Law Commons^™

Account Me In: Agencies In Quest Of Accountability, Dorit R. Reiss

Dorit R. Reiss

This articles adds to the literature about accountability by examining the little-studied phenomenon of agencies making efforts—sometimes substantial efforts - to be accountable. It briefly describes how three agencies—the EPA, the FDA and especially the IRS—worked to increase their accountability. It demonstrates that agencies are often not the enemy in the “accountability game”. In today’s world agencies, contrary to the stereotype, often buy into the language and practice of accountability. It addresses three arguments for this behavior: a rational choice argument based on comparison of the costs of non-accountability with the benefits of accountability; a power of ideas argument showing …

The Role Of The Council On Competitiveness In Regulatory Review, Robert V. Percival

Robert Percival

No abstract provided.

Interim Report On The Administrative Law, Process And Procedure Project For The 21st Century, Rena I. Steinzor

Rena I. Steinzor

No abstract provided.

The People's Agent: Executive Branch Secrecy And Accountability In An Age Of Terrorism, Sidney A. Shapiro, Rena I. Steinzor

Rena I. Steinzor

The increase in government secrecy is an important and troubling policy trend. Although the trend predates the 2000 presidential election, the movement towards government secrecy has accelerated dramatically in the Bush Administration. The case for open government is usually based on political principles embraced by the Framers of the U.S. Constitution. This article seeks to bolster these arguments by applying “agency theory” to the question of how much secrecy is too much. While agency theory is most often used to analyze private sector economic relationships, commentators have also applied it to the analysis of methods for holding legislators and Executive …

Administrative Law In The Roberts Court: The First Four Years, Robin K. Craig

Robin K. Craig

Given Justice David Souter’s retirement in the summer of 2009, the four U.S. Supreme Court terms that began in October 2005 and ended in June 2009 constitute a first distinct phase of the Roberts Court. During those first four terms, moreover, the Court decided a number of cases relevant to the practice and structure of administrative law.

This Article provides a comprehensive survey and summary of the Supreme Court’s administrative-law-related decisions issued during this first phase of the Roberts Court. It organizes those decisions into three categories. Part I of this Article discusses the Supreme Court decisions that affect access …

Is It Too Easy Being Green? A Behavioral Economics Approach To Determining Whether To Regulate Environmental Marketing Claims, Jeffrey J. Minneti

Jeffrey J Minneti

Employing principles derived from rational choice theory and behavioral economics, the article advocates the promulgation of administrative rules to govern the environmental claims sellers make about their products. The article asserts that the FTC’s current regulatory scheme, a case-by-case approach that draws upon a set of industry guidelines (called the Green Guides), is essentially impotent when considered in light of the frequency with which products in today’s market bear false or misleading environmental claims. The article is especially timely now, because the FTC is currently engaged in its own evaluation of the Green Guides’ effectiveness. While traditional rational choice theorists …

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

Wendy E. Wagner

There are no provisions in administrative law for regulating the flow of information coming in or leaving the system or to ensure that regulatory participants can keep up with a rising tide of issues, details, and technicalities. Indeed, a number of doctrinal refinements, intended originally 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 much 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 …

"Streamlining" The Rule Of Law: How The Department Of Justice Is Undermining Judicial Review Of Agency Action, Shruti Rana

Shruti Rana

Judicial review of administrative decision making is an essential institutional check on agency power. Recently, however, the Department of Justice dramatically revised its regulations in an attempt to insulate its decision making from public and federal court scrutiny. These “streamlining” rules, carried out in the name of national security and immigration reform, have led to a breakdown in the rule of law in our judicial system. While much attention has been focused on the Department of Justice’s recent attempts to shield executive power from the reach of Congress, its efforts to undermine judicial review have so far escaped such scrutiny. …

