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SSRN

Columbia Law School

Administrative Law

2008

Articles 1 - 5 of 5

Full-Text Articles in Law

Administrative Detention Of Terrorists: Why Detain, And Detain Whom?, Matthew C. Waxman Jan 2008

Administrative Detention Of Terrorists: Why Detain, And Detain Whom?, Matthew C. Waxman

Faculty Scholarship

Especially after the recent Supreme Court decision in Boumediene v. Bush, holding that constitutional habeas corpus rights apply to detainees at Guantanamo, a debate burns over whether Congress should enact new laws authorizing preventive "administrative detention" of suspected terrorists outside the criminal justice system, perhaps overseen by a new "National Security Court." This Article argues that both sides of this debate analyze the problem and propose solutions backwards: they begin by focusing on procedural issues and institutional design (e.g. what kind of judge will decide cases; how will the suspect defend himself; etc) rather than first deciding (1) what ...


On Capturing The Possible Significance Of Institutional Design And Ethos, Peter L. Strauss Jan 2008

On Capturing The Possible Significance Of Institutional Design And Ethos, Peter L. Strauss

Faculty Scholarship

This paper hopes to open a conversation about what strike me as the largest and least well appreciated of these failures of contextualization. American law students, lawyers and judges seem rarely to think about issues of institutional design and ethos when considering the issues of administrative law. For judges reviewing administrative decisions, the briefs and arguments are often limited to the particular issues of the case.They are given little sense of the broad context in which it arises – the agency responsibilities in their largest sense, the institutional issues that may be at stake, how these particular issues may fit ...


Chevron'S Two Steps, Kenneth A. Bamberger, Peter L. Strauss Jan 2008

Chevron'S Two Steps, Kenneth A. Bamberger, Peter L. Strauss

Faculty Scholarship

Contrary to a suggestion by Professors Matthew Stephenson and Adrian Vermeule ("Chevron has Only One Step," forthcoming in Va. L. Rev.), Chevron v. NRDC's model for judicial review of agency interpretations of regulatory statutes involves two "steps" – and for good reason. The two-step analysis provides a framework for allocating interpretive authority in the administrative state, by separating those questions of statutory implementation assigned to independent judicial judgment (Step One) from those regarding which courts' role is limited to oversight of agency decisionmaking (Step Two).

At Chevron's first step, courts should begin by identifying whether congressional instructions clearly either ...


Administrative Law As The New Federalism, Gillian E. Metzger Jan 2008

Administrative Law As The New Federalism, Gillian E. Metzger

Faculty Scholarship

Few doubt the tremendous impact the modern national administrative state has had on our federal system. Yet the relationship between federalism and administrative law remains strangely inchoate and unanalyzed. Although administrative law's constitutional dimensions are generally recognized to have significant federalism implications, more run-of-the-mill administrative law concerns are rarely approached through a federalism lens. Recent Supreme Court case law suggests that the blinders to the relationship of federalism and administrative law may be lifting. In a number of highly contentious recent decisions, the Court has refused curb Congress's regulatory authority on constitutional grounds, but nonetheless indicated that federalism ...


Political Control Of Federal Prosecutions – Looking Back And Looking Forward, Daniel C. Richman Jan 2008

Political Control Of Federal Prosecutions – Looking Back And Looking Forward, Daniel C. Richman

Faculty Scholarship

This essay – written for the annual Duke Law Journal Administrative Law Symposium – explores the mechanisms of control over federal criminal enforcement activity that the Administration and Congress used or failed to use during George W. Bush's presidency. Particular attention is given to Congress, not because it played a dominant role but because it generally chose to play such a subordinate role. My fear is that the recent focus on management inadequacies or abuses within the Justice Department might lead policymakers and observers to overlook the hard questions that remain about how the federal criminal bureaucracy should be structured and ...