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Articles 1 - 18 of 18
Full-Text Articles in Law
Jazz Improvisation And The Law: Constrained Choice, Sequence, And Strategic Movement Within Rules, William W. Buzbee
Jazz Improvisation And The Law: Constrained Choice, Sequence, And Strategic Movement Within Rules, William W. Buzbee
Georgetown Law Faculty Publications and Other Works
This Article argues that a richer understanding of the nature of law is possible through comparative, analogical examination of legal work and the art of jazz improvisation. This exploration illuminates a middle ground between rule of law aspirations emphasizing stability and determinate meanings and contrasting claims that the untenable alternative is pervasive discretionary or politicized law. In both the law and jazz improvisation settings, the work involves constraining rules, others’ unpredictable actions, and strategic choosing with attention to where a collective creation is going. One expects change and creativity in improvisation, but the many analogous characteristics of law illuminate why …
Sanitation: Reducing The Administrative State’S Control Over Public Health, Lauren R. Roth
Sanitation: Reducing The Administrative State’S Control Over Public Health, Lauren R. Roth
Scholarly Works
On April 18, 2022, in Health Freedom Defense Fund, Inc. v. Biden, United States District Judge Kathryn Kimball Mizelle vacated the mask mandate issued by the Centers for Disease Control and Prevention. Following a framework laid out in other decisions restricting CDC actions in response to COVID-19, the court found that the agency lacked statutory authority to protect the public from the virus by requiring mask wearing during travel and at transit hubs because Congress did not intend such a broad grant of power. Countering decades of public health jurisprudence, the federal district court failed to defer to experts and …
Reconsidering The Legal Regulation Of The Usage Of Administrative Policies, Wei Yao, Kenny Chng
Reconsidering The Legal Regulation Of The Usage Of Administrative Policies, Wei Yao, Kenny Chng
Research Collection Yong Pung How School Of Law
Policies are of great practical importance in administrative governance. Yet, doctrinal and normative ambiguities remain in the law regulating the usage of administrative policies. Specifically, there exists a well-known tension between the rule against fettering and the legitimate expectations doctrine. Approaching this issue from a normative angle and drawing upon T.R.S. Allan’s reflections on the rule of law, the paper will argue that a unified legal approach governing the usage of administrative policies, premised on the normative objective of furthering the rule of law as the rule of reason, will go a significant way towards resolving this tension and addressing …
Majestic Law And The Subjective Stop, Kyron J. Huigens
Majestic Law And The Subjective Stop, Kyron J. Huigens
Articles
Justice John Paul Stevens subscribed to "a majestic conception" of the Constitution. This Article articulates and defends that vision. Majestic law and legal reasoning characteristically involve frank moral reasoning, such as one finds in the Eighth Amendment's "evolving standards of decency" test for proportionate punishment, or in Due Process formulations such as an appeal to "immutable principles of justice, which inhere in the very idea of free government." Majestic law employs moral values, norms, and judgments in legal reasoning, taking them on their own terms. Majestic legal reasoning does not weigh revealed preferences for decency, for example. It asks whether …
Chevron's Interstitial Steps, Cary Coglianese
Chevron's Interstitial Steps, Cary Coglianese
All Faculty Scholarship
The Chevron doctrine’s apparent simplicity has long captivated judges, lawyers, and scholars. According to the standard formulation, Chevron involves just two straightforward steps: (1) Is a statute clear? (2) If not, is the agency’s interpretation of the statute reasonable? Despite the influence of this two-step framework, Chevron has come under fire in recent years. Some critics bemoan what they perceive as the Supreme Court’s incoherent application of the Chevron framework over time. Others argue that Chevron’s second step, which calls for courts to defer to reasonable agency interpretations of ambiguous statutory provisions, amounts to an abdication of judicial responsibility. …
Value Hypocrisy And Policy Sincerity: A Food Law Case Study, Joshua Galperin
Value Hypocrisy And Policy Sincerity: A Food Law Case Study, Joshua Galperin
Articles
It is tempting to say that in 2017 there is a unique problem of hypocrisy in politics, where words and behaviors are so often in opposition. In fact, hypocrisy is nothing new. A robust legal and psychological literature on the importance of procedural justice demonstrates a longstanding concern with developing more just governing processes. One of the important features of this scholarship is that it does not focus only on the consequences of policymaking, in which behaviors, but not words, are relevant. Instead, it respects the intrinsic importance of fair process, lending credence not only to votes but also to …
Neoclassical Administrative Common Law, Jeffrey A. Pojanowski
Neoclassical Administrative Common Law, Jeffrey A. Pojanowski
Journal Articles
This essay reviews John Dickinson’s neglected classic, Administrative Justice and the Supremacy of Law in the United States. Writing on the cusp of the New Deal, Dickinson helped establish a mainstream, moderate stance about the shape and legitimacy of the administrative state. A closer reading of this work, which is rich in jurisprudential reflection and historical learning, offers a better idea about the structure, promise, and limits of the doctrinal world he helped create.
The Constitutionalization Of Indian Private Law, Shyamkrishna Balganesh
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 …
A Pragmatic Approach To Interpreting The Federal Rules, Suzette M. Malveaux
A Pragmatic Approach To Interpreting The Federal Rules, Suzette M. Malveaux
Publications
No abstract provided.
