Law Commons^™

National Performance Review: A Renewed Commitment To Strengthening The Intergovernmental Partnership, Patricia E. Salkin

Patricia E. Salkin

No abstract provided.

Cyber-Threats And The Limits Of Bureaucratic Control, Susan W. Brenner

Susan Brenner

This article argues that the approach the United States, like other countries, uses to control threats in real-space is ill-suited for controlling cyberthreats, i.e., cybercrime, cyberterrorism and cyberwar. It explains that because this approach evolved to deal with threat activity in a physical environment, it is predicated on a bureaucratically organized response structure. It explains why this is not an effective way of approaching cyber-threat control and examines the two federal initiatives that are intended to improve the U.S. cybersecurity: legislative proposals put forward by four U.S. Senators and by the White House; and the military’s development of six distinct …

Cyberthreats And The Limits Of Bureaucratic Control, Susan Brenner

Susan Brenner

Cyber-Threats and the Limits of Bureaucratic Control By Susan W. Brenner This article argues that the approach the United States, like other countries, uses to control threats in real-space is ill-suited for controlling cyberthreats, i.e., cybercrime, cyberterrorism and cyberwar. It explains that because this approach evolved to deal with threat activity in a physical environment, it is predicated on a bureaucratically organized response structure. It explains why this is not an effective way of approaching cyber-threat control and examines the two federal initiatives that are intended to improve the U.S. cybersecurity: legislative proposals put forward by four U.S. Senators and …

Time For A Top-Tier Law School In Arkansas, Richard J. Peltz-Steele

Faculty Publications

A simple change in state law could improve the quality of legal education in Arkansas and the quality of legal services available to our consumers - and save significant amounts of taxpayers' money. With an Afterword on academic freedom. Also available from Advance Arkansas Institute website.

Bureaucracy And The U.S. Response To Mass Atrocity, Gregory Brazeal

Gregory Brazeal

The U.S. response to mass atrocity has followed a predictable pattern of disbelief, rationalization, evasion, and retrospective expressions of regret. The pattern is consistent enough that we should be skeptical of chalking up the United States’ failures solely to a shifting array of isolated historical contingencies, from post-Vietnam fatigue in the case of the Khmer Rouge to the Clinton administration’s recoil against humanitarian interventions after Somalia. It is implausible to suggest that the United States would have acted to mitigate or end mass atrocities but for the specific historical contingencies that happen to accompany each outbreak of violence. This essay …

The Future Of The Administrative Presidency: Turning Administrative Law Inside-Out, Sidney A. Shapiro, Ronald F. Wright

University of Miami Law Review

No abstract provided.

Instituições, Trabalho E Pessoas, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Os especialistas em doenças terminais sabem que ninguém tem saudades, quando abandona a vida, do trabalho que não fez. Tem saudades sim do tempo que não passou com familiares e amigos. A sociedade contemporânea, e algumas instituições "totais" estão a potenciar até ao expoente demencial a exploração e a despersonalização dos trabalhadores, designadamente proletarizando técnicos superiores e técnicos pensantes que, sem ócio criativo, deixarão de criar. É uma crise civilizacional, nada menos.

Black Tuesday And Graying The Legitimacy Line For Governmental Intervention: When Tomorrow Is Just A Future Yesterday, Donald J. Kochan

Donald J. Kochan

Black Tuesday in October 1929 marked a major crisis in American history. As we face current economic woes, it is appropriate to recall not only the event but also reflect on how it altered the legal landscape and the change it precipitated in the acceptance of governmental intervention into the marketplace. Perceived or real crises can cause us to dance between free markets and regulatory power. Much like the events of 1929, current financial concerns have led to new, unprecedented governmental intervention into the private sector. This Article seeks caution, on the basis of history, arguing that fear and crisis …

The Death Of The American Trial, Robert P. Burns

Faculty Working Papers

This short essay is a summary of my assessment of the meaning of the "vanishing trial" phenomenon. It addresses the obvious question: "So what?" It first briefly reviews the evidence of the trial's decline. It then sets out the steps necessary to understand the political and social signficance of our vastly reducing the trial's importance among our modes of social ordering. The essay serves as the Introduction to a book, The Death of the American Trial, soon to be published by the University of Chicago Press.

Optimal Political Control Of The Bureaucracy, Matthew C. Stephenson

Michigan Law Review

It is widely believed that insulating an administrative agency from the influence of elected officials, whatever its other benefits orjustifications, reduces the agency's responsiveness to the preferences of political majorities. This Article argues, to the contrary, that a moderate degree of bureaucratic insulation from political control alleviates rather than exacerbates the countermajoritarian problems inherent in bureaucratic policymaking. An elected politician, though responsive to majoritarian preferences, will almost always deviate from the majority in one direction or the other Therefore, even if the average policy position of a given elected official tends to track the policy views of the median voter …

Operationalizing Deterrence Claims Management (In Hopsitals, A Large Retailer, And Jails And Prisons), Margo Schlanger

