Sherman

BYU Law Review

Deliberation is a linchpin of administrative decision making, and is a key basis for judicial deference to the agency’s interpretation of law. But deliberation has a dual valence in other areas of administrative law: it triggers the right to access agency information in public meeting laws, but bars access in public records laws. This is the first Article to identify and explain what I call the “Deliberation Paradox” in administrative law. This longstanding but unexplored dichotomy has roots in common law history, separation of powers, the purposes of public access statutes, and assumptions about how the government works. But the …

Trans-Substantivity And The Processes Of American Law, David Marcus

BYU Law Review

The term “trans-substantive” refers to doctrine that, in form and manner of application, does not vary from one substantive context to the next. Trans-substantivity has long influenced the design of the law of civil procedure, and whether the principle should continue to do so has prompted a lot of debate among scholars. But this focus on civil procedure is too narrow. Doctrines that regulate all the processes of American law, from civil litigation to public administration, often hew to a trans-substantive norm. This Article draws upon administrative law, the doctrine of statutory interpretation, and the law of civil procedure to …

The Absurd Results Doctrine, Chevron, And Climate Change, D. Wiley Barker

Brigham Young University Journal of Public Law

No abstract provided.

Fcc V. Fox Television Stations And The Role Of Logical Error In Hard Look Review, Samuel G. Brooks

BYU Law Review

No abstract provided.

Checks And Balances On The Fifth Branch Of Government: Colorado Environmental Coalition V. Wenker And The Justiciability Of The Federal Advisory Committee Act, Joshua W. Abbott

BYU Law Review

No abstract provided.

Use Of Wto Decisions In Judicial Review Of Adminstrative Action Under U.S. Antidumping Law, Dan Nichols

Brigham Young University International Law & Management Review

No abstract provided.

The Weak Nondelegation Doctrine And American Trucking Associations V. Epa, Gabriel Clark

BYU Law Review

No abstract provided.

A Contract-Enhancing Norm Limiting Federal Preemption Of Presumptively State Domains, Nim Razook

Brigham Young University Journal of Public Law

No abstract provided.

The Effect Of The Utah Administrative Procedures Act On The Standards Of Review For Final Administrative Agency Adjudications, John C. Steele

Brigham Young University Journal of Public Law

No abstract provided.

Standing To Contest Administrative Action Under The Land Withdrawal And Review Program: Lujan V. National Wildlife Federation, Darin T. Judd

Brigham Young University Journal of Public Law

No abstract provided.

National Trends In Court Review Of Agency Action: Some Reflections On The Model State Administrative Procedure Act And New Utah Administrative Procedure Act, Dave Frohnmayer

Brigham Young University Journal of Public Law

No abstract provided.

Mandating State Agency Lawmaking By Rule, Arthur Earl Bonfield

Brigham Young University Journal of Public Law

No abstract provided.

Professional Responsibility Issues In Administrative Adjudication, L. Harold Levinson

Brigham Young University Journal of Public Law

No abstract provided.

Professional Responsibility Issues In Administrative Adjudication: A Colorado Perspective, Judith F. Schulman

Brigham Young University Journal of Public Law

No abstract provided.

Regulatory Explosion: Observations On Understanding Utah Administrative Rules, William S. Callaghan

Brigham Young University Journal of Public Law

No abstract provided.

The Changing Relationship Of The Judiciary To The Policy And Administrative Processes Of Governments: An Overview Of Recent Commentary On The Nature, Causes, Consequences, And Proposals For Reform Of Contemporary Judicial Encroachment, Stephen L. Fluckiger

BYU Law Review

No abstract provided.

The Preemptive Effect Of Osha's Hazard Communication Standard Outside The Manufacturing Sector, Toby A. Threet

BYU Law Review

No abstract provided.