Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 6 of 6
Full-Text Articles in Law
Due Process For Article Iii—Rethinking Murray's Lessee, Kent H. Barnett
Due Process For Article Iii—Rethinking Murray's Lessee, Kent H. Barnett
Scholarly Works
The Founders sought to protect federal judges’ impartiality primarily because those judges would review the political branches’ actions. To that end, Article III judges retain their offices during “good behaviour,” and Congress cannot reduce their compensation while they are in office. But Article III has taken a curious turn. Article III generally does not prohibit Article I courts or agencies from deciding “public rights” cases, i.e., when the government is a party and seeking to vindicate its own actions and interpretations under federal law against a private party. In contrast, Article III courts generally must resolve cases that concern “private …
Towards Optimal Enforcement, Kent H. Barnett
Towards Optimal Enforcement, Kent H. Barnett
Scholarly Works
In Private Enforcement in Administrative Courts, Professor Michael Sant'Ambrogio argues that a hybrid private/public enforcement model in agency proceedings may provide the best hope of achieving optimal federal law enforcement. In other words, a blunderbuss approach of choosing public enforcement or private enforcement (whether in judicial or agency proceedings) is unlikely to prove ideal. He identifies various tools--such as agencies' role in the review or initiation of proceedings, or the use of class-wide proceedings--that Congress or agencies can use to calibrate agency enforcement to its optimal design. I consider three additional tools that may optimize enforcement goals with hybrid public …
Some Kind Of Hearing Officer, Kent H. Barnett
Some Kind Of Hearing Officer, Kent H. Barnett
Scholarly Works
In his prominent 1975 law-review article, “Some Kind of Hearing,” Second Circuit Judge Henry Friendly explored how courts (and agencies) should respond when the Due Process Clause required, in the Supreme Court’s exceedingly vague words, “some kind of hearing.” That phrase led to the familiar (if unhelpful) Mathews v. Eldridge balancing test, in which courts weigh three factors to determine how much process or formality is due. But the Supreme Court has never applied Mathews to another, often ignored facet of due process—the requirement for impartial adjudicators. As it turns out, Congress and agencies have broad discretion to fashion not …
Short-Circuiting The New Major Questions Doctrine, Kent H. Barnett, Christopher J. Walker
Short-Circuiting The New Major Questions Doctrine, Kent H. Barnett, Christopher J. Walker
Scholarly Works
In Minor Courts, Major Questions, Michael Coenen and Seth Davis advance perhaps the most provocative proposal to date to address the new major questions doctrine articulated in King v. Burwell. They argue that the Supreme Court alone should identify “major questions” that deprive agencies of interpretive primacy, prohibiting the doctrine’s use in the lower courts. Although we agree that the Court provided little guidance about the doctrine’s scope in King v. Burwell, we are unpersuaded that the solution to this lack of guidance is to limit its doctrinal development to one court that hears fewer than eighty cases per year. …
Avoiding Independent Agency Armageddon, Kent H. Barnett
Avoiding Independent Agency Armageddon, Kent H. Barnett
Scholarly Works
In Free Enterprise Fund v. Public Company Accounting Oversight Board, the U.S. Supreme Court invalidated Congress’ use of two layers of tenure protection to shield Public Company Accounting Oversight Board (PCAOB) members from the President’s removal. The SEC could appoint and remove PCAOB members. An implied tenure-protection provision protected the SEC from the President’s at-will removal. And a statutory tenure-protection provision protected PCAOB members from the SEC’s at-will removal. The Court held that these “tiered” tenure protections unconstitutionally impinged upon the President’s removal power because they prevented the President from holding the SEC responsible for PCAOB’s actions in the same …
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 …