Articles

The theory that the prospect of liability for damages deters risky behavior has been developed in countless articles and books. The literature is far sparser, however, on how deterrence is operationalized. And prior work slights an equally important effect of damage actions, to incentivize claims management in addition to harm-reduction responses that are cost- rather than liabilityminimizing. This article works in the intersection of these two understudied areas, focusing on claims management steps taken by frequently sued organizations, and opening a window into the black box of deterrence to see how those steps may end up serving harm-reduction purposes as …

The Concept Of International Delegation, Curtis A. Bradley, Judith G. Kelley

Law and Contemporary Problems

Bradley and Kelley define and clarify the concept of international delegation from both a legal and a social-science perspective. They begin by presenting a definition of international delegation as a grant of authority by two or more states to an international body to make decisions or take actions. They also identify eight types of authority that states may grant: legislative, adjudicative, regulatory, monitoring and enforcement, agenda-setting, research and advice, policy implementation, and redelegation. International bodies will often exercise more than one type of authority, and there will sometimes be uncertainties about whether a particular type of authority fails into a …

Much Ado About Nothing?, Cary Coglianese

All Faculty Scholarship

Policy scholars and decision makers should be careful before concluding that President Bush's recent Executive Order 13422 will result in "paralysis by analysis." That lament has been heard about other changes to rule making procedures over the last seven decades, yet steady increases in the cost and volume of federal regulations during that time period clearly indicate that paralysis has yet to set in. Administrative procedures are embedded within a complex web of politics, institutions, and organizational behavior. Within that web, procedures are but one factor influencing government agencies.

The Rhetoric And Reality Of Regulatory Reform, Cary Coglianese

All Faculty Scholarship

In January 2007, President George W. Bush stirred up widespread controversy by issuing amendments to an executive order on regulatory review adopted initially by President Clinton. The Bush amendments variously require agencies to issue written regulatory problem statements, assign gate-keeping responsibilities to Regulatory Policy Officers within each agency, and undertake analytic reviews before adopting certain kinds of guidance documents. Both legal scholars and policy advocates charge that the Bush amendments place significant new burdens on administrative agencies and will delay the issuance of important new regulatory policies. This paper challenges the rhetorical claims of obstructionism that have emerged in response …

Time For A Twenty-First Century Justice Department, Samuel W. Buell

Faculty Scholarship

This is a brief contribution to an issue of The Federal Sentencing Reporter directed to criminal justice policy discussions relevant to the 2008 election season. The United States Department of Justice is a uniquely valuable domestic institution. After a period of stunning ascendancy at the end of the last century, the institution has faltered—perhaps as much from strategic neglect as from deliberate diversion of its mission in service of political and foreign policy objectives that most Americans have concluded were misguided. A twenty-first-century executive branch should set as a priority thoughtful consideration of how to confine the powerful tools of …

The Law And Large Numbers: Preserving Adjudication In Complex Litigation, Alexandra Lahav

Alexandra D. Lahav

This Article describes how the power to regulate tortfeasors has been transferred from the courts to private parties. It situates court resistance to administrative resolution of mass torts in the historical debate over bureaucracy in government. Instead of privatizing mass tort settlements, courts should take an active role in administering the resolution of mass torts.

Crisis Bureaucracy: Homeland Security And The Political Design Of Legal Mandates, Mariano-Florentino Cuellar

ExpressO

Policymakers fight over bureaucratic structure because it helps shape the legal interpretations and regulatory decisions of agencies through which modern governments operate. In this article, we update positive political theories of bureaucratic structure to encompass two new issues with important implications for lawyers and political scientists: the implications of legislative responses to a crisis, and the uncertainty surrounding major bureaucratic reorganizations. The resulting perspective affords a better understanding of how agencies interpret their legal mandates and deploy their administrative discretion. We apply the theory to the creation of the Department of Homeland Security. Two principal questions surrounding this creation are …

Harry Potter And The Half-Crazed Bureaucracy, Benjamin H. Barton

Scholarly Works

This Essay examines what the Harry Potter series (and particularly the most recent book, The Half-Blood Prince) tells us about government and bureaucracy. There are two short answers. The first is that Rowling presents a government (The Ministry of Magic) that is 100% bureaucracy. There is no discernable executive or legislative branch, and no elections. There is a modified judicial function, but it appears to be completely dominated by the bureaucracy, and certainly does not serve as an independent check on governmental excess.

