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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 ...


In Search Of Skidmore, Peter L. Strauss Jan 2013

In Search Of Skidmore, Peter L. Strauss

Faculty Scholarship

In a coup en banc, Justice Scalia appears to have converted his lonely and furious dissent from United States v. Mead Corp. into the eight to one majority holding in City of Arlington v. FCC. Much will doubtless be said about this opinion, as about all Chevron matters generally, but to note here is that 186 years of precedent for the proposition that judges interpreting statutes involving agency authority should give substantial weight to agency views have simply disappeared. Whether agencies have authority to act, a legal question, is either all Chevron (the majority) or no deference at all (Chief ...


The Organizational Premises Of Administrative Law, William H. Simon Jan 2013

The Organizational Premises Of Administrative Law, William H. Simon

Faculty Scholarship

Administrative law is out of touch with forms of public administration developed since the Progressive and New Deal eras. It is strongly influenced by bureaucratic conceptions of administration that see (1) legitimacy in terms of prior authorization; (2) organization as a balance of stable rules and unaccountable discretion, and (3) error detection as a reactive, complaint-driven process. Yet, many public programs developed since the 1970s strive to establish post-bureaucratic or performance-based forms of administration that view (1) legitimacy in terms of exposure to public oversight; (2) administration as a matter of comprehensive but flexible planning, and (3) error detection as ...


The Shale Oil And Gas Revolution, Hydraulic Fracturing, And Water Contamination: A Regulatory Strategy, Thomas W. Merrill, David M. Schizer Jan 2013

The Shale Oil And Gas Revolution, Hydraulic Fracturing, And Water Contamination: A Regulatory Strategy, Thomas W. Merrill, David M. Schizer

Faculty Scholarship

The United States is expected to become the world’s largest oil producer by 2020, overtaking Saudi Arabia, and the world’s top natural gas producer by 2015, surpassing Russia. In the past decade, energy companies have learned to tap previously inaccessible oil and gas in shale with “hydraulic fracturing” (“fracturing” or “fracking”), pumping fluid at high pressure to crack the shale and release gas and oil trapped inside. This “shale revolution” has created millions of jobs, enhanced our energy independence, and reduced U.S. greenhouse gas emissions by substituting natural gas for coal.

Even so, fracturing is controversial. It ...


Beyond The Private Attorney General: Equality Directives In American Law, Olatunde C.A. Johnson Jan 2013

Beyond The Private Attorney General: Equality Directives In American Law, Olatunde C.A. Johnson

Faculty Scholarship

American civil rights regulation is generally understood as relying on private enforcement in courts, rather than imposing positive duties on state actors to further equity goals. This Article argues that this dominant conception of American civil rights regulation is incomplete. Rather, American civil rights regulation also contains a set of “equality directives,” whose emergence and reach in recent years have gone unrecognized in the commentary. These federal-level equality directives use administrative tools of conditioned spending, policymaking, and oversight powerfully to promote substantive inclusion with regard to race, ethnicity, language, and disability. These directives move beyond the constraints of the standard ...


Administrative Constitutionalism, Gillian E. Metzger Jan 2013

Administrative Constitutionalism, Gillian E. Metzger

Faculty Scholarship

Administrative constitutionalism is increasingly becoming a central subject of study. Administrative constitutionalism includes not just the application of established constitutional requirements by administrative agencies, but in addition the elaboration of new constitutional understandings by administrative actors and the construction of the administrative state. This attention to administrative constitutionalism is overdue, as it represents a main mechanism by which constitutional meaning is elaborated and implemented today. But recently offered examples of administrative constitutionalism are notably divergent, suggesting a need for some exegesis of administrative constitutionalism’s different dimensions.

Identifying administrative constitutionalism’s various forms highlights the challenges confronting it as a ...


The Republic Of Choosing: A Behaviorist Goes To Washington, William H. Simon Jan 2013

The Republic Of Choosing: A Behaviorist Goes To Washington, William H. Simon

Faculty Scholarship

Cass Sunstein’s book Simpler recounts the author’s efforts during his tenure in the first Obama administration to apply the policy tools he helped derive from behavioral economics. In this review, I suggest that, while Sunstein reports some notable achievements, he exaggerates the utility of the behaviorist toolkit. Behaviorist-inspired interventions are marginal to most of the largest policy problems, and they played little role in the Obama administration’s most important initiatives. The book also reflects a misguided political strategy.


Federalism As A Safeguard Of The Separation Of Powers, Jessica Bulman-Pozen Jan 2012

Federalism As A Safeguard Of The Separation Of Powers, Jessica Bulman-Pozen

Faculty Scholarship

States frequently administer federal law, yet scholars have largely overlooked how the practice of cooperative federalism affects the balance of power across the branches of the federal government. This article explains how states check the federal executive in an era of expansive executive power and how they do so as champions of Congress, both relying on congressionally conferred authority and casting themselves as Congress’s faithful agents. By inviting the states to carry out federal law, Congress, whether purposefully or incidentally, counteracts the tendency of statutory ambiguity and broad delegations of authority to enhance federal executive power. When states disagree ...


