Legislation 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 …

If We Build It, Will They Legislate? Empirically Testing The Potential Of The Nondelegation Doctrine To Curb Congressional "Abdication", Daniel E. Walters, Elliott Ash

Faculty Scholarship

A widely held view for why the Supreme Court would be right to revive the nondelegation doctrine is that Congress has perverse incentives to abdicate its legislative role and evade accountability through the use of delegations, either expressly delineated or implied through statutory imprecision, and that enforcement of the nondelegation doctrine would correct for those incentives. We call this the Field of Dreams Theory—if we build the nondelegation doctrine, Congress will legislate. Unlike originalist arguments for the revival of the nondelegation doctrine, this theory has widespread appeal and is instrumental to the Court’s project of gaining popular acceptance of a …

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 …

Responding To The New Major Questions Doctrine, Christopher J. Walker

Articles

The new major questions doctrine has been a focal point in administrative law scholarship and litigation over the past year. One overarching theme is that the doctrine is a deregulatory judicial power grab from both the executive and legislative branches. It limits the president’s ability to pursue a major policy agenda through regulation. And in the current era of political polarization, Congress is unlikely to have the capacity to pass legislation to provide the judicially required clear authorization for agencies to regulate major questions. Especially considering the various “vetogates” imposed by Senate and House rules, it is fair to conclude …

A Congressional Review Act For The Major Questions Doctrine, Christopher J. Walker

Articles

Last Term, the Supreme Court recognized a new major questions doctrine, which requires Congress to provide clear statutory authorization for an agency to regulate on a question of great economic or political significance. This new substantive canon of statutory interpretation will be invoked in court challenges to federal agency actions across the country, and it will no doubt spark considerable scholarly attention. This Essay does not wade into those doctrinal or theoretical debates. Instead, it suggests one way Congress could respond: by enacting a Congressional Review Act for the major questions doctrine. In other words, Congress could establish a fast-track …

White Supremacy, Police Brutality, And Family Separation: Preventing Crimes Against Humanity Within The United States, Elena Baylis

Articles

Although the United States tends to treat crimes against humanity as a danger that exists only in authoritarian or war-torn states, in fact, there is a real risk of crimes against humanity occurring within the United States, as illustrated by events such as systemic police brutality against Black Americans, the federal government’s family separation policy that took thousands of immigrant children from their parents at the southern border, and the dramatic escalation of White supremacist and extremist violence culminating in the January 6, 2021 attack on the U.S. Capitol. In spite of this risk, the United States does not have …

Putting A Gag On Farm Whistleblowers: The Right To Lie And The Right To Reamin Silent Confront State Agricultural Protectionism, Rita-Marie Cain Reid, Amber L. Kingery

Journal of Food Law & Policy

Whistleblowers play an important role in filling gaps in government food safety systems. Unfortunately, several dominant food-producing states have pursued legislative initiatives that punish farm whistleblowers and silence investigative tactics. First, this research describes various state legislative initiatives that curb criticism of agriculture. The work analyzes the federal food safety system and how these protections limiting agricultural criticism contravene that food safety net. Further, the research analyzes the free speech concerns in the newest protectionist laws. The analysis recommends strategies and future research to improve agricluture safety and protect free speech in an evolving food safety landscape.

Challenges To The Independence Of Inspectors General In Robust Congressional Oversight, Fernando R. Laguarda

Articles in Law Reviews & Other Academic Journals

Congressional oversight of the Executive is among the chief responsibilities of the legislative branch. Inspectors General ("IGs") are among the most important tools available to Congress because they are "hard-wired" into the Executive itself. The value of IGs to Congress depends on their expertise in the workings of their host agencies and their "independence" from those agencies. But "independence" is not a statutorily defined term. As the agencies, and sometimes Congress itself, expand the role of IGs to engage in activities that parallel the regulatory programs of their host agencies, IG independence is compromised and the value IGs provide to …

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 …

Reflections On The Effects Of Federalism On Opioid Policy, Matthew B. Lawrence

Dickinson Law Review (2017-Present)

No abstract provided.

Legislation And Comment: The Making Of The § 199a Regulations, Shu-Yi Oei, Leigh Osofsky

Faculty Scholarship

In 2017, Congress passed major tax legislation at warp speed. After enactment, it fell to the Treasury Department to write regulations clarifying and implementing the new law. To assure democratic legitimacy in making regulations, administrative law provides that an agency must issue a notice of proposed rulemaking, followed by an opportunity for the public to comment (so-called “notice and comment”). But, after the 2017 tax overhaul, many sophisticated actors did not wait until the issuance of a notice of proposed rulemaking to comment, instead going to the Treasury Department immediately with comments designed to influence the regulations.