An Administrative Jurisprudence: The Rule Of Law In The Administrative State, Kevin M. Stack
An Administrative Jurisprudence: The Rule Of Law In The Administrative State, Kevin M. Stack
Vanderbilt Law School Faculty Publications
This Essay offers a specification of the rule of law's demands of administrative law and government inspired by Professor Peter L. Strauss's scholarship. It identifies five principles'authorization, notice, justification, coherence, and procedural fairness which provide a framework for an account of the rule of law's demands of administrative governance. Together these principles have intriguing results for the evaluation of administrative law. On the one hand, they reveal rule-of-law foundations for some contested positions, such as a restrictive view of the President's power to direct subordinate officials and giving weight to an agency's determination of the scope of its own authority. …
Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee
Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee
All Faculty Scholarship
Today, most American workers do not have constitutional rights on the job. As The Workplace Constitution shows, this outcome was far from inevitable. Instead, American workers have a long history of fighting for such rights. Beginning in the 1930s, civil rights advocates sought constitutional protections against racial discrimination by employers and unions. At the same time, a conservative right-to-work movement argued that the Constitution protected workers from having to join or support unions. Those two movements, with their shared aim of extending constitutional protections to American workers, were a potentially powerful combination. But they sought to use those protections to …
Delivering The Goods: Herein Of Mead, Delegations, And Authority, Patrick Mckinley Brennan
Delivering The Goods: Herein Of Mead, Delegations, And Authority, Patrick Mckinley Brennan
Working Paper Series
This paper argues, first, that the natural law position, according to which it is the function of human law and political authorities to instantiate certain individual goods and the common good of the political community, does not entail judges' having the power or authority to speak the natural law directly. It goes on to argue, second, that lawmaking power/authority must be delegated by the people or their representatives. It then argues, third, that success in making law depends not just on the exercise of delegated power/authority, but also on the exercise of care and deliberation or, in the article's terms, …
Nihilism With A Happy Ending? The Interstate Commerce Commission And The Emergence Of The Post-Enlightenment Paradigm, Mark F. Kightlinger
Nihilism With A Happy Ending? The Interstate Commerce Commission And The Emergence Of The Post-Enlightenment Paradigm, Mark F. Kightlinger
Law Faculty Scholarly Articles
This Article examines early Supreme Court opinions about the Interstate Commerce Commission (ICC)—the first federal administrative agency—in an effort to identify the intellectual roots of the modern administrative state. The Article argues that the Court's effort to explain and justify the function of the newborn ICC shows the traces of a post-Enlightenment crisis in the field of moral philosophy—i.e., the growing conviction that it is no longer possible for reasonable people to agree on what constitutes a true, objective, universally valid standard of reasonable or just conduct. From this essentially nihilistic starting point, the Court helped to fashion a new …
Mission Possible: Reciprocal Deference Between Domestic Regulatory Structures And The Wto, Elizabeth Trujillo
Mission Possible: Reciprocal Deference Between Domestic Regulatory Structures And The Wto, Elizabeth Trujillo
Faculty Scholarship
One of the goals of Article III of GATT is to invalidate domestic regulatory measures, including taxes and non-fiscal policies that amount to non-tariff barriers to trade (NTB) and therefore violate the principles of national treatment. While internal policies that directly discriminate between products based on nationality or origin are clearly in violation of national treatment principles, it is the facially neutral regulatory measures with protectionist and discriminatory effects that are more difficult to assess, even within transparent regulatory processes. However, with their emphasis on the likeness of the products in question, WTO panels run the risk of alienating member …
The Judge As A Fly On The Wall: Interpretive Lessons From The Positive Political Theory Of Legislation, Daniel B. Rodriguez, Cheryl Boudreau, Arthur Lupia, Mathew Mccubbins
The Judge As A Fly On The Wall: Interpretive Lessons From The Positive Political Theory Of Legislation, Daniel B. Rodriguez, Cheryl Boudreau, Arthur Lupia, Mathew Mccubbins
University of San Diego Public Law and Legal Theory Research Paper Series
In the modern debate over statutory interpretation, scholars frequently talk past one another, arguing for one or another interpretive approach on the basis of competing, and frequently undertheorized, conceptions of legislative supremacy and political theory. For example, so-called new textualists insist that the plain meaning approach is compelled by the U.S. Constitution and rule of law values; by contrast, theorists counseling a more dynamic approach often reject the premise of legislative supremacy that is supposed by the textualist view. A key element missing, therefore, from the modern statutory interpretation debate is a conspicuous articulation of the positive and empirical premises …
Of Gift Horses And Great Expectations: Remands Without Vacatur In Administrative Law, Daniel B. Rodriguez
Of Gift Horses And Great Expectations: Remands Without Vacatur In Administrative Law, Daniel B. Rodriguez
University of San Diego Public Law and Legal Theory Research Paper Series
Administrative law has been shaped over the years by fundamentally practical considerations. Displacement of agency decisions by courts was rare; yet, the omnipresent threat of substantial judicial intrusion surely affected agency decisions. While the Administrative Procedure Act, adopted nearly 60 years ago, provides a comprehensive template for federal agency decisionmaking, what is striking about the APA is how much is left out and how much is left to the discretion of both agencies in implementing regulatory decisions and to the courts in superintending agency action. Given this history, it is hardly surprising that many doctrinal techniques represent the pragmatic effort …
Constitutional And Statutory Interpretation, Kent Greenawalt
Constitutional And Statutory Interpretation, Kent Greenawalt
Faculty Scholarship
This article discusses relatively established theories with respect to statutory and constitutional interpretation. Written constitutions and statutes provide authoritative directions for officials and citizens within liberal democracies. The article mentions that descriptive and normative theories connect with each other in critical respects. Statutory interpretation involves the construction and application of provisions adopted by legislatures. The theoretical questions about interpreting statutes and constitutions suggest more general questions about the meaning of human communications; and scholars of philosophy of language, linguistics, literary theory, and religious hermeneutics discuss analogous issues. This article discusses an important issue in statutory interpretation that is the nature …
Legislative Formality, Administrative Rationality, Harold H. Bruff
Legislative Formality, Administrative Rationality, Harold H. Bruff
Publications
No abstract provided.