Foreword: Embracing Administrative Common Law, Gillian E. Metzger Jan 2012

Foreword: Embracing Administrative Common Law, Gillian E. Metzger

Faculty Scholarship

This article begins with the descriptive claim that much of administrative law is really administrative common law: doctrines and requirements that are largely judicially created, as opposed to those specified by Congress, the President, or individual agencies. To be sure, governing statutes exert some constraining force on judicial creativity, but the primary basis of these judge-fashioned doctrines lies in judicial conceptions of appropriate institutional roles, along with pragmatic and normative concerns, that are frequently constitutionally infused and developed incrementally through precedent. Yet the judicially created character of administrative law is rarely acknowledged by courts – and to the extent courts do ...


"Deference" Is Too Confusing – Let's Call Them "Chevron Space" And "Skidmore Weight", Peter L. Strauss Jan 2011

"Deference" Is Too Confusing – Let's Call Them "Chevron Space" And "Skidmore Weight", Peter L. Strauss

Faculty Scholarship

Administrative law scholars have leveled a forest of trees exploring the mysteries of the Chevron approach contemporary judges take to reviewing law-related aspects of administrative action. Without wishing to deny for a moment that judicial practice has been inconstant – influenced by the importance of the matter, by the accessibility of the issues to non-expert judges, by politics, and by the earned reputations of differing agencies – this short comment suggests an underappreciated, appropriate, and conceptually coherent structure to the Chevron relationship of courts to agencies, a structure whose basic impulse may be captured by the concept of “allocation.” Steering clear of ...


Implications Of The Internet For Quasi-Legislative Instruments Of Regulation, Peter L. Strauss Jan 2011

Implications Of The Internet For Quasi-Legislative Instruments Of Regulation, Peter L. Strauss

Faculty Scholarship

It is a quarter century since I began telling my Administrative Law students that they had better be watching the Internet and how agencies of interest to them were using it, as they entered an Information Age career. The changes since then have been remarkable. Rulemaking, where the pace has perhaps been slowest, is now accelerating into the Internet, driven by a President committed to openness and consultation. This paper seeks little more than to point the reader toward the places where she can find the changes and watch them for herself.


The Role Of The Chief Executive In Domestic Administration, Peter L. Strauss Jan 2010

The Role Of The Chief Executive In Domestic Administration, Peter L. Strauss

Faculty Scholarship

Written for an international working paper conference on administrative law, this paper sets the Supreme Court's decision in Free Enterprise Fund v. Public Company Accounting Oversight Board in the context of general American concerns about the place of the President in domestic administration, a recurring theme in my writings.


Federalism And Federal Agency Reform, Gillian E. Metzger Jan 2010

Federalism And Federal Agency Reform, Gillian E. Metzger

Faculty Scholarship

This article assesses three major recent preemption decisions, all issued during the 2008-2009 term, for their implications about the role of the states in national administrative governance. A striking feature of the decisions is the extent to which they are centrally concerned with using state law and preemption analysis to improve federal administration and police against federal agency failure. Federalism clearly factored into the decisions as well, but it did so more as a mechanism for enhancing federal agency performance than as a principle worth pursuing in its own right.

The decisions’ framing state law and preemption analysis as mechanisms ...


On The Difficulties Of Generalization – Pcaob In The Footsteps Of Myers, Humphrey’S Executor, Morrison And Freytag, Peter L. Strauss Jan 2010

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

Faculty Scholarship

The Supreme Court’s decision last June in Free Enterprise Fund v. Public Company Accounting Oversight Board is torn between general principle and particularity in considering important questions of separation of powers in American constitutional law – just as had been an earlier decision that, in some respects, it both repudiated and modeled, Freytag v. Commissioner. Indeed, the same problems live in two earlier cases that are staples of the administrative law and separation of powers repertoire, Myers v. United States and Humphrey’s Executor v. United States. The Supreme Court has a long history of reaching sensible results in its ...


Implications Of The Internet For Quasi-Legislative Instruments Of Regulation, Peter L. Strauss Jan 2010

Implications Of The Internet For Quasi-Legislative Instruments Of Regulation, Peter L. Strauss

Faculty Scholarship

It is a quarter century since I began telling my Administrative Law students that they had better be watching the Internet and how agencies of interest to them were using it, as they entered an Information Age career. The changes since then have been remarkable. Rulemaking, where the pace has perhaps been slowest, is now accelerating into the Internet, driven by a President committed to openness and consultation. This paper seeks little more than to point the reader toward the places where she can find the changes and watch them for herself.


