Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Series

SSRN

Columbia Law School

Administrative Law

2020

Articles 1 - 6 of 6

Full-Text Articles in Law

How The Administrative State Got To This Challenging Place, Peter L. Strauss Jan 2020

How The Administrative State Got To This Challenging Place, Peter L. Strauss

Faculty Scholarship

This essay has been written to set the context for a future issue of Daedalus, the quarterly of the American Academy of Arts and Sciences, addressing the prospects of American administrative law in the Twenty-first Century. It recounts the growth of American government over the centuries since its founding, in response to the profound changes in the technology, economy, and scientific understandings it must deal with, under a Constitution written for the governance of a dispersed agrarian population operating with hand tools in a localized economy. It then suggests profound challenges of the present day facing administrative law’s development ...


Defining Crime, Delegating Authority – How Different Are Administrative Crimes?, Daniel C. Richman Jan 2020

Defining Crime, Delegating Authority – How Different Are Administrative Crimes?, Daniel C. Richman

Faculty Scholarship

As the Supreme Court reconsiders whether Congress can so freely provide for criminal enforcement of agency rules, this Essay assesses the critique of administrative crimes though a Federal Criminal Law lens. And it explores the extent to which this critique carries over to other instances of mostly well-accepted, delegated federal criminal lawmaking – to courts, states, foreign governments, and international institutions. By considering these other delegations through the lens of the administrative crime critique, the Essay destabilizes that critique’s doctrinal foundations. It then suggests that if one really cares, not about the abstract “liberty” said to be protected by the ...


Judicial Credibility, Bert I. Huang Jan 2020

Judicial Credibility, Bert I. Huang

Faculty Scholarship

Do people believe a federal court when it rules against the government? And does such judicial credibility depend on the perceived political affiliation of the judge? This study presents a survey experiment addressing these questions, based on a set of recent cases in which both a judge appointed by President George W. Bush and a judge appointed by President Bill Clinton declared the same Trump Administration action to be unlawful. The findings offer evidence that, in a politically salient case, the partisan identification of the judge – here, as a “Bush judge” or “Clinton judge” – can influence the credibility of judicial ...


The Roberts Court And Administrative Law, Gillian E. Metzger Jan 2020

The Roberts Court And Administrative Law, Gillian E. Metzger

Faculty Scholarship

This article assesses where the Supreme Court stands on administrative law after the 2018 term, focusing on Kisor v. Wilkie and Department of Commerce v. New York. Over the last decade, the Roberts Court had demonstrated increasing concerns about an out-of-control federal bureaucracy at odds with the constitutional order, but hadn’t pulled back significantly on administrative governance in practice. The 2018 term provided the Court with a chance to put its might where its mouth was. Yet administrative law’s denouement did not come; established administrative law doctrines remain in force, albeit narrowed.

The 2018 Term cases demonstrate that ...


Why Financial Regulation Keeps Falling Short, Dan Awrey, Kathryn Judge Jan 2020

Why Financial Regulation Keeps Falling Short, Dan Awrey, Kathryn Judge

Faculty Scholarship

This article argues that there is a fundamental mismatch between the nature of finance and current approaches to financial regulation. Today’s financial system is a dynamic and complex ecosystem. For these and other reasons, policy makers and market actors regularly have only a fraction of the information that may be pertinent to decisions they are making. The processes governing financial regulation, however, implicitly assume a high degree of knowability, stability, and predictability. Through two case studies and other examples, this article examines how this mismatch undermines financial stability and other policy aims. This examination further reveals that the procedural ...


Reframing Affirmative Action: From Diversity To Mobility And Full Participation, Susan P. Sturm Jan 2020

Reframing Affirmative Action: From Diversity To Mobility And Full Participation, Susan P. Sturm

Faculty Scholarship

Legality and efficacy call for reframing the affirmative-action debate within a broader institutional effort to address structural inequality in higher education. Although defending affirmative action as we know it continues to be important and necessary, it is crucial to identify and address the disconnect between affirmative action and higher education's practices that contribute to enduring racial and economic inequality and waning social mobility. There is a persistent and growing gap between higher education’s rhetoric of diversity, opportunity, and mobility and the reality of underparticipation, polarization, and stratification. That gap has racial, gender, and socioeconomic dimensions. The path to ...