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Of Gift Horses And Great Expectations: Remands Without Vacatur In Administrative Law, Daniel B. Rodriguez

University of San Diego Public Law and Legal Theory Research Paper Series

Administrative law has been shaped over the years by fundamentally practical considerations. Displacement of agency decisions by courts was rare; yet, the omnipresent threat of substantial judicial intrusion surely affected agency decisions. While the Administrative Procedure Act, adopted nearly 60 years ago, provides a comprehensive template for federal agency decisionmaking, what is striking about the APA is how much is left out and how much is left to the discretion of both agencies in implementing regulatory decisions and to the courts in superintending agency action. Given this history, it is hardly surprising that many doctrinal techniques represent the pragmatic effort …

Procedural Justice, Lawrence B. Solum

University of San Diego Public Law and Legal Theory Research Paper Series

Procedural Justice offers a theory of procedural fairness for civil dispute resolution.

The Article begins in Part I, Introduction, with two observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, the hard problem of procedural justice corresponds to the following question: How can we regard ourselves as obligated by legitimate authority to comply with a judgment that we believe (or even know) to be in error with respect to the substantive merits? This Article responds to the challenge posed by the hard question of procedural justice.

That theory is developed …