Second, government is controlled by and for the benefit of the self-interested bureaucrat. The most cold-blooded public …

Harry Potter And The Half-Crazed Bureaucracy, Benjamin H. Barton

Michigan Law Review

What would you think of a government that engaged in this list of tyrannical activities: tortured children for lying; designed its prison specifically to suck all life and hope out of the inmates; placed citizens in that prison without a hearing; ordered the death penalty without a trial; allowed the powerful, rich, or famous to control policy; selectively prosecuted crimes (the powerful. go unpunished and the unpopular face trumped-up charges); conducted criminal trials without defense counsel; used truth serum to force confessions; maintained constant surveillance over all citizens; offered no elections and no democratic lawmaking process; and controlled the press? …

Global Administrative Law: The View From Basel, Michael S. Barr, Geoffrey P. Miller

Articles

International law-making by sub-national actors and regulatory networks of bureaucrats has come under attack as lacking in accountability and legitimacy. Global administrative law is emerging as an approach to understanding what international organizations and national governments do, or ought to do, to respond to the perceived democracy deficit in international law-making. This article examines the Basel Committee on Banking Supervision, a club of central bankers who meet to develop international banking capital standards and to develop supervisory guidance. The Basel Committee embodies many of the attributes that critics of international law-making lament. A closer examination, however, reveals a structure of …

Why Judicial Review Fails: Organizations, Politics, And The Problem Of Auditing Executive Discretion, Mariano-Florentino Cuellar

ExpressO

Every day executive branch officials make thousands of decisions affecting our security and welfare. Homeland security officials screen tens of thousands of people at the border. They decide whose name gets on government “no fly lists.” Agencies freeze suspected terrorist assets, choose what companies to inspect for environmental violations, and decide whom to prosecute. This article describes how judicial review predictably and systematically fails to prevent abuse and promote organizational learning when government officials make many such choices using their discretion to target individuals or groups. It then proposes the use of quasi-judicial audits of executive discretion as a remedy. …

Ethics In Large Law Firms: The Principle Of Pragmatism, Kimberly Kirkland

Law Faculty Scholarship

No abstract provided.

Dangerous Clients: A Phenomenological Solution To Bureaucratic Oppression, Edward L. Rubin

ExpressO

Modern administrative agencies are often unnecessarily oppressive in their day-to-day contact with people. This article traces such oppression to status differences between agency employees and clients, their relationship as strangers to one another, the institutional pathologies of the agency and the divergent incentives to which the agency employees are subject. The article then considers three solutions to this problem that have been discussed in the academic literature regarding government agencies: the imposition of due process requirements, the shift to client-centered management, and the use of market or quasi-market mechanisms.

After critiquing all three solutions, the article proposes a new approach, …

The Nirvana Fallacy In Law Firm Regulation Debate, Elizabeth Chambliss

Faculty Publications

Most commentators would agree that large law firms have outgrown collegial management and self-regulation. Yet lawyers generally have been slow to recognize the benefits of bureaucratic management, and traditionally have resisted and lamented the move toward more bureaucratic forms. Many lawyers view the infrastructure of bureaucratic management - that is, formal policies and procedures and specialized managerial personnel - as necessarily undermining professional ethics and individual accountability within firms.

This article questions the empirical basis for such concerns. I argue that the fear that centralized management controls will undermine individual accountability rests on an implicit comparison to a nostalgic, collegial …

The New Privacy, Paul M. Schwartz, William M. Treanor

Michigan Law Review

In 1964, as the welfare state emerged in full force in the United States, Charles Reich published The New Property, one of the most influential articles ever to appear in a law review. Reich argued that in order to protect individual autonomy in an "age of governmental largess," a new property right in governmental benefits had to be recognized. He called this form of property the "new property." In retrospect, Reich, rather than anticipating trends, was swimming against the tide of history. In the past forty years, formal claims to government benefits have become more tenuous rather than more secure. …

Is The Republic Circling The Drain?, W. Taylor Reveley Iii

Faculty Publications

No abstract provided.

Review Of The Appearance Of Impropriety: How The Ethics Wars Have Undermined American Government, Business, And Society, By Peter W. Morgan And Glenn H. Reynolds., Jordan B. Hansell

Michigan Law Review

Rameshwar Sharma needed cash to continue his research on two proteins, alpha2A and alpha2GC, so he turned to the federal government. At the time he submitted his grant application, Sharma had completed a good deal of work on alpha2A but very little on alpha2GC At some point while typing his forty-six page grant application, Sharma realized that repeatedly typing alpha2A and alpha2GC was annoying. To ease his pain, he created macro keys that he could hit whenever he wished to type either protein. Big mistake. On page twenty-one he hit the wrong key, inserting alpha2GC where alpha2A should have been. …

Sharing Public Land Decision Making: The Quincy Library Group Experience [Includes First Three Items From Appendix A], Michael B. Jackson

Challenging Federal Ownership and Management: Public Lands and Public Benefits (October 11-13)

25 pages (includes illustrations).

Contains 1 reference.

Includes first three items from Appendix A.

Comment On “Presidents And The Politics Of Structure”, Roberta Romano

Law and Contemporary Problems

Terry Moe and Scott Wilson's (1994) theory elaborating on the president's countervailing institutional motivation to strengthen and consolidate the bureaucracy under presidential control is examined. The omission of political parties and courts from the analysis could have altered some of their conclusions on comparative institutional advantages.

Designing Bureaucratic Accountability, Arthur Lupia, Mathew D. Mccubbins

Law and Contemporary Problems

A model of legislative-bureacratic interaction is developed and used to show how legislators can create structures and processes that affect bureaucratic accountability. Consequences of institutional design on democratic decisionmaking are examined.