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Series

SSRN

Columbia Law School

Administrative Law

2014

Articles 1 - 6 of 6

Full-Text Articles in Law

The Administrative Origins Of Modern Civil Liberties Law, Jeremy K. Kessler Jan 2014

The Administrative Origins Of Modern Civil Liberties Law, Jeremy K. Kessler

Faculty Scholarship

This Article offers a new explanation for the puzzling origin of modern civil liberties law. Legal scholars have long sought to explain how Progressive lawyers and intellectuals skeptical of individual rights and committed to a strong, activist state came to advocate for robust First Amendment protections after World War I. Most attempts to solve this puzzle focus on the executive branch’s suppression of dissent during World War I and the Red Scare. Once Progressives realized that a powerful administrative state risked stifling debate and deliberation within civil society, the story goes, they turned to civil liberties law in order ...


Administrative Law, Public Administration, And The Administrative Conference Of The United States, Gillian E. Metzger Jan 2014

Administrative Law, Public Administration, And The Administrative Conference Of The United States, Gillian E. Metzger

Faculty Scholarship

From its birth administrative law has claimed a close connection to governmental practice. Yet as administrative law has grown and matured it has moved further away from how agencies actually function. In particular, as many have noted, administrative law ignores key administrative dimensions, such as planning, assessment, oversight mechanisms and managerial methods, budgeting, personnel practices, reliance on private contractors, and the like. The causes of administrative law’s disconnect from public administration are complex and the divide is now longstanding, going back to the birth of each as distinct fields. But it is also a growing source of concern, and ...


The Duty Of Responsible Administration And The Problem Of Police Accountability, Charles F. Sabel, William H. Simon Jan 2014

The Duty Of Responsible Administration And The Problem Of Police Accountability, Charles F. Sabel, William H. Simon

Faculty Scholarship

Many contemporary civil rights claims arise from institutional activity that, while troubling, is neither malicious nor egregiously reckless. When law-makers find themselves unable to produce substantive rules for such activity, they often turn to regulating the actors’ exercise of discretion. The consequence is an emerging duty of responsible administration that requires managers to actively assess the effects of their conduct on civil rights values and to make reasonable efforts to mitigate harm to protected groups. This doctrinal evolution partially but imperfectly converges with an increasing emphasis in public administration on the need to reassess routines in the light of changing ...


The Administrative Conference And The Political Thumb, Peter L. Strauss Jan 2014

The Administrative Conference And The Political Thumb, Peter L. Strauss

Faculty Scholarship

Two recent drafts posted on SSRN identify very different yet canonical lines of cases, both prominent in the teaching of administrative law, as the source of ills stemming from the pre-notice period of contemporary rulemaking. That period has assumed a determinative importance in seeming conflict with the assumptions of flexibility inherent in the Administrative Procedure Act’s provisions for public comment on notices once published. In "The Administrative Conference and Empirical Research," Richard Pierce celebrates the catalyzing effect the Administrative Conference of the United States has had on hands-on empirical research about administrative law. He finds in two recent studies ...


The Federal Reserve: A Study In Soft Constraints, Kathryn Judge Jan 2014

The Federal Reserve: A Study In Soft Constraints, Kathryn Judge

Faculty Scholarship

This article argues that “soft constraints” are a critical and overlooked complement to formal limitations on an agency's independence. Two types of soft constraints that have been influential checks throughout the history of the Federal Reserve illustrate their power. The first, principled norms, are broadly agreed upon standards as to how the Fed ought to act in a given set of circumstances. As reflected in frequent invocations of the real bills doctrine, Bagehot’s dictum, and the Taylor rule, principled norms both shape Fed action and provide a frame for assessing those actions, A second important soft constraint is ...


From Sovereignty And Process To Administration And Politics: The Afterlife Of American Federalism, Jessica Bulman-Pozen Jan 2014

From Sovereignty And Process To Administration And Politics: The Afterlife Of American Federalism, Jessica Bulman-Pozen

Faculty Scholarship

Announcing the death of dual federalism, Edward Corwin asked whether the states could be “saved as the vital cells that they have been heretofore of democratic sentiment, impulse, and action.” The federalism literature has largely answered in the affirmative. Unwilling to abandon dual federalism’s commitment to state autonomy and distinctive interests, scholars have proposed new channels for protecting these forms of state-federal separation. Yet today state and federal governance are more integrated than separate. States act as co-administrators and co-legislatures in federal statutory schemes; they carry out federal law alongside the executive branch and draft the law together with ...