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Articles 1 - 5 of 5
Full-Text Articles in Law
The Consumer Financial Protection Bureau's Appointment With Trouble, Kent H. Barnett
The Consumer Financial Protection Bureau's Appointment With Trouble, Kent H. Barnett
Scholarly Works
This article considers whether the Consumer Financial Protection Bureau Director’s appointment of the Bureau’s Deputy Director comports with the Appointments Clause. The Dodd-Frank Wall Street Reform and Consumer Protection Act established the Bureau in July 2010, as well as the offices of the Bureau’s Director and Deputy Director, to coordinate the regulation and enforcement of federal consumer-financial-protection laws. Under that act, the Director appoints the Deputy Director. The Appointments Clause permits “Heads of Departments” to appoint inferior officers like the Deputy Director. But it is unclear if the Bureau is a “department” and thus if the Director is a department …
Narrative Preferences And Administrative Due Process, Jason A. Cade
Narrative Preferences And Administrative Due Process, Jason A. Cade
Scholarly Works
This Article illustrates, through sociolinguistic analysis, how an adjudicator’s biases against certain narrative styles can influence his or her assessments of credibility, treatment of parties, and decision-making in the administrative law setting. Poverty lawyers have long observed that many claimants in the administrative state continue to face procedural and discursive obstacles. Applying insights from a growing field of inter-disciplinary research, including conversation analysis, linguistics, and cognitive studies, this Article builds upon those observations by more precisely exploring through a case study of an unemployment insurance benefits hearing how structural and narrative biases can work to deny an applicant due process …
When Delegation Begets Domination: Due Process Of Administrative Lawmaking, Evan J. Criddle
When Delegation Begets Domination: Due Process Of Administrative Lawmaking, Evan J. Criddle
Georgia Law Review
In federal administrative law, the nondelegation
doctrine purports to forbid Congress from entrusting its
essential legislative powers to administrative agencies.
The Supreme Court developed this doctrine during the
nineteenth century to safeguard republican values
embedded in the Constitution. Over time, however, the
Court has loosened the doctrine's grip, permitting federal
agencies to wield broad lawmaking powers subject to
minimalist "intelligible principles" established by
Congress. The Court has defended this approach on
pragmatic grounds, arguing that Congress cannot perform
its essential legislative function without entrusting
lawmaking authority to administrative agencies. What
the Court has never adequately addressed, however, is the
extent …
Wilderness, The Courts And The Effect Of Politics On Judicial Decisionmaking, Peter A. Appel
Wilderness, The Courts And The Effect Of Politics On Judicial Decisionmaking, Peter A. Appel
Scholarly Works
Empirical analyses of cases from federal courts have attempted to determine the effect of judges’ political ideology on their decisions. This question holds interest for scholars from many disciplines. Investigating judicial review of the actions of administrative agencies should provide strong evidence on the question of political influence because applicable rules of judicial deference to administrative decisions ought to lead judges to reach politically neutral results. Yet several studies have found a strong correlation between results in these cases and proxies for political ideology. Cases involving the interpretation of environmental law have been of particular interest as a subset of …
Substance, Procedure, And The Divided Patent Power, Joseph S. Miller
Substance, Procedure, And The Divided Patent Power, Joseph S. Miller
Scholarly Works
The Patent Office has the power to issue rules that “shall govern the conduct of proceedings in the Office,” 35 U.S.C. § 2(b)(2), but not the power to issue substantive rules. It has been this way since 1870, when Congress first granted the Office this regulatory power, in nearly these same words. Just how broad is this grant? How should a reviewing court determine whether a challenged Patent Office rule is procedural (and thus valid) or substantive (and thus invalid)? It is remarkable that in 2010, 140 years after Congress gave the Patent Office this power, the proper sorting standard …