Law Commons^™

Filling The Regulatory Void In The Fx Spot Market: How Traders Rigged The Biggest Market In The World, Colleen Powers

Fordham Urban Law Journal

No abstract provided.

The Constitutionalization Of Indian Private Law, Shyamkrishna Balganesh

Faculty Scholarship

This chapter examines the relationship between private law and constitutional law in India, with particular emphasis on tort law. It considers the Indian Supreme Court’s expansion of its fundamental rights jurisprudence over the past thirty years, as well as its effort to transcend the public law/private law divide. It also explains how the Court’s fusion of constitutional law and tort law has affected the independent efficacy, normativity, and analytical basis of equivalent private law claims in India. It argues that the Court’s efforts have only undermined the overall legitimacy of private law mechanisms in the country, and that this phenomenon …

Transubstantiation In Canadian Public Law: Processing Substance And Instantiating Process, Mary Liston

All Faculty Publications

Canadian public law blurs process and substance, a result confirming the prevailing view that this dichotomy ought never to be conceived as a simplistic bright-line distinction. Recent developments have created more than just a blurring but, rather, a strong linking or even fusion of the two. This paper probes the implications of these developments in public law. Section two briefly presents the historic and jurisprudential distinctions between process and substance and assesses its current legal import. Here I argue that judicially created analytic frameworks could assist by bringing a process-substance problem to the surface and constraining its potentially pernicious effects. …

Dynamic Incorporation Of Federal Law, Jim Rossi

Vanderbilt Law School Faculty Publications

This Article provides a comprehensive analysis of state constitutional limits on legislative incorporation of dynamic federal law, as occurs when a state legislature incorporates future federal tax, environmental or health laws. Many state judicial decisions draw on the nondelegation doctrine to endorse an ex ante prohibition on state legislative incorporation of dynamic federal law. However, the analysis in this Article shows how bedrock principles related to separation of powers under state constitutions, such as protecting transparency, reinforcing accountability, and protecting against arbitrariness in lawmaking, are not consistent with this approach. Instead, this Article highlights two practices that can make dynamic …

Independent Agencies In The United States: The Responsibilities Of Public Lawyers, Marshall J. Breger, Gary Edles

Scholarly Articles

Independent federal agencies occupy a special constitutional position in the governmental structure. Their stock-in-trade is the expert, apolitical resolution of regulatory issues. They are supposedly “independent” of the political will of the executive branch. Because most are multi-member organizations, they are also perceived as accommodating diverse views and able to prevent extreme outcomes through the compromise inherent in the process of collegial decision-making. But such a view is not universally held. A well known examination of such agencies in the 1930s described them uncharitably as a “headless ‘fourth branch’ of government, a haphazard deposit of irresponsible agencies and uncoordinated powers.” …

Ps V Ontario: Rethinking The Role Of The Charter In Civil Commitment, Isabel Grant, Peter J. Carver

All Faculty Publications

In PS v Ontario, the Ontario Court of Appeal held that section 7 of the Charter requires that persons who are civilly committed for six months or more must have access to a meaningful review process that has jurisdiction over the conditions of their detention. In this paper, the authors argue that this decision has broad implications for provincial civil commitment regimes across the country. In particular, the fact that the court analogized to the Criminal Code Review Board jurisprudence opens the door to a fuller recognition of the profound deprivation of liberty that is involved in all civil commitments. …

The Promise Of The Rule Of (Environmental) Law: A Reply To Pardy's Unbearable Licence, Jocelyn Stacey

All Faculty Publications

This short reply clarifies and defends the argument presented in "The Environmental Emergency and the Legality of Discretion in Environmental Law." It responds to the arguments that were made, and that could have been made, in Pardy's critique "An Unbearable Licence".

Can Pragmatism Function In Administrative Law?, Jocelyn Stacey, Alice Woolley

All Faculty Publications

This article draws out the ways in which Justice Rothstein grappled with complexity in administrative law. It argues that Justice Rothstein took a pragmatic approach to complexity in administrative law. Specifically, he sought to articulate a framework for judicial review that was workable for administrative decision-makers, litigants, their lawyers and reviewing courts. In addition, he looked to past experience with judicial review, evidenced in judicial precedent, rather than focusing on abstract theoretical norms.

The Manner In Which Corporate Law And Financial Regulations Are Made, Supawich Sirikanchana, Sharareh Zand

Comparative Corporate Governance and Financial Regulation

No abstract provided.

