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Articles 1 - 17 of 17
Full-Text Articles in Law
Why Judicial Review Fails: Organizations, Politics, And The Problem Of Auditing Executive Discretion, Mariano-Florentino Cuellar
Why Judicial Review Fails: Organizations, Politics, And The Problem Of Auditing Executive Discretion, Mariano-Florentino Cuellar
ExpressO
Every day executive branch officials make thousands of decisions affecting our security and welfare. Homeland security officials screen tens of thousands of people at the border. They decide whose name gets on government “no fly lists.” Agencies freeze suspected terrorist assets, choose what companies to inspect for environmental violations, and decide whom to prosecute. This article describes how judicial review predictably and systematically fails to prevent abuse and promote organizational learning when government officials make many such choices using their discretion to target individuals or groups. It then proposes the use of quasi-judicial audits of executive discretion as a remedy. …
Prolegomenon To An Intellectual History Of Administrative Law In The Twentieth Century: The Case Of John Willis And Canadian Administrative Law, Michael Taggart
Prolegomenon To An Intellectual History Of Administrative Law In The Twentieth Century: The Case Of John Willis And Canadian Administrative Law, Michael Taggart
Osgoode Hall Law Journal
The intellectual legal history-the history of ideas--of modern administrative law has yet to be written. The first part of this article suggests that one way to approach this necessary task is to posit the writings of leading administrative law thinkers in the context of cases, controversies, doctrines, events, and movements throughout the twentieth century. The work of pioneer administrative lawyer John Willis is used to exemplify this type of contextualized intellectual legal history. The second part of this article seeks to gauge Willis's influence on the development of Canadian administrative law.
The Birth Of A "Logical System": Thurman Arnold And The Making Of Modern Administrative Law, Mark Fenster
The Birth Of A "Logical System": Thurman Arnold And The Making Of Modern Administrative Law, Mark Fenster
UF Law Faculty Publications
The practice, teaching, and study of modern administrative law have developed in the midst of academic debates over how to resolve conflicts between a dominant set of legal doctrines and external political demands. Periodic administrative legitimacy crises have spawned an academic literature consisting of authoritative, influential articles and books that attempt to clarify nascent doctrines and theories. The now-familiar rhythm of such outbursts began with modern administrative law's widespread emergence in the 1930s, when federal regulatory agencies became sufficiently prevalent to warrant extensive attention from legal academics. Administrative law histories have established this fairly well-known story: academics sympathetic to the …
Prolegomenon To Any Future Administrative Law Course: Separation Of Powers And The Transcendental Deduction, Gary S. Lawson
Prolegomenon To Any Future Administrative Law Course: Separation Of Powers And The Transcendental Deduction, Gary S. Lawson
Faculty Scholarship
Federal constitutional law has a way of worming itself into just about every crevice of the law school curriculum. Civil Procedure students grapple with the Due Process Clauses, Property students ponder the Takings Clause, and Torts students must reckon with issues of federal preemption and legislative power. But few courses outside the mainstream Constitutional Law curriculum require as much sustained attention to constitutional issues as does Administrative Law.' Administrative Law courses typically involve an extensive study of procedural due process.2 They also engage, at least peripherally, in some of the most fundamental and long-lived constitutional controversies in the law of …
The Opacity Of Transparency, Mark Fenster
The Opacity Of Transparency, Mark Fenster
ExpressO
The normative concept of transparency, along with the open government laws that purport to create a transparent public system of governance promise the world—a democratic and accountable state above all, and a peaceful, prosperous, and efficient one as well. But transparency, in its role as the theoretical justification for a set of legal commands, frustrates all parties affected by its ambiguities and abstractions. The public’s engagement with transparency in practice yields denials of reasonable requests for essential government information, as well as government meetings that occur behind closed doors. Meanwhile, state officials bemoan the significantly impaired decision-making processes that result …
Review Of Agency Interpretations: The Difference Discovers Itself, Marla E. Mansfield
Review Of Agency Interpretations: The Difference Discovers Itself, Marla E. Mansfield
ExpressO
The Supreme Court regularly reviews agency interpretations of statutes. For many years, the official dogma of the Court was one of deference to reasonable agency interpretations of ambiguous statutes – the so-called “Chevron doctrine.” After Mead and Christensen, the Court was open to other levels of respect for agency interpretations. Recently, cases have so emphasized the particular statutory construction methods of the individual justices that the agency interpretation of a statute is now on the level of legislative history or other aids to interpretation, such as canons, which may or may not be used at a justice’s option. The array …
Squaring The Circle? Reconciling Sovereignty And Global Governance Through Global Government Networks (Review Of Anne-Marie Slaughter, A New World Order), Kenneth Anderson
Squaring The Circle? Reconciling Sovereignty And Global Governance Through Global Government Networks (Review Of Anne-Marie Slaughter, A New World Order), Kenneth Anderson
Book Reviews
This book review summarizes and critiques A New World Order, offering both an internal critique of the argument's consistency as well as an outside critique of the argument from the standpoint of the value of democratic sovereignty. The review locates Slaughter's argument within the debate over international relations realism and idealism, and further locates it within a continuum of seven idealized positions in the debate between global governance and sovereignty, with pure sovereignty at one extreme and world government at the other, with the most relevant positions of democratic sovereignty and liberal internationalism located in the middle. The article concludes …
Images Of Representation, Elizabeth Magill
Images Of Representation, Elizabeth Magill
All Faculty Scholarship
This paper is one of a series of papers commemorating Richard Stewart’s important article, The Reformation of American Administrative Law. Among other things, Stewart’s 1975 article identified “interest representation” as the central idea that animated a series of important and disparate developments in administrative law doctrine.
