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Full-Text Articles in Law
Reconciling Chevron, Mead, And The Review Of Agency Discretion: Source Of Law And The Standards Of Judicial Review, Michael P. Healy
Reconciling Chevron, Mead, And The Review Of Agency Discretion: Source Of Law And The Standards Of Judicial Review, Michael P. Healy
Law Faculty Scholarly Articles
Although the Supreme Court's watershed decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. has been understood by many as defining the framework for judicial review of agency legal determinations, there have been longstanding questions about the application of the standards for reviewing administrative action. These questions have become more troublesome following the Supreme Court's 2001 decision in United States v. Mead Corp. Mead established that Chevron review only applies when defined requirements are met and held that so-called Skidmore deference applies when Chevron deference does not apply. Surveying the aftermath of Mead and its effect on the …
Do Treasury And The Irs Have To Explain Their Choices?, Steve R. Johnson
Do Treasury And The Irs Have To Explain Their Choices?, Steve R. Johnson
Scholarly Publications
The validity of tax regulations has been challenged by taxpayers almost as long as there have been tax regulations. Now, however, we are in a period of unusually high activity on this front. The Supreme Court recently upheld the validity of a regulation under section 3121 in Mayo Foundation for Medical Ed. and Research v. United States, 131 S. Ct. 704 (2011); many cases are testing the validity of regulations extending the six-year statute of limitations under section 6501(e) to basis overstatements (or, as the Service would put it, clarifying the law in this regard); and many cases are …
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 …
On The Difficulties Of Generalization – Pcaob In The Footsteps Of Myers, Humphrey’S Executor, Morrison And Freytag, Peter L. Strauss
On The Difficulties Of Generalization – Pcaob In The Footsteps Of Myers, Humphrey’S Executor, Morrison And Freytag, Peter L. Strauss
Faculty Scholarship
In considering what to write for this welcome occasion, I was struck by a certain resonance among Paul's scholarship – at least that of which I was first aware, and which I have often used to impress on students the problems of due process analysis – the important post he now holds, and a story our joint mentor, Walter Gellhorn, liked to tell on himself. In the wake of the Supreme Court's paradigm-shifting opinion in Goldberg v. Kelly, with its confident pronouncement of eight procedural elements that, it reasoned, minimal due process must always require of administrative procedures, Paul made …