Minimalism And Experimentalism In The Administrative State, Charles F. Sabel, William H. Simon Jan 2010

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

Faculty Scholarship

Minimalism is our name for the dominant liberal perspective on public policy implementation in contemporary legal scholarship. Minimalism emphasizes public interventions that incorporate market concepts and practices and that centralize and minimize administrative discretion. This essay appraises Minimalism in relation to a competing liberal view of the administrative state. Experimentalism emphasizes interventions in which 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. We fault Minimalist scholarship for ignoring an important reorientation in public policy along Experimentalist lines in the U.S. and ...


Ordinary Administrative Law As Constitutional Common Law, Gillian E. Metzger Jan 2009

Ordinary Administrative Law As Constitutional Common Law, Gillian E. Metzger

Faculty Scholarship

Last term, in Federal Communications Commission (FCC) v. Fox Television Stations, the Supreme Court expressly refused to link ordinary administrative law to constitutional concerns, insisting that whether an agency action is “arbitrary and capricious” and whether it is unconstitutional are separate questions. In this article, I argue that Fox is wrong. The Court’s protestations aside, constitutional law and ordinary administrative law are inextricably linked, with the result that a fair amount of ordinary administrative law qualifies as what Henry Monaghan famously termed constitutional common law. Its doctrines and requirements are constitutionally informed but rarely constitutionally mandated, with Congress and ...


Rulemaking And The American Constitution, Peter L. Strauss Jan 2009

Rulemaking And The American Constitution, Peter L. Strauss

Faculty Scholarship

A Constitution that strongly separates legislative from executive activity makes it difficult to reconcile executive adoption of regulations (that is, departmentally adopted texts resembling statutes and having the force of law, if valid) with the proposition that the President is not ‘to be a lawmaker’. Such activity is, of course, an essential of government in the era of the regulatory state. United States courts readily accept the delegation to responsible agencies of authority to engage in it, what we call ‘rulemaking’, so long as it occurs in a framework that permits them to assess the legality of any particular exercise ...


Geier V. American Honda Motor Co.: A Story Of Statutes, Regulation And The Common Law, Peter L. Strauss Jan 2009

Geier V. American Honda Motor Co.: A Story Of Statutes, Regulation And The Common Law, Peter L. Strauss

Faculty Scholarship

This essay was written as a contribution to one of Foundation's "Story" series. In Geier, a lawsuit had been brought on behalf of a teenager whose injuries from an accident might have been lessened if her car had contained an airbag. Plaintiffs sued on the straightforward basis that the design choice to omit a safety device of proven merit made the car unreasonably hazardous. Federal safety regulations had required the maker of her car to install some such device as an airbag in at least 10% of the cars it made the year it made her car – but her ...


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 ...


Overseers Or "The Deciders" – The Courts In Administrative Law, Peter L. Strauss Jan 2007

Overseers Or "The Deciders" – The Courts In Administrative Law, Peter L. Strauss

Faculty Scholarship

The Real World of Arbitrariness Review (q.v.) supplements Professors Miles and Sunsteins' valuable empirical analysis of federal court of appeals Chevron decisions, with a similar analysis of merits review of EPA and NLRB actions they associate with the Court's contemporary decision in State Farm. Their analysis shows political patterns that are perhaps not surprising; one should perhaps celebrate the evidence of effective moderation on mixed panels, although doubting whether measures intended to produce such panels might tend more to legitimize than to cure the politicization of judging.

This brief responsive essay begins by setting out a framework for ...


Abortion, Equality, And Administrative Regulation, Gillian E. Metzger Jan 2006

Abortion, Equality, And Administrative Regulation, Gillian E. Metzger

Faculty Scholarship

This symposium essay argues that administrative regulation of abortion and reproductive rights deserve closer study. Administrative regulation of abortion is overwhelmingly health regulation; the focus is on abortion as a medical procedure, and the government's only stated interest is protecting the health of women obtaining abortions. Such regulation is becoming increasingly common, and is worthy of greater attention on that ground alone. But in addition, and of particular relevance to this symposium on reproductive rights and equality, administrative abortion regulation demonstrates the difficulty in successfully challenging abortion restrictions as unconstitutional gender discrimination. Given general medical agreement that early abortions ...


Overseer, Or "The Decider"? The President In Administrative Law, Peter L. Strauss Jan 2006

Overseer, Or "The Decider"? The President In Administrative Law, Peter L. Strauss

Faculty Scholarship

All will agree that the Constitution creates a unitary chief executive officer, the President, at the head of the government Congress defines to do the work its statutes detail. Disagreement arises over what his function entails. Once Congress has defined some element of government and specified its responsibilities, we know that the constitutional roles of both Congress and the courts are those of oversight of the agency and its assigned work, not the actual performance of that work. But is it the same for the President? When Congress confers authority on the Environmental Protection Agency to regulate various forms of ...