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Articles 1 - 30 of 70
Full-Text Articles in Law
Legal Summaries Of Administrative Law Cases, Keyana Young
Legal Summaries Of Administrative Law Cases, Keyana Young
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Four Futures Of Chevron Deference, Daniel E. Walters
Four Futures Of Chevron Deference, Daniel E. Walters
Faculty Scholarship
In two upcoming cases, the Supreme Court will consider whether to overturn the Chevron doctrine, which, since 1984, has required courts to defer to reasonable agency interpretations of otherwise ambiguous statutes. In this short essay, I defend the proposition that, even on death’s door, Chevron deference is likely to be resurrected, and I offer a simple positive political theory model that helps explain why. The core insight of this model is that the prevailing approach to judicial review of agency interpretations of law is politically contingent—that is, it is likely to represent an equilibrium that efficiently maximizes the Supreme Court’s …
Brief Of Amici Curiae Administrative And Federal Regulatory Law Professors In Support Of Respondents, Andrew F. Popper
Brief Of Amici Curiae Administrative And Federal Regulatory Law Professors In Support Of Respondents, Andrew F. Popper
Amicus Briefs
Amici write to address the first question presented: whether Chevron should be overruled. Properly understood, it should not. Chevron has been much discussed but not always understood. On the one hand, courts have sometimes misapplied the doctrine or failed to understand its legal foundations. On the other, courts and commentators alike have criticized Chevron, often as a result of such aggressive applications. This case provides an opportunity for the Court to clarify what Chevron does and does not entail, while reaffirming the essential role that judicial recognition of constitutionally delegated policymaking authority plays in federal statutory programs. Many of …
Brief Of Scholars Of Administrative Law And The Administrative Procedure Act As Amici Curiae In Support Of Respondents, Jeffrey Lubbers
Brief Of Scholars Of Administrative Law And The Administrative Procedure Act As Amici Curiae In Support Of Respondents, Jeffrey Lubbers
Amicus Briefs
The principle of judicial deference to agency interpretations of law has been a pillar of this Court's administrative law doctrine for more than a century. This Court's decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), formalized one version of that principle, creating the two-step framework that is now subject to a multifaceted attack. Among other things, Chevron's opponents argue that the doctrine is at odds with the original public meaning of the Administrative Procedure Act. This is wrong, and the text and history of that landmark statute provide no basis for …
The Role Of U.S. Government Regulatioms, Bert Chapman
The Role Of U.S. Government Regulatioms, Bert Chapman
Libraries Faculty and Staff Presentations
Provides detailed coverage of information resources on U.S. Government information resources for federal regulations. Features historical background on these regulations, details on the Federal Register and Code of Federal Regulations, includes information on individuals can participate in the federal regulatory process by commenting on proposed agency regulations via https://regulations.gov/, describes the role of presidential executive orders, refers to recent and upcoming U.S. Supreme Court cases involving federal regulations, and describes current congressional legislation seeking to give Congress greater involvement in the federal regulatory process.
A False Sense Of Security: How Congress And The Sec Are Dropping The Ball On Cryptocurrency, Tessa E. Shurr
A False Sense Of Security: How Congress And The Sec Are Dropping The Ball On Cryptocurrency, Tessa E. Shurr
Dickinson Law Review (2017-Present)
Today, companies use blockchain technology and digital assets for a variety of purposes. This Comment analyzes the digital token. If the Securities and Exchange Commission (SEC) views a digital token as a security, then the issuer of the digital token must comply with the registration and extensive disclosure requirements of federal securities laws.
To determine whether a digital asset is a security, the SEC relies on the test that the Supreme Court established in SEC v. W.J. Howey Co. Rather than enforcing a statute or agency rule, the SEC enforces securities laws by applying the Howey test on a fact-intensive …
Creative And Responsive Advocacy For Reconciliation: The Application Of Gladue Principles In Administrative Law, Andrew Martin
Creative And Responsive Advocacy For Reconciliation: The Application Of Gladue Principles In Administrative Law, Andrew Martin
Articles, Book Chapters, & Popular Press
A s a response to the estrangement and alienation of Indigenous peoples from the Canadian justice system, Gladue principles are central to reconciliation in sentencing and other criminal law contexts. However, the role of Gladue principles in administrative law more broadly remains uncertain. In this paper, I argue that the factors underlying Indigenous peoples’ estrangement and alienation from the justice system indicate estrangement and alienation from the administrative state itself, and thus Gladue principles appropriately apply in administrative law contexts. Using the results of a comprehensive search of reported decisions by tribunals and by courts on judicial review, I analyze …
Individual Preferences In Policy Analysis: A Normative Framework, Gabriel Weil
Individual Preferences In Policy Analysis: A Normative Framework, Gabriel Weil
Scholarly Works
No abstract provided.
