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Full-Text Articles in Law

Acus - And Administrative Law - Then And Now, Michael Herz Sep 2015

Acus - And Administrative Law - Then And Now, Michael Herz

Faculty Articles

The Administrative Conference of the United States (ACUS) both shapes and reflects the intellectual, policy, and practical concerns of the field of administrative law. Its recommendations are therefore a useful lens through which to view that field. Also, because of an unfortunate hiatus, ACUS has gotten underway not once but twice. Those two beginnings provide a kind of natural experiment, and they make a revealing contrast. This article traces the transformations of American administrative law, as well as the field’s perpetual concerns, by comparing the initial recommendations of ACUS 1.0 (1968 to 1970) with the initial recommendations of ACUS 2.0 …


Procedural Triage, Matthew B. Lawrence Jan 2015

Procedural Triage, Matthew B. Lawrence

Faculty Articles

Prior scholarship has assumed that the inherent value of a “day in court” is the same for all claimants, so that when procedural resources (like a jury trial or a hearing) are scarce, they should be rationed the same way for all claimants. That is incorrect. This Article shows that the inherent value of a “day in court” can be far greater for some claimants, such as first-time filers, than for others, such as corporate entities and that it can be both desirable and feasible to take this variation into account in doling out scarce procedural protections. In other words, …


The Deliberation Paradox And Administrative Law, Bill Sherman Jan 2015

The Deliberation Paradox And Administrative Law, Bill Sherman

Faculty Articles

Deliberation is a linchpin of administrative decision-making, and is a key basis for judicial deference to the agency’s interpretation of law. But deliberation has a dual valence in other areas of administrative law: it triggers the right to access to agency information in public meeting laws, but bars access in public records laws. This is the first article to identify and explain what I call the Deliberation Paradox in administrative law. This longstanding but unexplored dichotomy has roots in common law history, separation of powers, the purposes of public access statutes, and assumptions about how the government works. But the …