Law Commons^™

Regulatory Cooperation Between The European Commission And U.S. Administrative Agencies, George Bermann

Faculty Scholarship

This Article examines the policies and practices of the European Commission toward various forms of bilateral regulatory cooperation with administrative agencies of the United States. To place this Article's findings in a proper perspective, it is essential to understand both (A) the selection of the European Community (E.C.) as an appropriate overseas regulatory jurisdiction for such cooperation and (B) the reasons for focusing on the European Commission among the various E.C. institutions. Those questions are taken up in this Introduction. Part I describes in some detail the organization and functioning of the Commission. Part II – the core of this …

Changing Times: The Apa At Fifty, Peter L. Strauss

Faculty Scholarship

In early October 1995, Walter Gellhorn helped to open a National Archives display commemorating the fiftieth birthday of the Administrative Procedure Act ("APA"). That Act had begun to take shape just prior to World War II, when Gellhorn had directed the Attorney General's Committee on Administrative Procedure. Created in response to a political spasm of legislative activity that produced a "reform" bill President Roosevelt vetoed, Gellhorn's committee engaged in a thorough and careful survey of administrative agencies and their procedures. In the end, the committee produced twenty-seven monographs describing the variety of decision-making processes employed by the agencies and a …

Risk Assessment Perspectives, Peter L. Strauss

Faculty Scholarship

I have a slightly different subtitle for our session today, which I hope our panelists may consider in addressing the many challenges before them: Cost-Benefit Analysis and Risk Assessment under Diminished Resources. Allan Morrison introduced the resource problem at the end of yesterday's session. It is an important element of the problems we face.

I think another element of those problems is finding a reasoned way of addressing these issues. The contrast between reasoned decisionmaking and political football was also nicely in evidence yesterday, perhaps especially strongly for those of us who have been responsible for putting together these presentations. …

Administrative Law: The Hidden Comparative Law Course, Peter L. Strauss

Faculty Scholarship

What does today's Administrative Law course give your students that you might not be aware of and might be helped by knowing? That, as I understand it, is the question I am to answer. But we may also want to think about the overall shape of the curriculum: it may be useful to ask about fundamental issues our students may not be aware of, that may not be dealt with elsewhere in the law school curriculum. I'll spend most of my time on the question I've been asked to address, but I hope you will accept a few sentences on …

From Expertise To Politics: The Transformation Of American Rulemaking, Peter L. Strauss

Faculty Scholarship

In this speech to be given on November 15, 1996, as the American contribution to the week-long conference on administrative law sponsored by the Fundaci6n Estudios de Derecho Administrativo in Caracas, Venezuela, Professor Peter L. Strauss addresses the history and developing political character of rulemaking in federal law over the fifty years since enactment of the Administrative Procedure Act. As a framework, Professor Strauss sets forth a hierarchy of institutional rulemaking, from constitution through informal advising. He then develops his discussion of rulemaking by tracing the federal process of rulemaking through time, beginning with the enactment of the Administrative Procedure …

Regulatory Cooperation With Counterpart Agencies Abroad: The Faa's Aircraft Certification Experience, George A. Bermann

Faculty Scholarship

This Article examines in some detail the practice and experience of one agency, the Federal Aviation Administration, and more particularly its Aircraft Certification Service, that has of recent years consciously engaged in forms of concerted activity with certain counterpart agencies abroad. This "case study" is of particular interest because the FAA's practice of intergovernmentalism includes, but also goes beyond, cooperation in rulemaking to embrace a certain amount of cooperation in more routine aspects of administration. The study may also be of interest because the intergovernmentalism engaged in largely involves cooperation with a body – the European Joint Aviation Authorities – …

Pluralism, The Prisoner's Dilemma, And The Behavior Of The Independent Judiciary, Thomas W. Merrill

Faculty Scholarship

Discussions of Thayer's conception of judicial review, as this symposium amply demonstrates, tend to be normative. Professor Nick Zeppos's paper, which offers more of a positive analysis, is therefore a welcome addition. Zeppos's paper includes three especially valuable insights. First, he demonstrates the close parallel between Thayer's theory of judicial review and the Supreme Court's Chevron doctrine. The former would have the judiciary enforce clear constitutional commands but otherwise defer to legislative understandings of constitutional meaning; the latter would have courts enforce clear legislative commands but otherwise defer to administrative interpretations of statutes. Second, he offers evidence that in both …

Revisiting Overton Park: Political And Judicial Controls Over Administrative Actions Affecting The Community, Peter L. Strauss

Faculty Scholarship

Overton Park is a 342-acre municipal park lying close to downtown Memphis, Tennessee, in one of that city's better residential areas. Citizens to Preserve Overton Park, Inc. v. Volpe is a Supreme Court decision frequently cited for its general propositions about judicial review of informal administrative action that, to the citizens of Memphis, was one way-station in a more than two-decade struggle concerning whether and where an inner-city expressway, part of Interstate 40, would be built. Overall, the story of that struggle reveals a complex brew of national and local politics about the marriage of highway convenience to urban amenity; …