The Self-Delegation False Alarm: Analyzing Auer Deference's Effect On Agency Rules, Daniel E. Walters
The Self-Delegation False Alarm: Analyzing Auer Deference's Effect On Agency Rules, Daniel E. Walters
All Faculty Scholarship
Auer deference holds that reviewing courts should defer to agencies when the latter interpret their own preexisting regulations. This doctrine relieves pressure on agencies to undergo costly notice-and-comment rulemaking each time interpretation of existing regulations is necessary. But according to some leading scholars and jurists, the doctrine actually encourages agencies to promulgate vague rules in the first instance, augmenting agency power and violating core separation of powers norms in the process. The claim that Auer perversely encourages agencies to “self-delegate”—that is, to create vague rules that can later be informally interpreted by agencies with latitude due to judicial deference—has helped …
The Self-Delegation False Alarm: Analyzing Auer Deference’S Effect On Agency Rules, Daniel E. Walters
The Self-Delegation False Alarm: Analyzing Auer Deference’S Effect On Agency Rules, Daniel E. Walters
Faculty Scholarship
Auer deference holds that reviewing courts should defer to agencies when the latter interpret their own preexisting regulations. This doctrine relieves pressure on agencies to undergo costly notice-and-comment rulemaking each time interpretation of existing regulations is necessary. But according to some leading scholars and jurists, the doctrine actually encourages agencies to promulgate vague rules in the first instance, augmenting agency power and violating core separation of powers norms in the process. The claim that Auer perversely encourages agencies to “self-delegate”—that is, to create vague rules that can later be informally interpreted by agencies with latitude due to judicial deference—has helped …
Preserving Life By Ranking Rights, John William Draper
Preserving Life By Ranking Rights, John William Draper
Librarian Scholarship at Penn Law
Border walls, abortion, and the death penalty are the current battlegrounds of the right to life. We will visit each topic and more in this paper, as we consider ranking groups of constitutional rights.
The enumerated rights of the Due Process Clauses of the Fifth and Fourteenth Amendments—life, liberty, and property—merit special treatment. They have a deeper and richer history that involves ranking. Ranking life in lexical priority over liberty and property rights protects life first and maximizes safe liberty and property rights in the absence of a significant risk to life. This is not new law; aspects of it …
Language's Empire: A Counter-Telling Of Administrative Law In Canada, Nicholas Hooper
Language's Empire: A Counter-Telling Of Administrative Law In Canada, Nicholas Hooper
LLM Theses
This thesis renders the unstated assumptions that animate statutory interpretation in the administrative state. It argues that the current approach is a disingenuous rhetorical overlay that masks the politics of definitional meaning. After rejecting the possibility of structuring principles in our (post)modern oversaturation of signs, the thesis concludes with an aspirational account of interpretive pragmatism in the face of uncertainty.
Pepperdine University School Of Law Legal Summaries, Armando Lopez
Pepperdine University School Of Law Legal Summaries, Armando Lopez
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Pepperdine University School Of Law: Legal Summaries, Jane Seo
Pepperdine University School Of Law: Legal Summaries, Jane Seo
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
The President’S Pen And The Bureaucrat’S Fiefdom, John C. Eastman
The President’S Pen And The Bureaucrat’S Fiefdom, John C. Eastman
John C. Eastman
Pepperdine University School Of Law Legal Summaries, Jee (Jane) Seo
Pepperdine University School Of Law Legal Summaries, Jee (Jane) Seo
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
The Crushing Of A Dream: Daca, Dapa And The Politics Of Immigration Law Under President Obama, Robert H. Wood
The Crushing Of A Dream: Daca, Dapa And The Politics Of Immigration Law Under President Obama, Robert H. Wood
Barry Law Review
No abstract provided.
