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Administrative law

2016

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Articles 1 - 30 of 68

Full-Text Articles in Law

The Challenge Of Regulatory Excellence, Cary Coglianese Dec 2016

The Challenge Of Regulatory Excellence, Cary Coglianese

All Faculty Scholarship

Regulation is a high-stakes enterprise marked by tremendous challenges and relentless public pressure. Regulators are expected to protect the public from harms associated with economic activity and technological change without unduly impeding economic growth or efficiency. Regulators today also face new demands, such as adapting to rapidly changing and complex financial instruments, the emergence of the sharing economy, and the potential hazards of synthetic biology and other innovations. Faced with these challenges, regulators need a lodestar for what constitutes high-quality regulation and guidance on how to improve their organizations’ performance. In the book Achieving Regulatory Excellence, leading regulatory experts …


Policing As Administration, Christopher Slobogin Dec 2016

Policing As Administration, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Police agencies should be governed by the same administrative principles that govern other agencies. This simple precept would have significant implications for regulation of police work, in particular the type of suspicionless, group searches and seizures that have been the subject of the Supreme Court's special needs jurisprudence (practices that this Article calls "panvasive"). Under administrative law principles, when police agencies create statute-like policies that are aimed at largely innocent categories of actors-as they do when administering roadblocks, inspection regimes, drug testing programs, DNA sampling programs, and data collection-they should have to engage in notice-and-comment rulemaking or a similar democratically …


Arbitrariness Review Made Reasonable: Structural And Conceptual Reform Of The "Hard Look", Sidney A. Shapiro, Richard W. Murphy Nov 2016

Arbitrariness Review Made Reasonable: Structural And Conceptual Reform Of The "Hard Look", Sidney A. Shapiro, Richard W. Murphy

Notre Dame Law Review

As Representative John Dingell remarked in the best sentence ever said on the power of procedure over substance, “I’ll let you write the substance . . . you let me write the procedure, and I’ll screw you every time.”1 Accordingly, designing procedures for legislative rulemaking, a dominant feature of modern governance, has spawned one of the most contentious debates in all of administrative law. Compounding the stakes, over the last fifty years, the courts, with help from Congress and presidents, have relentlessly made rulemaking procedures more burdensome, impeding efforts to preserve the environment, protect workers, and forestall financial collapse, among …


Shifting The Burden Of Proving Patentability Vel Non In View Of Dickinson V. Zurko, Dawn-Marie Bey Oct 2016

Shifting The Burden Of Proving Patentability Vel Non In View Of Dickinson V. Zurko, Dawn-Marie Bey

Journal of Intellectual Property Law

This paper addresses the Patent Office's misinterpretation of the Supreme Court's ruling in Dickinson v. Zurko regarding the applicability of the factual review standards of the Administrative Procedure Act (APA) to Patent Office findings. More particularly, in accordance with this misinterpretation, recent guidelines promulgated by the Patent Office violate the APA and controlling precedent.

To date, the proper procedures for prosecuting a patent application have been carefully honed through a myriad of statutes, rules, and controlling legal opinions. The resulting procedures are set forth in exemplary prose in the Manual of Patent Examining Procedure (MPEP) issued and revised periodically by …


Review Essay: Christopher Columbus Langdell And The Public Law Curriculum, Peter L. Strauss Sep 2016

Review Essay: Christopher Columbus Langdell And The Public Law Curriculum, Peter L. Strauss

Journal of Legal Education

No abstract provided.


Notes From The Border: Writing Across The Administrative Law/Financial Regulation Divide, Robert B. Ahdieh Sep 2016

Notes From The Border: Writing Across The Administrative Law/Financial Regulation Divide, Robert B. Ahdieh

Journal of Legal Education

No abstract provided.


Testing For Regulatory Penalties: Insuring The Health Of Fedrealism In The Age Of Obamacare, Steven Z. Hodaszy Sep 2016

Testing For Regulatory Penalties: Insuring The Health Of Fedrealism In The Age Of Obamacare, Steven Z. Hodaszy

West Virginia Law Review

No abstract provided.


