Law Commons^™

Acting Like An Administrative Agency: The Federal Circuit En Banc, Ryan G. Vacca

Akron Law Faculty Publications

When Congress created the Federal Circuit in 1982, it thought it was creating a court of appeals. Little did it know that it was also creating a quasi-administrative agency that would engage in substantive rulemaking and set policy in a manner substantially similar to administrative agencies. In this Article, I examine the Federal Circuit's practices when it orders a case to be heard en banc and illustrate how these practices cause the Federal Circuit to look very much like an administrative agency engaging in substantive rulemaking. The number and breadth of questions the Federal Circuit agrees to hear en banc …

Slides: Planning Tools: Wildlife Mitigation Plan (Wmp), Comprehensive Drilling Plan (Cdp), Geographic Area Plan (Gap), Ginny Brannon

Best Management Practices (BMPs): What? How? And Why? (May 26)

Presenter: Ginny Brannon, Colorado Department of Natural Resources

7 slides

Acting Like An Administrative Agency: The Federal Circuit En Banc, Ryan G. Vacca

Law Faculty Scholarship

When Congress created the Federal Circuit in 1982, it thought it was creating a court of appeals. Little did it know that it was also creating a quasi-administrative agency that would engage in substantive rulemaking and set policy in a manner substantially similar to administrative agencies. In this Article, I examine the Federal Circuit's practices when it orders a case to be heard en banc and illustrate how these practices cause the Federal Circuit to look very much like an administrative agency engaging in substantive rulemaking. The number and breadth of questions the Federal Circuit agrees to hear en banc …

Rulemaking In 140 Characters Or Less: Social Networking And Public Participation In Rulemaking, Cynthia R. Farina, Paul Miller, Mary J. Newhart, Claire Cardie, Dan Cosley, Rebecca Vernon

Cornell Law Faculty Publications

Rulemaking—the process by which administrative agencies make new regulations—has long been a target for egovernment efforts. The process is now one of the most important ways the federal government makes public policy. Moreover, transparency and participation rights are already part of its legal structure. The first generation of federal erulemaking involved putting the conventional process online by creating an e-docket of rulemaking materials and allowing online submission of public comments. Now the Obama administration is urging agencies to embark on the second generation of technology-assisted rulemaking, by bringing social media into the process.

In this Article we describe the initial …

Rulemaking 2.0, Cynthia R. Farina, Mary J. Newhart, Claire Cardie, Dan Cosley, Cornell Erulemaking Initiative

Cornell Law Faculty Publications

In response to President Obama's Memorandum on Transparency and Open Government, federal agencies are on the verge of a new generation in online rulemaking. However, unless we recognize the several barriers to making rulemaking a more broadly participatory process, and purposefully adapt Web 2.0 technologies and methods to lower those barriers, Rulemaking 2.0 is likely to disappoint agencies and open-government advocates alike.

This article describes the design, operation, and initial results of Regulation Room, a pilot public rulemaking participation platform created by a cross-disciplinary group of Cornell researchers in collaboration with the Department of Transportation. Regulation Room uses selected live …

Another Word On The President's Statutory Authority Over Agency Action, Nina A. Mendelson

Articles

In this short symposium contribution, I attempt first to add some further evidence on the interpretive question. That evidence weighs strongly, in my view, in favor of Kagan's conclusion that the terminology does not communicate any particular congressional intent regarding presidential directive authority. Assessed in context, the "whole code" textual analysis presented by Stack does not justify the conclusion that Congress, by delegating to an executive branch official, meant to limit presidential control. Independent agencies excluded, interpreting the terms of simple and presidential delegations to speak to directive authority fails, in general, to make sense of the various statutes. Absent …

Foreword: Rulemaking, Democracy, And Torrents Of E-Mail, Nina A. Mendelson

Articles

This Foreword is meant as an initial foray into the question of what agencies should do with mass public comments, particularly on broad questions of policy. Part I discusses the extent to which congressional control, presidential control, and agency procedures themselves can ensure that agency decisions are democratically responsive. In view of shortcomings in both congressional and presidential control, I underscore the need to focus closely on rulemaking procedures as a source of democratic responsiveness. The possibility that agencies may be systematically discounting certain public submissions raises difficulties, and I present some examples. Part II makes a preliminary case that …

Rule-Making And The American Constitution, Peter L. Strauss

Faculty Scholarship

This chapter leaves behind the standard accounts of federal agencies to examine the role of the presidency in fashioning regulatory outputs. It recounts — and with reference to American ‘checks and balances’ ideas — a steady accretion of power at the centre, the result of which has been to render rulemaking increasingly a political rather than ‘expert’ activity. Whether the process is reversible, or whether ongoing crises in finance and security will serve to concretize this profound constitutional development, remains to be seen.