Administrative Law Commons^™

Fears, Faith, And Facts In Environmental Law, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

Environmental law has long been shaped by both the particular nature of environmental harms and by the actors and institutions that cause such harms or can address them. This nation’s environmental statutes remain far from perfect, and a comprehensive law tailored to the challenges of climate change is still elusive. Nonetheless, America’s environmental laws provide lofty, express protective purposes and findings about reasons for their enactment. They also clearly state health and environmental goals, provide tailored criteria for action, and utilize procedures and diverse regulatory tools that reflect nuanced choices.

But the news is far from good. Despite the ambitious …

The Lawlessness Of Sackett V. Epa, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

When the Supreme Court speaks on a disputed statutory interpretation question, its words and edicts undoubtedly are the final judicial word, binding lower courts and the executive branch. Its majority opinions are the law. But the Court’s opinions can nonetheless be assessed for how well they hew to fundamental elements of respect for the rule of law. In particular, law-respecting versus law-neglecting or lawless judicial work by the Court can be assessed in the statutory interpretation, regulatory, and separation of power realms against the following key criteria, which in turn are based on some basic rule of law tenets: analysis …

Jazz Improvisation And The Law: Constrained Choice, Sequence, And Strategic Movement Within Rules, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

This Article argues that a richer understanding of the nature of law is possible through comparative, analogical examination of legal work and the art of jazz improvisation. This exploration illuminates a middle ground between rule of law aspirations emphasizing stability and determinate meanings and contrasting claims that the untenable alternative is pervasive discretionary or politicized law. In both the law and jazz improvisation settings, the work involves constraining rules, others’ unpredictable actions, and strategic choosing with attention to where a collective creation is going. One expects change and creativity in improvisation, but the many analogous characteristics of law illuminate why …

The Antiregulatory Arsenal, Antidemocratic Can(N)Ons, And The Waters Wars, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

The Clean Water Act has become a centerpiece in an enduring multifront battle against both environmental regulation and federal regulatory power in all of its settings. This Article focuses on the emergence, elements, and linked uses of an antiregulatory arsenal now central to battles over what are federally protected “waters of the United States.” This is the key jurisdictional hook for CWA jurisdiction, and hence, logically, has become the heart of CWA contestation. The multi-decade battle over Waters protections has both drawn on emergent antiregulatory moves and generated new weapons in this increasingly prevalent and powerful antiregulatory arsenal. This array …

Department Of Homeland Security V. Regents Of The University Of California And Its Implications, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

The Trump Administration's effort to get rid of Deferred Action for Childhood Arrivals, or DACA, failed before the Supreme Court in Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891, 1896 (2020). In this essay -- based on a presentation given to an American Bar Association section in September 2020 -- I review DACA, the Supreme Court's decision, and its potential legal implications.

The failure of the Trump Administration to eliminate DACA may have had significant political consequences, and it surely had immediate and momentous consequences for many of DACA’s hundreds of thousands …

States’ Evolving Role In The Supplemental Nutritional Assistance Program, David A. Super

Georgetown Law Faculty Publications and Other Works

States have always been crucial to the Supplemental Nutrition Assistance Program (SNAP, formerly food stamps). Even though the federal government has paid virtually all the program’s benefit costs, state administration has always been indispensable for several reasons. State and local governments pay their staff considerably less than the federal government, making state administration less expensive. States already administer other important antipoverty programs, notably family cash assistance and Medicaid, allowing them to coordinate the programs and minimize repetitive activities. And states have somewhat lower, and less polarizing, political footprints than does the federal government, moderating criticism of the program. In addition, …

Russia’S Contract Arbitrage, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

Ukraine is poised to restructure its debt, but Russia may hold the best cards in the negotiation. Russia bought $3 billion in Ukrainian Eurobonds in late 2013 to prop up a political ally, since-deposed. As Russian President Vladimir Putin himself has pointed out, these bonds have unique terms that let Russia call for early repayment, putting it ahead of Ukraine’s private creditors. Meanwhile, Russia and its proxies hold enough bonds to block a restructuring vote or hold out, sticking more losses on other creditors. Russia has refused to restructure the bonds in the Paris Club of government-to-government creditors, claiming that …

Legislative Organization And Administrative Redundancy, Michael Doran

Georgetown Law Faculty Publications and Other Works

Congress regularly enacts legislation providing for redundant administrative programs. For example, there are more than 100 federal programs for surface transportation, 82 programs to ensure teacher quality, 80 programs to promote domestic economic development, and 47 programs to provide employment and job-training services. Recent high-profile legislation–-such as the financial-industry reform measure and the health-care reform measure–-add new programs without repealing existing ones directed at the same policy goals. Prior academic analyses generally have not considered why Congress pursues redundancy. This article addresses that question through both theoretical and institutional analysis.

The article first constructs an organizational theory that attributes redundancy …

The Art Of Legislative Lawyering And The Six Circles Theory Of Advocacy, Chai R. Feldblum

Georgetown Law Faculty Publications and Other Works

A "legislative lawyer" is a person who exists in Washington, D.C., and in almost every city and state in this country where legislation and administrative regulations are developed. But most people do not know who that person is or what that person does. In fact, most advocacy organizations that should be hiring legislative lawyers have no idea who a legislative lawyer is.

The author coined the term "legislative lawyer" when she created a Federal Legislation Clinic at the Georgetown University Law Center in Washington, D.C. over a decade ago. The author needed to explain to her faculty colleagues what type …

Working Papers As Federal Records: The Need For New Legislation To Preserve The History Of National Policy, Philip G. Schrag

Georgetown Law Faculty Publications and Other Works

This article deals with policy records at the "front end" of their lives; that is, preserving them from destruction by federal agencies in the decades immediately after their creation. It does not deal with the destruction of archived documents by Archives officials themselves. It discusses only in passing the related question of how long a policy record should be sealed off from public inspection; the literature includes a variety of opinions on that subject. The author is content to leave to others the problem of just where to draw the balance between making historical documentation available soon enough so that …