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Articles 1 - 30 of 192
Full-Text Articles in Law
The Toll Paid When Adjudicators Err: Reforming Appellate Review Standards For Refugees, Charles Shane Ellison
The Toll Paid When Adjudicators Err: Reforming Appellate Review Standards For Refugees, Charles Shane Ellison
Faculty Scholarship
Deep, variegated, and unresolved tensions run between and within the U.S. courts of appeals’ standard of review classifications of the five core elements of the refugee definition. Several circuits have taken note of their dissonant jurisprudence, calling for either en banc or Supreme Court intervention. While existing scholarship raises cogent criticisms of excessive factual deference in U.S. immigration adjudications, very little attention has been paid to how the fact-law divide regarding the refugee definition maps onto review standards in the appellate context. This dearth of scholarly consideration is accompanied by the reality that standards of review often decide cases where …
Progressive Textualism In Administrative Law, Kathryn E. Kovacs
Progressive Textualism In Administrative Law, Kathryn E. Kovacs
Michigan Law Review Online
Nicholas Bagley’s article The Procedure Fetish is destined to be a classic. In it, Bagley systematically dismantles administrative law’s obsession with procedure. He decimates the arguments that procedure is necessary to legit-imize the administrative state and avoid agency capture. He nullifies the con-tention that administrative law is neutral by showing how proceduralism inhibits regulation and “favors a libertarian agenda over a progressive one.” Bagley urges progressives to abandon “gauzy claims about legitimacy and accountability” and approach procedure with skepticism.
The Procedure Fetish addresses the normative question of what adminis-trative law ought to require. Bagley writes about how progressives should solve …
Alj Support Systems: Staff Attorneys And Decision Writers, Russell L. Weaver
Alj Support Systems: Staff Attorneys And Decision Writers, Russell L. Weaver
Russell L. Weaver
No abstract provided.
Legislation And Comment: The Making Of The § 199a Regulations, Shu-Yi Oei, Leigh Osofsky
Legislation And Comment: The Making Of The § 199a Regulations, Shu-Yi Oei, Leigh Osofsky
Faculty Scholarship
In 2017, Congress passed major tax legislation at warp speed. After enactment, it fell to the Treasury Department to write regulations clarifying and implementing the new law. To assure democratic legitimacy in making regulations, administrative law provides that an agency must issue a notice of proposed rulemaking, followed by an opportunity for the public to comment (so-called “notice and comment”). But, after the 2017 tax overhaul, many sophisticated actors did not wait until the issuance of a notice of proposed rulemaking to comment, instead going to the Treasury Department immediately with comments designed to influence the regulations.
In this Article, …
Neither Fish Nor Fowl: The Separation Of Powers And The Office Of Administrative Hearings, Ann E. Cohen, Elise Larson
Neither Fish Nor Fowl: The Separation Of Powers And The Office Of Administrative Hearings, Ann E. Cohen, Elise Larson
Mitchell Hamline Law Review
No abstract provided.
Lucia Et Al. V. Securities And Exchange Commission: Brief Amicus Curiae Of Federal Administrative Law Judges Conference In Support Of Neither Party, John M. Vittone
Lucia Et Al. V. Securities And Exchange Commission: Brief Amicus Curiae Of Federal Administrative Law Judges Conference In Support Of Neither Party, John M. Vittone
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Unappealing: An Assessment Of The Limits On Appeal Rights In Canada's New Refugee Determination System, Angus Gavin Grant, Sean Rehaag
Unappealing: An Assessment Of The Limits On Appeal Rights In Canada's New Refugee Determination System, Angus Gavin Grant, Sean Rehaag
Sean Rehaag
Canada’s refugee determination system was revised in 2012. One key feature of the new process is a quasi-judicial administrative appeal, on matters of both fact and law, at the Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB). Under the new process, however, many claimants are denied access to the RAD. This article assesses these limits on access to the RAD, drawing mostly on quantitative data obtained from the IRB and Citizenship and Immigration Canada through access to information requests. Our aim is to provide evidence-based analysis and recommendations for reform. Essentially, our conclusions are that the bars …
Blacklining Editorial Privilege, Justin Hurwitz
Blacklining Editorial Privilege, Justin Hurwitz
Michigan Telecommunications & Technology Law Review
Over the past year, FCC Commissioner Mike O’Rielly has drawn valuable attention to various Commission procedures in need of reform. Of these procedures perhaps the most perplexing is that of “editorial privileges” – a process whereby Commission staff is granted permission to continue editing Commission Orders subsequent to their adoption, such that the text of the Order voted on by the Commission is not necessarily the same as that ultimately published in the Federal Register or otherwise released to the public. This procedure is longstanding – predating institutional memory; yet it is also entirely unprecedented in the canon of administrative …
Unappealing: An Assessment Of The Limits On Appeal Rights In Canada's New Refugee Determination System, Angus Gavin Grant, Sean Rehaag
Unappealing: An Assessment Of The Limits On Appeal Rights In Canada's New Refugee Determination System, Angus Gavin Grant, Sean Rehaag
Articles & Book Chapters
Canada’s refugee determination system was revised in 2012. One key feature of the new process is a quasi-judicial administrative appeal, on matters of both fact and law, at the Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB). Under the new process, however, many claimants are denied access to the RAD.