In this Article, …

Strategic Institutional Positioning: How We Have Come To Generate Environmental Law Without Congress, Donald J. Kochan

Donald J. Kochan

We’Ve Come A Long Way (Baby)! Or Have We? Evolving Intellectual Freedom Issues In The Us And Florida, L. Bryan Cooper, A.D. Beman-Cavallaro

Works of the FIU Libraries

This paper analyzes a shifting landscape of intellectual freedom (IF) in and outside Florida for children, adolescents, teens and adults. National ideals stand in tension with local and state developments, as new threats are visible in historical, legal, and technological context. Examples include doctrinal shifts, legislative bills, electronic surveillance and recent attempts to censor books, classroom texts, and reading lists.

Privacy rights for minors in Florida are increasingly unstable. New assertions of parental rights are part of a larger conservative animus. Proponents of IF can identify a lessening of ideals and standards that began after doctrinal fruition in the 1960s …

The Ecology Of Transparency Reloaded, Seth F. Kreimer

All Faculty Scholarship

As Justice Stewart famously observed, "[t]he Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act." What the Constitution's text omits, the last two generations have embedded in "small c" constitutional law and practice in the form of the Freedom of Information Act and a series of overlapping governance reforms including Inspectors General, disclosure of political contributions, the State Department’s “Dissent Channel,” the National Archives Information Security Oversight Office, and the publication rights guaranteed by New York Times v. United States. These institutions constitute an ecology of transparency.

The late Justice Scalia argued that the …

What Congress's Repeal Efforts Can Teach Us About Regulatory Reform, Cary Coglianese, Gabriel Scheffler

All Faculty Scholarship

Major legislative actions during the early part of the 115th Congress have undermined the central argument for regulatory reform measures such as the REINS Act, a bill that would require congressional approval of all new major regulations. Proponents of the REINS Act argue that it would make the federal regulatory system more democratic by shifting responsibility for regulatory decisions away from unelected bureaucrats and toward the people’s representatives in Congress. But separate legislative actions in the opening of the 115th Congress only call this argument into question. Congress’s most significant initiatives during this period — its derailed attempts to repeal …

Federal Agencies In The Legislative Process: Technical Assistance In Statutory Drafting, Christopher J. Walker

Christopher J. Walker

Federal agencies draft statutes. Indeed, they are often the chief architects of the statutes they administer. Even when federal agencies are not the primary substantive authors, they routinely respond to congressional requests to provide technical assistance in statutory drafting. Yet despite their substantial role in the legislative process, our understanding about how agencies interact with Congress is greatly undertheorized and perhaps even less understood empirically. This Report, which was commissioned by the Administrative Conference of the United States (ACUS), explores the latter role of federal agencies in the legislative process: the provision of technical assistance in statutory drafting.

To better …

Inside Regulatory Interpretation: A Research Note, Christopher J. Walker

Christopher J. Walker

In response to Kevin M. Stack, Interpreting Regulations, 111 Mich. L. Rev. 355 (2012).

In Interpreting Regulations, Professor Stack provides the first comprehensive approach to regulatory interpretation and situates this approach within the larger literature on legal interpretation. His theory of regulatory interpretation is simple yet pioneering: “a regulation should be read in light of its purposes, with the regulation’s text and the statement of basis and purpose constituting the privileged interpretive sources.” This Research Note takes a look inside regulatory interpretation to explore the empirical foundation for Professor Stack’s novel approach to regulatory interpretation.

In 2013, the author conducted …

Is The Chief Justice A Tax Lawyer?, Stephanie Hoffer, Christopher J. Walker

Christopher J. Walker

King v. Burwell is a crucial victory for the Obama Administration and for the future of the Affordable Care Act. It also has important implications for tax law and administration, as explored in the other terrific contributions to this Pepperdine Law Review Symposium. In this Essay, we turn to another tax-related feature of the Chief Justice’s opinion for the Court: It is hard to ignore the fingerprints of a tax lawyer throughout the opinion. This Essay focuses on two instances of a tax lawyer at work.

First, in the Chief’s approach to statutory interpretation one sees a tax lawyer as …

Take It To The Limit: The Illegal Regulation Prohibiting The Take Of Any Threatened Species Under The Endangered Species Act, Jonathan Wood

Jonathan Wood

The Endangered Species Act forbids the “take” – any activity that adversely affects – any member of an endangered species, but only endangered species. The statute also provides for the listing of threatened species, i.e. species that may become endangered, but protects them only by requiring agencies to consider the impacts of their projects on them. Shortly after the statute was adopted, the U.S. Fish and Wildlife Service and National Marine Fisheries Service reversed Congress’ policy choice by adopting a regulation that forbids the take of any threatened species. The regulation is not authorized by the Endangered Species Act, but …

A Program In Legislation, Dakota S. Rudesill, Daniel P. Tokaji, Christopher J. Walker

Christopher J. Walker

This Essay urges that Legislation be conceived of not just as a single course, but as a set of curricular and extracurricular offerings that collectively constitute an integrated program of instruction. The three of us teach at The Ohio State University’s Moritz College of Law, which may serve as a model of such a program. Since 1995, Moritz has required Legislation as a part of the first-year curriculum. We also have a variety of upper-level offerings and extracurricular activities that help students develop a practical understanding of the legislative process. This Essay makes the case for an integrated program of …

