Law Commons^™

Disappropriation, Matthew Lawrence

Matthew B. Lawrence

Administrative Lawmaking In The Twenty-First Century, Jeffrey Pojanowski

Jeffrey A. Pojanowski

It is always hard to map a river while sailing midstream, but the current state of administrative law is particularly resistant to neat tracing. Until the past few years, administrative law and scholarship was marked by pragmatic compromise: judicial deference on questions of law (but not too much and not all the time) and freedom for agencies on questions of politics and policy (but not to an unseemly degree). There was disagreement around the edges-and some voices in the wilderness calling for radical change-but they operated within a shared framework of admittedly unstated, and perhaps conflicting, assumptions about the administrative …

Deference To Agency Interpretations Of Regulations: A Post-Chevron Assessment, Thomas A. Schweitzer, Russell L. Weaver

Russell L. Weaver

No abstract provided.

Strategic Institutional Positioning: How We Have Come To Generate Environmental Law Without Congress, Donald J. Kochan

Donald J. Kochan

From Fedspeak To Forward Guidance: Regulatory Dimensions Of Central Bank Communications, Robert B. Ahdieh

Robert B. Ahdieh

In the face of the financial crisis that engulfed the globe beginning in 2007, the U.S. Federal Reserve quickly found itself without the key lever of monetary policy on which it had traditionally relied: short-term interest rate adjustments designed to move long-term rates, and thereby expected levels of lending, investment, and capital retention. By late 2008, short-term rates were already close to zero, yet unemployment remained strikingly high – with no sign of any likely renewal of bank lending or commercial investment.

Famously, the Fed embraced so-called quantitative easing – the purchase of massive volumes of public and private debt …

Collaborative Gatekeepers, Stavros Gadinis, Colby Mangels University Of California - Berkeley

Stavros Gadinis

In their efforts to hold financial institutions accountable after the 2007 financial crisis, U.S. regulators have repeatedly turned to anti-money-laundering laws. Initially designed to fight drug cartels and terrorists, these laws have recently yielded billion-dollar fines for all types of bank engagement in fraud and have spurred an overhaul of financial institutions’ internal compliance. This increased reliance on anti-money-laundering laws, we argue, is due to distinct features that can better help regulators gain insights into financial fraud. Most other financial laws enlist private firms as gatekeepers and hold them liable if they knowingly or negligently engage in client fraud. Yet, …

The President’S Pen And The Bureaucrat’S Fiefdom, John C. Eastman

John C. Eastman

Minimally Democratic Administrative Law, Jud Mathews

Jud Mathews

A persistent challenge for the American administrative state is reconciling the vast powers of unelected agencies with our commitment to government by the people. Many features of contemporary administrative law — from the right to participate in agency processes, to the reason-giving requirements on agencies, to the presidential review of rulemaking — have been justified, at least in part, as means to square the realities of agency power with our democratic commitments. At the root of any such effort there lies a theory of democracy, whether fully articulated or only implicit: some conception of what democracy is about, and what …

Proportionality Review In Administrative Law, Jud Mathews

Jud Mathews

At the most basic level, the principle of proportionality captures the common-sensical proposition that, when the government acts, the means it chooses should be well-adapted to achieve the ends it is pursuing. The proportionality principle is an admonition, as German administrative law scholar Fritz Fleiner famously wrote many decades ago, that “the police should not shoot at sparrows with cannons”. The use of proportionality review in constitutional and international law has received ample attention from scholars in recent years, but less has been said about proportionality’s role within administrative law. This piece suggest that we can understand the differences in …

Private Enforcement, Stephen B. Burbank, Sean Farhang, Herbert Kritzer

Sean Farhang

Our aim in this Article is to advance understanding of private enforcement of statutory and administrative law in the United States and to raise questions that will be useful to those who are concerned with regulatory design in other countries. To that end, we briefly discuss aspects of American culture, history, and political institutions that reasonably can be thought to have contributed to the growth and subsequent development of private enforcement. We also set forth key elements of the general legal landscape in which decisions about private enforcement are made, aspects of which should be central to the choice of …