This article assesses these limits on access to the RAD, drawing mostly on quantitative data obtained from the IRB and Citizenship and Immigration Canada through access to information requests. Our aim is to provide evidence-based analysis and recommendations for reform. Essentially, our conclusions are that the bars …
The Struggle For Administrative Legitimacy, Jeremy K. Kessler
The Struggle For Administrative Legitimacy, Jeremy K. Kessler
Faculty Scholarship
Nearly forty years ago, Professor James 0. Freedman described the American administrative state as haunted by a "recurrent sense of crisis." "Each generation has tended to define the crisis in its own terms," and "each generation has fashioned solutions responsive to the problems it has perceived." Yet "a strong and persisting challenge to the basic legitimacy of the administrative process" always returns, in a new guise, to trouble the next generation. On this account, the American people remain perennially unconvinced that administrative decisionmaking is "appropriate, proper, and just," entitled to respect and obedience "by virtue of who made the decision" …
The Volcker Rule: A Brief Political History, Kimberly D. Krawiec, Guangya Liu
The Volcker Rule: A Brief Political History, Kimberly D. Krawiec, Guangya Liu
Faculty Scholarship
Today, more than five years after Dodd-Frank was first signed into law, uncertainty surrounds many aspects of the Volcker Rule’s application and ultimate impact on financial markets and bank stability. Many more years will likely pass before that uncertainty is resolved. We demonstrate through a quantitative and qualitative analysis that these difficulties were presaged by the Volcker Rule’s political history. The Volcker Rule -- originally rejected by Congressional lawmakers and economists within the Obama administration as unworkable -- arose as a political concession designed to quiet critics who contended that Dodd-Frank did not do enough to control risky bank activity. …
Democratic Rulemaking, John M. De Figueiredo, Edward H. Stiglitz
Democratic Rulemaking, John M. De Figueiredo, Edward H. Stiglitz
Faculty Scholarship
This paper examines to what extent agency rulemaking is democratic. It reviews theories of administrative rulemaking in light of two normative benchmarks: a “democratic” benchmark based on voter preferences, and a “republican” benchmark based on the preferences of elected representatives. It then evaluates how the empirical evidence lines up in light of these two approaches. The paper concludes with a discussion of avenues for future research.
The Political Economy Of Administrative Fairness: A Preliminary Enquiry, Eric Tucker
The Political Economy Of Administrative Fairness: A Preliminary Enquiry, Eric Tucker
Eric M. Tucker
No abstract provided.
The Department Of Agriculture's Rules Of Practice: Do They Still Serve Both The Department's And The Public's Needs?, Peter M. Davenport
The Department Of Agriculture's Rules Of Practice: Do They Still Serve Both The Department's And The Public's Needs?, Peter M. Davenport
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Should Chevron Have Two Steps?, Richard M. Re
Should Chevron Have Two Steps?, Richard M. Re
Indiana Law Journal
Prominent judges and scholars have criticized the familiar Chevron deference scheme on the ground that its two steps are redundant. But each step of traditional two-step Chevron actually does unique interpretive work. In short, step one asks whether agency interpretations are mandatory, whereas step two asks whether they are reasonable. Other judges and scholars defend two-step Chevron on the ground that the second step should be equated with arbitrary-and-capricious review. But that approach makes Chevron partially redundant with the Administrative Procedure Act and compresses the distinct mandatoriness and reasonableness questions into an artificially singular first step. This Article identifies a …
Due Process, Black Lung, And The Shaping Of Administrative Justice, Brian C. Murchison
Due Process, Black Lung, And The Shaping Of Administrative Justice, Brian C. Murchison
Brian C. Murchison
None available.
The Defense Of Entrapment In Administrative Proceedings, Jan Mark Dudman
The Defense Of Entrapment In Administrative Proceedings, Jan Mark Dudman
Pepperdine Law Review
No abstract provided.
Management Of Federal Agency Adjudication, Jeffrey S. Lubbers
Management Of Federal Agency Adjudication, Jeffrey S. Lubbers
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Judges Under Fire - Alj Independence At Issue, Debra Cassens Moss
Judges Under Fire - Alj Independence At Issue, Debra Cassens Moss
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Contempt Powers Of The Administrative Law Judge, Joyce Krutick Barlow
Contempt Powers Of The Administrative Law Judge, Joyce Krutick Barlow
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Administrative Law Judges: Past, Present And Future, John Paul Jones
Administrative Law Judges: Past, Present And Future, John Paul Jones
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Making Findings Of Fact And Preparing A Decision , Patrick J. Borchers
Making Findings Of Fact And Preparing A Decision , Patrick J. Borchers
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Judicial Deference To Administrative Interpretations Of Law, Antonin Scalia
Judicial Deference To Administrative Interpretations Of Law, Antonin Scalia
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Official Notice And The Administrative Process, Daniel B. Rodriguez
Official Notice And The Administrative Process, Daniel B. Rodriguez
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Recent Legal Developments In State Oil And Gas Administrative Hearings, Patrick H. Martin
Recent Legal Developments In State Oil And Gas Administrative Hearings, Patrick H. Martin
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Evaluation: Where Are We? Where Are We Going?, Ronnie A. Yoder
Evaluation: Where Are We? Where Are We Going?, Ronnie A. Yoder
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Development Of The Model Code Of Judicial Conduct For State Administrative Law Judges, Stanley J. Cygan
Development Of The Model Code Of Judicial Conduct For State Administrative Law Judges, Stanley J. Cygan
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
The Courting Of Credibility, A Nervous Mistress, Edd Wheeler
The Courting Of Credibility, A Nervous Mistress, Edd Wheeler
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Opening The Floodgates Of Decision-Making At The Missouri Administrative Hearing Commission, Daniel R.E. Jordan
Opening The Floodgates Of Decision-Making At The Missouri Administrative Hearing Commission, Daniel R.E. Jordan
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Alj Support Systems: Staff Attorneys And Decision Writers, Russell L. Weaver
Alj Support Systems: Staff Attorneys And Decision Writers, Russell L. Weaver
Journal of the National Association of Administrative Law Judiciary
No abstract provided.