Administrative Law Commons^™

Government By Contract And The Structural Constitution, Kimberly L. Wehle

All Faculty Scholarship

Although private parties have performed government functions throughout most of Western history, mainstream administrative law scholarship is dotted with concerns over the extent to which modern federal government activities are outsourced to private contractors. Federal contractors routinely exercise authority that is classically “executive” in nature. They write regulations, interpret laws, administer foreign aid, manage nuclear weapons sites and intelligence operations, interrogate detainees, control borders, design surveillance systems, and provide military support in combat zones. Administrative law places few constraints on private contractors, and prevailing constitutional principles — the state action and private delegation doctrines, in particular — are either inept …

When Delegation Begets Domination: Due Process Of Administrative Lawmaking, Evan J. Criddle

Faculty Publications

No abstract provided.

Let Presidential Hopefuls Have Their Say, Jack Tsen-Ta Lee

Research Collection Yong Pung How School Of Law

The announcement by the Presidential Elections Committee (PEC) of the prospective candidates who have been issued certificates of eligibility for the 2011 presidential election in Singapore makes interesting reading for what it does and does not say. The Committee’s decision-making process is also fairly opaque. It is submitted the rules governing the PEC’s task should be reviewed before the next election. At least, it is hoped future Committees will adopt as constitutional conventions the practices of granting hearings to applicants, announcing decisions well ahead of nomination day, and issuing full reasons.

The Consumer Financial Protection Bureau's Appointment With Trouble, Kent H. Barnett

Scholarly Works

This article considers whether the Consumer Financial Protection Bureau Director’s appointment of the Bureau’s Deputy Director comports with the Appointments Clause. The Dodd-Frank Wall Street Reform and Consumer Protection Act established the Bureau in July 2010, as well as the offices of the Bureau’s Director and Deputy Director, to coordinate the regulation and enforcement of federal consumer-financial-protection laws. Under that act, the Director appoints the Deputy Director. The Appointments Clause permits “Heads of Departments” to appoint inferior officers like the Deputy Director. But it is unclear if the Bureau is a “department” and thus if the Director is a department …

Book Review. Justin Vaisse, Neoconservatism: The Biography Of A Movement, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Chevron'S Regrets: The Persistent Vitality Of The Nondelegation Doctrine, Michael C. Pollack

Faculty Articles

Since the Chevron decision in 1984, courts have extended to administrative agencies a high level of deference when those agencies reasonably interpret ambiguous statutes, reasoning that agencies have more technical expertise and public accountability than courts. However, when the agency’s interpretation implicates a significant policy choice, courts do not always defer. At times, they rely on principles of nondelegation to rule against the agency interpretation and require that choices be made by Congress instead.

Chevron makes no explicit exception for significant policy choices, but in cases like MCI v. AT&T and FDA v. Brown & Williamson, the Supreme Court …

Apoplectic About Hyperlexis, William Araiza

Faculty Scholarship

No abstract provided.

The Deep Seabed: The Laws Of Nature And Nature’S Manganese Nodules, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

The Reconciliation Doctrine In The Mclachlin Court: From A “Final Legal Remedy” To A “Just And Lasting” Process, Constance Macintosh

Articles, Book Chapters, & Popular Press

The issue upon which this paper focuses is one that runs through much of the Aboriginal rights jurisprudence over the last ten years: the idea of “reconciliation." However, the way in which the term is deployed, the values that inform it, the logic that drives it, and the conclusions that it supports have shifted and are continuing to shift. There are considerable differences between how this term was used at the time of Lamer C.J., its meaning for the bench under McLachlin C.J., and the new role it has evolved to take on most recently. In particular, reconciliation has come …

Why Is The Japanese Supreme Court So Conservative?, Shigenori Matsui

All Faculty Publications

The Constitution of Japan, enacted on November 3, 1946, and effective as of May 3, 1947, gave the judicial power to the Supreme Court and the inferior courts established by the Diet, the national legislature, and gave the power of judicial review to the judiciary. Equipped with the power of judicial review, the Japanese Supreme Court was expected to perform a very significant political role in safeguarding the Constitution, especially its Bill of Rights, against infringement by the government. Yet, it has developed a very conservative constitutional jurisprudence ever since its establishment. This article examines why the Japanese Supreme Court …

Constitutional Precedents In Japan: A Comment On The Role Of Precedent, Shigenori Matsui

All Faculty Publications

Japan is a civil law country, and the precedent of the Supreme Court is not binding on either the Supreme Court itself or lower courts. Judges are supposed to return to the text of the statute for each legal dispute and apply the rules to specific cases. Judicial decisions are not law to be applied by the courts. However, since judges have followed the precedent of the Supreme Court most of the time, these precedents have a de facto binding power even though they are not legally binding. In this Comment, the author focuses on constitutional law precedents to illustrate …

Rule-Making And The American Constitution, Peter L. Strauss

Faculty Scholarship

This chapter leaves behind the standard accounts of federal agencies to examine the role of the presidency in fashioning regulatory outputs. It recounts — and with reference to American ‘checks and balances’ ideas — a steady accretion of power at the centre, the result of which has been to render rulemaking increasingly a political rather than ‘expert’ activity. Whether the process is reversible, or whether ongoing crises in finance and security will serve to concretize this profound constitutional development, remains to be seen.

On The Difficulties Of Generalization – Pcaob In The Footsteps Of Myers, Humphrey’S Executor, Morrison And Freytag, Peter L. Strauss

Faculty Scholarship

In considering what to write for this welcome occasion, I was struck by a certain resonance among Paul's scholarship – at least that of which I was first aware, and which I have often used to impress on students the problems of due process analysis – the important post he now holds, and a story our joint mentor, Walter Gellhorn, liked to tell on himself. In the wake of the Supreme Court's paradigm-shifting opinion in Goldberg v. Kelly, with its confident pronouncement of eight procedural elements that, it reasoned, minimal due process must always require of administrative procedures, Paul made …

Federalism Under Obama, Gillian E. Metzger

Faculty Scholarship

At first glance, federalism would seem to have fared poorly under the Obama administration. The administration's signature achievements to date involve substantial expansions of the federal government's role, be it through new federal legislation addressing health insurance and financial sector reform or massive injections of federal spending. Such expansions in the federal government's role frequently translate into restrictions on the states. New federal legislation often preempts prior state regulation, and federal spending often comes with substantial conditions and burdens for the states. Not surprisingly, many state officials have sharply criticized these developments at the federal level, often invoking federalism as …