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Articles 601 - 616 of 616
Full-Text Articles in Administrative Law
Re-Reading Chevron, Thomas W. Merrill
Re-Reading Chevron, Thomas W. Merrill
Faculty Scholarship
Though increasingly disfavored by the Supreme Court, Chevron remains central to administrative law doctrine. This Article suggests a way for the Court to reformulate the Chevron doctrine without overruling the Chevron decision. Through careful attention to the language of Chevron itself, the Court can honor the decision’s underlying value of harnessing comparative institutional advantage in judicial review, while setting aside a highly selective reading that unduly narrows judicial review. This re-reading would put the Chevron doctrine – and with it, an entire branch of administrative law – on firmer footing.
Taking Appropriations Seriously, Gillian E. Metzger
Taking Appropriations Seriously, Gillian E. Metzger
Faculty Scholarship
Appropriations lie at the core of the administrative state and are becoming increasingly important as deep partisan divides have stymied substantive legislation. Both Congress and the President exploit appropriations to control government and advance their policy agendas, with the border wall battle being just one of several recent high-profile examples. Yet in public law doctrine, appropriations are ignored, pulled out for special legal treatment, or subjected to legal frameworks ill-suited for appropriations realities. This Article documents how appropriations are marginalized in a variety of public law contexts and assesses the reasons for this unjustified treatment. Appropriations’ doctrinal marginalization does not …
Presidential Primacy Amidst Democratic Decline, Ashraf Ahmed, Karen M. Tani
Presidential Primacy Amidst Democratic Decline, Ashraf Ahmed, Karen M. Tani
Faculty Scholarship
Fifty years ago, when the Harvard Law Review asked Professor Harry Kalven, Jr., to take stock of the Supreme Court’s 1970 Term, Kalven faced a task not unlike Professor Cristina Rodríguez’s. That Term’s Court had two new members, Justices Harry Blackmun and Warren Burger. The Nixon Administration was young, but clearly bent on making its own stamp on American law, including via the Supreme Court. Kalven thus expected to see “dislocations” when he reviewed the Court’s recent handiwork. He reported the opposite. Surveying a Term that included such cases as Palmer v. Thompson, Younger v. Harris, Boddie v. …
Territorial Exceptionalism And The American Welfare State, Andrew Hammond
Territorial Exceptionalism And The American Welfare State, Andrew Hammond
UF Law Faculty Publications
Federal law excludes millions of American citizens from crucial public benefits simply because they live in the United States territories. If the Social Security Administration determines a low-income individual has a disability, that person can move to another state and continue to receive benefits. But if that person moves to, say, Guam or the U.S. Virgin Islands, that person loses their right to federal aid. Similarly with SNAP (food stamps), federal spending rises with increased demand—whether because of a recession, a pandemic, or a climate disaster. But unlike the rest of the United States, Puerto Rico, the Northern Mariana Islands, …
Retheorizing Precedent, Randy J. Kozel
Retheorizing Precedent, Randy J. Kozel
Journal Articles
Does the doctrine of stare decisis support judicial attempts to retheorize dubious precedents by putting them on firmer footing? If it does, can retheorization provide a means for Chevron to endure as a staple of administrative law notwithstanding serious challenges to its established rationale?
Majestic Law And The Subjective Stop, Kyron J. Huigens
Majestic Law And The Subjective Stop, Kyron J. Huigens
Articles
Justice John Paul Stevens subscribed to "a majestic conception" of the Constitution. This Article articulates and defends that vision. Majestic law and legal reasoning characteristically involve frank moral reasoning, such as one finds in the Eighth Amendment's "evolving standards of decency" test for proportionate punishment, or in Due Process formulations such as an appeal to "immutable principles of justice, which inhere in the very idea of free government." Majestic law employs moral values, norms, and judgments in legal reasoning, taking them on their own terms. Majestic legal reasoning does not weigh revealed preferences for decency, for example. It asks whether …
Delegation, Administration, And Improvisation, Kevin Arlyck
Delegation, Administration, And Improvisation, Kevin Arlyck
Georgetown Law Faculty Publications and Other Works
Nondelegation originalism is having its moment. Recent Supreme Court opinions suggest that a majority of justices may be prepared to impose strict constitutional limits on Congress’s power to delegate policymaking authority to the executive branch. In response, scholars have scoured the historical record for evidence affirming or refuting a more stringent version of nondelegation than current Supreme Court doctrine demands. Though the debate ranges widely, sharp disputes have arisen over whether a series of apparently broad Founding-era delegations defeat originalist arguments in favor of a more stringent modern doctrine. Proponents—whom I call “nondelegationists”—argue that these historical delegations can all be …
Arguing About The Jus Ad Bellum, Monica Hakimi
Arguing About The Jus Ad Bellum, Monica Hakimi
Faculty Scholarship
Quite a bit of research suggests that international law’s argumentative practice has value insofar as it leads to or affirms some kind of normative settlement. This chapter uses the argumentative practice in the jus ad bellum to counter that view. The chapter’s central claim is that arguments about the jus ad bellum are valuable, even when they do not lead to normative settlement and the law’s content on the issue in dispute remains contested. The reason they are valuable is that they promote certain values that are associated with the rule of law.
