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Full-Text Articles in Law
Chevron In The Circuit Courts, Kent Barnett, Christopher J. Walker
Chevron In The Circuit Courts, Kent Barnett, Christopher J. Walker
Michigan Law Review
This Article presents findings from the most comprehensive empirical study to date on how the federal courts of appeals have applied Chevrondeference— 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 Chevrondeference 77% of the time. But there was nearly a twenty-five-percentage-point difference in agency-win rates when the circuit courts applied Chevrondeference than when they did …
Chevron In The Circuit Courts: The Codebook Appendix, Kent Barnett, Christopher J. Walker
Chevron In The Circuit Courts: The Codebook Appendix, Kent Barnett, Christopher J. Walker
Michigan Law Review Online
For our empirical study on the use of Chevron deference in the federal courts of appeals, we utilized the following Codebook. This Codebook draws substantially from the codebook appended to William Eskridge and Lauren Baer’s pathbreaking study of administrative law’s deference doctrines at the Supreme Court. Our research assistants and we followed the instructions below when coding judicial decisions. To address questions as they arose and to ensure consistent coding, we maintained close contact with each other and our research assistants throughout the project and clarified the Codebook to address additional issues. Further details concerning our methodology (and its limitations) …
The Sec's Shift To Administrative Proceedings: An Empirical Assessment, Stephen J. Choi, Adam C. Prichard
The Sec's Shift To Administrative Proceedings: An Empirical Assessment, Stephen J. Choi, Adam C. Prichard
Articles
Congress has repeatedly expanded the authority of the SEC to pursue violations of securities laws in proceedings adjudicated by the SEC's own administrative law judges, most recently through the Dodd-Frank Act. We report the results from an empirical study of SEC enforcement actions against non-financial public companies to assess the impact of the Dodd-Frank Act on the balance between civil court and administrative enforcement actions. We show a general decline in the number of court actions and an increase in the number of administrative proceedings post-Dodd-Frank. At the same time, we show an increase in average civil penalties post-Dodd-Frank for …
Separation Of Powers Legitimacy: An Empirical Inquiry Into Norms About Executive Power, Cary Coglianese, Kristin Firth
Separation Of Powers Legitimacy: An Empirical Inquiry Into Norms About Executive Power, Cary Coglianese, Kristin Firth
All Faculty Scholarship
The continuing debate over the President’s directive authority is but one of the many separation-of-powers issues that have confronted courts, scholars, government officials, and the public in recent years. The Supreme Court, for instance, has considered whether the President possesses the power to make appointments of agency heads without Senate confirmation during certain congressional recesses. The Court has passed judgment recently, but has yet to resolve fully, questions about Congress’s authority to constrain the President’s power to remove the heads of administrative agencies. And the Court has considered the limits on Congress’s ability to delegate legislative authority to other rulemaking …
The Cost Of Nothing Trumps The Value Of Everything: The Failure Of Regulatory Economics To Keep Pace With Improvements In Quantitative Risk Analysis, Adam M. Finkel
Michigan Journal of Environmental & Administrative Law
The entire U.S. federal regulatory apparatus, especially that part devoted to reducing (or deciding not to reduce) risks to the environment, health, and safety (EHS), relies increasingly on judgments of whether each regulation would yield benefits in excess of its costs. These judgments depend in turn upon empirical analysis of the potential increases in longevity, quality of life, and environmental quality that the regulation can confer, and also of the economic resources needed to “purchase” those benefits—analyses whose quality can range from extremely fine to disappointingly poor. The quality of a risk analysis (from which the benefits of control are …
Dilution At The Patent And Trademark Office, Jeremy N. Sheff
Dilution At The Patent And Trademark Office, Jeremy N. Sheff
Michigan Telecommunications & Technology Law Review
