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Articles 1 - 16 of 16
Full-Text Articles in Public Law and Legal Theory
Getting Beyond Cynicism: New Theories Of The Regulatory State. Foreword: Post-Public Choice?, Cynthia R. Farina, Jeffrey J. Rachlinski
Getting Beyond Cynicism: New Theories Of The Regulatory State. Foreword: Post-Public Choice?, Cynthia R. Farina, Jeffrey J. Rachlinski
Jeffrey J. Rachlinski
No abstract provided.
Minding The Gaps: Fairness, Welfare, And The Constitutive Structure Of Distributive Assessment, Robert C. Hockett
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 …
How Separation Of Powers Protects Individual Liberties, Cynthia R. Farina
How Separation Of Powers Protects Individual Liberties, Cynthia R. Farina
Cynthia R. Farina
No abstract provided.
On Misusing “Revolution” And “Reform”: Procedural Due Process And The New Welfare Act, Cynthia R. Farina
On Misusing “Revolution” And “Reform”: Procedural Due Process And The New Welfare Act, Cynthia R. Farina
Cynthia R. Farina
After a long dry spell, the debate over procedural due process flows again. The Supreme Court has announced the first major doctrinal revision in years; Congress has gutted the regulatory program that underlay Goldberg v. Kelly; and Richard Pierce has published an essay in the Columbia Law Review prophesying a radical de-evolution of due process doctrine that will bring constitutional law into line with the profound political and social revolution evidenced by welfare “reform.” My essay takes Professor Pierce's recent work as a springboard for reengaging the debate about the direction of procedural due process. I begin by recapitulating his …
Judicial Review Of Petitions, Cynthia R. Farina
Judicial Review Of Petitions, Cynthia R. Farina
Cynthia R. Farina
Senate bill 343, at least, is careful to say that upon denial of a petition, the denial should be deemed "agency action" for purposes of judicial review. Only at one point in the legislation does the statute speak explicitly to the standard, and that's with respect to the petition for putting an existing major rule on the schedule for analysis. The bill says that the agency's action shall be overturned by the court only on the determination that the action was arbitrary and capricious or an abuse of discretion, which is what we assumed the standard would have been for …
Statutory Interpretation And The Balance Of Power In The Administrative State, Cynthia Farina
Statutory Interpretation And The Balance Of Power In The Administrative State, Cynthia Farina
Cynthia R. Farina
Blackletter Statement Of Federal Administrative Law: Standing, Cynthia R. Farina
Blackletter Statement Of Federal Administrative Law: Standing, Cynthia R. Farina
Cynthia R. Farina
No abstract provided.
Faith, Hope, And Rationality Or Public Choice And The Perils Of Occam's Razor, Cynthia R. Farina
Faith, Hope, And Rationality Or Public Choice And The Perils Of Occam's Razor, Cynthia R. Farina
Cynthia R. Farina
No abstract provided.
Deconstructing Nondelegation, Cynthia R. Farina
Deconstructing Nondelegation, Cynthia R. Farina
Cynthia R. Farina
This Essay (part of the panel on "The Administrative State and the Constitution" at the 2009 Federalist Society Student Symposium) suggests that the persistence of debates over delegation to agencies cannot persuasively be explained as a determination finally to get constitutional law “right,” for nondelegation doctrine—at least as traditionally stated—does not rest on a particularly sound legal foundation. Rather, these debates continue because nondelegation provides a vehicle for pursuing a number of different concerns about the modern regulatory state. Whether or not one shares these concerns, they are not trivial, and we should voice and engage them directly rather than …
Keeping Faith: Government Ethics & Government Ethics Regulation, Cynthia R. Farina
Keeping Faith: Government Ethics & Government Ethics Regulation, Cynthia R. Farina
Cynthia R. Farina
No abstract provided.
The "Chief Executive" And The Quiet Constitutional Revolution, Cynthia R. Farina
The "Chief Executive" And The Quiet Constitutional Revolution, Cynthia R. Farina
Cynthia R. Farina
No abstract provided.
Getting Beyond Cynicism: New Theories Of The Regulatory State. Foreword: Post-Public Choice?, Cynthia R. Farina, Jeffrey J. Rachlinski
Getting Beyond Cynicism: New Theories Of The Regulatory State. Foreword: Post-Public Choice?, Cynthia R. Farina, Jeffrey J. Rachlinski
Cynthia R. Farina
No abstract provided.
Commentary On Presentations Of Prof. Roberta S. Karmel & Prof. James A. Fanto, Gregory S. Alexander
Commentary On Presentations Of Prof. Roberta S. Karmel & Prof. James A. Fanto, Gregory S. Alexander
Gregory S Alexander
No abstract provided.
Preventative Legislation Ensures Intended Parents Of Gestational Surrogacy Benefits Under The California Family Rights Act, Jennifer Jackson
Preventative Legislation Ensures Intended Parents Of Gestational Surrogacy Benefits Under The California Family Rights Act, Jennifer Jackson
Jennifer Jackson
We live in a rapidly evolving technological age, which now allows parents to enter surrogacy contracts. In such a world, the law often lags in catching up to technology and the ramifications that may ensue. This paper focuses on the California Family Rights Act (CFRA) and the consequences it has on surrogacy agreements and the rights intended parents. While the CFRA includes broad language as to the definition of a “child,” case law shows that surrogate born children may be unintentionally excluded. As a result, this paper analyzes the arguments both for and against revision to the CFRA and concludes …
Response To Questions In The First White Paper, 'Modernizing The Communications Act', Randolph J. May, Richard A. Epstein, Justin (Gus) Hurwitz, Daniel Lyons, James B. Speeta, Christopher S. Yoo
Response To Questions In The First White Paper, 'Modernizing The Communications Act', Randolph J. May, Richard A. Epstein, Justin (Gus) Hurwitz, Daniel Lyons, James B. Speeta, Christopher S. Yoo
Daniel Lyons
The House Energy and Commerce Committee has begun a process to review and update the Communications Act of 1934, last revised in any material way in 1996. As the Committee begins the review process, this paper responds to questions posed by the Committee that all relate, in fundamental ways, to the question: "What should a modern Communications Act look like?" The Response advocates a "clean slate" approach under which the regulatory silos that characterize the current statute would be eliminated, along with almost all of the ubiquitous 'public interest' delegation of authority found throughout the Communications Act. The replacement regime …
The Eye Of The Beholder: Participation And Impact In Telecommunications (De)Regulation, Dorit Reiss
The Eye Of The Beholder: Participation And Impact In Telecommunications (De)Regulation, Dorit Reiss
Dorit R. Reiss
The California Public Utilities Commission addressed both pricing deregulation and universal service in telecommunications during the last decade. Both decisions had a similar cast of characters, and similarly elaborate processes. In relation to price deregulation, the utilities positions were accepted on every issue addressed; in relation to universal service, consumer organizations’ positions were accepted in about 60% of the issues. This article tells the story of how those decisions were made, and examines the reasons for the difference in impact. The article examines and reject an explanation of capture; accepts in part a focus on the influence of the commissioner …