The Rulemaking Continuum, Peter L. Strauss

Faculty Scholarship

The two papers we have before us tell both descriptive and normative stories about current issues of rulemaking. Each suggests, in its field of attention, pressures that operate to increase proceduralization and agency responses to those pressures, as well as an attitude toward these developments. In rulemaking, as in other activities, discretion and order are in constant tension; one might find in that tension the very engine that makes the processes of public law go. Like the studies that assisted the move away from formal rulemaking, and the perceptions underlying the Supreme Court's Vermont Yankee decision, which quieted the judicial …

Sunstein, Statutes, And The Common Law – Reconciling Markets, The Communal Impulse, And The Mammoth State, Peter L. Strauss

Faculty Scholarship

Professor Cass Sunstein's new book, After the Rights Revolution: Reconceiving the Regulatory State, builds upon, and in important ways seeks to integrate, much of Professor Sunstein's work over the past several years. He has been one of our most prolific and influential writers on issues of governmental structure, approaching the subject both from more or less conventional administrative law perspectives and from the constitutional perspectives of separation of powers. His work has dealt with a tension often addressed in the literature, that between the eighteenth-century Madisonian constitutional engine of limited, internally checked government and the realities of our sprawling …

Administrative Law Symposium: Question & Answer With Professors Elliott, Strauss, And Sunstein, Dick Pierce, Donald Elliott, Peter L. Strauss, Cass Sunstein

Faculty Scholarship

No abstract provided.

Independent Agencies - Independent From Whom?, Sally Katzen, Edward Markey, James Miller, Joseph Grundfest, R. Gaull Silberman, Peter L. Strauss

Faculty Scholarship

No abstract provided.

The Role Of The President And Omb In Informal Rulemaking, Peter L. Strauss, Cass R. Sunstein

Faculty Scholarship

Regulatory reform has been a subject of frequent discussion in the last decade, especially in the context of presidential efforts to assert control over the rulemaking process. Presidents Nixon, Ford, Carter, and Reagan have all attempted to increase presidential authority over regulation. In particular, President Reagan has issued two executive orders that give the Office of Management and Budget (OMB) considerable power over the rulemaking activities of executive agencies.

In this article, we set forth our views on the role of presidential supervision in the regulatory process, with particular attention to the questions raised by the recent executive orders.

Federal Tort Claims At The Agency Level: The Ftca Administrative Process, George A. Bermann

Faculty Scholarship

Tort actions against the federal government and its agencies are currently governed by the FTCA and various other statutes, agency rules and procedures. Claims against the government are increasing rapidly, and the agencies enjoy broad settlement authority, often at the expense of coordination among the appropriate statutes. This Article examines the various procedures allowed and those that are actually practiced by the agencies. The author points out that, though claims officers are supposed to be fair-minded, the process can take on an adversarial nature, often a prelude to litigation rather than settlement. He proposes that the current processes be made …

Marbury And The Administrative State, Henry Paul Monaghan

Faculty Scholarship

Marbury v. Madison's prominence as a constitutional decision has long deflected interest in examining its other implications. But prior to proclaiming judicial competence to invalidate an act of Congress, the Court sustained judicial authority to enforce the specific statutory duties of administrative officials. Had the doctrine of separation of powers been understood from the beginning to bar any judicial control of administrative power, the constitutional scheme would have gone seriously awry at the outset. Congressional directives either would have been subordinated to the will of the executive department or would have generated collateral and unseemly struggles between the two …

Regulatory Reform In A Time Of Transition, Peter L. Strauss

Faculty Scholarship

As Americans have become both disheartened at the performance of their governments and conscious of their penetration into what were once private lives, regulatory reform has been urged with increasing fervor at both federal and state levels. Some of the reform talk is lawyer's talk, some of it is directed to the most fundamental aspects of the government order, and there is a good bit in between. My purpose here is to examine a number of the directions being suggested at the federal level for regulatory reform during the coming decade. While it would be helpful also to consider state …

The Scope Of Judicial Review In French Administrative Law, George A. Bermann

Faculty Scholarship

The arguments that may be raised in support of a claim of abuse of discretion must go to the legality, not just the wisdom or advisability, of administrative action. Though the judge is responsible for seeing to it that the government acts in conformity with law, he may not put himself in its place or interfere in its functioning. His job is not to determine whether in a given case a certain administrative official ought to have acted and, if so, in one particular way. He has neither the means nor the materials for judgments of this sort, nor does …

Mining Claims On Public Lands: A Study Of Interior Department Procedures, Peter L. Strauss

Faculty Scholarship

The Department of the Interior's disposition of mining claims on public lands, largely unknown to lawyers outside the West, is a significant field of federal administrative activity and an important element in planning rational use of the public lands. While energy minerals found under public lands typically pass by lease and common varieties such as sand and gravel are subject to sale, most other mineral deposits on federal property are claimed for possible exploitation by the mining claim, or "location."

The location system arose out of miners' custom, at a time when the federal lands were vacant and no federal …

Bringing The Vagueness Doctrine On Campus, George A. Bermann, Ballard Jamieson Jr.

Faculty Scholarship

Although students have traditionally paid little attention to university disciplinary codes, recent campus disturbances have given these codes unprecedented significance. Those subjected to disciplinary proceedings have charged, among other things, that the provisions which regulate their behavior are too vague to inform them of what they may and may not do. Arguing that a broadly-worded code of conduct is necessary to govern, university administrators, however, have refused to make their regulations more precise.