Law Commons^™

Judicial Fidelity, Caprice L. Roberts

Pepperdine Law Review

Judicial critics abound. Some say the rule of law is dead across all three branches of government. Four are dead if you count the media as the fourth estate. All are in trouble, even if one approves of each branch’s headlines, but none of them are dead. Not yet. Pundits and scholars see the latest term of the Supreme Court as clear evidence of partisan politics and unbridled power. They decry an upheaval of laws and norms demonstrating the dire situation across the federal judiciary. Democracy is not dead even when the Court issues opinions that overturn precedent, upends long-standing …

Prosecutorial Nonenforcement And Residual Criminalization, Justin Murray

Articles & Chapters

In recent years a small but influential group of locally elected prosecutors committed to criminal justice reform have openly refused to enforce various criminal laws—laws prohibiting marijuana possession, sentence enhancements, laws authorizing the death penalty, and much more—because they see those laws as unjust and incompatible with core reform objectives. Condemned by many on the political right for allegedly usurping the legislature’s lawmaking role and praised by many on the left for bypassing dysfunctional state legislatures in favor of local solutions, these prosecutorial nonenforcement policies are commonly said to have the same effect as nullifying, or even repealing, the laws …

Tanggung Jawab Jabatan Dan Tanggung Jawab Pribadi Dalam Penggunaan Diskresi, Nehru Asyikin, Adam Setiawan

Jurnal Hukum & Pembangunan

Discretion is part of the authority to act freely by government officials to ensure the implementation of public services. However, the discretionary rules inherent in the office when it must be immediately to act without written law creates a conflict about the government must be based on the law. On the other hand the need for discretion becomes a polemic regarding job responsibilities and personal responsibility in the use of discretion, which parameters of use sometimes cause harm to society. The results of the study show that the implications of using discretion in the actions of officials that are used …

O’Neill, Oh O’Neill, Wherefore Art Thou O’Neill: Defining And Cementing The Requirements For Asserting Deliberative Process Privilege, Andrew Scott

Dickinson Law Review (2017-Present)

The government may invoke the deliberative process privilege to protect the communications of government officials involving policy-driven decision-making. The privilege protects communications made before policy makers act upon the policy decision to allow government officials to speak candidly when deciding a course of action without fear of their words being used against them.

This privilege is not absolute and courts recognize the legitimate countervailing interest the public has in transparency. The Supreme Court in United States v. Reynolds held that someone with control over the protected information should personally consider the privilege before asserting it but did not provide definitive …

The Self-Delegation False Alarm: Analyzing Auer Deference's Effect On Agency Rules, Daniel E. Walters

All Faculty Scholarship

Auer deference holds that reviewing courts should defer to agencies when the latter interpret their own preexisting regulations. This doctrine relieves pressure on agencies to undergo costly notice-and-comment rulemaking each time interpretation of existing regulations is necessary. But according to some leading scholars and jurists, the doctrine actually encourages agencies to promulgate vague rules in the first instance, augmenting agency power and violating core separation of powers norms in the process. The claim that Auer perversely encourages agencies to “self-delegate”—that is, to create vague rules that can later be informally interpreted by agencies with latitude due to judicial deference—has helped …

Searching For Humanitarian Discretion In Immigration Enforcement: Reflections On A Year As An Immigration Attorney In The Trump Era, Nina Rabin

University of Michigan Journal of Law Reform

This Article describes one of the most striking features of the Trump Administration’s immigration policy: the shift in the way discretion operates in the legal immigration system. Unlike other high-profile immigration policies that have been the focus of class action lawsuits and public outcry, the changes to the role of discretion have attracted little attention, in part because they are implemented through low-visibility individualized decisions that are difficult to identify, let alone challenge systemically. After providing historical context regarding the role of discretion in the immigration system before the Trump Administration, I offer four case studies from my immigration practice …

The Self-Delegation False Alarm: Analyzing Auer Deference’S Effect On Agency Rules, Daniel E. Walters

Faculty Scholarship

Auer deference holds that reviewing courts should defer to agen­cies when the latter interpret their own preexisting regulations. This doc­trine relieves pressure on agencies to undergo costly notice-and-com­ment rulemaking each time interpretation of existing regulations is neces­sary. But according to some leading scholars and jurists, the doc­trine actually encourages agencies to promulgate vague rules in the first instance, augmenting agency power and violating core separation of pow­ers norms in the process. The claim that Auer perversely encourages agencies to “self-delegate”—that is, to create vague rules that can later be informally interpreted by agencies with latitude due to judicial defer­ence—has helped …

Buffalo Field Campaign V. Zinke, Hallee C. Kansman

Public Land & Resources Law Review

Despite years of litigation and legislation, the protection status of bison in and around Yellowstone National Park remains unsettled. Buffalo Field Campaign, a non-profit group, has spent decades spearheading the fight to list the species as either endangered or threatened under the Endangered Species Act. Buffalo Field Campaign v. Zinke tests the scope of agency directives and the strictness of the statutory language which guides agency actions.