The Transparency Fix: Advocating Legal Rights And Their Alternatives In The Pursuit Of A Visible State, Mark Fenster

Mark Fenster

The administrative norm of transparency, which promises a solution to the problem of government secrecy, requires political advocacy organized from outside the state. The traditional approach, typically the result of organized campaigns to make the state visible to the public, has been to enact freedom of information laws (FOI) that require government disclosure and grant enforceable rights to the public. The legal solution has not proven wholly satisfactory, however. In the past two decades, numerous advocacy movements have offered different fixes to the information asymmetry problem that the administrative state creates. These alternatives now augment and sometimes compete with legal …

Developments In Administrative Law: The 2014-2015 Term, Gerald Heckman

Gerald Heckman

Acus Statement # 19 (Issue Exhaustion), Jeffrey Lubbers

Jeffrey Lubbers

Deference Lotteries, Jud Mathews

Jud Mathews

When should courts defer to agency interpretations of statutes, and what measure of deference should agencies receive? Administrative law recognizes two main deference doctrines — the generous Chevron standard and the stingier Skidmore standard — but Supreme Court case law has not offered a bright-line rule for when each standard applies.Many observers have concluded that courts’ deference practice is an unpredictable muddle. This Article argues that it is really a lottery, in the sense the term is used in expected utility theory. Agencies cannot predict which deference standard a court will apply or with what effect, but they have a …

Strategic Delegation, Discretion, And Deference: Explaining The Comparative Law Of Administrative Review, Jud Mathews, Nuno M. Garoupa

Jud Mathews

This paper offers a theory to explain cross-national variation in administrative law doctrines and practices. Administrative law regimes vary along three primary dimensions: the scope of delegation to agencies, agencies’ exercise of discretion, and judicial practices of deference to agencies. Working with a principal-agent framework, we show how cross-national differences in institutions’ capacities and the environments they face encourage the adoption of divergent strategies that lead to a variety of distinct, stable, equilibrium outcomes. We apply our model to explain patterns of administrative law in the United States, Germany, France, and Commonwealth jurisdictions.

Agencies, Courts, And The Limits Of Balancing, Daniel A. Farber

Daniel A Farber

Courts have struggled in several very different contexts to determine when a decision maker can consider costs that are not explicitly addressed in the governing statute. This issue arises when agencies decide whether to conduct a rulemaking or what rule to issue after a rulemaking. It also arises when courts decide whether to enjoin a violation of a statute or whether to vacate an administrative rule rather than simply remanding. Judicial opinions point in different directions and often ignore each other.

This Article contends that the same principles should govern judicial and agency discretion to consider costs across all these …

Searching For Proportionality In U.S. Administrative Law, Jud Mathews

Jud Mathews

A Framework For Understanding Property Regulation And Land Use Control From A Dynamic Perspective, Donald J. Kochan

Donald J. Kochan

Constituencies And Contemporaneousness In Reason-Giving: Thoughts And Direction After T-Mobile, Donald J. Kochan

Donald J. Kochan

Foreword — Chevron At 30: Looking Back And Looking Forward, Peter M. Shane, Christopher J. Walker

Christopher J. Walker

This Foreword introduces a Fordham Law Review symposium held in March 2014 to mark the thirtieth anniversary of Chevron U.S.A. v. Natural Resources Defense Council. The most-cited administrative-law decision of all time, Chevron has sparked thirty years of scholarly discussion concerning what Chevron deference means, when (or even if) it should apply, and what impact it has had on the administrative state. Part I of the Foreword discusses the symposium contributions that address Chevron’s scope and application, especially in light of City of Arlington v. FCC. Part II introduces the contributions that explore empirically and theoretically Chevron’s impact outside of …

Falling Behind: Processing And Enforcing Permits For Animal Agriculture Operations In Maryland Is Lagging, Rena I. Steinzor, Anne Havemann