Public Actors In Private Markets: Toward A Developmental Finance State, Robert Hockett, Saule Omarova

Saule T. Omarova

The recent financial crisis brought into sharp relief fundamental questions about the social function and purpose of the financial system, including its relation to the “real” economy. This Article argues that, to answer these questions, we must recapture a distinctively American view of the proper relations among state, financial market, and development. This programmatic vision – captured in what we call a “developmental finance state” – is based on three key propositions: (1) that economic and social development is not an “end-state” but a continuing national policy priority; (2) that the modalities of finance are the most potent means of …

Proposed Implementing Procedures For Restore Act Awards Under Nepa, Sara Mammarella

Sara Mammarella

On April 20, 2010, what has been described as “the worst oil spill in U.S. history,” the BP Deepwater Horizon oil spill, occurred off the Louisiana coast, affecting a five-state area in the Gulf region (Florida, Alabama, Louisiana, Mississippi, and Texas), dumping an estimated 4.9 billion barrels of oil into the Gulf of Mexico. In response, Congress enacted the federal RESTORE Act to set up a mechanism for compensating the victims of the oils spill and to Repair the environmental harm caused by the oil spill.

This article will examine the effectiveness of the regulatory scheme in place that was …

Inside Agency Statutory Interpretation, Christopher J. Walker

Christopher J. Walker

The Constitution vests all legislative powers in Congress, yet Congress grants expansive lawmaking authority to federal agencies. As positive political theorists have long explored, Congress intends for federal agencies to faithfully exercise their delegated authority, but ensuring fidelity to congressional wishes is difficult due to asymmetries in information, expertise, and preferences that complicate congressional control and oversight. Indeed, this principal-agent problem has a democratic and constitutional dimension, as the legitimacy of administrative governance may well depend on whether the unelected bureaucracy is a faithful agent of Congress. Despite the predominance of lawmaking by regulation and the decades-long application of principal-agent …

Chevron For Juries, William Ortman

Law Faculty Research Publications

No abstract provided.

A Primer: Air And Water Environmental Quality Standards In The United State, Jason J. Czarnezki, Siu Tip Lam, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Federal Court Rulemaking And Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang

All Faculty Scholarship

The purpose of this article is to advance understanding of the role that federal court rulemaking has played in litigation reform. For that purpose, we created original data sets that include (1) information about every member of the Advisory Committee on Civil Rules who served from 1960 to 2013, and (2) every proposal for amending the Federal Rules that the Advisory Committee approved for consideration by the Standing Committee during the same period and that had implications for private enforcement. We show that, beginning in 1971, when a succession of Chief Justices appointed by Republican Presidents have chosen committee members, …

Minding The Gaps: Fairness, Welfare, And The Constitutive Structure Of Distributive Assessment, Robert C. Hockett

Robert C. Hockett

Despite over a century’s disputation and attendant opportunity for clarification, the field of inquiry now loosely labeled “welfare economics” (WE) remains surprisingly prone to foundational confusions. The same holds of work done by many practitioners of WE’s influential offshoot, normative “law and economics” (LE). A conspicuous contemporary case of confusion turns up in recent discussion concerning “fairness versus welfare.” The very naming of this putative dispute signals a crude category error. “Welfare” denotes a proposed object of distribution. “Fairness” describes and appropriate pattern of distribution. Welfare itself is distributed fairly or unfairly. “Fairness versus welfare” is analytically on all fours …

Passing The Torch But Sailing Too Close To The Wind: Congress’S Role In Authorizing Administrative Branches To Promulgate Regulations That Contemplate Criminal Sanctions, Reem Sadik

Legislation and Policy Brief

The Supreme Court has stated that Congress must simply “lay down by legislative act an intelligible principle” to which the agency must conform. If this is done, a court will find the delegation of broad authority to the agency to be constitutional. There is, however, an open issue regarding whether the “intelligible principle” standard applies to delegations of authority that allow for the promulgation of both civil and criminal penalties. In Touby v. United States, the Supreme Court was asked whether “something more than an ‘intelligible principle’ is required” when Congress authorizes an agency to issue regulations that contemplate …

Chevron Inside The Regulatory State: An Empirical Assessment, Christopher J. Walker

Christopher J. Walker

For three decades, scholars (as well as courts and litigants) have written thousands of articles (and opinions and briefs) concerning the impact of the Chevron deference regime on judicial review of agency statutory interpretation. Little attention, however, has been paid to how Chevron and its progeny have actually shaped statutory interpretation inside the regulatory state. As part of the Fordham Law Review symposium Chevron at 30: Looking Back and Looking Forward, this Essay presents the findings of the first comprehensive empirical investigation into the effect of Chevron and related doctrines on how federal agencies interpret statutes they administer.

The Essay …