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Textualism’S Limits On The Administrative State: Of Isolated Waters, Barking Dogs, And Chevron, Michael P. Healy

Law Faculty Scholarly Articles

In Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, the U.S. Supreme Court recently held that the U.S. Army Corps of Engineers (the Corps) does not have authority under the Clean Water Act (the Act or the CWA) to regulate the filling of “other waters.” This decision demonstrates a major shift in the Court's approach to statutory interpretation, particularly in the context of reviewing an agency’s understanding of a statute. The significance of the case is best gauged by contrasting it with United States v. Riverside Bayview Homes, Inc. There, the Court, acting …

The Restatement Of Torts And The Courts, Jack B. Weinstein

Vanderbilt Law Review

Primarily through tort law the courts compensate those injured by others. Secondary aspects of our work such as deterrence or forcing tortfeasors to pay the full social costs of their activities are minor and collateral. For jurors focusing on compensation, tort law has only two operative elements: damage and cause. It is the law professor and the judge, through decisions on motions and instructions, who are the main Restatement consumers. Emphasizing mass torts, I will make three points relevant to those considering the health of tort law.

First: Tort law in its least inhibitory principle is useful be- cause of …

The Limits Of Globalization And The Future Of Administrative Law: From Government To Governance, Alfred C. Aman

Indiana Journal of Global Legal Studies

No abstract provided.

Respecting Deference: Conceptualizing Skidmore Within The Architecture Of Chevron, Jim Rossi

Vanderbilt Law School Faculty Publications

This Article addresses critically the implications of the U.S. Supreme Court's recent decision in Christensen v. Harris County, 120 S.Ct. 1655 (2000), for standards of judicial review of agency interpretations of law. Christensen is a notable case in the administrative law area because it purports to clarify application of the deference doctrine first articulated in Skidmore v. Swift & Co., 323 U.S. 134 (1944). By reviving this doctrine, the case narrows application of the predominant approach to deference articulated in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), thus reducing the level of deference in …

Small Things Like Reasons Are Put In A Jar: Reason And Legitimacy In The Administrative State, Jeffrey L. Mashaw

Fordham Law Review

No abstract provided.

Assessing The Advocacy Of Negotiated Rulemaking: A Response To Philip Harter, Cary Coglianese

All Faculty Scholarship

For many years, advocates of negotiated rulemaking have advanced enthusiastic claims about how negotiated rulemaking would reduce litigation and shorten the rulemaking process. In an earlier study, I tested these claims systematically by assessing the effectiveness of negotiated rulemaking against existing rulemaking processes. I found that negotiated rulemaking neither saves time nor reduces litigation. Recently, Philip Harter, a longtime advocate of negotiated rulemaking, has criticized my study and asserted that negotiated rulemaking has succeeded remarkably in achieving its goals. Harter criticized the way I measured the length of the rulemaking process, claimed that I failed to appreciate differences in litigation, …

Gonzalez Exrel. Gonzalez V. Reno. 212 F.3d 1338, Rehearing Denied, 215 F.3d 1243, Certiorari Denied, 120 S.Ct. 2737 (2000). U.S. Court Of Appeals For The Eleventh Circuit, June 1, 2000., David Abraham

Articles

No abstract provided.

Application Of Administrative Law To Health Care Reform: The Real Politik Of Crossing The Quality Chasm , Thomas R. Mclean

Journal of Law and Health

Real Politik, a term in vogue at the height of the Cold War, contemplates that in practice, governmental bodies attempt to expand their spheres of influence and control by the application of economic leverage. The federal government is clearly interested in expanding its influence into health care because of its cost. Americans spend over one trillion dollars - forty-four percent of which is paid for by the federal government - on health care each year. To control the cost of health care, governmental reformers proposed the Health Securities Act of 1993 as a frontal assault on the American health care …