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Articles 1 - 30 of 70
Full-Text Articles in Law
Disappropriation, Matthew Lawrence
Disappropriation, Matthew Lawrence
Matthew B. Lawrence
Administrative Lawmaking In The Twenty-First Century, Jeffrey Pojanowski
Administrative Lawmaking In The Twenty-First Century, Jeffrey Pojanowski
Jeffrey A. Pojanowski
It is always hard to map a river while sailing midstream, but the current state of administrative law is particularly resistant to neat tracing. Until the past few years, administrative law and scholarship was marked by pragmatic compromise: judicial deference on questions of law (but not too much and not all the time) and freedom for agencies on questions of politics and policy (but not to an unseemly degree). There was disagreement around the edges-and some voices in the wilderness calling for radical change-but they operated within a shared framework of admittedly unstated, and perhaps conflicting, assumptions about the administrative …
Deference To Agency Interpretations Of Regulations: A Post-Chevron Assessment, Thomas A. Schweitzer, Russell L. Weaver
Deference To Agency Interpretations Of Regulations: A Post-Chevron Assessment, Thomas A. Schweitzer, Russell L. Weaver
Russell L. Weaver
No abstract provided.
Strategic Institutional Positioning: How We Have Come To Generate Environmental Law Without Congress, Donald J. Kochan
Strategic Institutional Positioning: How We Have Come To Generate Environmental Law Without Congress, Donald J. Kochan
Donald J. Kochan
From Fedspeak To Forward Guidance: Regulatory Dimensions Of Central Bank Communications, Robert B. Ahdieh
From Fedspeak To Forward Guidance: Regulatory Dimensions Of Central Bank Communications, Robert B. Ahdieh
Robert B. Ahdieh
In the face of the financial crisis that engulfed the globe beginning in 2007, the U.S. Federal Reserve quickly found itself without the key lever of monetary policy on which it had traditionally relied: short-term interest rate adjustments designed to move long-term rates, and thereby expected levels of lending, investment, and capital retention. By late 2008, short-term rates were already close to zero, yet unemployment remained strikingly high – with no sign of any likely renewal of bank lending or commercial investment.
Famously, the Fed embraced so-called quantitative easing – the purchase of massive volumes of public and private debt …
Collaborative Gatekeepers, Stavros Gadinis, Colby Mangels University Of California - Berkeley
Collaborative Gatekeepers, Stavros Gadinis, Colby Mangels University Of California - Berkeley
Stavros Gadinis
In their efforts to hold financial institutions accountable after the 2007 financial crisis, U.S. regulators have repeatedly turned to anti-money-laundering laws. Initially designed to fight drug cartels and terrorists, these laws have recently yielded billion-dollar fines for all types of bank engagement in fraud and have spurred an overhaul of financial institutions’ internal compliance. This increased reliance on anti-money-laundering laws, we argue, is due to distinct features that can better help regulators gain insights into financial fraud. Most other financial laws enlist private firms as gatekeepers and hold them liable if they knowingly or negligently engage in client fraud. Yet, …
The Implementation Gap In Environmental Law, Daniel A. Farber
The Implementation Gap In Environmental Law, Daniel A. Farber
Daniel A Farber
The gap between legislative expectations and actual outcomes is of central importance to the legal regime. Much of the work of environmental lawyers involves compliance or enforcement efforts, not rulemaking. Even in terms of the issuance of environmental rules, there can be substantial deviations between what the lawmaker expected and what actually takes place. This Article discusses two types of gaps between the statutory design and actual implementation. In some situations, something that is legally mandated simply fails to happen. Deadlines are missed, standards are ignored or fudged, or enforcement efforts misfire. The result is incomplete implementation, falling short of …
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
Minimally Democratic Administrative Law, Jud Mathews
Minimally Democratic Administrative Law, Jud Mathews
Jud Mathews
A persistent challenge for the American administrative state is reconciling the vast powers of unelected agencies with our commitment to government by the people. Many features of contemporary administrative law — from the right to participate in agency processes, to the reason-giving requirements on agencies, to the presidential review of rulemaking — have been justified, at least in part, as means to square the realities of agency power with our democratic commitments. At the root of any such effort there lies a theory of democracy, whether fully articulated or only implicit: some conception of what democracy is about, and what …
Proportionality Review In Administrative Law, Jud Mathews
Proportionality Review In Administrative Law, Jud Mathews
Jud Mathews
At the most basic level, the principle of proportionality captures the common-sensical proposition that, when the government acts, the means it chooses should be well-adapted to achieve the ends it is pursuing. The proportionality principle is an admonition, as German administrative law scholar Fritz Fleiner famously wrote many decades ago, that “the police should not shoot at sparrows with cannons”. The use of proportionality review in constitutional and international law has received ample attention from scholars in recent years, but less has been said about proportionality’s role within administrative law. This piece suggest that we can understand the differences in …
Behavioral Public Choice And The Law, Gary M. Lucas Jr., Slaviša Tasić
Behavioral Public Choice And The Law, Gary M. Lucas Jr., Slaviša Tasić
Gary M. Lucas Jr.
