Law Commons^™

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 …

Legislative Organization And Administrative Redundancy, Michael Doran

Georgetown Law Faculty Publications and Other Works

Congress regularly enacts legislation providing for redundant administrative programs. For example, there are more than 100 federal programs for surface transportation, 82 programs to ensure teacher quality, 80 programs to promote domestic economic development, and 47 programs to provide employment and job-training services. Recent high-profile legislation–-such as the financial-industry reform measure and the health-care reform measure–-add new programs without repealing existing ones directed at the same policy goals. Prior academic analyses generally have not considered why Congress pursues redundancy. This article addresses that question through both theoretical and institutional analysis.

The article first constructs an organizational theory that attributes redundancy …

Why Is The Japanese Supreme Court So Conservative?, Shigenori Matsui

All Faculty Publications

The Constitution of Japan, enacted on November 3, 1946, and effective as of May 3, 1947, gave the judicial power to the Supreme Court and the inferior courts established by the Diet, the national legislature, and gave the power of judicial review to the judiciary. Equipped with the power of judicial review, the Japanese Supreme Court was expected to perform a very significant political role in safeguarding the Constitution, especially its Bill of Rights, against infringement by the government. Yet, it has developed a very conservative constitutional jurisprudence ever since its establishment. This article examines why the Japanese Supreme Court …

Constitutional Precedents In Japan: A Comment On The Role Of Precedent, Shigenori Matsui

All Faculty Publications

Japan is a civil law country, and the precedent of the Supreme Court is not binding on either the Supreme Court itself or lower courts. Judges are supposed to return to the text of the statute for each legal dispute and apply the rules to specific cases. Judicial decisions are not law to be applied by the courts. However, since judges have followed the precedent of the Supreme Court most of the time, these precedents have a de facto binding power even though they are not legally binding. In this Comment, the author focuses on constitutional law precedents to illustrate …

Adverse Publicity By Administrative Agencies In The Internet Era, Nathan Cortez

Faculty Journal Articles and Book Chapters

Nearly forty years ago, Ernest Gellhorn documented the potentially devastating impact that can occur when federal agencies issue adverse publicity about private parties. Based on his article, the Administrative Conference of the United States (ACUS) recommended that courts, Congress, and agencies hold agencies to clear standards for issuing such publicity. In the decades since, some agencies have adopted standards, but most have not. And neither the courts nor Congress has intervened to impose standards. Today, agencies continue to use countless forms of publicity to pressure alleged regulatory violators and to amplify their overall enforcement powers — all without affording due …

Minimalism And Experimentalism In The Administrative State, Charles F. Sabel, William H. Simon

Faculty Scholarship

This Article identifies and appraises the two most promising alternatives to the "command-and-control" style of public administration that was dominant from the New Deal to the 1980s but is now in disfavor The first – minimalism – emphasizes public interventions that incorporate market concepts and practices while also centralizing and minimizing administrative discretion. The second – experimentalism – emphasizes interventions in which the central government affords broad discretion to local administrative units but measures and assesses their performance in ways designed to induce continuous learning and revision of standards. Minimalism has been prominent in legal scholarship and in the policy …

Punctuated Equilibrium: A Model For Administrative Evolution, Naomi Mezey, Mark C. Niles

Faculty Publications

(Excerpt)

In 1972, paleontologists Niles Eldredge and Stephen Jay Gould published a paper that challenged the conventional understanding of the nature and rate of biological evolution. Addressing the absence of support in the fossil record for the accepted model of species change, the scholars observed that significant genetic development within a single species did not appear to follow the kind of gradual path that Charles Darwin had postulated. Instead, they concluded that "the great majority of species appear with geological abruptness in the fossil record and then persist in stasis until their extinction." They observed that species evolution is much …

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.

Two Challenges For Campaign Finance Disclosure After Citizens United And Doe V. Reed, Richard Briffault

Faculty Scholarship

Disclosure moved front and center on the campaign finance stage in 2010. Indeed, the year just passed witnessed the emergence of not one, but two significant challenges for our disclosure laws.

2010 began with new concerns about the burdens disclosure can place on the rights of political participation and association protected by the First Amendment, with the possibility that the Supreme Court – which had become increasingly skeptical about campaign finance regulation since Chief Justice Roberts and Justice Alito joined the Court – might impose new restrictions on disclosure.

Designing Agency Independence, Gillian E. Metzger

Faculty Scholarship

How do we structure an agency to be independent? Not surprisingly, the answer to that question depends on what we want the agency to be independent from.