Private Enforcement, Stephen B. Burbank, Sean Farhang, Herbert Kritzer Aug 2016

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 …


Nobel Prizes Would Have Flunked Benzene: Judicial Review Of Administrative Evidence Overlooks Science's Linguistic Tradition, Jimmy J. Zhuang Aug 2016

Nobel Prizes Would Have Flunked Benzene: Judicial Review Of Administrative Evidence Overlooks Science's Linguistic Tradition, Jimmy J. Zhuang

Seton Hall Circuit Review

No abstract provided.


Hermeneutic Tourist: Statutory Interpretation In Comparative Perspective, Daniel A. Farber Aug 2016

Hermeneutic Tourist: Statutory Interpretation In Comparative Perspective, Daniel A. Farber

Daniel A Farber

No abstract provided.


A Study Of Social Security Disability Litigation In The Federal Courts, Jonah B. Gelbach, David Marcus Jul 2016

A Study Of Social Security Disability Litigation In The Federal Courts, Jonah B. Gelbach, David Marcus

All Faculty Scholarship

A person who has sought and failed to obtain disability benefits from the Social Security Administration (“the agency”) can appeal the agency’s decision to a federal district court. In 2015, nearly 20,000 such appeals were filed, comprising a significant part of the federal courts’ civil docket. Even though claims pass through multiple layers of internal agency review, many of them return from the federal courts for even more adjudication. Also, a claimant’s experience in the federal courts differs considerably from district to district around the country. District judges in Brooklyn decide these cases pursuant to one set of procedural rules …


Capturing Regulatory Reality: Stigler’S The Theory Of Economic Regulation, Christopher Carrigan, Cary Coglianese Jul 2016

Capturing Regulatory Reality: Stigler’S The Theory Of Economic Regulation, Christopher Carrigan, Cary Coglianese

All Faculty Scholarship

This paper offers a retrospective assessment of economist George Stigler’s classic article, The Theory of Economic Regulation. Stigler argued that regulation is a product that, just like any other product, is produced in a market, and that it can be acquired from the governmental “marketplace” by business firms to serve their private interests and create barriers to entry for potential competitors. He challenged the idea that regulation arises solely to serve the public interest and demonstrated that important political advantages held by businesses can contribute to industry capture of the regulatory process. Although his argument was largely based on …


Save The Social Security Disability Trust Fund! And Reduce Ssi Exposure To The General Fund, Daniel F. Solomon Jun 2016

Save The Social Security Disability Trust Fund! And Reduce Ssi Exposure To The General Fund, Daniel F. Solomon

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


De-Scribing Administrative Law Case Data: From Sparklines To Dashboards To Analytics, Steven Placek Jun 2016

De-Scribing Administrative Law Case Data: From Sparklines To Dashboards To Analytics, Steven Placek

Journal of the National Association of Administrative Law Judiciary

In this article, I present some examples of opportunities for agencies to depart from the inscribed method. These examples of display “de-scribe” administrative law data, making the data more visually active, multi-variate—with additional context and greater density. In Part II of this article, I review examples of the current state of data display for administrative law agencies and show how the inscribed method limits complex displays of data. In Part III, I introduce the concept of the sparkline, which is the fundamental unit of visual data display in the big data era that appears in organizational dashboards and analytics deployments. …


Adjudicasaurus Rex, Jeffrey S. Wolfe Jun 2016

Adjudicasaurus Rex, Jeffrey S. Wolfe

Journal of the National Association of Administrative Law Judiciary

This article proposes a simple theme. While many issues plague the Social Security Disability Insurance and Supplemental Security Income programs, only reform of the hearings and appeals process can solve the decades-long (and growing) hearings backlog. Only then, can the remaining questions regarding the solvency of the DI trust fund be meaningfully addressed. As it now stands, the ongoing backlog of pending hearings and appeals feeds the twin plagues of rising costs and increasing delay. These are the very issues that drove the federal courts in the passage of the Civil Justice Reform Act of 1990 (CJRA). This article provides …


The Bounds Of Executive Discretion In The Regulatory State, Cary Coglianese, Christopher S. Yoo Jun 2016

The Bounds Of Executive Discretion In The Regulatory State, Cary Coglianese, Christopher S. Yoo