Legal Adaptive Capacity : How Program Goals And Processes Shape Federal Land Adaption To Climate Change, Alejandro E. Camacho, Robert L. Glicksman

University of Colorado Law Review

The degree to which statutory goals are pliable is likely to significantly affect the ability of an agency with regulatory or management responsibilities to achieve those objectives in the face of novel challenges or changing circumstances. This Article explores this dynamic by comparing the degree of 'ive" provided by the goals of the regimes governing management of the five types of federal public lands in responding to the challenges posed by climate change. A comparative analysis of federal land adaptation to climate change demonstrates that a management regime's legal adaptive capacity is influenced not only by procedural flexibility, but also …

Resetting The Baseline Of Ownership: Takings And Investor Expectations After The Bailouts, Nestor M. Davidson

Faculty Scholarship

During the economic crisis that began in 2008, the federal government nationalized several of the nation’s most significant private companies as part of a broad effort to forestall a global depression. Shareholders in those companies later filed suit, alleging that the federal government in so doing—and in subsequent actions while in control of the firms—took their property without compensation in violation of the Fifth Amendment. To date, those claims have not succeeded. If these cases continue on their current trajectory, with courts rejecting arguments that the rescue of systematically important firms on the brink of collapse requires compensation for shareholders, …

Legal Pathways To Reducing Greenhouse Gas Emissions Under Section 115 Of The Clean Air Act, Michael Burger, Ann E. Carlson, Michael B. Gerrard, Jayni Foley Hein, Jason A. Schwartz, Keith J. Benes

Faculty Scholarship

Under President Barack Obama the U.S. Environmental Protection Agency has promulgated a series of greenhouse gas emissions regulations, initiating the necessary national response to climate change. However, the United States will need to find other ways to reduce GHG emissions if it is to live up to its international emissions reduction pledges, and to ultimately lead the way to a zero-carbon energy future. This paper argues that the success of the recent climate negotiations in Paris provides a strong basis for invoking a powerful tool available to help achieve the country’s climate change goals: Section 115 of the Clean Air …

The Duty Of Responsible Administration And The Problem Of Police Accountability, Charles F. Sabel, William H. Simon

Faculty Scholarship

Many contemporary civil rights claims arise from institutional activity that, while troubling, is neither malicious nor egregiously reckless. When law-makers find themselves unable to produce substantive rules for such activity, they often turn to regulating the actors’ exercise of discretion. The consequence is an emerging duty of responsible administration that requires managers to actively assess the effects of their conduct on civil rights values and to make reasonable efforts to mitigate harm to protected groups. This doctrinal evolution partially but imperfectly converges with an increasing emphasis in public administration on the need to reassess routines in the light of changing …

Politics And Agencies In The Administrative State: The U.S. Case, Peter L. Strauss

Faculty Scholarship

The pending American presidential election, culminating a period of extreme political partisanship in our national government generally, gives point to an essay on politics and agencies in the American regulatory state. In our two-party system, it has often been the case in recent times, including the last six years, that the President comes from one of our two major political parties and one or both houses of Congress are controlled by the other. All American agencies (including, in the American case, the so-called independent regulatory bodies) are associated with the President in the executive branch, yet dependent on the Senate …

Reflections On Seminole Rock: The Past, Present, And Future Of Deference To Agency Regulatory Interpretations, Gillian E. Metzger, Aaron Nielson, Sanne H. Knudsen, Amy J. Wildermuth, Aditya Bamzai, Richard J. Pierce, Cynthia Barmore, William Yeatman, Christopher J. Walker, Kevin M. Stack, Andy Grewal, Steve R. Johnson, F. Andrew Hessick, Jonathan H. Adler, Catherine M. Sharkey, David Feder, Cass R. Sunstein, Adrian Vermeule, Ronald M. Levin, Kevin O. Leske, James Cleith Phillips, Daniel Ortner, William Funk, Kristen E. Hickman, Jeffrey A. Pojanowski, Adam White, Conor Clarke

Faculty Scholarship

Seminole Rock (or Auer) deference has captured the attention of scholars, policymakers, and the judiciary. That is why Notice & Comment, the blog of the Yale Journal on Regulation and the American Bar Association’s Section of Administrative Law & Regulatory Practice, hosted an online symposium from September 12 to September 23, 2016 on the subject. This symposium contains over 20 contributions addressing different aspects of Seminole Rock deference.