This paper unpacks the idea of interest representation and identifies tension in that idea. It does so by asking a simple question: What is the function of representing interests in administrative process? The paper argues that, in Stewart’s work and in the law more generally, there are two distinct answers to that question. One …
The Statutory President, Kevin M. Stack
The Statutory President, Kevin M. Stack
Vanderbilt Law School Faculty Publications
American public law has no answer to the question of how a court should evaluate the president's assertion of statutory authority. In this Article, I develop an answer by making two arguments. First, the same framework of judicial review should apply to claims of statutory authority made by the president and federal administrative agencies. This argument rejects the position that the president's constitutional powers should shape the question of statutory interpretation presented when the president claims that a statute authorizes his actions. Once statutory review is separated from consideration of the president's constitutional powers, the courts should insist, as they …
Dual Constitutions And Constitutional Duels: Separation Of Powers And State Implementation Of Federally Inspired Regulatory Programs And Standards, Jim Rossi
Vanderbilt Law School Faculty Publications
Frequently, state-wide executive agencies and localities attempt to implement federally-inspired programs. Two predominant examples are cooperative federalism programs and incorporation of federal standards in state-specific law. Federally-inspired programs can bump into state constitutional restrictions on the allocation of powers, especially in states whose constitutional systems embrace stronger prohibitions on legislative delegation than the weak restrictions at the federal level, where national goals and standards are made. This Article addresses this tension between dual federal/state normative accounts of the constitutional allocation of powers in state implementation of federally-inspired programs. To the extent the predominant ways of resolving the tension come from …
The Private Life Of Public Law, Michael P. Vandenbergh
The Private Life Of Public Law, Michael P. Vandenbergh
Vanderbilt Law School Faculty Publications
This Article proposes a new conception of the administrative regulatory state that accounts for the vast networks of private agreements that shadow public regulations. The traditional account of the administrative state assigns a limited role to private actors: private firms and interest groups seek to influence regulations, and after the regulations are finalized, regulated firms face a comply-or-defy decision. In recent years, scholars have noted that private actors play an increasing role in the traditional government standard setting, implementation and enforcement functions. This Article demonstrates that the private role in each of these regulatory functions is far greater than others …
Developments In Administrative Law: The 2004-2005 Term, Laverne Jacobs
Developments In Administrative Law: The 2004-2005 Term, Laverne Jacobs
Law Publications
In this article, the administrative law decisions rendered by the Supreme Court of Canada during the 2004-2005 term are reviewed. These decisions addressed four major issues: i) exclusive and concurrent jurisdiction between competing adjudicative bodies; ii) the right to independent adjudication; iii) standard of review; and iv) expertise and deference. Questions relating to exclusive and concurrent jurisdiction occupied the most significant part of the Supreme Court's administrative law energy during the 2004-2005 term. The author analyzes these decisions on jurisdiction, paying particular attention to the many divides between the members of the Court. She argues that the decisions on jurisdiction …
Regulating Section 527 Organizations, Guy-Uriel Charles, Gregg D. Polsky
Regulating Section 527 Organizations, Guy-Uriel Charles, Gregg D. Polsky
Faculty Scholarship
No abstract provided.
Policing The Spectrum Commons, Philip J. Weiser, Dale N. Hatfield
Policing The Spectrum Commons, Philip J. Weiser, Dale N. Hatfield
Publications
One of the most contested questions in spectrum policy is whether bands of spectrum left as unlicensed will fall victim to the tragedy of the commons. Advocates of increased unlicensed spectrum often downplay what enforcement measures are necessary to minimize interference and to prevent the tragedy of the commons problem. Even imposing spectrum etiquette requirements in addition to the FCC's equipment certification program will fail to address this concern effectively, as the development of such measures - e.g., the requirement that devices listen before they talk - does not ensure that they will be followed. Indeed, if there are incentives …
Executive Power And The Public Lands, Harold H. Bruff
Executive Power And The Public Lands, Harold H. Bruff
Publications
No abstract provided.
Principles Of Non-Arbitrariness: Lawlessness In The Administration Of Welfare, Christine N. Cimini
Principles Of Non-Arbitrariness: Lawlessness In The Administration Of Welfare, Christine N. Cimini
Articles
This article explores whether there exists a concept of non-arbitrariness that imposes limitations on the administration of welfare benefits without rules, regulations, policies or procedures. To address this question, the article examines the concept of non-arbitrariness within various jurisprudential doctrines and the potential applicability of the concept to limit arbitrary governmental action in the welfare context. In each of the areas where courts regulate arbitrary governmental action, underlying judicial concerns give rise to jurisprudential principles. Four principles stand out. First, at a minimum, there must be a rational relationship between the government’s ends and the means it chooses to reach …
Squaring The Circle? Reconciling Sovereignty And Global Governance Through Global Government Networks (Review Of Anne-Marie Slaughter, A New World Order), Kenneth Anderson
Squaring The Circle? Reconciling Sovereignty And Global Governance Through Global Government Networks (Review Of Anne-Marie Slaughter, A New World Order), Kenneth Anderson
Kenneth Anderson