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Full-Text Articles in Law

Disappropriation, Matthew Lawrence Dec 2019

Disappropriation, Matthew Lawrence

Matthew B. Lawrence

In recent years Congress has repeatedly failed to appropriate funds necessary to honor legal commitments (aka entitlements) that are themselves enacted in permanent law. The Appropriations Clause has forced the government to defy legislative command and break such commitments, with destructive results for recipients and the rule of law. This Article is the first to address this poorly-understood phenomenon, which it labels a form of “disappropriation.” 

The Article theorizes recent high-profile disappropriations as one probabilistic consequence of Congress’s decision to create permanent legislative payment commitments that the government cannot honor without periodic, temporary appropriations. Such partially-temporary programs include Medicaid ...


Where Concerned Citizens Perceive Police As More Responsive To Troublesome Teen Groups: Theoretical Implications For Political Economy, Incivilities And Policing, Christopher Salvatore, Ralph B. Taylor, Christopher Kelly Oct 2019

Where Concerned Citizens Perceive Police As More Responsive To Troublesome Teen Groups: Theoretical Implications For Political Economy, Incivilities And Policing, Christopher Salvatore, Ralph B. Taylor, Christopher Kelly

Christopher Salvatore

The current investigation extends previous work on citizens' perceptions of police performance. It examines the origins of between-community differences in concerned citizens' judgments that police are responding sufficiently to a local social problem. The problem is local unsupervised teen groups, a key indicator for both the revised systemic social disorganization perspective and the incivilities thesis. Four theoretical perspectives predict ecological determinants of these shared judgments. Less perceived police responsiveness is anticipated in lower socioeconomic status (SES) police districts by both a political economy and a stratified incivilities perspective; more predominantly minority police districts by a racialized justice perspective; and in ...


Through The Looking-Glass And What The Idaho Supreme Court Found There, Dale Goble Oct 2019

Through The Looking-Glass And What The Idaho Supreme Court Found There, Dale Goble

Dale Goble

No abstract provided.


Idaho Administrative Procedure Act: A Primer For The Practitioner, Dale Goble Oct 2019

Idaho Administrative Procedure Act: A Primer For The Practitioner, Dale Goble

Dale Goble

No abstract provided.


State Net Neutrality, Daniel A. Lyons Oct 2019

State Net Neutrality, Daniel A. Lyons

Daniel Lyons

For nearly a century, state regulators played an important role in telecommunications regulation. The 1934 Communications Act gave the Federal Communications Commission authority to regulate interstate telephone service, but explicitly left intrastate calls—which comprised 98% of Depression-era telephone traffic—to state public utility commissions. By the late 2000s, however, as landline telephony faded to obscurity, scholars and policymakers alike recognized that the era of comprehensive state telecommunications regulation had largely come to an end.

Perhaps surprisingly, however, the first years of the Trump Administration have seen a resurgence in state telecommunications regulation—driven not by state institutional concerns, but ...


Inside Job: The Assault On The Structure Of The Consumer Financial Protection Bureau, Patricia A. Mccoy Oct 2019

Inside Job: The Assault On The Structure Of The Consumer Financial Protection Bureau, Patricia A. Mccoy

Patricia A. McCoy

Soon after the 2016 election of Donald Trump as President of the United States, while Republicans controlled Congress, opponents of the fledgling Consumer Financial Protection Bureau (CFPB) opened a campaign against the Bureau. Their target was less the substance of federal consumer financial protection laws than the structure of the CFPB itself. This emphasis on structure was a response to the fact that Congress in 2010 had given special thought to the design of the CFPB to safeguard the Bureau and its mission.

In 2017, after legislation to weaken the Bureau’s structure failed in Congress and constitutional challenges to ...


The Battle That Never Was: Congress, The White House, And Agency Litigation Authority, Neal Devins, Michael Herz Sep 2019

The Battle That Never Was: Congress, The White House, And Agency Litigation Authority, Neal Devins, Michael Herz

Neal E. Devins

No abstract provided.


The Consequences Of Doj Control Of Litigation Authority On Agency Programs, Michael Herz, Neal Devins Sep 2019

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

Neal E. Devins

No abstract provided.


Regulation Of Government Agencies Through Limitation Riders, Neal Devins Sep 2019

Regulation Of Government Agencies Through Limitation Riders, Neal Devins

Neal E. Devins

Congress often attaches limitation riders to appropriations bills to establish its policy directives. Professor Devins argues that the appropriations process is not the proper vehicle for substantive policymaking. In this article, he analyzes institutional characteristics that prevent the full consideration or articulation of policy in appropriations bills. Professor Devins also considers the extent to which Congress's use of limitation riders inhibits the effectiveness of the other branches of the federal government. Professor Devins concludes that, while Congress's use of limitation riders is sometimes necessary, Congress should be aware of the significant risks associated with policymaking through the appropriations ...


Not-So-Independent Agencies: Party Polarization And The Limits Of Institutional Design, Neal Devins, David E. Lewis Sep 2019

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

Neal E. Devins

No abstract provided.


Foreword: Government Lawyering, Neal Devins Sep 2019

Foreword: Government Lawyering, Neal Devins

Neal E. Devins

No abstract provided.


The Federal-Aid Highway Construction Process: Procedures, Cases, And Plaintiff Strategies, Ronald H. Rosenberg, Allen H. Olson Sep 2019

The Federal-Aid Highway Construction Process: Procedures, Cases, And Plaintiff Strategies, Ronald H. Rosenberg, Allen H. Olson

Ronald H. Rosenberg

No abstract provided.


Doing More Or Doing Less For The Environment: Shedding Light On Epa's "Stealth" Method Of Environmental Enforcement, Ronald H. Rosenberg Sep 2019

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

Ronald H. Rosenberg

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 ...


