Law Commons^™

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 …

Race And Regulation Podcast Episode 10 - Administrative Law's Racial Blind Spot, Daniel E. Ho

Penn Program on Regulation Podcasts

Administrative law has a racial blind spot, argues Daniel E. Ho of Stanford Law School. Judges have long set aside agency actions when government officials have failed to consider the differential impacts of their policy decisions on subgroups of business owners, park visitors, and even animals—but not when they have failed to consider differential impacts based on race or ethnicity. In this episode, Professor Ho traces how civil rights and administrative law have diverged over the past fifty years, as U.S. court decisions have removed issues of racial discrimination from administrative law’s purview. He concludes by discussing reforms that could …

Judges, Judging And Otherwise: Do We Ask Too Much Of State Court Judges - Or Not Enough?, Michael C. Pollack

Faculty Articles

Ask the average person to imagine what a judge does, and the answer will most likely be something right out of a courtroom from Law & Order — or Legally Blonde, Just Mercy, My Cousin Vinny, Kramer vs. Kramer, or any of the myriad law-themed movies and television shows. A judge is faced with a dispute brought by some parties and their lawyers and is charged with resolving it, whether it be a breach of contract, a tort action, a competing claim over property, a disagreement about the meaning of a statute, some accusation that someone …

Rwu Law News: The Newsletter Of Roger Williams University School Of Law 04-2021, Michael M. Bowden, Barry Bridges, Political Roundtable

Life of the Law School (1993- )

No abstract provided.

Judges And The Deregulation Of The Lawyer's Monopoly, Jessica K. Steinberg, Anna E. Carpenter, Colleen F. Shanahan, Alyx Mark

Faculty Scholarship

In a revolutionary moment for the legal profession, the deregulation of legal services is taking hold in many parts of the country. Utah and Arizona, for instance, are experimenting with new regulations that permit nonlawyer advocates to play an active role in assisting citizens who may not otherwise have access to legal services. In addition, amendments to the Rules of Professional Conduct in both states, as well as those being contemplated in California, now allow nonlawyers to have a partnership stake in law firms, which may dramatically change the way capital for the delivery of legal services is raised as …

A Tribute To Judge Patricia Wald, Jeffrey Lubbers

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Sg's Brief In Lucia Could Portend The End Of The Alj Program As We Have Known It, Jeffrey Lubbers

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Newsroom: Op-Ed: Yelnosky On Judicial Selection 6-17-2016, Michael J. Yelnosky, Providence Journal, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Chevron Bias, Philip A. Hamburger

Faculty Scholarship

This Article takes a fresh approach to Chevron deference. Chevron requires judges to defer to agency interpretations of statutes and justifies this on a theory of statutory authorization for agencies. This Article, however, points to a pair of constitutional questions about the role of judges – questions that have not yet been adequately asked, let alone answered.

One question concerns independent judgment. Judges have a constitutional office or duty of independent judgment, under which they must exercise their own independent judgment about what the law is. Accordingly, when they defer to agency interpretations of the law, it must be asked …

A Framework For Judicial Review And Remand In Immigration Law, Collin D. Schueler

Law Faculty Scholarly Articles

This Article breaks new ground at the intersection of administrative law and immigration law. One of the more important questions in both fields is whether a reviewing court should resolve a legal issue in the first instance or remand that issue to the agency. This Article advances the novel claim that courts should use the modem framework for judicial review of agency statutory interpretations to inform their resolution of this remand question. Then, using this framework, the Article identifies when remand is and is not appropriate in immigration cases. This critical analysis, which urges a departure from conventional academic wisdom, …

Acus 2.0 And Its Historical Antecedents, Jeffrey Lubbers

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Paul Verkuil's Projects For The Administrative Conference Of The U.S. 1974-1992, Jeffrey Lubbers

Articles in Law Reviews & Other Academic Journals

I am really happy to be part of this tribute to Paul Verkuil. It may surprise those in the audience to learn that I am bringing some needed diversity to today's proceedings - I am the only other Dutch American on the program! But perhaps my twenty years at the "Administrative Conference" also qualifies me to say a few words about how thrilled I am that we have it back - "ACUS 2.0" we can call it, complete with a website this time- and that Paul is at its helm. And I want to thank Paul for bringing me back …

The Merits Of ‘Merits’ Review: A Comparative Look At The Australian Administrative Appeals Tribunal, Jeffrey Lubbers, Michael Asimow

Articles in Law Reviews & Other Academic Journals

This article compares several systems of administrative adjudication. In the U.S., adjudication is typically performed by the same agency that makes and enforces the rules. However, in Australia, almost all administrative adjudication is performed by the Administrative Appeals Tribunal (AAT), a non-specialized adjudicating agency, and several other specialized tribunals that are independent of the enforcing agency. These tribunals (which evolved out of concerns about separation of powers) have achieved great legitimacy. In the U.K., recent legislation (the Tribunals, Courts and Enforcement Act) merged numerous specialized tribunals into a single first-tier tribunal with much stronger guarantees of independence than previously existed. …

The "Hidden Judiciary": An Empirical Examination Of Executive Branch Justice, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich

Vanderbilt Law School Faculty Publications

Administrative law judges attract little scholarly attention, yet they decide a large fraction of all civil disputes. In this Article, we demonstrate that these executive branch judges, like their counterparts in the judicial branch, tend to make predominantly intuitive rather than predominantly deliberative decisions. This finding sheds new light on executive branch justice by suggesting that judicial intuition, not judicial independence, is the most significant challenge facing these important judicial officers.