From Protecting Water Quality To Protecting States’ Rights: Fifty Years Of Supreme Court Clean Water Act Statutory Interpretation, Stephen M. Johnson
From Protecting Water Quality To Protecting States’ Rights: Fifty Years Of Supreme Court Clean Water Act Statutory Interpretation, Stephen M. Johnson
Articles
In 1972, a bipartisan Congress enacted the Clean Water Act “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Almost fifty years have passed since Congress enacted the law, and during that time, the Supreme Court has played a significant role in the administration and evolution of the law. Since the dawn of the environmental era in the 1970s, the Supreme Court has heard more cases involving the Clean Water Act than any other environmental law. However, the manner in which the Court has analyzed the law has changed substantially over the last half century. …
How The Administrative State Got To This Challenging Place, Peter L. Strauss
How The Administrative State Got To This Challenging Place, Peter L. Strauss
Faculty Scholarship
Written for a dispersed agrarian population using hand tools in a local economy, our Constitution now controls an American government orders of magnitude larger that has had to respond to profound changes in transportation, communication, technology, economy, and scientific understanding. How did our government get to this place? The agencies Congress has created to meet these changes now face profound new challenges: transition from the paper to the digital age; the increasing centralization in an opaque, political presidency of decisions that Congress has assigned to diverse, relatively expert and transparent bodies; the thickening, as well, of the political layer within …
The Three Permissions: Presidential Removal And The Statutory Limits Of Agency Independence, Jane Manners, Lev Menand
The Three Permissions: Presidential Removal And The Statutory Limits Of Agency Independence, Jane Manners, Lev Menand
Faculty Scholarship
Seven words stand between the President and the heads of over a dozen “independent agencies”: inefficiency, neglect of duty, and malfeasance in office (INM). The President can remove the heads of these agencies for INM and only INM. But neither Congress nor the courts have defined INM and hence the extent of agency independence. Stepping into this void, some proponents of presidential power argue that INM allows the President to dismiss officials who do not follow presidential directives. Others contend that INM is unconstitutional because it prevents Presidents from fulfilling their duty to take care that the laws are faithfully …
The Federal Reserve And The 2020 Economic And Financial Crisis, Lev Menand
The Federal Reserve And The 2020 Economic And Financial Crisis, Lev Menand
Faculty Scholarship
This Article provides a comprehensive legal analysis of the Federal Reserve's response to the 2020 economic and financial crisis. First, it examines the sixteen ad hoc lending facilities that the Fed established to fight the crisis and sorts them into two categories. Six advance the Fed's monetary mission and were designed to halt a run on financial institutions. Ten go beyond the Fed's traditional role and are designed to directly support financial markets and the real economy. Second, it maps these programs onto the statutory framework for money and banking. It shows that Congress's signature crisis legislation, the CARES Act, …
Wolastoqiyik And Mi’Kmaq Grandmothers - Land/Water Defenders Sharing And Learning Circle: Generating Knowledge For Action, Sherry Pictou, Janet Conway, Angela Day
Wolastoqiyik And Mi’Kmaq Grandmothers - Land/Water Defenders Sharing And Learning Circle: Generating Knowledge For Action, Sherry Pictou, Janet Conway, Angela Day
Reports & Public Policy Documents
This report is a summary of the Grandmothers/Defenders’ stories and are interwoven with corresponding news articles, press releases, and other public documents. This is followed by an overview of some of the critical common issues and importantly, strategies for moving forward proposed by the Grandmothers/Defenders.
The Grandmother’s Report is a collection of stories told by Wolastoqiyik Grandmother/Defenders against the Sisson Mine in New Brunswick and Mi’kmaq Grandmothers against the Alton Gas project in Nova Scotia at the event, Indigenous Grandmothers Sharing and Learning Circle: Generating Knowledge for Action, held at the Tatamagouche Centre in Nova Scotia, January 26 to 27, …
Do Independent External Decision Makers Ensure That “An Inmate’S Confinement In A Structured Intervention Unit Is To End As Soon As Possible”? [Corrections And Conditional Release Act, Section 33], Jane B. Sprott, Anthony N. Doob, Adelina Iftene
Do Independent External Decision Makers Ensure That “An Inmate’S Confinement In A Structured Intervention Unit Is To End As Soon As Possible”? [Corrections And Conditional Release Act, Section 33], Jane B. Sprott, Anthony N. Doob, Adelina Iftene
Reports & Public Policy Documents
The Government of Canada established Correctional Service Canada’s (CSC) Structured Intervention Units (SIUs) to be a substitute for “Administrative Segregation” as it officially was known, or Solitary Confinement as it is more commonly known. The goals – explicit in the legislation governing federal penitentiaries (the Corrections and Conditional Release Act) – included provisions that SIUs were to be used as little as possible and that prisoners would be transferred from them as soon as possible.
This report examines some aspects of the operation of the IEDMs – the only SIU oversight mechanism that is currently active – using administrative data …
Property Owners Look Out: The Train Is Coming, Natalie Crane
Property Owners Look Out: The Train Is Coming, Natalie Crane
Seattle University Law Review
Over 4 million people currently live in the Puget Sound area in Washington state, and about 6 million people are expected to reside in the area by 2050. Additionally, Seattle renters faced a 71.2% increase in rent prices from 2010 to 2019. This data supports the need for much of the congested Seattle population to move outward and commute into the city for work. The implementation of a 116-mile system and other efforts to increase public transportation makes this need achievable and affordable.
This Comment focuses on the issue of just compensation in eminent domain; specifically, unique questions of compensation …
Table Of Contents, Seattle University Law Review
Table Of Contents, Seattle University Law Review
Seattle University Law Review
Table of Contents.