What Do Snowmobiles, Mercury Emissions, Greenhouse Gases, And Runoff Have In Common?: The Controversy Over "Junk Science", Linda A. Malone Sep 2019

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

Linda A. Malone

No abstract provided.


When Delegation Begets Domination: Due Process Of Administrative Lawmaking, Evan J. Criddle Sep 2019

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

Evan J. Criddle

No abstract provided.


Mending Holes In The Rule Of (Administrative) Law, Evan J. Criddle Sep 2019

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

Evan J. Criddle

No abstract provided.


The Constitution Of Agency Statutory Interpretation, Evan J. Criddle Sep 2019

The Constitution Of Agency Statutory Interpretation, Evan J. Criddle

Evan J. Criddle

No abstract provided.


Fiduciary Foundations Of Administrative Law, Evan J. Criddle Sep 2019

Fiduciary Foundations Of Administrative Law, Evan J. Criddle

Evan J. Criddle

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 ...


Fiduciary Administration: Rethinking Popular Representation In Agency Rulemaking, Evan J. Criddle Sep 2019

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

Evan J. Criddle

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 ...


Chevron's Consensus, Evan J. Criddle Sep 2019

Chevron's Consensus, Evan J. Criddle

Evan J. Criddle

No abstract provided.


Chevron Deference And Treaty Interpretation, Evan J. Criddle Sep 2019

Chevron Deference And Treaty Interpretation, Evan J. Criddle

Evan J. Criddle

No abstract provided.


Interauthority Relationships, Michael S. Green Sep 2019

Interauthority Relationships, Michael S. Green

Michael S. Green

No abstract provided.


Tempest In An Envelope: Reflections On The Bush White House's Failed Takeover Of The U.S. Postal Service, Neal Devins Sep 2019

Tempest In An Envelope: Reflections On The Bush White House's Failed Takeover Of The U.S. Postal Service, Neal Devins

Neal E. Devins

No abstract provided.


Hierarchically Variable Deference To Agency Interpretations, Aaron-Andrew P. Bruhl Sep 2019

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

Aaron-Andrew P. Bruhl

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 ...


Abbott Labs V. Gardner, 387 U.S. 136 (1967), Aaron-Andrew P. Bruhl Sep 2019

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

Aaron-Andrew P. Bruhl

No abstract provided.


Revitalizing Regulation, Daniel A. Farber Aug 2019

Revitalizing Regulation, Daniel A. Farber

Daniel A Farber

A Review of Reinventing Government: How the Entrepreneurial Spirit is Transforming the Public Sector by David Osborne and Rethinking the Progressive Agenda: The Reform of the American Regulatory State by Susan Rose-Ackerman


Regulatory Review In Anti-Regulatory Times, Daniel A. Farber Aug 2019

Regulatory Review In Anti-Regulatory Times, Daniel A. Farber

Daniel A Farber

This article investigates the role of cost-benefit analysis during an antiregulatory period. The period since 2016 has seen several new developments, including the first vigorous use by Congress of its power to overturn recently issued regulations and the creation of novel deregulatory mechanisms layered on top of cost-benefit analysis. This period also contains important examples of sharply reversed CBAs, in which regulations that were said to have large net benefits under Obama are instead said to have net costs under Trump. The Trump Administration’s regulatory review initiatives focus heavily on costs, with limited attention to benefits. Case studies of ...


Agenda-Setting In The Regulatory State: Theory And Evidence, Cary Coglianese, Daniel E. Walters Aug 2019

Agenda-Setting In The Regulatory State: Theory And Evidence, Cary Coglianese, Daniel E. Walters

Daniel Walters

Government officials who run administrative agencies must make countless decisions every day about what issues and work to prioritize. These agenda-setting decisions hold enormous implications for the shape of law and public policy, but they have received remarkably little attention by either administrative law scholars or social scientists who study the bureaucracy. Existing research offers few insights about the institutions, norms, and inputs that shape and constrain agency discretion over their agendas or about the strategies that officials employ in choosing to elevate certain issues while putting others on the back burner. In this article, we advance the study of ...


The Justiciability Of Fair Balance Under The Federal Advisory Committee Act: Toward A Deliberative Process Approach, Daniel E. Walters Aug 2019

The Justiciability Of Fair Balance Under The Federal Advisory Committee Act: Toward A Deliberative Process Approach, Daniel E. Walters

Daniel Walters

The Federal Advisory Committee Act's requirement that advisory committees be "fairly balanced in terms of the points of view represented and the functions to be performed" is generally considered either nonjusticiable under the Administrative Procedure Act or justiciable but subject to highly deferential review. These approaches stem from courts' purported inability to discern from the text of the statute any meaningful legal standards for policing representational balance. Thus, the Federal Advisory Committee Act's most important substantive limitation on institutional pathologies such as committee "capture" or domination is generally unused despite the ubiquity of federal advisory committees in the ...


Capturing Regulatory Agendas?: An Empirical Study Of Industry Use Of Rulemaking Petitions, Daniel E. Walters Aug 2019

Capturing Regulatory Agendas?: An Empirical Study Of Industry Use Of Rulemaking Petitions, Daniel E. Walters

Daniel Walters

A great deal of skepticism toward administrative agencies stems from the widespread perception that they excessively or even exclusively cater to business interests. From the political right comes the accusation that business interests use regulation to erect barriers to entry that protect profits and stifle competition. From the political left comes the claim that business interests use secretive interactions with agencies to erode and negate beneficial regulatory programs. Regulatory “capture” theory elevates many of these claims to the status of economic law. Despite growing skepticism about capture theory in academic circles, empirical studies of business influence and capture return ambiguous ...