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Full-Text Articles in Law
Considering Political Alternatives To “Hard Look” Review, Peter L. Strauss
Considering Political Alternatives To “Hard Look” Review, Peter L. Strauss
Duke Law Journal
No abstract provided.
On The Costs And Benefits Of Aggressive Judicial Review Of Agency Action, Cass R. Sunstein
On The Costs And Benefits Of Aggressive Judicial Review Of Agency Action, Cass R. Sunstein
Duke Law Journal
No abstract provided.
Judicial Deference To Administrative Interpretations Of Law, Antonin Scalia
Judicial Deference To Administrative Interpretations Of Law, Antonin Scalia
Duke Law Journal
No abstract provided.
Congress, The Supreme Court, And The Quiet Revolution In Administrative Law, Sidney A. Shapiro, Robert L. Glicksman
Congress, The Supreme Court, And The Quiet Revolution In Administrative Law, Sidney A. Shapiro, Robert L. Glicksman
Duke Law Journal
No abstract provided.
Two Problems In Administrative Law: Political Polarity On The District Of Columbia Circuit And Judicial Deterrence Of Agency Rulemaking, Richard J. Pierce Jr.
Two Problems In Administrative Law: Political Polarity On The District Of Columbia Circuit And Judicial Deterrence Of Agency Rulemaking, Richard J. Pierce Jr.
Duke Law Journal
In a refreshingly candid article, Chief Judge Wald of the D.C. Circuit noted in 1986: "The flow of membership in the D.C. Circuit . . . is more like what one would expect in Congress with elections every few years, or in the Executive, shifting its key policymakers with each administration." 1 Eleven of the twelve D.C. Circuit judges were appointed by President Reagan or President Carter within the last nine years. Most served previously in policymaking positions in either the legislative or executive branches of government. Based on their record of decisionmaking with respect to judicial review of agency …
Heightened Scrutiny Of The Fourth Branch: Separation Of Powers And The Requirement Of Adequate Reasons For Agency Decisions, Sidney A. Shapiro, Richard E. Levy
Heightened Scrutiny Of The Fourth Branch: Separation Of Powers And The Requirement Of Adequate Reasons For Agency Decisions, Sidney A. Shapiro, Richard E. Levy
Duke Law Journal
Judicial review of administrative action is an inexact science. Professors Shapiro and Levy argue that this is partially because review of administrative actions is an unexplained science. In this article, they examine how the evolution of judicial review of agencies has reflected changing political values in American government. They argue that courts now require agencies to provide adequate reasons for their actions, and, by tracing the development of that requirement, they demonstrate that the courts have not fully explained the significance of or doctrinal basis for this model of review. The article concludes that the adequate reasons requirement is best …
A Reply To Judicialization, Carl Mcgowan
Administrative Discretion, Judicial Review, And The Gloomy World Of Judge Smith, Ronald M. Levin
Administrative Discretion, Judicial Review, And The Gloomy World Of Judge Smith, Ronald M. Levin
Duke Law Journal
No abstract provided.
Nonlegislative Rulemaking And Regulatory Reform, Michael Asimow
Nonlegislative Rulemaking And Regulatory Reform, Michael Asimow
Duke Law Journal
The adoption of interpretive rules and policy statemens is a vital part of the administrative process. These "nonlegislative" rules clarify the language of statutes and prior rules and give structure to agency discretionary powers. Courts have encountered difficulty in distinguishing legislative from nonlegislative rules because the practical impact of both kinds of rules may be the same. Regulatory reform proposals at both federal and state levels would require agencies to employ notice and comment procedures before adopting many nonlegislative rules. This article contends that such requirements would discourage agencies from adopting nonlegislative rules and thus would dramatically disserve the public …
The Ethics In Government Act Of 1978: Problems With The Attorney General’S Discretion And Proposals For Reform, Stephen Charles Mixter
The Ethics In Government Act Of 1978: Problems With The Attorney General’S Discretion And Proposals For Reform, Stephen Charles Mixter
Duke Law Journal
No abstract provided.
Administrative Process Reform In A Discretionary Age: The Role Of Social Consequences, Wesley A. Magat, Schroeder Christopher H.
Administrative Process Reform In A Discretionary Age: The Role Of Social Consequences, Wesley A. Magat, Schroeder Christopher H.
Duke Law Journal
The basic rulemaking procedures of the Administrative Procedure Act have remained intact for thirty-eight years, but now Congress is seriously considering reform of those generic rules. To evaluate the merits of these reform proposals, we must develop criteria against which to judge them. Although procedural reforms are commonly judged against the goals of fairness, accuracy, and procedural efficiency, Professors Schroeder and Magat argue that these are insufficient criteria to apply to administrative process reforms at a time when agencies possess substantial discretion in the rulemaking process. In such a context, procedures have an impact on society in ways not adequately …
Judicial Review Of Informal Administrative Rulemaking
Judicial Review Of Informal Administrative Rulemaking
Duke Law Journal
No abstract provided.
