Law Commons^™

Responding To Alternatives, Daniel T. Deacon

Michigan Law Review

This Article is the first to comprehensively analyze administrative agencies’ obligation to respond to alternatives to their chosen course of action. The obligation has been around at least since the Supreme Court’s decision in Motor Vehicle Manufacturers Ass’n of the United States, Inc. v. State Farm, and it has mattered in important cases. Most recently, the Supreme Court invoked the obligation as the primary ground on which to invalidate the Trump Administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program. The obligation to respond to alternatives is also frequently invoked in the lower courts and in the …

Both Sides Of The Rock: Justice Gorsuch And The Seminole Rock Deference Doctrine, Kevin O. Leske

Michigan Journal of Environmental & Administrative Law

Despite being early in his tenure on the U.S. Supreme Court, Justice Neil Gorsuch has already made his presence known. His October 16, 2017 statement respecting the denial of certiorari in Scenic America, Inc. v. Department of Transportation garnered significant attention within the legal community. Joined by Chief Justice John Roberts and Justice Samuel Alito, Justice Gorsuch questioned whether the Court’s bedrock 2-part test from Chevron, U.S.A. v. NRDC—whereby courts must defer to an agency’s reasonable interpretation of an ambiguous statutory term—should apply in the case.

Justice Gorsuch’s criticism of the Chevron doctrine was not a surprise. In the …

The Role Of The Courts In Guarding Against Privatization Of Important Public Environmental Resources, Melissa K. Scanlan

Michigan Journal of Environmental & Administrative Law

Drinking water, beaches, a livable climate, clean air, forests, fisheries, and parks are all commons, shared by many users with diffuse and overlapping interests. These public natural resources are susceptible to depletion, overuse, erosion, and extinction; and they are under increasing pressures to become privatized. The Public Trust Doctrine provides a legal basis to guard against privatizing important public resources or commons. As such, it is a critical doctrine to counter the ever-increasing enclosure and privatization of the commons as well as ensure government trustees protect current and future generations. This Article considers separation of powers and statutory interpretation in …

Making Treaty Implementation More Like Statutory Implementation, Jean Galbraith

Michigan Law Review

Both statutes and treaties are the “supreme law of the land,” and yet quite different practices have developed with respect to their implementation. For statutes, all three branches have embraced the development of administrative law, which allows the executive branch to translate broad statutory directives into enforceable obligations. But for treaties, there is a far more cumbersome process. Unless a treaty provision contains language that courts interpret to be directly enforceable, they will deem it to require implementing legislation from Congress. This Article explores and challenges the perplexing disparity between the administration of statutes and treaties. It shows that the …

The Law And Sociology Of Boilerplate, Todd D. Rakoff

Michigan Law Review

In my view, the scholarship presented at this symposium demonstrates that, in order to analyze form contracts and boilerplate successfully, one must carry out a set of operations that embodies an approach I will call law and sociology. But I presume I was invited to be a commentator at this conference on boilerplate not because the article I wrote on one branch of the subject awhile back exemplified this methodological approach, but because it took a rather strong substantive position. And so I think I ought first to say a brief word about that. The article in question concerned contracts …

Administrative Agencies, Joseph Vining

Book Chapters

Administrative agencies, often called the ‘‘fourth branch,’’ are entities of government that make decisions within particular substantive fields. Although these fields range over the full spectrum of public concern, the specificity of agencies’ focus distinguishes them from other decision making entities in the constitutional structure—the judiciary, the presidency, the Congress, indeed the individual citizen—each of which can be taken to have a scope of interest as broad as imagination will allow.

Taking A Byte Out Of Abusive Agency Discretion: A Proposal For Disclosure In The Use Of Computer Models, John P. Barker

University of Michigan Journal of Law Reform

This Note examines the need for comprehensive requirements for the release of information pertaining to the use of computer-generated simulations used by federal administrative agencies or parties appearing before regulatory bodies. Part I of this Note defines computer models, identifies some of their current uses in administrative proceedings and describes the advantages of these models. Part II reviews the current requirements for documentation of computer models and the judicial review standards for agency findings. Part III examines the potential problems in the use of models and discusses the need for more adequate disclosure. Part IV describes several tests for verifying …

Administrative Law-Developments: 1940-1945 (A Service For Returning Veterans), E. Blythe Stason

Michigan Law Review

No period in American history has ushered in more sweeping changes in the legal structure than has the last decade and a half. No area of the law has witnessed more rapid development than has administrative law. A sketch of the progress of administrative law during the five-year period 1940 to 1945 reveals an important refining of the "quasi judicial" procedures--procedures which, because of their swift and topsy-turvy growth, can well use a little refining.

