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Full-Text Articles in Law
Deference Lotteries, Jud Mathews
Deference Lotteries, Jud Mathews
Jud Mathews
When should courts defer to agency interpretations of statutes, and what measure of deference should agencies receive? Administrative law recognizes two main deference doctrines — the generous Chevron standard and the stingier Skidmore standard — but Supreme Court case law has not offered a bright-line rule for when each standard applies.Many observers have concluded that courts’ deference practice is an unpredictable muddle. This Article argues that it is really a lottery, in the sense the term is used in expected utility theory. Agencies cannot predict which deference standard a court will apply or with what effect, but they have a …
Strategic Delegation, Discretion, And Deference: Explaining The Comparative Law Of Administrative Review, Jud Mathews, Nuno M. Garoupa
Strategic Delegation, Discretion, And Deference: Explaining The Comparative Law Of Administrative Review, Jud Mathews, Nuno M. Garoupa
Jud Mathews
This paper offers a theory to explain cross-national variation in administrative law doctrines and practices. Administrative law regimes vary along three primary dimensions: the scope of delegation to agencies, agencies’ exercise of discretion, and judicial practices of deference to agencies. Working with a principal-agent framework, we show how cross-national differences in institutions’ capacities and the environments they face encourage the adoption of divergent strategies that lead to a variety of distinct, stable, equilibrium outcomes. We apply our model to explain patterns of administrative law in the United States, Germany, France, and Commonwealth jurisdictions.
Millennial Pivot: Sustainability-Purposed Performance Zoning Guidelines In Urban Commercial Development, Michael Widener
Millennial Pivot: Sustainability-Purposed Performance Zoning Guidelines In Urban Commercial Development, Michael Widener
Michael N Widener
This paper argues that economic competitiveness requires cities and towns to reimagine their zoning regulations, leveraging technology advances to address challenges revealed by demands for sustainability in building urban projects. The optimal means to accomplish this is to use performance zoning, a method encouraging creative solutions to problems caused by increasing development densities. Performance zoning consists of a series of standards addressing specific sub-optimal neighborhood or community impacts of commercial development; these standards can be negative or positive expressions of municipal goals for sustainability and environmental justice. Pivoting to performance zoning is desirable because the development community has a firmer …
Public Actors In Private Markets: Toward A Developmental Finance State, Robert Hockett, Saule Omarova
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 …
Jobsohio: Don’T Let Progress Stand In The Way Of Progress, Patrick Martin
Jobsohio: Don’T Let Progress Stand In The Way Of Progress, Patrick Martin
Patrick Martin
In February of 2011, Governor of Ohio John Kasich signed legislation that created JobsOhio. This has been a controversial program based on the method that it was implemented and some of the rules that govern the program.it. In November of 2013, ProgressOhio, a citizens advocacy group, challenged the constitutionality of the program but the suit was dismissed by the Ohio Supreme Court for lack of standing by the plaintiffs. There has been no court decision that adjudicates the program on the merits, only on the jurisdictional standing of a party to a suit that challenged the legislation. To date, only …
Overestimating Wireless Demand: Policy And Investment Implications Of Upward Bias In Mobile Data Forecasts, J. Armand Musey Cfa, Aalok Mehta
Overestimating Wireless Demand: Policy And Investment Implications Of Upward Bias In Mobile Data Forecasts, J. Armand Musey Cfa, Aalok Mehta
J. Armand Musey, CFA
In this paper, we present evidence of persistent errors in projections of wireless demand and examine the implications for wireless policy and investment. Mobile demand projections are relied upon in academic and government research and used for critically important telecommunications policy decisions, both domestically and internationally. The Federal Communications Commission, for example, used such projections to estimate a 275 MHz spectrum shortage by 2014 and featured such estimates in the U.S. National Broadband Plan as evidence for allocating additional spectrum for cellular services. The International Telecommunications Union Radiocommunication Sector endorsed in 2006 an estimate of a 1,280- to 1,720-MHz spectrum …