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. …
Short-Circuiting The New Major Questions Doctrine, Kent H. Barnett, Christopher J. Walker
Short-Circuiting The New Major Questions Doctrine, Kent H. Barnett, Christopher J. Walker
Scholarly Works
In Minor Courts, Major Questions, Michael Coenen and Seth Davis advance perhaps the most provocative proposal to date to address the new major questions doctrine articulated in King v. Burwell. They argue that the Supreme Court alone should identify “major questions” that deprive agencies of interpretive primacy, prohibiting the doctrine’s use in the lower courts. Although we agree that the Court provided little guidance about the doctrine’s scope in King v. Burwell, we are unpersuaded that the solution to this lack of guidance is to limit its doctrinal development to one court that hears fewer than eighty cases per year. …
Chevron In The Circuit Courts, Kent H. Barnett, Christopher J. Walker
Chevron In The Circuit Courts, Kent H. Barnett, Christopher J. Walker
Scholarly Works
This Article presents findings from the most comprehensive empirical study to date on how the federal courts of appeals have applied Chevron deference—the doctrine under which courts defer to a federal agency’s reasonable interpretation of an ambiguous statute that it administers. Based on 1,558 agency interpretations the circuit courts reviewed from 2003 through 2013 (where they cited Chevron), we found that the circuit courts overall upheld 71% of interpretations and applied Chevron deference 77% of the time. But there was nearly a twenty-five-percentage-point difference in agency-win rates when the circuit courts applied Chevron deference than when they did not. Among …
The Judicial Role In Constraining Presidential Non-Enforcement Discretion: The Virtues Of An Apa Approach, Daniel E. Walters
The Judicial Role In Constraining Presidential Non-Enforcement Discretion: The Virtues Of An Apa Approach, Daniel E. Walters
Faculty Scholarship
Scholars, lawyers, and, indeed, the public at large increasingly worry about what purposive presidential inaction in enforcing statutory programs means for the rule of law and how such discretionary inaction can fit within a constitutional structure that compels Presidents to "take Care that the Laws be faithfully executed." Yet those who have recognized the problem have been hesitant to assign a role for the court in policing the constitutional limits they articulate, mostly because of the strain on judicial capacity that any formulation of Take Care Clause review would cause. In this Article, I argue that courts still can and …
The Teaching Of International Law, Ian Brownlie
The Teaching Of International Law, Ian Brownlie
Georgia Journal of International & Comparative Law
No abstract provided.
Pepperdine University School Of Law: Legal Summaries, Blair Castellanos
Pepperdine University School Of Law: Legal Summaries, Blair Castellanos
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Why Law Now Needs To Control Rather Than Follow Neo-Classical Economics, John William Draper
Why Law Now Needs To Control Rather Than Follow Neo-Classical Economics, John William Draper
Librarian Scholarship at Penn Law
Selfish utilitarianism, neo-classical economics, the directive of short-term income maximization, and the decision tool of cost-benefit analysis fail to protect our species from the significant risks of too much consumption, pollution, or population. For a longer-term survival, humanity needs to employ more than cost-justified precaution.
This article argues that, at the global level, and by extension at all levels of government, we need to replace neo-classical economics with filters for safety and feasibility to regulate against significant risk. For significant risks, especially those that are irreversible, we need decision tools that will protect humanity at all scales. This article describes …
Agenda-Setting In The Regulatory State: Theory And Evidence, Cary Coglianese, Daniel E. Walters
Agenda-Setting In The Regulatory State: Theory And Evidence, Cary Coglianese, Daniel E. Walters
Faculty Scholarship
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 …
Pepperdine University School Of Law; Legal Summaries, Nicole Banister
Pepperdine University School Of Law; Legal Summaries, Nicole Banister
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
A Look Back: Developing Indiana Law; Post-Bench Reflections Of An Indiana Supreme Court Justice; Selected Developments In Indiana Administrative Law (1989-2012), Frank Sullivan Jr.
A Look Back: Developing Indiana Law; Post-Bench Reflections Of An Indiana Supreme Court Justice; Selected Developments In Indiana Administrative Law (1989-2012), Frank Sullivan Jr.
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Occupational Safety And Health Act, Industrial Union V. American Petroleum Institute, Patrick M. Vitone
Occupational Safety And Health Act, Industrial Union V. American Petroleum Institute, Patrick M. Vitone
Akron Law Review
The Occupational Safety and Health Administration [hereinafter cited as OSHA] was created pursuant to Title 29 of the United States Code, to define the terms of this battle. In Industrial Union v. American Petroleum Institute, the federal judiciary has taken a hand at making these terms somewhat more clear. It is the object of this casenote to analyze the impact of the Industrial Union decision on the regulatory processes of OSHA, a task which involves a synthesis of the plurality, concurring and dissenting opinions.
Pepperdine University School Of Law Legal Summaries, Nicole Banister
Pepperdine University School Of Law Legal Summaries, Nicole Banister
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Chevron'S Legacy, Justice Scalia's Two Enigmatic Dissents, And His Return To The Fold In City Of Arlington, Tex. V. Fcc, Stephen J. Leacock
Chevron'S Legacy, Justice Scalia's Two Enigmatic Dissents, And His Return To The Fold In City Of Arlington, Tex. V. Fcc, Stephen J. Leacock
Catholic University Law Review
The creation by the judiciary of the doctrine of Chevron deference to administrative agencies’ determinations, followed by the judiciary’s application and supervision of the Chevron deference doctrine in Administrative Law continue. Protection by the judiciary of the evolution of the doctrine also continues as an integral component of the judiciary’s contribution to the central objective of the three coequal branches of government to achieve for the United States a more perfect union. However, synergistic cooperation between the three branches in order to achieve that central objective requires that each branch honor its own constitutional obligation under the United States Constitution …