Law Commons^™

Designing Agency Independence, Gillian E. Metzger

Faculty Scholarship

How do we structure an agency to be independent? Not surprisingly, the answer to that question depends on what we want the agency to be independent from.

Two Challenges For Campaign Finance Disclosure After Citizens United And Doe V. Reed, Richard Briffault

Faculty Scholarship

Disclosure moved front and center on the campaign finance stage in 2010. Indeed, the year just passed witnessed the emergence of not one, but two significant challenges for our disclosure laws.

2010 began with new concerns about the burdens disclosure can place on the rights of political participation and association protected by the First Amendment, with the possibility that the Supreme Court – which had become increasingly skeptical about campaign finance regulation since Chief Justice Roberts and Justice Alito joined the Court – might impose new restrictions on disclosure.

Federalism Under Obama, Gillian E. Metzger

Faculty Scholarship

At first glance, federalism would seem to have fared poorly under the Obama administration. The administration's signature achievements to date involve substantial expansions of the federal government's role, be it through new federal legislation addressing health insurance and financial sector reform or massive injections of federal spending. Such expansions in the federal government's role frequently translate into restrictions on the states. New federal legislation often preempts prior state regulation, and federal spending often comes with substantial conditions and burdens for the states. Not surprisingly, many state officials have sharply criticized these developments at the federal level, often invoking federalism as …

Agency Threats, Tim Wu

Faculty Scholarship

There are three main ways in which agencies regulate: rulemaking; adjudication; and informal tools of guidance, also called nonlegislative or interpretative rules. Over the last two decades, agencies have increasingly favored the use of the last of these three, which can include statements of best practices, interpretative guides, private warning letters, and press releases.

Scholars are hardly unaware of this trend. In a series of papers, writers have explored the use of informal regulation as it affects the relationship between agencies and the federal courts, asking when nonlegislative rules can be challenged as unenforceable for want of process. This Essay …

Article Iii, Agency Adjudication, And The Origins Of The Appellate Review Model Of Administrative Law, Thomas W. Merrill

Faculty Scholarship

American administrative law is grounded in a conception of the relationship between reviewing courts and agencies modeled on the relationship between appeals courts and trial courts in civil litigation. This appellate review model was not an inevitable foundation of administrative law, but it has had far-reaching consequences, and its origins are poorly understood. This Article details how the appellate review model emerged after 1906 as an improvised response by the U.S. Supreme Court to a political crisis brought on by aggressive judicial review of decisions of the Interstate Commerce Commission. Once the jeny-built model was in place, Congress signaled its …

Minimalism And Experimentalism In The Administrative State, Charles F. Sabel, William H. Simon

Faculty Scholarship

This Article identifies and appraises the two most promising alternatives to the "command-and-control" style of public administration that was dominant from the New Deal to the 1980s but is now in disfavor The first – minimalism – emphasizes public interventions that incorporate market concepts and practices while also centralizing and minimizing administrative discretion. The second – experimentalism – emphasizes interventions in which the central government affords broad discretion to local administrative units but measures and assesses their performance in ways designed to induce continuous learning and revision of standards. Minimalism has been prominent in legal scholarship and in the policy …

On The Difficulties Of Generalization – Pcaob In The Footsteps Of Myers, Humphrey’S Executor, Morrison And Freytag, Peter L. Strauss

Faculty Scholarship

In considering what to write for this welcome occasion, I was struck by a certain resonance among Paul's scholarship – at least that of which I was first aware, and which I have often used to impress on students the problems of due process analysis – the important post he now holds, and a story our joint mentor, Walter Gellhorn, liked to tell on himself. In the wake of the Supreme Court's paradigm-shifting opinion in Goldberg v. Kelly, with its confident pronouncement of eight procedural elements that, it reasoned, minimal due process must always require of administrative procedures, Paul made …

Rule-Making And The American Constitution, Peter L. Strauss

Faculty Scholarship

This chapter leaves behind the standard accounts of federal agencies to examine the role of the presidency in fashioning regulatory outputs. It recounts — and with reference to American ‘checks and balances’ ideas — a steady accretion of power at the centre, the result of which has been to render rulemaking increasingly a political rather than ‘expert’ activity. Whether the process is reversible, or whether ongoing crises in finance and security will serve to concretize this profound constitutional development, remains to be seen.