Rena I. Steinzor

After decades of failed interstate agreements, the Chesapeake Bay is choking on too many nutrients. The estuary’s last, best chance of recovery is the Environmental Protection Agency's Total Maximum Daily Load (“TMDL”) program, also known as a pollution diet. To meet this deadline, all polluters, including large animal farms, will need to sharply reduce the pollutants they release into the Bay. The Maryland Department of the Environment (MDE) must ensure that each Concentrated Animal Feeding Operation (“CAFO”) has developed a facility-specific permit that details when and where manure is applied to fields and how waste is stored and handled. Then …

Functional Government In 3-D, Robert L. Glicksman, Alejandro E. Camacho

Robert L. Glicksman

The creation of new administrative agencies and the realignment of existing governmental authority are commonplace and high-stakes events, as illustrated by the recent creation of the Department of Homeland Security after 9/11 and of new financial regulatory agencies after the global recession of 2009. Scholars and policymakers have not devoted sufficient attention to this subject, failing to clearly identify the different dimensions along which government authority may be structured or to consider the relationships among them. Analysis of these institutional design issues typically also gives short shrift to whether authority should be allocated differently based on agency function. These failures …

The Senate And The Recess Appointments, David Arkush

David J. Arkush

This Essay offers a new perspective on the recess appointments controversy in Noel Canning v. NLRB. First, contrary to the dominant view, the case does not present a conflict between the President and the Senate. The Senate majority likely wished to authorize the President's recess appointments, and the majority is the relevant body for the purpose of establishing Senate intent. Second, the courts should defer to the Senate's wishes rather than define the term "recess" themselves.

The "Reason Giving" Lawyer: An Ethical, Practical, And Pedagogical Perspective, Donald J. Kochan

Donald J. Kochan

Whether as a matter of duty or utility, lawyers give reasons for their actions all the time. In the various venues in which legal skills must be employed, reason giving is required in some, expected in others, desired in many, and useful in most. This Essay underscores the pervasiveness of reason giving in the practice of law and the consequent necessity of lawyers developing a skill at giving reasons. This Essay examines reason giving as an innate human characteristic related directly to our need for answers and our constant yearning to understand the answer to the question “why.” It briefly …

Judging Ethics For Administrative Law Judges: Adoption Of A Uniform Code Of Judicial Conduct For The Administrative Judiciary, Patricia E. Salkin

Patricia E. Salkin

No abstract provided.

Deference To Agency Interpretations Of Regulations: A Post-Chevron Assessment, Thomas A. Schweitzer, Russell L. Weaver

Thomas A. Schweitzer

No abstract provided.

An Introduction To The 2010 Model State Administrative Procedure Act, John L. Gedid

John L. Gedid

No abstract provided.

One Year's Environmental Litigation: 1977-78, Oscar S. Gray

Oscar S. Gray

No abstract provided.

The People's Agent: Executive Branch Secrecy And Accountability In An Age Of Terrorism, Sidney A. Shapiro, Rena I. Steinzor

Rena I. Steinzor

The increase in government secrecy is an important and troubling policy trend. Although the trend predates the 2000 presidential election, the movement towards government secrecy has accelerated dramatically in the Bush Administration. The case for open government is usually based on political principles embraced by the Framers of the U.S. Constitution. This article seeks to bolster these arguments by applying “agency theory” to the question of how much secrecy is too much. While agency theory is most often used to analyze private sector economic relationships, commentators have also applied it to the analysis of methods for holding legislators and Executive …

Ripe Standing Vines And The Jurisprudential Tasting Of Matured Legal Wines – And Law & Bananas: Property And Public Choice In The Permitting Process, Donald J. Kochan

Donald J. Kochan

From produce to wine, we only consume things when they are ready. The courts are no different. That concept of “readiness” is how courts address cases and controversies as well. Justiciability doctrines, particularly ripeness, have a particularly important role in takings challenges to permitting decisions. The courts largely hold that a single permit denial does not give them enough information to evaluate whether the denial is in violation of law. As a result of this jurisprudential reality, regulators with discretion have an incentive to use their power to extract rents from those that need their permission. Non-justiciability of permit denials …