Law Commons^™

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Sustainable Procurement Is Smart Procurement: A Primer For Local Governments To Successfully Implement Sustainable Procurement Policies, Zachary R. Kobrin

Zachary R Kobrin

Most local governments do not understand the benefits of sustainable procurement or how to successfully implement these policies. This article discusses the challenges facing local governments when adopting sustainable procurement policies and makes recommendations to successfully implement sustainable procurement. The U.S. Environmental Protection Agency describes sustainable procurement as the purchasing of products or services that have a lesser or reduced effect on human health and the environment when compared with competing products or services that serve the same purpose. For local governments, sustainable procurement can also be defined by the benefits it will provide the local environment and economy. Before …

Earmarking Earmarking, Mariano-Florentino Cuellar

Mariano-Florentino Cuellar

In the realm of lawmaking, to earmark means roughly to designate (through a statutory provision or an accompanying committee report) certain appropriated funds for narrow (nearly always geographically-delimited) purposes that appear to benefit particular interests. Policymakers, civil society organizations, and scholarly observers routinely condemn earmarking as a practice putatively tied to corruption, or reflecting abuse of the political process –critiques that have spawned a variety of recent reform efforts. Yet a meticulous prescriptive evaluation of the practice soon raises fairly profound questions encompassing institutional design, legal theory, organizational practice, and the role of a cognitively-overburdened public in a democracy. Upon …

The Constitutionality & Ethics Of Licensing Lawyers To Advise Designated Foreign Terror Organizations, Elinor R. Jordan J.D.

Elinor R Jordan J.D.

By design, lawyers play a foundational role in U.S. democracy. In representing their client’s causes, they create a bulwark against repressive government action. What would happen to that role if the government had to issue a license before an attorney could legally present her client’s case? Many scholars have reviewed Holder v. Humanitarian Law Project, wherein the Supreme Court held that a statute prohibiting lawyers from giving free legal advice to Designated Foreign Terrorist Organizations (“DFTOs”) does not violate lawyers’ First Amendment rights of free speech and association. However, neither the Court, nor scholars have directly addressed a statutory window …

Novel "Neutrality" Claims Against Internet Platforms: A Reasonable Framework For Initial Scrutiny, Jeffrey Jarosch

Jeffrey Jarosch

This Article examines a recent trend in which the Federal Trade Commission and other enforcement agencies investigate internet platforms for behavior that is insufficiently “neutral” towards users or third parties that interact with the platform. For example, Google faces a formal FTC investigation based on allegations that it has tinkered with search results rather than presenting users with a “neutral” result. Twitter, too, faces a formal investigation after the social media service restricted the ways in which third party developers could interact with Twitter through its application programming interface (API). These investigations represent a new attempt to shift the network …

Texas Versus Federal Law On Deference To Administrative Interpretations Of Statutes, Scott A. Keller

Scott A Keller

The growth of the administrative state in recent decades means that the issue of deference to an agency’s interpretation of a statute it enforces arises in many contexts. As the issue of agency deference pervades Texas’s legal system, courts and litigants will need to understand when agency statutory interpretations merit deference.

As this article shows, Texas’s doctrine on deference to agency statutory interpretations is not as developed as the federal doctrine. However, the Texas Supreme Court in Railroad Commission of Texas v. Texas Citizens for a Safe Future and Clean Water recently began to develop a comprehensive doctrine on deference …

The Fight Over “Fighting Regs” And Judicial Deference In Tax Litigation, Leandra Lederman

Leandra Lederman

Courts typically accord some level of deference to agency interpretations of statutes. Should that change for a “fighting” regulation that an agency has issued during the course of related litigation? The Treasury Department has done that many times, as the 2011 U.S. Supreme Court decision in Mayo Foundation for Medical Education and Research v. United States and a series of equally recent Court of Appeals cases highlight.