The purpose of the following survey is two-fold; first, to outline the more significant developments of the last half decade, relating the new materials to …

Abstracts, Mary Jane Plumer

Michigan Law Review

The abstracts consist merely of summaries of the facts and holdings of recent cases and are distinguished from the notes by the absence of discussion.

If Men Were Angels: A Review, E. Blythe Stason

Michigan Law Review

Occasionally one encounters a new book that is genuinely interesting because of the refreshing vigor with which it attacks an important and timely problem. Such a book is Jerome Frank's new volume, If Men Were Angels. Indeed in some of its chapters its vigor approaches violence, a fact which adds spice to the reading.

Reform Of Administrative Procedure, Gilbert H. Montague

Michigan Law Review

On January 22, 1941, the Attorney General's Committee on Administrative Procedure, appointed to investigate the need for procedural reform in various federal administrative tribunals and to suggest improvements therein, submitted its final report and a proposed bill to Attorney General Jackson, who on January 24, 1941, transmitted these to the Senate with his recommendation that the proposed bill receive favorable consideration. Every member of the committee approved this report and this proposed bill, but the approval of four members of the committee was subject to their additional views and recommendations, expressed in statements and in a differing proposed bill. Pending …

Mr. Justice Cardozo And Problems Of Government, Dean G. Acheson

Michigan Law Review

The sorrow with which the entire nation learned of the death of Mr. Justice Cardozo bears witness to the sense of loss felt by the great body of his fellow citizens. Few of the people who mourn him had personal opportunity to know the high qualities of his mind or his saintly character. Yet they truly feel that between him and the thought and spirit of his time there was fundamental sympathy and understanding. In a real sense the cast of his thinking was the product of his age. This awareness of his time was coupled in him with sensitiveness …

Law Departments And Law Officers In American Governments, John A. Fairlie

Michigan Law Review

On all levels of government, national, state and local, the need for the services of professional lawyers has been recognized. In addition to the judges of the higher courts, there are other law officers, whose function it is to give legal advice and assistance to the various executive administrative agencies, and to act as attorneys for the government and its officials in proceedings before the judicial courts in the enforcement of criminal laws and in other cases where the government or its officials are parties or are concerned with the legal problems involved. Little attention has been given to the …

Administrative Tribunals-Organization And Reorganization, E. Blythe Stason

Michigan Law Review

No doubt overhauling is needed. However, a consistent and rational theory for the integration of the independent agencies with the remainder of the governmental structure is a condition precedent to an intelligent overhauling. This article constitutes a groping for such a theory. First, I shall discuss some of the more significant attacks which have been made in recent years upon modern administrative organization. Then, the reasons for these attacks will be examined and appraised, for they reveal certain pathological conditions which need excision. Finally, and with all due deference to the other remedies that have been suggested, I shall venture …

The Proposed United States Administrative Court, Robert M. Cooper

Michigan Law Review

The last half century has witnessed a constant, almost relentless, increase of governmental responsibilities and services in both federal and state spheres of control. Due to the changing needs of our economic and social order, the desire for speedy, efficient and inexpensive settlement of controversies and the imperative need of specialized administrators, the task of performing these new functions has not infrequently been delegated to administrative tribunals or commissions. Neither the legislature nor the judiciary was capable of administering the myriad details or countless controversies which inevitably accompanied these new functions of government. As a consequence an administrative branch of …

Creation Of Government Corporations By The National Government, Maurice S. Culp

Michigan Law Review

The federal government has until recently made very little use of the corporation as an agency for executing the laws of Congress. Early in the course of our national development the federal government chartered banks and shared in their ownership, utilizing them in the fiscal operations of the treasury. At various other times the federal government has chartered other corporations under some power granted by the Constitution, particularly railroad corporations under the commerce power. Beginning with the World War the corporate form of administrative agency was utilized to avoid difficulties which would arise if the execution of the war-time activities …