Technological Due Process, Danielle Citron

Danielle Keats Citron

Today, computer systems terminate Medicaid benefits, remove voters from the rolls, exclude travelers from flying on commercial airlines, label (and often mislabel) individuals as dead-beat parents, and flag people as possible terrorists from their email and telephone records. But when an automated system rules against an individual, that person often has no way of knowing if a defective algorithm, erroneous facts, or some combination of the two produced the decision. Research showing strong psychological tendencies to defer to automated systems suggests that a hearing officer’s check on computer decisions will have limited value. At the same time, automation impairs participatory …

The New Regulation: From Command To Coordination In The Modern Administrative State, Robert B. Ahdieh

Robert B. Ahdieh

The New Regulation: From Command To Coordination In The Modern Administrative State, Robert B. Ahdieh

Robert B. Ahdieh

The New Regulation: From Command To Coordination In The Modern Administrative State, Robert B. Ahdieh

Robert B. Ahdieh

The New Regulation: From Command To Coordination In The Modern Administrative State, Robert B. Ahdieh

Robert B. Ahdieh

Perceptions Of Fairness In State Administrative Hearings, Chris Mcneil

Christopher B. McNeil, J.D., Ph.D.

A recent study of license suspension hearings suggests that while participants do see central panel adjudications as being fairer, overall there is a profound level of distrust, hopelessness, and anger on the part of those whose licenses are at stake and those who serve in the defense of licensees.

Introducción Al Análisis Económico Del Derecho Administrativo / Introduction To Administrative Law And Economics, Andres Palacios Lleras

Andrés Palacios Lleras

El estudio y la enseñanza del derecho administrativo colombiano dejan mucho que desear, especialmente en lo que respecta al estudio del derecho como fenómeno social. Éste tiende a ser presentado como un cuerpo de normas políticamente neutrales, construido a partir de categorías conceptuales muy abstractas, y coherente. Como resultado de ello, asume una posición “normativista” que ignora el contexto social en el que lleva a la producción e interpretación de las normas jurídicas. Este artículo sugiere que un cambio conceptual puede ser muy útil para “curar” al análisis del derecho administrativo de los males que lo aquejan. Sugiere que el …

A Broader View Of The Immigration Adjudication Problem, Jill Family

Jill E. Family

Administration Of War, John C. Yoo

John C Yoo

This essay asks whether the Constitution’s implicit grant of the removal power to the President provides control over the administrative agencies by examination of civil-military relations under the administration of President George W. Bush. Control over the military is one of the most significant, but also understudied, aspects of administrative law. The U.S. Armed Services are the nation’s first administrative agencies, predating the Constitution itself. The President has greater freedom to remove and command military officers than over the personnel of any civilian agency. Yet, greater constitutional command over the military agencies has not produced greater presidential control. Since the …

Presidential Control Over The Regulatory Affairs Of Federal Administrative Agencies, Jennifer Allison

Jennifer Allison

This paper outlines the historical exertion of presidential control over the regulatory affairs of federal agencies. It first examines the historical understanding of the constitutionality of examining such control. Then, it describes the two main methods that modern Presidents use to exercise such control: presidential directives and presidential regulatory approval regimes. Finally, it discusses how this has manifested itself during the early days of the Obama administration, exploring the regulatory effects of President Obama's executive order that directed agencies to expand funding programs for research using embryonic stem cells.

Ripe Standing Vines And The Jurisprudential Tasting Of Matured Legal Wines – And Law & Bananas: Property And Public Choice In The Permitting Process, Donald J. Kochan

Donald J. Kochan

From produce to wine, we only consume things when they are ready. The courts are no different. That concept of “readiness” is how courts address cases and controversies as well. Justiciability doctrines, particularly ripeness, have a particularly important role in takings challenges to permitting decisions. The courts largely hold that a single permit denial does not give them enough information to evaluate whether the denial is in violation of law. As a result of this jurisprudential reality, regulators with discretion have an incentive to use their power to extract rents from those that need their permission. Non-justiciability of permit denials …