Behavioral public choice is the study of irrationality among political actors. In this context, irrationality means systematic bias, a deviation from rational expectations, or other departure from economists’ conception of rationality. Behavioral public choice scholars extend the insights of behavioral economics to the political realm and show that irrational behavior is an important source of government failure. This Article makes an original contribution to the legal literature by systematically reviewing the findings of behavioral public choice and explaining their implications for the law and legal institutions. We discuss the various biases and heuristics that lead political actors to support and …
Private Enforcement, Stephen B. Burbank, Sean Farhang, Herbert Kritzer
Private Enforcement, Stephen B. Burbank, Sean Farhang, Herbert Kritzer
Sean Farhang
Our aim in this Article is to advance understanding of private enforcement of statutory and administrative law in the United States and to raise questions that will be useful to those who are concerned with regulatory design in other countries. To that end, we briefly discuss aspects of American culture, history, and political institutions that reasonably can be thought to have contributed to the growth and subsequent development of private enforcement. We also set forth key elements of the general legal landscape in which decisions about private enforcement are made, aspects of which should be central to the choice of …
Hermeneutic Tourist: Statutory Interpretation In Comparative Perspective, Daniel A. Farber
Hermeneutic Tourist: Statutory Interpretation In Comparative Perspective, Daniel A. Farber
Daniel A Farber
No abstract provided.
The Transparency Fix: Advocating Legal Rights And Their Alternatives In The Pursuit Of A Visible State, Mark Fenster
The Transparency Fix: Advocating Legal Rights And Their Alternatives In The Pursuit Of A Visible State, Mark Fenster
Mark Fenster
The administrative norm of transparency, which promises a solution to the problem of government secrecy, requires political advocacy organized from outside the state. The traditional approach, typically the result of organized campaigns to make the state visible to the public, has been to enact freedom of information laws (FOI) that require government disclosure and grant enforceable rights to the public. The legal solution has not proven wholly satisfactory, however. In the past two decades, numerous advocacy movements have offered different fixes to the information asymmetry problem that the administrative state creates. These alternatives now augment and sometimes compete with legal …
Developments In Administrative Law: The 2014-2015 Term, Gerald Heckman
Developments In Administrative Law: The 2014-2015 Term, Gerald Heckman
Gerald Heckman
Acus Statement # 19 (Issue Exhaustion), Jeffrey Lubbers
Acus Statement # 19 (Issue Exhaustion), Jeffrey Lubbers
Jeffrey Lubbers
Deference Lotteries, Jud Mathews
Deference Lotteries, Jud Mathews
Jud Mathews
When should courts defer to agency interpretations of statutes, and what measure of deference should agencies receive? Administrative law recognizes two main deference doctrines — the generous Chevron standard and the stingier Skidmore standard — but Supreme Court case law has not offered a bright-line rule for when each standard applies.Many observers have concluded that courts’ deference practice is an unpredictable muddle. This Article argues that it is really a lottery, in the sense the term is used in expected utility theory. Agencies cannot predict which deference standard a court will apply or with what effect, but they have a …
Strategic Delegation, Discretion, And Deference: Explaining The Comparative Law Of Administrative Review, Jud Mathews, Nuno M. Garoupa
Strategic Delegation, Discretion, And Deference: Explaining The Comparative Law Of Administrative Review, Jud Mathews, Nuno M. Garoupa
Jud Mathews
This paper offers a theory to explain cross-national variation in administrative law doctrines and practices. Administrative law regimes vary along three primary dimensions: the scope of delegation to agencies, agencies’ exercise of discretion, and judicial practices of deference to agencies. Working with a principal-agent framework, we show how cross-national differences in institutions’ capacities and the environments they face encourage the adoption of divergent strategies that lead to a variety of distinct, stable, equilibrium outcomes. We apply our model to explain patterns of administrative law in the United States, Germany, France, and Commonwealth jurisdictions.
The Lost World Of Administrative Law, Daniel A. Farber, Anne Joseph O'Connell
The Lost World Of Administrative Law, Daniel A. Farber, Anne Joseph O'Connell
Daniel A Farber
The reality of the modern administrative state diverges considerably from the series of assumptions underlying the Administrative Procedure Act (APA) and classic judicial decisions that followed the APA reviewing agency actions. Those assumptions call for statutory directives to be implemented by one agency led by Senate-confirmed presidential appointees with decision-making authority. The implementation (in the form of a discrete action) is presumed to be through statutorily mandated procedures and criteria, with judicial review to determine whether the reasons given by the agency at the time of its action match the delegated directions. This is the lost world of administrative law, …
Goals 2000: Educate America Act: The Federalization And Legalization Of Educational Policy, Michael M. Heise
Goals 2000: Educate America Act: The Federalization And Legalization Of Educational Policy, Michael M. Heise
Michael Heise
No abstract provided.