All Faculty Scholarship

What are the proper bounds of executive discretion in the regulatory state, especially over administrative decisions not to take enforcement actions? This question, which, just by asking it, would seem to cast into some doubt the seemingly absolute discretion the executive branch has until now been thought to possess, has become the focal point of the latest debate to emerge over the U.S. Constitution’s separation of powers. That ever‐growing, heated debate is what motivated more than two dozen distinguished scholars to gather for a two‐day conference held late last year at the University of Pennsylvania Law School, a conference organized …


Against Administrative Judges, Kent H. Barnett Jun 2016

Against Administrative Judges, Kent H. Barnett

Scholarly Works

The single largest cadre of federal adjudicators goes largely ignored by scholars, policymakers, courts, and even litigating parties. These Administrative Judges or “AJs,” often confused with well-known federal Administrative Law Judges or “ALJs,” operate by the thousands in numerous federal agencies. Yet unlike ALJs, the significantly more numerous AJs preside over less formal hearings and have no significant statutory protections to preserve their impartiality. The national press has recently called attention to the alleged unfairness of certain ALJ proceedings, and regulated parties have successfully enjoined agencies’ use of ALJs. While fixes are necessary for ALJ adjudication, any solution that ignores …


The Judicial Role In Constraining Presidential Non-Enforcement Discretion: The Virtues Of An Apa Approach, Daniel E. Walters Jun 2016

The Judicial Role In Constraining Presidential Non-Enforcement Discretion: The Virtues Of An Apa Approach, Daniel E. Walters

Faculty Scholarship

Scholars, lawyers, and, indeed, the public at large increasingly worry about what purposive presidential inaction in enforcing statutory programs means for the rule of law and how such discretionary inaction can fit within a constitutional structure that compels Presidents to "take Care that the Laws be faithfully executed." Yet those who have recognized the problem have been hesitant to assign a role for the court in policing the constitutional limits they articulate, mostly because of the strain on judicial capacity that any formulation of Take Care Clause review would cause. In this Article, I argue that courts still can and …


Sufficiently Safeguarded?: Competency Evaluations Of Mentally Ill Respondents In Removal Proceedings, Sarah R. Sherman-Stokes May 2016

Sufficiently Safeguarded?: Competency Evaluations Of Mentally Ill Respondents In Removal Proceedings, Sarah R. Sherman-Stokes

Faculty Scholarship

In this Article, I examine the current regime for making mental competency determinations of mentally ill and incompetent noncitizen respondents in immigration court. In its present iteration, mental competency determinations in immigration court are made by immigration judges, most commonly without the benefit of any mental health evaluation or expertise. In reflecting on the protections and processes in place in the criminal justice system, and on interviews with removal defense practitioners at ten different sites across the United States, I conclude that the role of the immigration judge in mental competency determinations must be changed in order to protect the …


The Teaching Of International Law, Ian Brownlie Apr 2016

The Teaching Of International Law, Ian Brownlie

Georgia Journal of International & Comparative Law

No abstract provided.


Confronting (In)Security: Forging Legitimate Approaches To Security And Exclusion In Migration Law, Angus Gavin Grant Apr 2016

Confronting (In)Security: Forging Legitimate Approaches To Security And Exclusion In Migration Law, Angus Gavin Grant

PhD Dissertations

Perceived connections between security concerns and migration are a central preoccupation of our time. This dissertation explores how the preoccupation has played out in the Canadian context and asserts that a basic and common infirmity of administrative decision-making in this domain is a lack of justification. The dissertation commences by exploring foundational debates within immigration theory about borders, exclusion, the rule of law and the role of justification in decision-making in liberal democracies, particularly in times of perceived emergency. From there, the dissertation moves on to an exploration of immigration inadmissibility determinations in Canada, with particular attention to the emergence …


The Transparency Fix: Advocating Legal Rights And Their Alternatives In The Pursuit Of A Visible State, Mark Fenster Apr 2016

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 …


Pepperdine University School Of Law: Legal Summaries, Blair Castellanos Apr 2016

Pepperdine University School Of Law: Legal Summaries, Blair Castellanos

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


Nothing Could Be Finer? The Role Of Agency General Counsel In North And South Carolina, Elizabeth Chambliss, Dana Remus Apr 2016

Nothing Could Be Finer? The Role Of Agency General Counsel In North And South Carolina, Elizabeth Chambliss, Dana Remus

Faculty Publications

There is amazingly little contemporary research on the counseling function of government agency lawyers. Most research on federal government lawyers focuses on the Department of Justice, the Attorney General, or the birth of the modern administrative state during the New Deal. Much of this work focuses on the organization of federal litigation authority. At the state level, likewise, recent scholarship focuses on the litigation function of state attorneys general. Meanwhile, we know very little about the agency counseling function or the role of agency counsel in shaping agency policy and practice.

