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Full-Text Articles in Law
The Clean Water Rule: What It Is And Why It Needs To Go, Charles C. Davis, Iii
The Clean Water Rule: What It Is And Why It Needs To Go, Charles C. Davis, Iii
Journal of Legislation
No abstract provided.
Arbitrariness Review Made Reasonable: Structural And Conceptual Reform Of The "Hard Look", Sidney A. Shapiro, Richard W. Murphy
Arbitrariness Review Made Reasonable: Structural And Conceptual Reform Of The "Hard Look", Sidney A. Shapiro, Richard W. Murphy
Notre Dame Law Review
As Representative John Dingell remarked in the best sentence ever said on the power of procedure over substance, “I’ll let you write the substance . . . you let me write the procedure, and I’ll screw you every time.”1 Accordingly, designing procedures for legislative rulemaking, a dominant feature of modern governance, has spawned one of the most contentious debates in all of administrative law. Compounding the stakes, over the last fifty years, the courts, with help from Congress and presidents, have relentlessly made rulemaking procedures more burdensome, impeding efforts to preserve the environment, protect workers, and forestall financial collapse, among …
On Viewing The Courts As Junior Partners Of Congress In Statutory Interpretation Cases: An Essay Celebrating The Scholarship Of Daniel J. Meltzer, Richard H. Fallon Jr
On Viewing The Courts As Junior Partners Of Congress In Statutory Interpretation Cases: An Essay Celebrating The Scholarship Of Daniel J. Meltzer, Richard H. Fallon Jr
Notre Dame Law Review
In this Essay, written in tribute to Dan Meltzer, I shall attempt to explicate his views regarding statutory interpretation in general, thematic terms. In doing so, I shall register my agreement with virtually all of Dan’s conclusions and frequently echo his practically minded arguments in support of them. But I shall also advance arguments—with which I cannot be entirely sure he would have agreed—that seek to show that his position reflected theoretical insights about how language works, not only in law, but also more generally in life. By seeking simultaneously to defend Dan’s views and to build on them, this …
Neoclassical Administrative Common Law, Jeffrey A. Pojanowski
Neoclassical Administrative Common Law, Jeffrey A. Pojanowski
Journal Articles
This essay reviews John Dickinson’s neglected classic, Administrative Justice and the Supremacy of Law in the United States. Writing on the cusp of the New Deal, Dickinson helped establish a mainstream, moderate stance about the shape and legitimacy of the administrative state. A closer reading of this work, which is rich in jurisprudential reflection and historical learning, offers a better idea about the structure, promise, and limits of the doctrinal world he helped create.
Many Key Issues Still Left Unaddressed In The Securities And Exchange Commission's Attempt To Modernize Its Rules Of Practice, Joseph Quincy Patterson
Many Key Issues Still Left Unaddressed In The Securities And Exchange Commission's Attempt To Modernize Its Rules Of Practice, Joseph Quincy Patterson
Notre Dame Law Review
This Note analyzes and explains the current issues and criticism regarding the SEC’s use of ALJs. In particular, this Note recommends that the SEC ratify its ALJs in accordance with constitutional requirements, create a rigid formula for its forum selection, and amend its Rules of Practice to align more closely to the procedural due process rights in federal district courts. As many of these topics are currently being discussed in federal courts of appeals and within the SEC—through its proposed amendments to the Rules of Practice—this Note intends to add to the discussion on a topic with very little scholarly …
The Curious Case Of Seminole Rock: Revisiting Judicial Deference To Agency Interpretations Of Their Ambiguous Regulations, Peter M. Torstensen Jr.
The Curious Case Of Seminole Rock: Revisiting Judicial Deference To Agency Interpretations Of Their Ambiguous Regulations, Peter M. Torstensen Jr.
Notre Dame Law Review
Seminole Rock deference warrants reconsideration as it is based on questionable constitutional and pragmatic foundations. This Note argues that courts should provide a meaningful check on agency interpretations by engaging in de novo review of agency resolutions of regulatory ambiguities. Part I explores the development of the Seminole Rock doctrine, from its questionable doctrinal foundations and rapid expansion to the developing concerns regarding its continued validity. In addition, Part I explains the variety of forms that agency interpretations can take, including legal briefs, amicus briefs, and internal memoranda, and discusses their impact in expanding the scope of Seminole Rock deference. …
Without Deference, Jeffrey Pojanowski
Without Deference, Jeffrey Pojanowski
Journal Articles
This essay explores what judicial review of agency interpretations of law would look like if the Supreme Court abandoned Chevron deference in favor de novo review. It concludes that such an alternative regime has appealing features, but may not bring as much immediate, practical change as many critiques or defenses of Chevron presume. The largest change would come from how we think about law and policy in the administrative state. The theoretical scaffolding that would uphold a regime of non-deferential review is far more classical in cast than the moderate legal realism underwriting Chevron. The more traditional character of this …
Faithful Execution And Enforcement Discretion, Patricia L. Bellia
Faithful Execution And Enforcement Discretion, Patricia L. Bellia
Journal Articles
In November 2014, President Obama announced a significant turn in U.S. immigration policy: that immigration officials would decline to pursue deportation of unlawful immigrants who were parents of U.S. citizens or lawful permanent residents and who met certain other criteria. Although the proposed program, known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), never took effect, it provides a fascinating lens for exploring what limits, if any, the Constitution imposes on the executive branch’s decision not to enforce the law — on its exercise of administrative “enforcement discretion.”
Article II of Constitution obligates the President to …