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Full-Text Articles in Law
Foreign Hard Look Review, Ganesh Sitaraman
Foreign Hard Look Review, Ganesh Sitaraman
Vanderbilt Law School Faculty Publications
For decades, courts and scholars have been engaged in a protracted and largely polarized debate over a seemingly simple question: how should courts address cases that implicate foreign affairs? On the one hand are those who seek expansive deference to the Executive's conduct offoreign affairs. On the other are those who argue that the courts must enforce the rule of law in foreign affairs cases lest they abdicate their responsibility to keep the Executive in check This Article provides an alternative approach to the judicial role in foreign relations cases--one that navigates between judicial abdication and judicial entanglement. It argues …
The Permit Power Revisited, J.B. Ruhl, Eric Biber
The Permit Power Revisited, J.B. Ruhl, Eric Biber
Vanderbilt Law School Faculty Publications
Two decades ago, Professor Richard Epstein fired a shot at the administrative state that has gone largely unanswered in legal scholarship. His target was the permit power, under which legislatures prohibit a specified activity by statute and delegate administrative agencies discretionary power to authorize the activity under terms the agency mandates in a regulatory permit. Describing the permit power, accurately, as an enormous power in the state, Epstein bemoaned that it had received scant attention in the academic literature. He sought to fill that gap. Centered on his premise that the permit power represents a complete inversion of the proper …
Designing Administrative Law For Adaptive Management, J.B. Ruhl, Robin Craig
Designing Administrative Law For Adaptive Management, J.B. Ruhl, Robin Craig
Vanderbilt Law School Faculty Publications
Administrative law needs to adapt to adaptive management. Adaptive management is a structured decision-making method the core of which is a multi-step iterative process for adjusting management measures to changing circumstances or new information about the effectiveness of prior measures or the system being managed. It has been identified as a necessary or best practices component of regulation in a broad range of fields, including drug and medical device warnings, financial system regulation, social welfare programs, and natural resources management. Nevertheless, many of the agency decisions advancing these policies remain subject to the requirements of either the federal Administrative Procedure …