Agencies, Courts, And The Limits Of Balancing, Daniel A. Farber
Agencies, Courts, And The Limits Of Balancing, Daniel A. Farber
Daniel A Farber
Courts have struggled in several very different contexts to determine when a decision maker can consider costs that are not explicitly addressed in the governing statute. This issue arises when agencies decide whether to conduct a rulemaking or what rule to issue after a rulemaking. It also arises when courts decide whether to enjoin a violation of a statute or whether to vacate an administrative rule rather than simply remanding. Judicial opinions point in different directions and often ignore each other.
This Article contends that the same principles should govern judicial and agency discretion to consider costs across all these …
Searching For Proportionality In U.S. Administrative Law, Jud Mathews
Searching For Proportionality In U.S. Administrative Law, Jud Mathews
Jud Mathews
A Framework For Understanding Property Regulation And Land Use Control From A Dynamic Perspective, Donald J. Kochan
A Framework For Understanding Property Regulation And Land Use Control From A Dynamic Perspective, Donald J. Kochan
Donald J. Kochan
Constituencies And Contemporaneousness In Reason-Giving: Thoughts And Direction After T-Mobile, Donald J. Kochan
Constituencies And Contemporaneousness In Reason-Giving: Thoughts And Direction After T-Mobile, Donald J. Kochan
Donald J. Kochan
Renewable Energy Through Agency Action, Amy L. Stein
Renewable Energy Through Agency Action, Amy L. Stein
Amy L. Stein
Despite the many societal benefits associated with renewable energy, it is used to generate only about 5 percent of our nation's electricity needs. The bulk of governmental efforts to rectify this situation have disproportionately impacted private actors. This Article argues that the federal government should expand its efforts to more fully capture the gains that can be achieved by targeting both private and public actors, particularly federal agencies. Federal agencies have enormous purchasing power that can be channeled toward using electricity and fuels derived from renewable energy. Federal agencies are some of the largest consumers of electricity. Federal agencies manage …
Foreword — Chevron At 30: Looking Back And Looking Forward, Peter M. Shane, Christopher J. Walker
Foreword — Chevron At 30: Looking Back And Looking Forward, Peter M. Shane, Christopher J. Walker
Christopher J. Walker
This Foreword introduces a Fordham Law Review symposium held in March 2014 to mark the thirtieth anniversary of Chevron U.S.A. v. Natural Resources Defense Council. The most-cited administrative-law decision of all time, Chevron has sparked thirty years of scholarly discussion concerning what Chevron deference means, when (or even if) it should apply, and what impact it has had on the administrative state. Part I of the Foreword discusses the symposium contributions that address Chevron’s scope and application, especially in light of City of Arlington v. FCC. Part II introduces the contributions that explore empirically and theoretically Chevron’s impact outside of …
Falling Behind: Processing And Enforcing Permits For Animal Agriculture Operations In Maryland Is Lagging, Rena I. Steinzor, Anne Havemann
Falling Behind: Processing And Enforcing Permits For Animal Agriculture Operations In Maryland Is Lagging, Rena I. Steinzor, Anne Havemann
Rena I. Steinzor
After decades of failed interstate agreements, the Chesapeake Bay is choking on too many nutrients. The estuary’s last, best chance of recovery is the Environmental Protection Agency's Total Maximum Daily Load (“TMDL”) program, also known as a pollution diet. To meet this deadline, all polluters, including large animal farms, will need to sharply reduce the pollutants they release into the Bay. The Maryland Department of the Environment (MDE) must ensure that each Concentrated Animal Feeding Operation (“CAFO”) has developed a facility-specific permit that details when and where manure is applied to fields and how waste is stored and handled. Then …
Looking With One Eye Closed: The Twilight Of Administrative Law, Ronald A. Cass
Looking With One Eye Closed: The Twilight Of Administrative Law, Ronald A. Cass
Ronald A. Cass
No abstract provided.
Functional Government In 3-D, Robert L. Glicksman, Alejandro E. Camacho
Functional Government In 3-D, Robert L. Glicksman, Alejandro E. Camacho
Robert L. Glicksman
The creation of new administrative agencies and the realignment of existing governmental authority are commonplace and high-stakes events, as illustrated by the recent creation of the Department of Homeland Security after 9/11 and of new financial regulatory agencies after the global recession of 2009. Scholars and policymakers have not devoted sufficient attention to this subject, failing to clearly identify the different dimensions along which government authority may be structured or to consider the relationships among them. Analysis of these institutional design issues typically also gives short shrift to whether authority should be allocated differently based on agency function. These failures …
Administrative Change, Randy J. Kozel, Jeffrey Pojanowski
Administrative Change, Randy J. Kozel, Jeffrey Pojanowski
Jeffrey A. Pojanowski
Determining the standard of review for administrative actions has commanded judicial and scholarly interest like few other topics. Notwithstanding the extensive debates, far less consideration has been given to the unique features of agencies’ deviations from their own precedents. In this article we examine this puzzle of administrative change. By change, we mean a reversal of the agency’s former views about the best way to implement and interpret its regulatory mandate. We trace the lineage of administrative change at the Supreme Court and analyze features that distinguish agency reversals from other administrative actions. In particular, we contend that because administrative …