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Differentiating Legislative From Nonlegislative Rules: An Empirical And Qualitative Analysis, Nadav D. Ben Zur
Differentiating Legislative From Nonlegislative Rules: An Empirical And Qualitative Analysis, Nadav D. Ben Zur
Fordham Law Review
The elusive distinction between legislative rules and nonlegislative rules has frustrated courts, motivated voluminous scholarly debate, and ushered in a flood of litigation against administrative agencies. In the absence of U.S. Supreme Court guidance on the proper demarcating line, circuit courts have adopted various tests to ascertain a rule’s proper classification. This Note analyzes all 241 cases in which a circuit court has used one or more of the enunciated tests to differentiate legislative from nonlegislative rules. These opinions come from every one of the thirteen circuits and span the period of the early 1950s through 2018. This Note identifies …
Institutional Independence: Lawyers And The Administrative State, Melissa Mortazavi
Institutional Independence: Lawyers And The Administrative State, Melissa Mortazavi
Fordham Law Review
The institutional structure where federal government lawyers practice is fraught with political and economic pressures that undermine the ability of lawyers to exercise independent professional judgment. A lack of candid legal advice in this space not only removes a pivotal fail-safe between legal and illegal state action but also precariously imbalances the powerful administrative state, exposing it to undue political influence. For these reasons, this Article argues that structural changes to administrative institutions must be made to support and nurture lawyers’ ability to independently determine the bounds of legality. Previous scholarship has examined the role of professional independence for lawyers …