Administrative Law Commons^™

The Life Of Administrative Democracy, Joshua Galperin

Articles

Imagine if Congress, the President, and the industries they hoped to regulate all decided that neither politically isolated bureaucrats nor a popularly sanctioned President should wield the power to administer Congress’ laws, to make legislative-type policy, to enforce that policy, and to adjudicate disputes under it. Imagine if there were another experiment, one that has persisted, but few have noticed.

Imagine no longer. Overlooked by most, there is a model for federal administration that does not rely on isolated administrators or Presidential control, but instead on elected bureaucrats. Today, the United States Department of Agriculture houses over 7,500 elected farmer-bureaucrats …

Federalism, Convergence, And Divergence In Constitutional Property, Gerald S. Dickinson

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Federal law exerts a gravitational force on state actors, resulting in widespread conformity to federal law and doctrine at the state level. This has been well recognized in the literature, but scholars have paid little attention to this phenomenon in the context of constitutional property. Traditionally, state takings jurisprudence—in both eminent domain and regulatory takings—has strongly gravitated towards the Supreme Court’s takings doctrine. This long history of federal-state convergence, however, was disrupted by the Court’s controversial public use decision in Kelo v. City of New London. In the wake of Kelo, states resisted the Court’s validation of the …

Pragmatism, Pragtivism, And Private Environmental Governance, Joshua Galperin

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This essay is an edited version of a talk presented at the 2017 J.B. & Maurice C. Shapiro Environmental Law Symposium on Private Environmental Governance at the George Washington University. It is adapted from a longer article entitled Trust Me, I’m A Pragmatist: A Partially Pragmatic Critique of Pragmatic Activism, in 42 Colum. J. Envtl. L. 425 (2017).

Landowners' Fcc Dilemma: Rereading The Supreme Court's Armstrong Opinion After The Third Circuit's Depolo Ruling, Gerald S. Dickinson

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In Armstrong v. Exceptional Child Ctr., Inc., the Supreme Court took a turn in its refusal to provide avenues for relief to private actors against the state in federal court, finding that the Supremacy Clause does not provide for an implied right of action to sue to enjoin unconstitutional actions by state officers. Many critics of that decision, including the four dissenting Justices, question the wisdom of the ruling generally. However, from a property rights perspective, the decision sheds light on a dilemma unforeseen by many scholars and made most apparent by a recent Third Circuit decision, Jeffrey DePolo …

Eating Is Not Political Action, Joshua Galperin, Graham Downey, D. Lee Miller

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Food and environment are cultural stalwarts. Picture the red barn and solitary farmer toiling over fruited plains; or purple mountains majesty reflected in pristine waters. Agriculture and environment are core, distinct, American mythologies that we know are more intertwined than our stories reveal.

To create policy at the interface of such centrally important and overlapping American ideals, there are two options. Passive governance fosters markets in which participants make individual choices that aggregate into inadvertent collective action. In contrast, assertive governance allows the public, mediated through elected officials, to enact intentional, goal oriented policy.

American mythologies of food and environment …

Defining And Closing The Hydraulic Fracturing Governance Gap, Joshua Galperin, Grace Heusner, Allison Sloto

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As recent examples in Texas and Colorado have shown, if local governments ban fracking, they risk pushback from state governments. This pushback, in turn, can result in preemption making an outright local ban on fracking self-defeating because it could ultimately result in less local control over the impacts of hydraulic fracturing. Given this potentially self-defeating nature of local fracking bans, local governments should address the impacts of fracking through more traditional local governance mechanisms that do not pose as great a risk to local authority.

On this premise, this Article seeks to make the case for the importance of, and …

Trust Me, I'M A Pragmatist: A Partially Pragmatic Critique Of Pragmatic Activism, Joshua Galperin

Articles

Pragmatism is a robust philosophy, vernacular hand waiving, a method of judicial and administrative decisionmaking, and, more recently, justification for a certain type of political activism. While philosophical, judicial, and administrative pragmatism have garnered substantial attention and analysis from scholars, we have been much stingier with pragmatic activism — that which, in the spirit of the 21st Century’s 140-character limit, I will call “pragtivism.” This Article is intended as an introduction to pragtivism, a critique of the practice, and a constructive framework for addressing some of my critiques.

To highlight the contours of pragtivism, this Article tells the story of …

Resilience And Raisins: Partial Takings And Coastal Climate Change Adaptation, Joshua Galperin, Zahir Hadi Tajani

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The increased need for government-driven coastal resilience projects will lead to a growing number of claims for “partial takings” of coastal property. Much attention has been paid to what actions constitute a partial taking, but there is less clarity about how to calculate just compensation for such takings, and when compensation should be offset by the value of benefits conferred to the property owner. While the U.S. Supreme Court has an analytically consistent line of cases on compensation for partial takings, it has repeatedly failed (most recently in Horne v. U.S. Department of Agriculture) to articulate a clear rule. The …

Does The Compensation Clause Burden The Government Or Benefit The Owner? The Compensation Clause As Process, Joshua Galperin

Articles

One of many ideas indelibly drawn in the legal vernacular is that “if a regulation goes too far it will be recognized as a taking.” This workhorse of a phrase has shouldered the bulk of the regulatory takings doctrine since the first half of the last century. So much ink has been spilled in an attempt to parse the meaning of “too far,” and yet the academic and judicial communities have made little progress towards a better understanding. This article, therefore, seeks to divert some attention away from the meaning of “taking”, and put a little more focus on the …