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Full-Text Articles in Law

Administrative Law, Filter Failure, And Information Capture, Wendy E. Wagner Apr 2010

Administrative Law, Filter Failure, And Information Capture, Wendy E. Wagner

Duke Law Journal

There are no provisions in administrative law for regulating the flow of information entering or leaving the system, or for ensuring that regulatory participants can keep up with a rising tide of issues, details, and technicalities. Indeed, a number of doctrinal refinements, originally intended to ensure that executive branch decisions are made in the sunlight, inadvertently create incentives for participants to overwhelm the administrative system with complex information, causing many of the decision-making processes to remain, for all practical purposes, in the dark. As these agency decisions become increasingly obscure to all but the most well-informed insiders, administrative accountability is …


The Nlrb In Administrative Law Exile: Problems With Its Structure And Function And Suggestions For Reform, Catherine L. Fisk, Deborah C. Malamud May 2009

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 May 2009

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 …


A More Perfect System: The 2002 Reforms Of The Board Of Immigration Appeals, John D. Ashcroft, Kris W. Kobach May 2009

A More Perfect System: The 2002 Reforms Of The Board Of Immigration Appeals, John D. Ashcroft, Kris W. Kobach

Duke Law Journal

No abstract provided.


Administration Of War, John Yoo May 2009

Administration Of War, John Yoo

Duke Law Journal

No abstract provided.


Federalism Accountability: “Agency-Forcing” Measures, Catherine M. Sharkey May 2009

Federalism Accountability: “Agency-Forcing” Measures, Catherine M. Sharkey

Duke Law Journal

This Article takes as its starting point the "agency reference model" for judicial preemption decisions, adopting the foundational premise that courts should take advantage of what federal agencies, which are uniquely positioned to evaluate the impact of state regulation and common law liability upon federal regulatory schemes, have to offer. The Article's main focus is on the federalism dimension of the debate: Congress's and federal agencies' respective ability to serve as loci of meaningful debate with state governmental entities about the impact of federal regulatory schemes on state regulatory interests. Notwithstanding the dismal track record of federal agencies, which seems …


Chevron’S Mistake, Lisa Schultz Bressman Jan 2009

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 …


Tennis With The Net Down: Administrative Federalism Without Congress, Stuart Minor Benjamin, Ernest A. Young May 2008

Tennis With The Net Down: Administrative Federalism Without Congress, Stuart Minor Benjamin, Ernest A. Young

Duke Law Journal

No abstract provided.


Regulation As Delegation: Private Firms, Decisionmaking, And Accountability In The Administrative State, Kenneth A. Bamberger Nov 2006

Regulation As Delegation: Private Firms, Decisionmaking, And Accountability In The Administrative State, Kenneth A. Bamberger

Duke Law Journal

Administrative agencies increasingly enlist the judgment of private firms they regulate to achieve public ends. Regulation concerning the identification and reduction of risk-from financial, data and homeland security risk to the risk of conflicts of interest-increasingly mandates broad policy outcomes and accords regulated parties wide discretion in deciding how to interpret and achieve them. Yet the dominant paradigm of administrative enforcement, monitoring and threats of punishment, is ill suited to oversee the sound exercise of judgment and discretion.


Evaluating E-Rulemaking: Public Participation And Political Institutions, Stuart Minor Benjamin Mar 2006

Evaluating E-Rulemaking: Public Participation And Political Institutions, Stuart Minor Benjamin

Duke Law Journal

Proponents of electronic rulemaking proposals designed to enhance ordinary citizens' involvement in the rulemaking process have debated with skeptics the question of whether such initiatives will actually increase citizens' involvement. In the debate thus far, however, proponents have largely assumed the desirability of such involvement, and skeptics have usually not challenged that assumption. In addition, proponents and skeptics have focused on the relationship between agencies and individuals, failing to consider the larger administrative law context-and in particular the role played by Congress and the courts. This Article considers e-rulemaking in a broader institutional context and directly addresses the desirability of …


Citizen Participation In Rulemaking: Past, Present, And Future, Cary Coglianese Mar 2006