To answer the question of how fighting regs and other litigation-motivated tax guidance should be treated, the Article first analyzes the law on judicial deference to tax authorities generally, making sense of the …

Of Pigs, Plain Text, And Pyrrhic Victories: National Pork Producers Council V. United States Environmental Protection Agency, Christopher Ralph Brown Jd Mpa

Christopher Ralph Brown JD MPA

Any court charged with defining the scope of the Environmental Protection Agency’s (EPA’s) authority to enforce the Clean Water Act should do so in light of the Act’s ultimate purpose: to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” So much is certain in statutory construction: if one possible statutory construction serves to frustrate the purpose of the statute according to its own terms, one should go back to the drawing board. This article evaluates the legal reasoning of a recent decision by the United States Court of Appeals for the Fifth Circuit in light …

Et Tu Lisa Jackson? An Economic Case For Why The Epa’S Sweeping Environmental Regulatory Agenda Hurts Animal Welfare On Factory Farms, David E. Solan

David E Solan

Over the last several years, animal protection groups have increasingly partnered with environmentalists to ratchet up the environmental regulation of factory farms. This alliance has manifested itself in two primary ways: first, leading animal protection groups have supported the bold activism of Lisa Jackson, the Administrator of the EPA, in seeking to lasso factory farms into compliance with environmental laws; and second, these groups have engaged in a litigation strategy of suing factory farms under environmental statutes.

The Article aims to challenge the popular wisdom among the animal protection community that increased collaboration with the environmental movement confers mutual benefits. …

Signs, Signs, Everywhere Signs: How The Wilderness Society V. Kane County Leaves Everyone Confused About Navigating A Right-Of-Way Claim Under Revised Statute 2477, Hillary M. Hoffmann

Hillary M Hoffmann

The Tenth Circuit’s recent decision in The Wilderness Society v. Kane County has changed the landscape of litigation arising out of Revised Statute 2477, a provision of the Mining Act of 1886 repealed by the Federal Land Policy and Management Act of 1976. Prior to this decision, the presumption was that the United States owned all federal public lands unless an adverse claimant proved otherwise. Moreover, any adverse claimant was required to bring an action under the Quiet Title Act to divest the federal government of title to its property. This decision turns both of those presumptions inside-out, provided that …

Preserving The Ark Of Our Safety: How A Stronger Administrative Approach Could Save Section 5 Of The Voting Rights Act, Aaron Moore

Aaron M Moore

No abstract provided.

The Ftc’S Proposal For Regulating Ip Through Ssos Would Replace Private Coordination With Government Hold-Up, F. Scott Kieff, Richard Epstein, Daniel Spulber

F. Scott Kieff

In its recent report entitled “The Evolving IP Marketplace,” the Federal Trade Commission (FTC) advances a far-reaching regulatory approach (Proposal) whose likely effect would be to distort the operation of the intellectual property (IP) marketplace in ways that will hamper the innovation and commercialization of new technologies. The gist of the FTC Proposal is to rely on highly non-standard and misguided definitions of economic terms of art such as “ex ante” and “hold-up,” while urging new inefficient rules for calculating damages for patent infringement. Stripped of the technicalities, the FTC Proposal would so reduce the costs of infringement by downstream …

Leveling The Deference Playing Field, Kathryn E. Kovacs

Kathryn E. Kovacs

Judicial deference to federal agency expertise is appropriate. What is not appropriate is the judicial tendency to give the military more deference than other agencies not only in cases that directly implicate military expertise, but also in administrative law cases raising constitutional, environmental, and employment issues. This article argues that the military should receive no greater deference than other agencies under the Administrative Procedure Act. The APA established a single standard of judicial review for all agencies. Recent empirical studies have confirmed, however, what the case law has long revealed: that courts often apply different standards of review to different …

Leveling The Deference Playing Field, Kathryn E. Kovacs

Kathryn E. Kovacs

Judicial deference to federal agency expertise is appropriate. What is not appropriate is the judicial tendency to give the military more deference than other agencies not only in cases that directly implicate military expertise, but also in administrative law cases raising constitutional, environmental, and employment issues. This article argues that the military should receive no greater deference than other agencies under the Administrative Procedure Act. The APA established a single standard of judicial review for all agencies. Recent empirical studies have confirmed, however, what the case law has long revealed: that courts often apply different standards of review to different …

The Evolution Of Regulation: 20th Century Lessons And 21st Century Opportunities, John W. Mayo

John W Mayo

Abstract: Reflections on the evolution of regulatory policies over the past half-century afford the ability to not only identify important drivers to this evolution, but also to identify elements of regulation and deregulation that have been most successful in practice. The common element of these successes has been that they are "results-based." Based on these successes, this paper develops a model of "results-based regulation" through the identification of a set of principles that can used to guide 21st century regulatory practice. A consideration of regulation in the modern telecommunications industry serves as a proof of concept for the model of …