Temporary Accidents?, Elizabeth Magill

All Faculty Scholarship

Review of Steven P. Croley, Regulation and Public Interests: The Possibility of Good Regulatory Government (Princeton: Princeton University Press, 2007).

The Judge As A Fly On The Wall: Interpretive Lessons From The Positive Political Theory Of Legislation, Daniel B. Rodriguez, Cheryl Boudreau, Arthur Lupia, Mathew Mccubbins

University of San Diego Public Law and Legal Theory Research Paper Series

In the modern debate over statutory interpretation, scholars frequently talk past one another, arguing for one or another interpretive approach on the basis of competing, and frequently undertheorized, conceptions of legislative supremacy and political theory. For example, so-called new textualists insist that the plain meaning approach is compelled by the U.S. Constitution and rule of law values; by contrast, theorists counseling a more dynamic approach often reject the premise of legislative supremacy that is supposed by the textualist view. A key element missing, therefore, from the modern statutory interpretation debate is a conspicuous articulation of the positive and empirical premises …

A Call For Change: Improving Judicial Selection Methods, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

Empirical data show that, despite the significant electoral success of state court judges, elections still impact judicial decision making. Using the State of Wisconsin as an example, this Essay suggests that Wisconsin and other state legislatures, with the support of bar associations and academics, should revisit the historical underpinnings of judicial elections and consider both whether electing judges conforms with the historical goals of having an elected judiciary and whether the available empirical data support the belief that elected judges can be systematically consistent and independent in the decision making process.

Of Gift Horses And Great Expectations: Remands Without Vacatur In Administrative Law, Daniel B. Rodriguez

University of San Diego Public Law and Legal Theory Research Paper Series

Administrative law has been shaped over the years by fundamentally practical considerations. Displacement of agency decisions by courts was rare; yet, the omnipresent threat of substantial judicial intrusion surely affected agency decisions. While the Administrative Procedure Act, adopted nearly 60 years ago, provides a comprehensive template for federal agency decisionmaking, what is striking about the APA is how much is left out and how much is left to the discretion of both agencies in implementing regulatory decisions and to the courts in superintending agency action. Given this history, it is hardly surprising that many doctrinal techniques represent the pragmatic effort …

Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman

Rutgers Law School (Newark) Faculty Papers

In this Article, Professor Sharfman addresses the problem of "discretionary valuation": that courts resolve valuation disputes arbitrarily and unpredictably, thus harming litigants and society. As a solution, he proposes the enactment of "valuation averaging," a new procedure for resolving valuation disputes modeled on the algorithmic valuation processes often agreed to by sophisticated private firms in advance of any dispute. He argues that by replacing the discretion of judges and juries with a mechanical valuation process, valuation averaging would cause litigants to introduce more plausible and conciliatory valuations into evidence and thereby reduce the cost of valuation litigation and increase the …

Voting And Electoral Politics In The Wisconsin Supreme Court, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

This Article examines criminal cases decided by the Wisconsin Supreme Court over a fifteen-year period in an effort to discern whether judicial elections undercut judicial independence by affecting the ways justices vote. Wisconsin was chosen for this study because the state's mix of appointed and elected judges allows a researcher to control for different judicial selection systems. Specifically, this Article questions whether voting patterns may be affected by a justice's proximity to judicial elections, election margins, and whether a justice was appointed or elected in the initial term, since the governor may appoint a justice to fill a vacancy on …

Alternative Approaches To Judicial Review Of Social Security Disability Cases, Jeffrey Lubbers

Articles in Law Reviews & Other Academic Journals

For many years, Congress has had various bills before it to create alternatives to the current practice of Article III review (in district courts) of Social Security disability cases. This report, prepared initially for the Social Security Advisory Board, reviews the various legislative proposals and statutory alternatives such as the Veterans Administration administrative/judicial review structure. It concludes that, on balance, review before an Article I court (with Court of Appeals review limited to purely legal issues) has numerous advantages over the present system. These advantages include improvements in the accuracy and consistency of results (the federal district courts have vastly …

Developing A Full And Fair Evidentiary Record In A Nonadversary Setting: Two Proposals For Improving Social Security Disability Adjudications, Jeffrey Lubbers, Frank S. Bloch, Paul R. Verkuil

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Municipal Ethics Remain A Hot Topic In Litigation: A 1999 Survey Of Issues In Ethics For Municipal Lawyers, Patricia E. Salkin

Scholarly Works

No abstract provided.

Agency Expertise, Alj Independence, And Administrative Courts: The Recent Changes In Louisiana's Administrative Procedure Act, Jay S. Bybee

Scholarly Works

In the past two years, the Louisiana Legislature has adopted several structural changes in Louisiana's Administrative Procedure Act (“LAPA”). Most notably, Louisiana adopted what is known as a central panel or unified corps of administrative law judges (“ALJs”). The central panel system, which has been adopted in nearly half of the states and has been proposed for the federal system, has a central agency or office that hires and assigns all ALJs; the central agency rotates ALJs among agencies to ensure the ALJs' independence. Louisiana created the Division of Administrative Law, effective October 1, 1996, within the Department of State …

The Federal Administrative Judiciary: Establishing An Appropriate System Of Performance Evaluation For Alj's, Jeffrey Lubbers

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Federal Agency Adjudications: Trying To See The Forest And The Trees, Jeffrey Lubbers

Articles in Law Reviews & Other Academic Journals

No abstract provided.

A Unified Corps Of Aljs: A Proposal To Test The Idea At The Federal Level, Jeffrey Lubbers

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Federal Administrative Law Judges: A Focus On Our Invisible Juridicary, Jeffrey Lubbers

Articles in Law Reviews & Other Academic Journals

No abstract provided.