The role of state agency general counsel is an …


Recalling The Lawyers: The Nhtsa, Gm, And The Chevrolet Cobalt, Bernard W. Bell Apr 2016

Recalling The Lawyers: The Nhtsa, Gm, And The Chevrolet Cobalt, Bernard W. Bell

Fordham Law Review

This Article summarizes product safety and vehicle safety law and recounts General Motors Company’s (GM) response to the Cobalt ignition switch defect, paying particular attention to the actions of GM’s in-house and outside counsel. This Article then considers the legality and prudence of a regulatory agency’s imposition of gatekeeping responsibilities on such counsel.


Lawyering Within The Domain Of Expertise, David Mcgowan Apr 2016

Lawyering Within The Domain Of Expertise, David Mcgowan

Fordham Law Review

This Article uses the history of patent prosecution to assess the relationship between the practice of law and the claim of an administrative agency to possess and to employ expertise.


Lawyers In The Shadow Of The Regulatory State: Transnational Governance On Business And Human Rights, Milton C. Regan Jr., Kath Hall Apr 2016

Lawyers In The Shadow Of The Regulatory State: Transnational Governance On Business And Human Rights, Milton C. Regan Jr., Kath Hall

Fordham Law Review

Lawyers are beginning to play an important role in strengthening the system of transnational governance that regulates business and human rights. In setting the background to our discussion of lawyers’ role in this context, Part I of this Article provides a general overview of the emergence of the transnational governance regime. Part II then describes some of the governance instruments that attempt to prevent and rectify the adverse human rights impacts of business activities. Part III discusses the extent to which lawyers are advising their business clients on human rights issues, the factors that may inhibit or encourage the provision …


Nothing Could Be Finer?: The Role Of Agency General Counsel In North And South Carolina, Elizabeth Chambliss, Dana Remus Apr 2016

Nothing Could Be Finer?: The Role Of Agency General Counsel In North And South Carolina, Elizabeth Chambliss, Dana Remus

Fordham Law Review

This Article examines the role of agency general counsel in North and South Carolina. The two states offer a rich comparative context for research on agency general counsel. Though closely linked in both name and culture, they have different executive structures and recent political histories, and the agency counseling function has evolved and is currently organized in different ways. These structural and political differences at the state level illuminate commonalities and differences at the agency level and provide an accessible starting point for broader state-level research. Part I examines the structural evolution of the agency general counsel position and the …


Lawyer Speech In The Regulatory State, Renee Newman Knake Apr 2016

Lawyer Speech In The Regulatory State, Renee Newman Knake

Fordham Law Review

A lawyer’s speech as advisor and advocate not only holds First Amendment value for the client and for the public, but also for the functioning of American democracy. This is supported both by foundational values undergirding the First Amendment as well as Supreme Court doctrine. This Article builds upon that analysis to posit that lawyers for the regulatory state ought not to be treated as government employees for purposes of the First Amendment when engaged in speech about workplace conditions related to curbing abuse of power, corruption, or other illegality. While this position runs counter to the existing precedent of …


Innovation Prizes In Practice And Theory, Michael J. Burstein, Fiona Murray Apr 2016

Innovation Prizes In Practice And Theory, Michael J. Burstein, Fiona Murray

Articles

Innovation prizes in reality are significantly different from innovation prizes in theory. The former are familiar from popular accounts of historical prizes like the Longitude Prize: the government offers a set amount for a solution to a known problem, like £20,000 for a method of calculating longitude at sea. The latter are modeled as compensation to inventors in return for donating their inventions to the public domain. Neither the economic literature nor the policy literature that led to the 2010 America COMPETES Reauthorization Act — which made prizes a prominent tool of government innovation policy — provides a satisfying justification …