Come A Little Closer So That I Can See You My Pretty: The Use And Limits Of Fiction Point Of View Techniques In Appellate Briefs, Cathren Page

Cathren Page

Come a Little Closer so That I Can See You my Pretty, The Use and Limits of Fiction Point of Techniques in Appellate Briefs began when I was struggling to explain point of view to my students in Appellate Advocacy. They represented a fictional criminal defendant whose bag was searched when the police were executing a premises warrant at his friend’s house. My students scrunched up their faces when I tried to explain why they should not start their facts with the friend’s crime that spurred the search. The crime happened first in time, so to them it came first. …

In Defense Of The Shuckers: Enhanced Consumer Warnings And Assumption Of The Risk, Not Forced Post-Harvest Processing, As The Proper Remedy For Raw Oyster Toxicity, Scott T. Schmidt

Scott Schmidt

Oysters are a popular culinary delight. Oyster connoisseurs ("ostreaphiles") thoroughly enjoy consuming the bivalves in a multitude of ways, including fried, baked, and raw. A large portion of oysters in the U.S. come from the Gulf of Mexico. However, the FDA has proposed regulations which would make it difficult to consume living raw oysters from the Gulf of Mexico during certain times of the year. The Vibrio family of bacteria is the leading cause of raw shellfish toxicity. It occurs naturally in seawater, and is more heavily concentrated in warmer months. It is known to cause several illnesses and death …

Dr. King’S Speech: Surveying The Landscape Of Law And Justice In The Speeches, Sermons, And Writings Of Dr. Martin Luther King Junior, Carlton Waterhouse

Carlton Waterhouse

ABSTRACT The belief that an essential relationship exists between law and justice has been recognized since the time of the ancient Greeks. In fact, the concept extends well beyond Western philosophy and jurisprudence. Distinct from other aspects of justice, the relationship between law and justice considers the nature of law and its dictates as well as the responsibility of citizens to obey it. Although Dr. Martin Luther King, Jr. lacked the developed legal analysis of jurisprudence scholars, he made a meaningful contribution to the intellectual discourse of his time by forcing the discussion on the broader society and centering it …

“No Fishing Poles Allowed At The Office,” And Other Suggestions On How To Limit “Fishing Expeditions” To An Outdoor Weekend Activity And Away From The Realm Of E-Discovery, Joanna K. Slusarz

Joanna Slusarz

Early settlement is usually encouraged by the courts and welcomed by most parties involved in a lawsuit. However, it may not always be the most favorable result. This idiosyncrasy arises most when the costs of continuing litigation and adjudication on the merits outweigh those of early settlement. On the other hand, early settlement raises the risk of “encourag[ing] additional, low merit cases that might not otherwise have been filed had the company chosen to litigate existing lawsuits.”

The phenomenon of electronic discovery (“e-discovery”) has exponentially increased the occurrence of the latter result. As a result, defendants, particularly large corporations with …

Heads I Win, Tails You Lose: Reconciling Brown V. Gardner's Presumption That Interpretive Doubt Be Resovled In Veterans' Favor With Chevron's Second Step, Linda D. Jellum

Linda D. Jellum

In its landmark decision, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the United States Supreme Court altered the interpretive power balance. Prior to Chevron, courts determined the meaning of ambiguous regulatory statutes; after Chevron, agencies determined the meaning of ambiguous regulatory statutes. Yet this simple truism does not hold within veterans law. Within veterans law, there is a third player who plays an interpretive role: the veteran. The veteran plays an interpretive role because of an unusual presumption identified in Brown v. Gardner, 513 U.S. 115 (1994). In Gardner, the Supreme Court directed courts …

The Evolution Of Regulation: 20th Century Lessons And 21st Century Opportunities, John W. Mayo

John W Mayo

Abstract: Reflections on the evolution of regulatory policies over the past half-century afford the ability to not only identify important drivers to this evolution, but also to identify elements of regulation and deregulation that have been most successful in practice. The common element of these successes has been that they are "results-based." Based on these successes, this paper develops a model of "results-based regulation" through the identification of a set of principles that can used to guide 21st century regulatory practice. A consideration of regulation in the modern telecommunications industry serves as a proof of concept for the model of …