Fail To Comment At Your Own Risk: Does Issue Exhaustion Have A Place In Judicial Review Of Rules?, Jeffrey Lubbers
Fail To Comment At Your Own Risk: Does Issue Exhaustion Have A Place In Judicial Review Of Rules?, Jeffrey Lubbers
Jeffrey Lubbers
Right-Sizing Spectrum Auction Licenses: The Case For Smaller Geographic License Areas In The Tv Broadcast Incentive Auction, William H. Lehr Phd, J. Armand Musey Cfa
Right-Sizing Spectrum Auction Licenses: The Case For Smaller Geographic License Areas In The Tv Broadcast Incentive Auction, William H. Lehr Phd, J. Armand Musey Cfa
J. Armand Musey, CFA
The wireless sector is a key contributor to economic activity and growth. Over the next several years, wireless service providers are expected to invest $25 to $53 billion upgrading and expanding their networks to deploy 4G mobile broadband across the nation. All told, wireless broadband investment and the services and innovation supported by such investment are expected to add between $259 and $355 billion to US GDP each year through 2017. The Federal Communications Commission ("Commission" or "FCC") is currently designing the largest ever auction of terrestrial wireless spectrum, currently planned for late 2014 (the "Incentive Auction"). The purpose is …
Reconciling With The Past: John Willis And The Question Of Judicial Review In Interwar And Postwar England, Peter L. Lindseth
Reconciling With The Past: John Willis And The Question Of Judicial Review In Interwar And Postwar England, Peter L. Lindseth
Peter L. Lindseth
This contribution was prepared for a conference at the University of Toronto Faculty of Law in honor of John Willis, the late Anglo-Canadian administrative law theorist who died in 1997. It will appear in a forthcoming issue of the University of Toronto Law Journal. Throughout his career, John Willis puzzled over the way in which both popular and elite opinion in England (not to mention throughout the Commonwealth and in the United States) persistently, and in his view uncritically, equated the "Rule of Law" in important respects with judicial review in the administrative state. Willis believed this attachment to judicial …
A Public Interest Perspective On Local Number Portability: Consumers, Competition And Other Risks, J. Armand Musey Cfa, Michael Calabrese
A Public Interest Perspective On Local Number Portability: Consumers, Competition And Other Risks, J. Armand Musey Cfa, Michael Calabrese
J. Armand Musey, CFA
Before the Commission finalizes the selection of a vendor for the Local Number Portability Administrator (“LNPA”) contract, the Commission should take this opportunity to reconsider the future role of the number portability system and of the LNPA in relation to market competition, public safety and the IP technology transition. The functionality of today’s LNP platform extends well beyond providing routine number porting services between telecom carriers. It has evolved into a significant component in the greater ecosystem of telecommunications competition, public safety and technological evolution. As a result, any changes to the LNPA now will have broader and evolving public …
Agencies, Courts, And The Limits Of Balancing, Daniel A. Farber
Agencies, Courts, And The Limits Of Balancing, Daniel A. Farber
Daniel A Farber
Courts have struggled in several very different contexts to determine when a decision maker can consider costs that are not explicitly addressed in the governing statute. This issue arises when agencies decide whether to conduct a rulemaking or what rule to issue after a rulemaking. It also arises when courts decide whether to enjoin a violation of a statute or whether to vacate an administrative rule rather than simply remanding. Judicial opinions point in different directions and often ignore each other.
This Article contends that the same principles should govern judicial and agency discretion to consider costs across all these …
Searching For Proportionality In U.S. Administrative Law, Jud Mathews
Searching For Proportionality In U.S. Administrative Law, Jud Mathews
Jud Mathews
Patent Conflicts, Tejas N. Narechania
Patent Conflicts, Tejas N. Narechania
Tejas N. Narechania
Law Abiding Drones, Henry H. Perritt Jr., Eliot O. Sprague
Law Abiding Drones, Henry H. Perritt Jr., Eliot O. Sprague
Henry H. Perritt, Jr.