Article Iii, Agency Adjudication, And The Origins Of The Appellate Review Model Of Administrative Law, Thomas W. Merrill

Faculty Scholarship

American administrative law is grounded in a conception of the relationship between reviewing courts and agencies modeled on the relationship between appeals courts and trial courts in civil litigation. This appellate review model was not an inevitable foundation of administrative law, but it has had far-reaching consequences, and its origins are poorly understood. This Article details how the appellate review model emerged after 1906 as an improvised response by the U.S. Supreme Court to a political crisis brought on by aggressive judicial review of decisions of the Interstate Commerce Commission. Once the jeny-built model was in place, Congress signaled its …

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 …

Federalism Under Obama, Gillian E. Metzger

Faculty Scholarship

At first glance, federalism would seem to have fared poorly under the Obama administration. The administration's signature achievements to date involve substantial expansions of the federal government's role, be it through new federal legislation addressing health insurance and financial sector reform or massive injections of federal spending. Such expansions in the federal government's role frequently translate into restrictions on the states. New federal legislation often preempts prior state regulation, and federal spending often comes with substantial conditions and burdens for the states. Not surprisingly, many state officials have sharply criticized these developments at the federal level, often invoking federalism as …

Agency Threats, Tim Wu

Faculty Scholarship

There are three main ways in which agencies regulate: rulemaking; adjudication; and informal tools of guidance, also called nonlegislative or interpretative rules. Over the last two decades, agencies have increasingly favored the use of the last of these three, which can include statements of best practices, interpretative guides, private warning letters, and press releases.

Scholars are hardly unaware of this trend. In a series of papers, writers have explored the use of informal regulation as it affects the relationship between agencies and the federal courts, asking when nonlegislative rules can be challenged as unenforceable for want of process. This Essay …

The Search For Fair Agency Process: The Immigration Opinions Of Judge Michael Daly Hawkins, 1994-2010, Lenni B. Benson

Articles & Chapters

Judge Michael Daly Hawkins has been a member of the Ninth Circuit Court of Appeals since 1994; but he has been concerned with the forms and varieties of administrative or bureaucratic process his entire career. When he became a member of the federal judiciary, his role was clearly altered. However, his commitment to fairness and integrity in adjudication remained undiminished. This article will explore some of Judge Hawkins’s many immigration decisions, both majority and dissenting opinions, which reflect his commitment to the preservation of a due process.

The reality of immigration adjudication in the Ninth Circuit is that there are …

Gaming The Past: The Theory And Practice Of Historic Baselines In The Administrative State, J.B. Ruhl, Robin Craig

Vanderbilt Law School Faculty Publications

This article explores in detail the attributes and operation of historic baselines. That historic baselines are found throughout regulatory law is no accident. Particularly when the policy goal involves turning back the clock or halting an undesirable trend, historic baselines have distinct advantages compared to alternative techniques for standard setting. These advantages include rhetoric, familiarity, and flexibility. The use of the temporal reference point lies at the heart of what makes historic baselines distinct in this respect, yet it is also what makes them qualitatively different for purposes of gaming. Leveraging the past provides an additional dimension to the gaming …

Coming Clean And Cleaning Up: Does Voluntary Self-Reporting Indicate Effective Self-Policing?, Michael W. Toffel, Jodi Short

Georgetown Law Faculty Publications and Other Works

Administrative agencies are increasingly establishing voluntary self-reporting programs both as an investigative tool and to encourage regulated firms to commit to policing themselves. We investigate whether self-reporting can reliably indicate effective self-policing efforts that might provide opportunities for enforcement efficiencies. We find that regulators used self-reports of legal violations as a heuristic for identifying firms that are effectively policing their own operations, shifting enforcement resources away from voluntary disclosers. We also find that firms that voluntarily disclosed regulatory violations and committed to self-policing improved their regulatory compliance and environmental performance, suggesting that the enforcement relief they received was warranted. Collectively, …

Against Flexibility, David A. Super

Georgetown Law Faculty Publications and Other Works

Contemporary legal thinking is in the thrall of a cult of flexibility. We obsess about avoiding decisions without all possible relevant information while ignoring the costs of postponing decisions until that information becomes available. We valorize procrastination and condemn investments of decisional resources in early decisions.

Both public and private law should be understood as a productive activity converting information, norms, and decisional and enforcement capacity into outputs of social value. Optimal timing depends on changes in these inputs’ scarcity and in the value of the decision they produce. Our legal culture tends to overestmate the value of information that …