Topics include:

• History of Seminole Rock
• Empirical Examinations of Seminole Rock
• Understanding Seminole Rock Within Agencies
• Understanding Seminole Rock as Applied to Tax, Environmental Law, and Criminal Sentencing
• Why Seminole Rock Matters …

Trademark Laundering, Useless Patents, And Other Ip Challenges For The Marijuana Industry, Sam Kamin, Viva R. Moffat University Of Denver College Of Law

Washington and Lee Law Review

No abstract provided.

Chevron Bias, Philip A. Hamburger

Faculty Scholarship

This Article takes a fresh approach to Chevron deference. Chevron requires judges to defer to agency interpretations of statutes and justifies this on a theory of statutory authorization for agencies. This Article, however, points to a pair of constitutional questions about the role of judges – questions that have not yet been adequately asked, let alone answered.

One question concerns independent judgment. Judges have a constitutional office or duty of independent judgment, under which they must exercise their own independent judgment about what the law is. Accordingly, when they defer to agency interpretations of the law, it must be asked …

Early Prerogative And Administrative Power: A Response To Paul Craig, Philip A. Hamburger

Faculty Scholarship

What does English experience imply about American constitutional law? My book, Is Administrative Law Unlawful?, argues that federal administrative power generally is unconstitutional. In supporting this conclusion, the book observes that eighteenth-century Americans adopted their constitutions not only with their eyes on the future, but also looking over their shoulder at the past – especially the English past. This much should not be controversial. There remain, however, all sorts of questions about how to understand the English history and its relevance for early Americans.

In opposition to my claims about American law, Paul Craig lobs three critiques from across the …

Vermeule Unbound, Philip A. Hamburger

Faculty Scholarship

My book asks Is Administrative Law Unlawful? Adrian Vermeule answers “No.” In support of his position, he claims that my book does not really make arguments from the U.S. Constitution, that it foolishly denounces administrative power for lacking legislative authorization, that it grossly misunderstands this power and the underlying judicial doctrines, and ultimately that I argue “like a child.”

My book actually presents a new conception of administrative power, its history, and its unconstitutionality; as Vermeule has noted elsewhere, it offers a new paradigm. Readers therefore should take seriously the arguments against the book. They also, however, should recognize that …

Litigation: Time To Revisit Chevron Deference?, Jack M. Beerman, Charles J. Cooper, Thomas W. Merrill, Amy J. Wildermuth, Don R. Willett

Faculty Scholarship

This panel discussion took place on Thursday, November 13, 2014 at the Mayflower Hotel in Washington, D.C., prior to the passing of Justice Antonin Scalia. Justice Scalia's impact on the development of administrative law in the United States is unparalleled.

Foreword, Philip C. Bobbitt

Faculty Scholarship

In every state of which the international system is composed, the constitution is necessarily involved in the making and exe­cution of the state’s strategy. The nature of that involvement is one dimension by which we determine the character of a par­ticular state. The subordination of the professional military to elected representatives of the state; the making of legal regula­tions governing land and naval forces by the lawmaking body; the fashioning of rules of engagement by an elected executive; and above all, the parliamentary control of the decision to go to war that characterize states of consent — which in the …

Developments In Administrative Law: The 2014-2015 Term, Gerald Heckman

Gerald Heckman

Innovations In Mobile Broadband Pricing, Daniel Lyons

Daniel Lyons

Copyrights, Privacy, And The Blockchain, Tom W. Bell

Tom W. Bell

Moral Judgments, Expressive Functions, And Bias In Immigration Law, Emily Ryo

Emily Ryo

In a lucid and trenchant style characteristic of Professor Hiroshi Motomura’s writing, Immigration Outside the Law offers rich descriptive and prescriptive analyses of three major themes underlying debates about unauthorized migration: the meaning of unlawful presence, state and local involvement in the regulation of unauthorized migration, and the integration of unauthorized migrants into American society. This review advances several ideas that I argue are important to understanding these key themes. In brief, I suggest that a more comprehensive understanding of public debates about unauthorized migration requires examining lay moral judgments about unlawful presence, the expressive functions of immigration law, and …

Detained: A Study Of Immigration Bond Hearings, Emily Ryo

Emily Ryo

Incumbent Landscapes, Disruptive Uses: Perspectives On Marijuana-Related Land Use Control, Donald J. Kochan

Donald J. Kochan