Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 5 of 5
Full-Text Articles in Law
Not Peace, But A Sword: Navy V. Egan And The Case Against Judicial Abdication In Foreign Affairs, Jason Rathod
Not Peace, But A Sword: Navy V. Egan And The Case Against Judicial Abdication In Foreign Affairs, Jason Rathod
Duke Law Journal
In the United States' system of separation of powers, the judiciary must safeguard the rights of individuals from abuses by the political branches of government. Yet, when it comes to matters touching foreign affairs, scholars such as John Yoo and jurists such as Antonin Scalia argue that the executive branch is entitled to virtually unreviewable discretion. They point to Navy v. Egan for support. There, the Court held that an administrative body that hears appeals from adverse actions against government employees was precluded from reviewing the merits of security clearance determinations because the executive branch deserves "super-strong" deference in foreign …
The Nlrb In Administrative Law Exile: Problems With Its Structure And Function And Suggestions For Reform, Catherine L. Fisk, Deborah C. Malamud
The Nlrb In Administrative Law Exile: Problems With Its Structure And Function And Suggestions For Reform, Catherine L. Fisk, Deborah C. Malamud
Duke Law Journal
No abstract provided.
The Parliament Of The Experts, Adrian Vermeule
The Parliament Of The Experts, Adrian Vermeule
Duke Law Journal
In the administrative state, how should expert opinions be aggregated and used? If a panel of experts is unanimous on a question of fact, causation, or prediction, can an administrative agency rationally disagree, and on what grounds? If experts are split into a majority view and a minority view, must the agency follow the majority? Should reviewing courts limit agency discretion to select among the conflicting views of experts, or to depart from expert consensus? I argue that voting by expert panels is likely, on average, to be epistemically superior to the substantive judgment of agency heads, in determining questions …
Depoliticizing Administrative Law, Cass R. Sunstein, Thomas J. Miles
Depoliticizing Administrative Law, Cass R. Sunstein, Thomas J. Miles
Duke Law Journal
A large body of empirical evidence demonstrates that judicial review of agency action is highly politicized in the sense that Republican appointees are significantly more likely to invalidate liberal agency decisions than conservative ones, while Democratic appointees are significantly more likely to invalidate conservative agency decisions than liberal ones. These results hold for both (a) judicial review of agency interpretations of law and (b) judicial review of agency decisions for "arbitrariness" on questions of policy and fact. On the federal courts of appeals, the most highly politicized voting patterns are found on unified panels, that is, on panels consisting solely …
Chevron’S Mistake, Lisa Schultz Bressman
Chevron’S Mistake, Lisa Schultz Bressman
Duke Law Journal
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. asks courts to determine whether Congress has delegated to administrative agencies the authority to resolve questions about the meaning of statutes that those agencies implement, but the decision does not give courts the tools for providing a proper answer. Chevron directs courts to construe statutory text by applying the traditional theories of statutory interpretation-whether intentionalism, purposivism, or textualism-and to infer a delegation of agency interpretive authority only if they fail to find a relatively specific meaning. But the traditional theories, despite their differences, all invite courts to construe statutory text as …