Designing The Decider, Emily S. Bremer

Journal Articles

The Administrative Procedure Act (APA) contains several provisions designed to ensure that presiding officials in so-called formal adjudications are able to make fair, well-informed, independent decisions. But these provisions do not apply to the vast majority of federal adjudicatory hearings. In this world of adjudication outside the APA, agencies enjoy broad procedural discretion, including substantial freedom to “design the decider.” This Article defines the scope of this discretion and explores how various agencies have exercised it. The discussion is enriched by examples drawn from an expansive new database of federal adjudicatory procedures. The Article argues that, although agency discretion to …

Remedial Restraint In Administrative Law, Nicholas Bagley

Articles

When a court determines that an agency action violates the Administrative Procedure Act, the conventional remedy is to invalidate the action and remand to the agency. Only rarely do the courts entertain the possibility of holding agency errors harmless. The courts’ strict approach to error holds some appeal: Better a hard rule that encourages procedural fastidiousness than a remedial standard that might tempt agencies to cut corners. But the benefits of this rule-bound approach are more elusive, and the costs much larger, than is commonly assumed. Across a wide range of cases, the reflexive invalidation of agency action appears wildly …

Proportionality Review In Administrative Law, Jud Mathews

Jud Mathews

At the most basic level, the principle of proportionality captures the common-sensical proposition that, when the government acts, the means it chooses should be well-adapted to achieve the ends it is pursuing. The proportionality principle is an admonition, as German administrative law scholar Fritz Fleiner famously wrote many decades ago, that “the police should not shoot at sparrows with cannons”. The use of proportionality review in constitutional and international law has received ample attention from scholars in recent years, but less has been said about proportionality’s role within administrative law. This piece suggest that we can understand the differences in …

Proportionality Review In Administrative Law, Jud Mathews

Contributions to Books

At the most basic level, the principle of proportionality captures the common-sensical proposition that, when the government acts, the means it chooses should be well-adapted to achieve the ends it is pursuing. The proportionality principle is an admonition, as German administrative law scholar Fritz Fleiner famously wrote many decades ago, that “the police should not shoot at sparrows with cannons”. The use of proportionality review in constitutional and international law has received ample attention from scholars in recent years, but less has been said about proportionality’s role within administrative law. This piece suggest that we can understand the differences in …

Agency Innovation In Vermont Yankee's White Space, Emily S. Bremer, Sharon B. Jacobs

Publications

The literature on “agency discretion” has, with a few notable exceptions, largely focused on substantive policy discretion, not procedural discretion. In this essay, we seek to refocus debate on the latter, which we argue is no less worthy of attention. We do so by defining the parameters of what we call Vermont Yankee’s “white space” — the scope of agency discretion to experiment with procedures within the boundaries established by law (and thus beyond the reach of the courts). Our goal is to begin a conversation about the dimensions of this procedural negative space, in which agencies are free …

Unpacking Eme Homer: Cost, Proportionality, And Emissions Reductions, Daniel A. Farber

Michigan Journal of Environmental & Administrative Law

Interstate air pollution can prevent even the most diligent downwind state from attaining the air quality levels required by federal law. Allocating responsibility for emissions cuts when multiple upwind states contribute to downwind air quality violations presents a particularly difficult problem. Justice Ginsburg’s opinion for the Court in EPA v. EME Homer City Generator, L.P., gives EPA broad discretion to craft regulatory solutions for this problem. Although the specific statutory provision at issue was deceptively simple, the underlying problem was especially complex because of the large number of states involved. Indeed, neither the majority opinion nor the dissent seems to …

Admit Or Deny: A Call For Reform Of The Sec's "Neither-Admit-Nor-Deny" Policy, Priyah Kaul

University of Michigan Journal of Law Reform

For four decades, the SEC’s often-invoked policy of settling cases without requiring admissions of wrongdoing, referred to as the “neither-admit-nor-deny” policy, went unchallenged by the courts, the legislature, and the public. Then in 2011, a harshly critical opinion from Judge Jed Rakoff in SEC v. Citigroup incited demands for reform of this policy. In response to Judge Rakoff’s opinion, the SEC announced a modified approach to settlements. Under the modified approach, the Commission may require an admission of wrongdoing if a defendant’s misconduct was egregious or if the public markets would benefit from an admission. Many supporters of the neither-admit-nor-deny …

Searching For Proportionality In U.S. Administrative Law, Jud Mathews

Contributions to Books

There is no such thing as “proportionality review” in American administrative law, but instead, a number of doctrines that courts deploy to evaluate agency exercises of discretion. In some respects, these frameworks for review resemble proportionality in operation, but there are also notable differences. This essay surveys the doctrines governing judicial review of administrative discretion in the United States, highlighting three distinguishing features of the American approach. First, American judicial review is characterized by a high degree of unpredictability, not only with respect to outcomes, but often with respect to what framework of review is applicable. Second, while classical proportionality …

Searching For Proportionality In U.S. Administrative Law, Jud Mathews

Jud Mathews

[Dis-]Informing The People's Discretion: Judicial Deference Under The National Security Exemption Of The Freedom Of Information Act, Susan Nevelow Mart, Tom Ginsburg