Decreeing Organizational Change: Judicial Supervision Of Public Institutions, Donald L. Horowitz
Decreeing Organizational Change: Judicial Supervision Of Public Institutions, Donald L. Horowitz
Duke Law Journal
In the last fifteen years or so, courts have issued a small but significant number of decrees requiring that governmental bodies reorganize themselves so that their behavior will comport with certain legal standards. Such decrees, addressed to school systems, prison and mental hospital officials, welfare administrators, and public housing authorities, insert trial courts in the ongoing business of public administration. In this article, Professor Horowitz traces the origins, characteristics, and consequences of organizational change decrees. He finds their roots in an unusually fluid and indeterminate system of procedural forms and legal rules, a system hospitable to the impact of changing …
Restricting The Power To Promote Competition In Banking: A Foolish Consistency Among The Circuits, Peter C. Carstensen
Restricting The Power To Promote Competition In Banking: A Foolish Consistency Among The Circuits, Peter C. Carstensen
Duke Law Journal
In several recent decisions the federal appeals courts have adopted a standard for reviewing denials of proposed bank combinations which substantially restricts the ability of federal bank regulators to reject anticompetitive combinations. Professor Carstensen analyzes the three leading decisions and the litigating positions of the parties. He argues that the results in these cases, although predictable, are inconsistent with express statutory language, legislative history, past Supreme Court construction of the relevant standard, and the fundamental public policy of avoiding unnecessarily anticompetitive combinations. He suggests two ways in which the statute could be read which would preserve reasonable judicial review of …
Making Agencies Follow Orders: Judicial Review Of Agency Violations Of Executive Order 12,291, Peter Raven-Hansen
Making Agencies Follow Orders: Judicial Review Of Agency Violations Of Executive Order 12,291, Peter Raven-Hansen
Duke Law Journal
When, if at all, should courts make agencies follow the President's "personal" policies declared in non-statutory executive orders? Professor Raven-Hansen here seeks an answer by making the case for general judicial enforceability of Executive Order No. 12,291, which requires regulatory impact analysis of major rules. He concludes that a non-statutory executive order which is not mere housekeeping can bind agencies under the principle that they must follow their own rules, but that the committal of enforcement to executive discretion is often a serious obstacle to judicial enforceability. Whether such discretion bars judicial review altogether or only narrows the scope of …
Review Of “Jurisdictional” Issues Under The Bumpers Amendment, Ronald M. Levin
Review Of “Jurisdictional” Issues Under The Bumpers Amendment, Ronald M. Levin
Duke Law Journal
The proposed Bumpers Amendment to the Administrative Procedure Act would encourage courts to be less deferential than they have previously been toward federal agencies' views on issues of law. With regard to "jurisdictional" questions, the amendment would go further: it would invite courts not only to assert their independence, but also to disfavor agencies' positions. Professor Levin regards this special rule of construction for jurisdictional questions as an attempt to achieve deregulation through judicial review. He criticizes this strategy as poorly conceived and calls attention to several weaknesses in the draftsmanship of the jurisdiction provision.
Standing After Havens Realty: A Critique And An Alternative Framework For Analysis, Paul A. Lebel
Standing After Havens Realty: A Critique And An Alternative Framework For Analysis, Paul A. Lebel
Duke Law Journal
No abstract provided.
The Permissible Scope Of Hearings, Discovery, And Additional Fact-Finding During Judicial Review Of Informal Agency Action, Richard Mcmillan Jr., Todd D. Peterson
The Permissible Scope Of Hearings, Discovery, And Additional Fact-Finding During Judicial Review Of Informal Agency Action, Richard Mcmillan Jr., Todd D. Peterson
Duke Law Journal
No abstract provided.
Developments In The Law: Judicial Review Of Agency Rulemaking And Adjudication, Benjamin Eagles Fountain Iii
Developments In The Law: Judicial Review Of Agency Rulemaking And Adjudication, Benjamin Eagles Fountain Iii
Duke Law Journal
No abstract provided.
Leedom V. Kyne And The Implementation Of A National Labor Policy, James F. Wyatt Iii
Leedom V. Kyne And The Implementation Of A National Labor Policy, James F. Wyatt Iii
Duke Law Journal
No abstract provided.
Judicial Review Of Rulemaking: New Patterns And New Problems, Frederick Davis
Judicial Review Of Rulemaking: New Patterns And New Problems, Frederick Davis
Duke Law Journal
No abstract provided.
Judicial Review Of State Health Plans After The Health Planning And Resources Development Amendments Of 1979, Douglas L. Carter
Judicial Review Of State Health Plans After The Health Planning And Resources Development Amendments Of 1979, Douglas L. Carter
Duke Law Journal
No abstract provided.