Citizen Participation In Rulemaking: Past, Present, And Future, Cary Coglianese

Duke Law Journal

Administrative law scholars and governmental reformers argue that advances in information technology will greatly expand public participation in regulatory policymaking. They claim that e-rulemaking, or the application of new technology to administrative rulemaking, promises to transform a previously insulated process into one in which ordinary citizens regularly provide input. With the federal government having implemented several e-rulemaking initiatives in recent years, we can now begin to assess whether such a transformation is in the works-or even on the horizon. This paper compares empirical observations on citizen participation in the past, before e-rulemaking, with more recent data on citizen participation after …


E-Rulemaking: Bringing Data To Theory At The Federal Communication Commission, John M. De Figueiredo Mar 2006

E-Rulemaking: Bringing Data To Theory At The Federal Communication Commission, John M. De Figueiredo

Duke Law Journal

This Article examines the theoretical promise of e-rulemaking with an examination of data about all filings at the Federal Communications Commission (FCC) from 1999 to 2004. The Article first reviews the theoretical and empirical literature on e-rulemaking. It then analyzes a dataset of all filings at the FCC using descriptive statistics and regression analysis to determine what drives e-filings and whether the theoretical promise of e-rulemaking is being realized six years into the experiment. The Article finds that though there has indeed been a long-term trend away from paper filings and toward electronic filings, citizen participation seems not to have …


Bargaining In The Shadow Of Administrative Procedure: The Public Interest In Rulemaking Settlement, Jim Rossi Dec 2001

Bargaining In The Shadow Of Administrative Procedure: The Public Interest In Rulemaking Settlement, Jim Rossi

Duke Law Journal

No abstract provided.


The Psychology Of Accountability And Political Review Of Agency Rules, Mark Seidenfeld Dec 2001

The Psychology Of Accountability And Political Review Of Agency Rules, Mark Seidenfeld

Duke Law Journal

No abstract provided.


Wrong Turn In Cyberspace: Using Icann To Route Around The Apa And The Constitution, A. Michael Froomkin Oct 2000

Wrong Turn In Cyberspace: Using Icann To Route Around The Apa And The Constitution, A. Michael Froomkin

Duke Law Journal

The Internet relies on an underlying centralized hierarchy built into the domain name system (DNS) to control the routing for the vast majority of Internet traffic. At its heart is a single data file, known as the "root." Control of the root provides singular power in cyberspace. This Article first describes how the United States government found itself in control of the root. It then describes how, in an attempt to meet concerns that the United States could so dominate an Internet chokepoint, the U. S. Department of Commerce (DoC) summoned into being the Internet Corporation for Assigned Names and …


Icann And The Problem Of Legitimacy, Jonathan Weinberg Oct 2000

Icann And The Problem Of Legitimacy, Jonathan Weinberg

Duke Law Journal

Two years ago, an entity called the Internet Corporation for Assigned Names and Numbers (ICANN) was formed to take control of the Internet's infrastructure of domain name and IP address identifiers. Private parties formed ICANN at the behest of the U. S. government; the government is currently using its considerable resources to cement ICANN's authority over the domain name space. ICANN's role is one generally played in our society by public entities. It is setting rules for an international communications medium of surpassing importance. That task had historically been performed by a U. S. government contractor in an explicitly public-regarding …


Assessing Consensus: The Promise And Performance Of Negotiated Rulemaking, Cary Coglianese Apr 1997

Assessing Consensus: The Promise And Performance Of Negotiated Rulemaking, Cary Coglianese

Duke Law Journal

Negotiated rulemaking appears by most accounts to have come of age. A procedure that once seemed confined to discussion among administrative law scholars has in the past decade captured the attention of policymakers throughout the nation's capital. Congress officially endorsed regulatory negotiation in the Negotiated Rulemaking Act of 1990, and it permanently reauthorized the Act in 1996. Over the past few years, the executive branch has visibly supported regulatory negotiation, both through the Clinton administration's National Performance Review (NPR) and through specific presidential directives to agency heads. Congress has also begun to mandate the use of negotiated rulemaking by certain …


Bargaining Toward The New Millennium: Regulatory Negotiation And The Subversion Of The Public Interest, William Funk Apr 1997

Bargaining Toward The New Millennium: Regulatory Negotiation And The Subversion Of The Public Interest, William Funk

Duke Law Journal

No abstract provided.


