Open Access. Powered by Scholars. Published by Universities.®
- Discipline
- Keyword
-
- Rule of law (2)
- Administrative law (1)
- Admissible evidence (1)
- Adversary system (1)
- Agencies (1)
-
- Combatants and noncombatants (1)
- Detention of persons (1)
- Habeas corpus (1)
- Judicial ethics (1)
- Jurisprudence (1)
- Lawmaking (1)
- Legitimacy (1)
- Nondelegation doctrine (1)
- Practice of dissent (1)
- Public health (1)
- Religion and law - Free Exercise Clause - constitutional law (1)
- Representation (1)
- Rule of law; human behavior; fiat; criminal intent; criminal law theory; regulation; structure; tax evasion (1)
- Rulemaking (1)
- Science and law (1)
- The rule of law (1)
Articles 1 - 8 of 8
Full-Text Articles in Rule of Law
Representative Rulemaking, Jim Rossi, Kevin Stack
Representative Rulemaking, Jim Rossi, Kevin Stack
Vanderbilt Law School Faculty Publications
The dominant form of lawmaking in the United States today-—notice-and-comment rulemaking—-is not a representative process. Notice-and-comment simply invites public participation, leaving the overall balance of engagement with the proposed regulations to the choices of individuals, public interest groups, trade groups, and regulated businesses. The result is a predictable one: In most rulemakings, industry voices dominate, and in many rulemakings, there is no participation by citizens or public interest groups. This representation deficit must be taken seriously. The basic rationales for a notice-and-comment rulemaking process depend upon some level of representation for those affected. The goal of providing the agency with …
An Administrative Jurisprudence: The Rule Of Law In The Administrative State, Kevin M. Stack
An Administrative Jurisprudence: The Rule Of Law In The Administrative State, Kevin M. Stack
Vanderbilt Law School Faculty Publications
This Essay offers a specification of the rule of law's demands of administrative law and government inspired by Professor Peter L. Strauss's scholarship. It identifies five principles'authorization, notice, justification, coherence, and procedural fairness which provide a framework for an account of the rule of law's demands of administrative governance. Together these principles have intriguing results for the evaluation of administrative law. On the one hand, they reveal rule-of-law foundations for some contested positions, such as a restrictive view of the President's power to direct subordinate officials and giving weight to an agency's determination of the scope of its own authority. …
Right Problem; Wrong Solution, Nancy J. King, Joseph L. Hoffmann
Right Problem; Wrong Solution, Nancy J. King, Joseph L. Hoffmann
Vanderbilt Law School Faculty Publications
In Boumediene v. Bush, the Supreme Court, in a powerful and eloquent majority opinion by Justice Anthony Kennedy, vindicated the right of a non-U.S. citizen, held in custody at a military base outside the United States, to use the writ to challenge the legality of his incarceration.1 Boumediene was a triumph of both the individual petitioner and the judiciary over the powers of the executive, and represents a high-water mark in the long and celebrated history of habeas.
Structural Laws And The Puzzle Of Regulating Behavior, Edward K. Cheng
Structural Laws And The Puzzle Of Regulating Behavior, Edward K. Cheng
Vanderbilt Law School Faculty Publications
This Article offers a new way of thinking about over criminalization. It argues that in regulating behavior, legislatures have relied excessively on statutory prohibitions and ex post enforcement by police and prosecutors. Regulation by "fiat" alone is often inadequate; proscriptive laws need accompanying structural ones that can cabin behavior and help alter existing social norms. After developing a theoretical framework for distinguishing "fiat" from "structure," the Article tackles the puzzling question why legislatures persist in focusing almost exclusively on fiat-based measures despite the availability of more effective structural ones. The answer turns out to be surprisingly complex, ranging from institutional …
Should Judges Do Independent Research On Scientific Issues?, Edward K. Cheng
Should Judges Do Independent Research On Scientific Issues?, Edward K. Cheng
Vanderbilt Law School Faculty Publications
Judges are deeply divided about the issue of independent research, which goes to the heart of their roles and responsibilities in the legal system. To many judges, doing independent research when confronted with new and unfamiliar material seems the most responsible and natural thing to do. To others, it represents the worst kind of overreaching and a threat to long-cherished adversarial values. But whether one supports the practice or not, one thing is clear. The issue of independent research deserves far greater attention than it has so far from jurists, academics, and practitioners alike.
Accommodation And Equal Liberty, Lisa Schultz Bressman
Accommodation And Equal Liberty, Lisa Schultz Bressman
Vanderbilt Law School Faculty Publications
How should legislatures respond to requests from religious individuals or institutions for exemptions to generally applicable laws? In Employment Division v. Smith, the Supreme Court held that the Free Exercise Clause does not require legislatures (federal or state) to honor such requests. The question remains whether they should do so on a voluntary basis. This is the problem of permissive accommodation-that is, accommodation of religious liberty as a matter of political discretion rather than constitutional compulsion. Put in the terms of this Symposium, it is the problem of accommodation in the public square. It is not immediately apparent why permissive …
The False Promise Of The "New" Nondelegation Doctrine, Jim Rossi, Mark Seidenfeld
The False Promise Of The "New" Nondelegation Doctrine, Jim Rossi, Mark Seidenfeld
Vanderbilt Law School Faculty Publications
This essay responds to claims that the "new" nondelegation doctrine, applied by D.C. Circuit Judge Stephen Williams in American Trucking Association, Inc. v. EPA, 175 F.3d 1027 (D.C. Cir. 1999), advances the rule of law. The Supreme Court has generally favored ex post over ex ante mechanisms for control of administrative action. Currently, for instance, courts apply arbitrary and capricious review, as a way to control agency decision making ex post. But the rule of law benefits of the "new" nondelegation doctrine are no greater than those delivered by the current means of ex post controls. The rule of law …
The Practice Of Dissent In The Supreme Court, Kevin M. Stack
The Practice Of Dissent In The Supreme Court, Kevin M. Stack
Vanderbilt Law School Faculty Publications
The United States Supreme Court's connection to the ideal of the rule of law is often taken to be the principal basis of the Court's political legitimacy. In the Supreme Court's practices, however, the ideal of the rule of law and the Court's political legitimacy do not always coincide. This Note argues that the ideal of the rule of law and the Court's legitimacy part company with respect to the Court's practice of dissent. Specifically, this Note aims to demonstrate that the practice of dissent-the tradition of Justices publishing their differences with the judgment or the reasoning of their peers--cannot …