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Full-Text Articles in Law

Reconstructing An Administrative Republic, Jeffrey A. Pojanowski Jan 2018

Reconstructing An Administrative Republic, Jeffrey A. Pojanowski

Journal Articles

The book Constitutional Coup, by Professor Jon D. Michaels, offers a learned, lucid, and important argument about the relationship between privatization, constitutional structure, and public values in administrative governance. In particular, Michaels argues that the press toward privatization in this domain poses a serious threat to the United States' separation of powers and the public interest. This review essay introduces readers to Michaels' argument and then raises two questions: First, it asks whether Michaels’ method of constitutional interpretation and doctrinal analysis accelerate the trend toward privatization and consolidation of power in agency heads, the very evils he seeks to avoid ...


Revisiting Seminole Rock, Jeffrey A. Pojanowski Jan 2018

Revisiting Seminole Rock, Jeffrey A. Pojanowski

Journal Articles

The rule that reviewing courts must defer to agencies’ interpretations of their own regulations has come under scrutiny in recent years. Critics contend that this doctrine, often associated with the 1997 Supreme Court decision Auer v. Robbins, violates the separation of powers, gives agencies perverse regulatory incentives, and undermines the judiciary’s duty to say what the law is.

This essay offers a different argument as to why Auer is literally and prosaically bad law. Auer deference appears to be grounded on a misunderstanding of its originating case, the 1945 decision Bowles v. Seminole Rock. A closer look at Seminole ...