Publications

As noted by President Obama's recent Review Group on Intelligence and Communications Technologies, pervasive state surveillance has never been more feasible. There has been an inexorable rise in the size and reach of the national security bureaucracy since it was created after World War II, as we have gone through the Cold War and the War on Terror. No one doubts that our national security bureaucracies need to gain intelligence and keep some of it secret. But the consensus of decades of experts, both insiders and outsiders, is that there is rampant overclassfication by government agencies. From its inception in …

Essential Health Benefits And The Affordable Care Act: Law And Process, Nicholas Bagley, Helen Levy

Articles

Starting in 2014, the Affordable Care Act (ACA) will require private insurance plans sold in the individual and small-group markets to cover a roster of "essential health benefits." Precisely which benefits should count as essential, however, was left to the discretion of the Department of Health and Human Services (HHS). The matter was both important and controversial. Nonetheless, HHS announced its policy by posting on the Internet a thirteen-page bulletin stating that it would allow each state to define essential benefits for itself. On both substance and procedure, the move was surprising. The state-by-state approach departed from the uniform, federal …

Unreviewability In State Administrative Law, Charles H. Koch Jr.

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Legislation That Isn't – Attending To Rulemaking's "Democracy Deficit", Peter L. Strauss

Faculty Scholarship

Philip Frickey's commitment to practical legal studies won my admiration early on in his career. In this welcome celebration of his extraordinary career, it seems fitting to essay something "practical" – to attempt a constructive approach to an enduring problem – that has some bearing on his lifelong attention to the problem of "interpretation." If it will not make the problem go away, perhaps it will provide a basis for understanding its inevitable tensions, and in that way will help us step past theoretical exegeses suggesting the possibility of simple answers.

"Streamlining" The Rule Of Law: How The Department Of Justice Is Undermining Judicial Review Of Agency Action, Shruti Rana

Shruti Rana

Judicial review of administrative decision making is an essential institutional check on agency power. Recently, however, the Department of Justice dramatically revised its regulations in an attempt to insulate its decision making from public and federal court scrutiny. These “streamlining” rules, carried out in the name of national security and immigration reform, have led to a breakdown in the rule of law in our judicial system. While much attention has been focused on the Department of Justice’s recent attempts to shield executive power from the reach of Congress, its efforts to undermine judicial review have so far escaped such scrutiny. …

"Streamlining" The Rule Of Law: How The Department Of Justice Is Undermining Judicial Review Of Agency Action, Shruti Rana

Faculty Scholarship

Judicial review of administrative decision making is an essential institutional check on agency power. Recently, however, the Department of Justice dramatically revised its regulations in an attempt to insulate its decision making from public and federal court scrutiny. These “streamlining” rules, carried out in the name of national security and immigration reform, have led to a breakdown in the rule of law in our judicial system. While much attention has been focused on the Department of Justice’s recent attempts to shield executive power from the reach of Congress, its efforts to undermine judicial review have so far escaped such scrutiny. …

Antiquities Act Monuments: The Elgin Marbles Of Our Public Lands?, James R. Rasband

Celebrating the Centennial of the Antiquities Act (October 9)

13 pages.

Includes bibliographical references

Slides: The Centennial Of The Antiquities Act: A Cause For Celebration?, James R. Rasband

Celebrating the Centennial of the Antiquities Act (October 9)

Presenter: Professor James R. Rasband, Brigham Young University School of Law

20 slides

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. …

Lawmaking By Public Welfare Professionals, Margaret F. Brinig

ExpressO

In an era of shrinking state and local resources for domestic violence prevention and detection, governments face a critical question of how to best allocate scarce funds. This paper suggests some answers for treating violence by caregivers and presents a model for evaluating other programs. To reach our conclusions, we analyzed data and survey results supplied by more than 1700 county-level adult protective services (APS) authorities.

We found that some expensive programs produce very few results in terms of reporting, investigating, and substantiating elder abuse. For example, requiring a specific education or experience level (and therefore guaranteeing higher salaries) or …

Reply To Judge Easterbrook: The Unsupported Delegation Of Conflict Adjudication In Erisa Benefit Claims Under The Guise Of Judicial Deference, Donald T. Bogan

Oklahoma Law Review

No abstract provided.

Cooperative Implementation Of Federal Regulations, Douglas C. Michael

Law Faculty Scholarly Articles

Professor Michael examines regulatory programs in which the federal government leaves many compliance decisions up to the regulated entities themselves. Drawing on prior research and theory in the area, he concludes that such "cooperative implementation" is feasible if three principles are observed: (1) regulatory standards are written to leave discretion in methods of compliance and that discretion is within the competence of the regulated entities; (2) there are economic incentives to offset the additional costs to these entities; and (3) the entities self-report their own compliance, the agency closely monitors the program, and the agency maintains a residual program of …

The Conditions Of Discretion: Autonomy, Community, Bureaucracy, Steven F. Cherry

Michigan Law Review

A Review of The Conditions of Discretion: Autonomy, Community, Bureaucracy/em by Joel F. Handler