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Full-Text Articles in Law
The Right To Remove In Agency Adjudication, Christopher J. Walker, David Zaring
The Right To Remove In Agency Adjudication, Christopher J. Walker, David Zaring
Articles
In SEC v. Jarkesy, the Supreme Court will decide the constitutional future of agency adjudication, especially in the context of agency enforcement actions and the imposition of civil penalties. If the Court agrees with the Fifth Circuit on any of its three independent reasons for unconstitutionality, agency enforcement and adjudication schemes across the federal regulatory state will be severely disrupted, in ways that are detrimental to both the regulator and the regulated. In this Essay, we propose a path forward: In certain circumstances, the regulated party should have a right to remove an enforcement action from an in-house agency adjudication …
Regulating Impartiality In Agency Adjudication, Kent H. Barnett
Regulating Impartiality In Agency Adjudication, Kent H. Barnett
Scholarly Works
Which should prevail—the Take Care Clause of Article II or the Due Process Clause? To Justice Breyer’s chagrin, the majorities in Lucia v. SEC and Free Enterprise Fund v. PCAOB expressly declined to resolve whether the U.S. Constitution condones SEC administrative law judges’ and other similarly situated agency adjudicators’ current statutory protection from at-will removal. The crux of the problem is that, on one hand, senior officials may use at-will removal to pressure agency adjudicators and thereby potentially imperil the impartiality that due process requires. On the other hand, Article II limits Congress’s ability to cocoon executive officers, including potentially …
Ignoring Administrative Decisions Through Settlement: A Holistic Approach, Vincent Escoto
Ignoring Administrative Decisions Through Settlement: A Holistic Approach, Vincent Escoto
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Agency Adjudication And Judicial Nondelegation: An Article Iii Canon, Mila Sohoni
Agency Adjudication And Judicial Nondelegation: An Article Iii Canon, Mila Sohoni
Northwestern University Law Review
The rules governing judicial review of adjudication by federal agencies are insensitive to a critical separation of powers principle. Article III jurisprudence requires different treatment of agency adjudication depending on whether the agency is adjudicating a “private right” or a “public right.” When agencies adjudicate private rights, review of the agency adjudication must be available to an Article III court on a direct appellate basis. In contrast, Article III jurisprudence does not require review to an Article III court on a direct appellate basis of agency adjudications of purely public rights. That means that federal courts reviewing agency adjudications of …
Removal Of Judicial Functions From Federal Trade Commission To A Trade Court: A Reply To Mr. Kintner, Raoul Berger
Removal Of Judicial Functions From Federal Trade Commission To A Trade Court: A Reply To Mr. Kintner, Raoul Berger
Michigan Law Review
Not long ago, Attorney General Rogers stated that, "The entire field of administrative law and of Government regulation may require a searching re-examination of some of the premises on which we have based our conclusions." What lifts this utterance to the level of "man bites dog" is that the Attorney General almost alone among federal administrators does not insist that the administrative process, in major outline, is forever frozen. The orthodox administrative view is exemplified by Mr. Earl W. Kintner's (formerly General Counsel and now Chairman of the Federal Trade Commission) numerous strictures upon the American Bar Association proposal that …