Law Commons^™

Shareholder Enforced Market Discipline: How Much Is Too Much?, Eric J. Gouvin

Faculty Scholarship

This Article considers the federal banking regulation regime implemented in response to the widespread bank failures of the 1980s and early 1990s. The first section of the Article examines the moral hazard problem created by the presence of the deposit insurance scheme and the market discipline debate that has attempted to correct the moral hazard problem. The Author argues that the law has evolved to make bank holding companies the primary enforcers of market discipline. The Article’s second section examines the specific regulatory changes that have been designed to create an incentive for bank holding companies to impose discipline on …

Judicial Restraint In The Administrative State: Beyond The Countermajoritarian Difficulty, Matthew D. Adler

Faculty Scholarship

Arguments for judicial restraint point to some kind of judicial deficit (such as a democratic or an epistemic deficit) as grounds for limiting judicial review. ("Judicial review" is used in this Article to mean, essentially, the judicial invalidation of statutes, rules, orders and actions in virtue of the Bill of Rights, or similar unwritten criteria.). The most influential argument for judicial restraint has been the Countermajoritarian Difficulty. This is a legislature-centered argument: one that points to features of *legislatures*, as grounds for courts to refrain from invalidating *statutes*. This Article seeks to recast scholarly debate about judicial restraint, and to …

Presidential Rulemaking, Peter L. Strauss

Faculty Scholarship

One of the prominent issues during the 1992 presidential campaign was abortion, in particular the federal government's role in financing counseling activities that might promote it. In the Bush Administration, the Department of Health and Human Services had adopted a controversial regulation to withhold federal funds from any family planning or other medical service that included counseling about abortion in its activities; the Clinton campaign promised to rescind that regulation if Clinton were elected President. Shortly after his election, in a prominent White House ceremony, President Clinton announced that he had directed the rescission of the prior rule and the …

Capture Theory And The Courts: 1967-1983, Thomas W. Merrill

Faculty Scholarship

The Administrative Procedure Act ("APA") is a framework statute, not a complete code. Its central provisions are rather spare, and a number of important questions are not covered at all. It comes as no surprise, therefore, that the judicial gloss on the APA has taken on a large significance over time. It should also come as no surprise that this interpretative mantle has assumed a different shape with different generations of judges. In this respect, our experience with the APA parallels that with the Constitution. Occasionally there is a feint in the direction of enforcing the "original understanding" of the …

Golden Rules For Transboundary Pollution, Thomas W. Merrill

Faculty Scholarship

Environmental law is becoming ever more centralized. In the United States, state and local pollution laws have been eclipsed by federal regulation. In the European Community, and to a lesser degree under the North American Free Trade Agreement (NAFTA), national controls have been supplemented by regional regulation. And the growing importance of treaties regulating particular aspects of the global environment has reinforced calls for more general regimes of international environmental regulation.

One inevitably given justification for this centralizing trend is that pollution is a transboundary phenomenon. Air and water pollution, and to a lesser extent groundwater contamination, can cross political …

Reconceptualizing Chevron And Discretion: A Comment On Levin And Rubin, Gary S. Lawson

Faculty Scholarship

Professors Ronald Levin and Edward Rubin want to change the way we think about important administrative law concepts. Ronald Levin's paper, The Anatomy of Chevron: Step Two Reconsidered,1 argues that Chevron's2 currently ill-defined second step ought to be reconceptualized as an application of arbitrary or capricious review. Edward Rubin's paper, Discretion and Its Discontents,3 is part of his ongoing project to reconceptualize the way we think-and, more importantly, the way we talk-about the modern administrative state. Professor Rubin suggests that the oft-used word "discretion" does not usefully describe the bureaucratic operation of the modern managerial state and that it profitably …

Holmes's Path, David J. Seipp

Faculty Scholarship

The most important event in American legal history to have taken place at Boston University School of Law was the delivery, by Oliver Wendell Holmes, Jr., of a speech entitled The Path of the Law.' He was an Associate Justice of the Massachusetts Supreme Judicial Court at the time. The occasion was the dedication of a new building for the School of Law, a building the school would occupy for sixty-seven years. Holmes delivered the speech on January 8, 1897, one hundred years ago.

Reconceptualizing Chevron And Discretion: A Comment On Levin And Rubin, Gary S. Lawson

Faculty Scholarship

Professors Ronald Levin and Edward Rubin want to change the way we think about important administrative law concepts. Ronald Levin's paper, The Anatomy of Chevron: Step Two Reconsidered,1 argues that Chevron's currently ill-defined second step ought to be reconceptualized as an application of arbitrary or capricious review. Edward Rubin's paper, Discretion and Its Discontents,3 is part of his ongoing project to reconceptualize the way we think-and, more importantly, the way we talk-about the modern administrative state. Professor Rubin suggests that the oft-used word "discretion" does not usefully describe the bureaucratic operation of the modern managerial state and that it profitably …