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Full-Text Articles in Law
Administrative Law, Filter Failure, And Information Capture, Wendy E. Wagner
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
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 …
A More Perfect System: The 2002 Reforms Of The Board Of Immigration Appeals, John D. Ashcroft, Kris W. Kobach
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
Federalism Accountability: “Agency-Forcing” Measures, Catherine M. Sharkey
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
Some Thoughts On “Deossifying” The Rulemaking Process, Thomas O. Mcgarity
Duke Law Journal
No abstract provided.
The Rulemaking Continuum, Peter L. Strauss
Nonlegislative Rules And The Administrative Open Mind, Ronald M. Levin
Nonlegislative Rules And The Administrative Open Mind, Ronald M. Levin
Duke Law Journal
No abstract provided.
Re-Inventing Rulemaking, E. Donald Elliott
Judicial Deference To Administrative Interpretations Of Law, Antonin Scalia
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.
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
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
Scientific Issues And The Function Of Hearing Procedures: Evaluating The Fda’S Public Board Of Inquiry, Sidney A. Shapiro
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.