This Article undertakes the first systematic investigation of trademark dilution in registration practice before the US Patent and Trademark Office (PTO). The Article consists of three distinct descriptive empirical analyses. In the first, I present a new hand-coded dataset of all 453 Trademark Trial and Appeal Board (TTAB) dispositions of dilution claims through June 30, 2014, and report that dilution has been necessary to the PTO’s refusal of exactly three registrations in over a decade. In the second part, I apply algorithmic coding of the recently released PTO Casefiles Dataset to demonstrate that concurrent registration of identical marks to different …
Midnight Rules: A Reform Agenda, Jack M. Beermann
Midnight Rules: A Reform Agenda, Jack M. Beermann
Michigan Journal of Environmental & Administrative Law
There is a documented increase in the volume of regulatory activity during the last ninety days of presidential administrations when the President is a lame duck, having either been defeated in a bid for re-election or being at the end of the second term in office. This includes an increase in the number of final rules issued as compared to other periods. The phenomenon of late-term regulatory activity has been called “midnight regulation,” based on a comparison to the Cinderella story in which the magic wears off at the stroke of midnight. This Article looks closely at one species of …
What The Return Of The Administrative Conference Of The United States Means For Administrative Law, Paul R. Verkuil
What The Return Of The Administrative Conference Of The United States Means For Administrative Law, Paul R. Verkuil
Michigan Journal of Environmental & Administrative Law
Administrative law, writ large, is about the way agencies behave, and how other institutions and the public react to that behavior. By promulgating rules, adjudicating cases and claims, enforcing statutes, providing guidance, collaborating with interest groups, exercising discretion, and so forth, agencies manage and implement the business of government.1 They do this under the auspices of the Executive Branch, but the other branches assert authority over the agencies as well. Congress does so by legislating, budgeting, and overseeing, while the courts do so by interpreting statutes and requiring rational behavior from agencies. These important and essential activities fill many law …
Legitimacy, Selectivity, And The Disunitary Executive: A Reply To Sally Katzen, Lisa Schultz Bressman, Michael P. Vandenbergh
Legitimacy, Selectivity, And The Disunitary Executive: A Reply To Sally Katzen, Lisa Schultz Bressman, Michael P. Vandenbergh
Michigan Law Review
This reply addresses the thoughtful comments that former OIRA Administrator Sally Katzen has provided on our Article, Inside the Administrative State: A Critical Look at the Practice of Presidential Control. Our Article is the first to investigate the agency perspective on White House involvement in agency rule-making. We interviewed 30 of the 35 top political officials in the Environmental Protection Agency ("EPA") during the George H.W. Bush ("Bush I") and the William J. Clinton Administrations during 1989-2001. Prior to our study, empirical studies of White House involvement in agency rule-making had focused almost exclusively on the White House side, …
A Reality Check On An Empirical Study: Comments On "Inside The Administrative State", Sally Katzen
A Reality Check On An Empirical Study: Comments On "Inside The Administrative State", Sally Katzen
Michigan Law Review
Presidential control is the term used for the process (or some would say, the model) by which agency decision-making (more particularly, rulemaking) is brought under the direction of the president to "render such decision- making accountable and effective." Until now scholars, who have generally endorsed both the theory and the practice of the process, have written from the perspective of those who exercise presidential control - those at the White House or the Office of Information and Regulatory Affairs ("OIRA"). In a recent article in the Michigan Law Review, Lisa Schultz Bressman and Michael Vandenbergh ("the authors") decided to …
Interlocutory Appeal Procedures In Administrative Hearings, Ernest Gellhorn, Paul B. Larsen
Interlocutory Appeal Procedures In Administrative Hearings, Ernest Gellhorn, Paul B. Larsen
Michigan Law Review
There are, therefore, substantial arguments for and against permitting interlocutory review of an examiner's rulings. With so even a balance in principle, factual analysis of agency practices becomes critical. This study measures agency practice against the standard that hearing procedures must be fair, and unnecessary delay is as unfair to the parties and the public as are arbitrary and erroneous interlocutory rulings.