Regulatory Negotiations And Other Rulemaking Processes: Strengths And Weaknesses From An Industry Viewpoint, Ellen Siegler Apr 1997

Regulatory Negotiations And Other Rulemaking Processes: Strengths And Weaknesses From An Industry Viewpoint, Ellen Siegler

Duke Law Journal

No abstract provided.


Fear Of Commitment: An Affliction Of Adolescents, Philip J. Harter Apr 1997

Fear Of Commitment: An Affliction Of Adolescents, Philip J. Harter

Duke Law Journal

No abstract provided.


Consensus Versus Incentives: A Skeptical Look At Regulatory Negotiation, Susan Rose-Ackerman Apr 1994

Consensus Versus Incentives: A Skeptical Look At Regulatory Negotiation, Susan Rose-Ackerman

Duke Law Journal

No abstract provided.


Some Thoughts On “Deossifying” The Rulemaking Process, Thomas O. Mcgarity Jun 1992

Some Thoughts On “Deossifying” The Rulemaking Process, Thomas O. Mcgarity

Duke Law Journal

No abstract provided.


The Rulemaking Continuum, Peter L. Strauss Jun 1992

The Rulemaking Continuum, Peter L. Strauss

Duke Law Journal

No abstract provided.


Nonlegislative Rules And The Administrative Open Mind, Ronald M. Levin Jun 1992

Nonlegislative Rules And The Administrative Open Mind, Ronald M. Levin

Duke Law Journal

No abstract provided.


Re-Inventing Rulemaking, E. Donald Elliott Jun 1992

Re-Inventing Rulemaking, E. Donald Elliott

Duke Law Journal

No abstract provided.


Judicial Deference To Administrative Interpretations Of Law, Antonin Scalia Jun 1989

Judicial Deference To Administrative Interpretations Of Law, Antonin Scalia

Duke Law Journal

No abstract provided.


Congressional Delegation Of Adjudicatory Power To Federal Agencies And The Right To Trial By Jury, Paul K. Sun Jr. Apr 1988

Congressional Delegation Of Adjudicatory Power To Federal Agencies And The Right To Trial By Jury, Paul K. Sun Jr.

Duke Law Journal

The continued growth of the administrative bureaucracy and its increased impact on the rights and duties of citizens is a well-documented phenomenon of the twentieth century. 1 At the federal level, bureaucracy flourishes as Congress delegates ever more responsibility to agencies. 2 Within their statutorily defined fields, federal agencies typically perform the functions of rulemaking, enforcement and adjudication. 3 This note focuses on the adjudicatory function 4 and considers whether, when Congress creates a new statutory cause of action, 5 the seventh amendment 6 limits Congress's ability to delegate responsibility for adjudicating cases under that statute to a federal administrative …


Life In The Administrative Track: Administrative Adjudication Of Claims Against Savings Institution Receiverships, Lawrence G. Baxter Apr 1988

Life In The Administrative Track: Administrative Adjudication Of Claims Against Savings Institution Receiverships, Lawrence G. Baxter

Duke Law Journal

INTRODUCTION In the modern financial services industry, thrifts 1 engage in an unprecedented range of complex and risky commercial transactions. Consequently, the receiver of a failed thrift, which in most cases is the Federal Savings and Loan Insurance Corporation (FSLIC) appointed by the Federal Home Loan Bank Board (FHLBB), 2 is likely to face a host of complex claims. These claims arise not only from the thrift's deposit liabilities but also from its investment transactions and the incidental disputes generated by such activities. The scene of a thrift failure is often already strewn with litigation, and the receivership itself is …


A Reply To Judicialization, Carl Mcgowan Apr 1986

A Reply To Judicialization, Carl Mcgowan

Duke Law Journal

No abstract provided.


Scientific Issues And The Function Of Hearing Procedures: Evaluating The Fda’S Public Board Of Inquiry, Sidney A. Shapiro Apr 1986

Scientific Issues And The Function Of Hearing Procedures: Evaluating The Fda’S Public Board Of Inquiry, Sidney A. Shapiro

Duke Law Journal

No abstract provided.