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Full-Text Articles in Law
Rulemaking As Legislating, Kathryn A. Watts
Rulemaking As Legislating, Kathryn A. Watts
Articles
The central premise of the nondelegation doctrine prohibits Congress from delegating its Article I legislative powers. Yet Congress routinely delegates to agencies the power to promulgate legislative rules—rules that carry the force and effect of law just as statutes do. Given this tension between the nondelegation doctrine and the modern regulatory state, some scholars have attacked the nondelegation doctrine as fictional.
Little scholarly attention, however, has been given to considering how the central premise of the nondelegation doctrine coheres with—or fails to cohere with—administrative law as a whole. This Article takes up that task, exploring what might happen to administrative …
Regulatory Moratoria, Kathryn A. Watts
Regulatory Moratoria, Kathryn A. Watts
Articles
Despite significant scholarly attention given to tools that the political branches use to exert control over the administrative state, one emerging tool has gone largely unnoticed: regulatory moratoria. Regulatory moratoria, which stem from legislative or executive action, aim to freeze rulemaking activity for a period of time.
As this Article demonstrates, regulatory moratoria have worked their way into the political toolbox at both the federal and state levels. For example, at least fifteen federal bills proposing generalized regulatory moratoria were introduced in the first session of the 112th Congress, and from 2008 to 2011 alone, no fewer than nine states …
Proposing A Place For Politics In Arbitrary And Capricious Review, Kathryn A. Watts
Proposing A Place For Politics In Arbitrary And Capricious Review, Kathryn A. Watts
Articles
Current conceptions of “arbitrary and capricious” review focus on whether agencies have adequately explained their decisions in statutory, factual, scientific, or otherwise technocratic terms. Courts, agencies, and scholars alike, accordingly, generally have accepted the notion that influences from political actors, including the President and Congress, cannot properly help to explain administrative action for purposes of arbitrary and capricious review. This means that agencies today tend to sweep political influences under the rug even when such influences offer the most rational explanation for the action.
This Article argues that this picture should change. Specifically, this Article argues for expanding current conceptions …
Adapting To Administrative Law's Erie Doctrine, Kathryn A. Watts
Adapting To Administrative Law's Erie Doctrine, Kathryn A. Watts
Articles
This Article looks to the federalism context and draws on the federal courts' experience adapting to the Court's landmark decision in Erie Railroad Company v. Tompkins. Much like Brand X, the Court's Erie decision, which commanded federal courts to apply state law in all cases not governed by positive federal law, significantly reduced the lawmaking power of the federal courts by putting the federal courts in the position of interpreting law that they cannot definitively construe. Although Erie seemed simple enough to adhere to when state law provided a clear answer, Erie posed a serious dilemma when federal courts …
Rule-Making Petition Concerning Eligibility, Under 37 C.F.R. § 11.7 To Sit For The Examination For Registration To Practice In Patent Cases Before The United States Patent And Trademark Office, Thomas G. Field Jr.
Law Faculty Scholarship
This Petition under 5 U.S.C. § 553(e) is filed on behalf of Petitioner and other parties with legally-cognizable interest (hereafter “Signatories”) in the specification of credentials under guidelines promulgated by the PTO Office of Enrollment and Discipline (“OED”) and amended from time without public notice or opportunity to comment. Signatories include individuals likely to be unfairly refused permission to sit, individuals whose status is uncertain, and professors with an interest in whether their students may or may not be permitted to sit. Signatories hereby request that the PTO, in accordance with 35 U.S.C. § 2(b)(2)(D), amplify the qualifications sufficient to …
Slides: Pinedale Anticline Project Area: The Adaptive Management Process, Prill Mecham
Slides: Pinedale Anticline Project Area: The Adaptive Management Process, Prill Mecham
Best Management Practices and Adaptive Management in Oil and Gas Development (May 12-13)
Presenter: Prill Mecham, Pinedale BLM Field Manager
35 slides
Agency Rules With The Force Of Law: The Original Convention, Thomas W. Merrill, Kathryn Tongue Watts
Agency Rules With The Force Of Law: The Original Convention, Thomas W. Merrill, Kathryn Tongue Watts
Articles
The Supreme Court recently held in United States v. Mead Corp. that agency interpretations should receive Chevron deference only when Congress has delegated power to the agency to make rules with the force of law and the agency has rendered its interpretation in the exercise of that power.
The first step of this inquiry is difficult to apply to interpretations adopted through rulemaking, because often rulemaking grants authorize the agency to make "such rules and regulations as are necessary to carry out the provisions of this chapter" or words to that effect, without specifying whether "rules and regulations" encompasses …
Promulgating Requirements For Admission To Prosecute Patent Applications, Michelle J. Burke, Thomas G. Field Jr
Promulgating Requirements For Admission To Prosecute Patent Applications, Michelle J. Burke, Thomas G. Field Jr
Law Faculty Scholarship
Among federal agencies, the U. S. Patent and Trademark Office is unique in its ability to require attorneys to submit to special requirements, such as passing a six hour examination, before being permitted to practice before it in patent cases. Indeed, the Supreme Court has held that an individual so admitted to practice before the PTO need not comply with state requirements otherwise applicable to those practicing law.
The first part of this article discusses how this requirement came to be. It then discusses how the PTO determines whether an individual is fit to sit for the patent examination, focusing …
An American Perspective On Environmental Impact Assessment In Australia, Mark Squillace
An American Perspective On Environmental Impact Assessment In Australia, Mark Squillace
Publications
No abstract provided.
Governmental Decision-Making In The Great Society, Ralph F. Fuchs
Governmental Decision-Making In The Great Society, Ralph F. Fuchs
Articles by Maurer Faculty
No abstract provided.
Agency Development Of Policy Through Rule-Making, Ralph F. Fuchs
Agency Development Of Policy Through Rule-Making, Ralph F. Fuchs
Articles by Maurer Faculty
No abstract provided.
The Model Act's Division Of Administrative Proceedings Into Rule-Making And Contested Cases, Ralph F. Fuchs
The Model Act's Division Of Administrative Proceedings Into Rule-Making And Contested Cases, Ralph F. Fuchs
Articles by Maurer Faculty
No abstract provided.
Procedure In Administrative Rule-Making, Ralph F. Fuchs
Procedure In Administrative Rule-Making, Ralph F. Fuchs
Articles by Maurer Faculty
No abstract provided.