Law Commons^™

Algorithm Vs. Algorithm, Cary Coglianese, Alicia Lai

All Faculty Scholarship

Critics raise alarm bells about governmental use of digital algorithms, charging that they are too complex, inscrutable, and prone to bias. A realistic assessment of digital algorithms, though, must acknowledge that government is already driven by algorithms of arguably greater complexity and potential for abuse: the algorithms implicit in human decision-making. The human brain operates algorithmically through complex neural networks. And when humans make collective decisions, they operate via algorithms too—those reflected in legislative, judicial, and administrative processes. Yet these human algorithms undeniably fail and are far from transparent. On an individual level, human decision-making suffers from memory limitations, fatigue, …

How Nondiscrimination Takes Root: An Examination Of Methods To Implement Statewide Nondiscrimination Legislation In Kentucky., Blake Nona Gould

Electronic Theses and Dissertations

This research examined the numerous fairness ordinances in Kentucky’s cities for repeated trends, patterns, and practices in their language. Through the use of a cumulative case study, cases were selected from the ordinances as well as state and federal law, judicial actions, and other relevant factors from within the state. Each of the ordinances were examined for generalizability and their ability to be applied to a single, unified state nondiscrimination law that conforms with existing state and federal law. It was found that significant similarities exist between the various ordinances, though discrepancies would also need to be addressed. In the …

The Need For A Central Panel Approach To Administrative Adjudication: Pros, Cons, And Selected Practices, Malcolm C. Rich, Alison C. Goldstein

Journal of the National Association of Administrative Law Judiciary

The goal of this report is to document the growth of the central panel movement that has now emerged in a majority of states. This research is designed to provide data-informed recommendations to states and municipalities considering the adoption of a central panel system or the enlargement of the jurisdiction encompassed by an existing central panel as well as to states considering the adoption of a more final decision-making authority for their central panel ALJs. The work is also intended to inform the debate over whether the central panel approach is something that the federal government should consider. This research …

Inefficient Inequality, Shi-Ling Hsu

Scholarly Publications

For the past several decades, much American lawmaking has been animated by a concern for economic efficiency. At the same time, broad concerns over wealth and income inequality have roiled American politics, and still loom over lawmakers. It can be reasonably argued that a tension exists between efficiency and equality, but that argument has had too much purchase over the past few decades of lawmaking. What has been overlooked is that inequality itself can be allocatively inefficient when it gives rise to collectively inefficient behavior. Worse still, some lawmaking only masquerades as being efficiency-promoting; upon closer inspection, some of this …

Administrative Adjudications In New Jersey: Why Not Let The Alj Decide?, Richard M. Hluchan

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

From Rawls To Habermas: Towards A Theory Of Grounded Impartiality In Canadian Administrative Law, Laverne Jacobs

Osgoode Hall Law Journal

At the same time that Canadian public law jurisprudence has grappled with some key cases on bias, a vibrant debate has also raged over the meaning and scope of the notion of impartiality within political and moral philosophy. Spurred by Rawls’ view of liberalism, and culminating in the theory of deliberative democracy, this debate evolved over a span of more than four decades. Yet this philosophical literature is rarely, if at all, referred to in the public law jurisprudence dealing with impartiality. This article asks whether the debates surrounding impartiality in political and moral philosophy and those in Canadian public …

Fundamental Fairness, Judicial Efficiency And Uniformity: Revisiting The Administrative Procedure Act, Daniel F. Solomon

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Easing The Guidance Document Dilemma Agency By Agency: Immigration Law And Not Really Binding Rules, Jill E. Family

University of Michigan Journal of Law Reform

Immigration law relies on rules that bind effectively, but not legally, to adjudicate millions of applications for immigration benefits every year. This Article provides a blueprint for immigration law to improve its use of these practically binding rules, often called guidance documents. The agency that adjudicates immigration benefit applications, United States Citizenship and Immigration Services (USCIS), should develop and adopt its own Good Guidance Practices to govern how it uses guidance documents. This Article recommends a mechanism for reform, the Good Guidance Practices, and tackles many complex issues that USCIS will need to address in creating its practices. The recommended …

1998 Survey Of Ethics In Land-Use Planning, Patricia E. Salkin

Patricia E. Salkin

No abstract provided.

Municipal Ethics Remain A Hot Topic In Litigation: A 1999 Survey Of Issues In Ethics For Municipal Lawyers, Patricia E. Salkin

Patricia E. Salkin

No abstract provided.

Privacy Policies, Terms Of Service, And Ftc Enforcement: Broadening Unfairness Regulation For A New Era, G. S. Hans

Michigan Telecommunications & Technology Law Review

This Note examines website privacy policies in the context of FTC regulation. The relevant portion of Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45(a), uses the following language to define the scope of the agency's regulatory authority: "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful." Specifically, this Note analyzes the FTC's power to regulate unfair practices (referred to as the FTC's "unfairness power") granted by Section 5, and also discusses the deception prong of Section 5, which allows the agency to …

The Justiciability Of Fair Balance Under The Federal Advisory Committee Act: Toward A Deliberative Process Approach, Daniel E. Walters

Michigan Law Review

The Federal Advisory Committee Act's requirement that advisory committees be "fairly balanced in terms of the points of view represented and the functions to be performed" is generally considered either nonjusticiable under the Administrative Procedure Act or justiciable but subject to highly deferential review. These approaches stem from courts' purported inability to discern from the text of the statute any meaningful legal standards for policing representational balance. Thus, the Federal Advisory Committee Act's most important substantive limitation on institutional pathologies such as committee "capture" or domination is generally unused despite the ubiquity of federal advisory committees in the modern regulatory …

An Irs Duty Of Consistency: The Failure Of Common Law Making And A Proposed Statutory Solution, Steve R. Johnson

Scholarly Publications

The IRS should endeavor to treat similarly-situated taxpayers similarly, but does this aspiration rise to the level of a judicially enforceable duty? If the IRS takes a position on Taxpayer B that is correct under the law but is inconsistent with a position the IRS took on similarly-situated Taxpayer A, should the IRS’s position on Taxpayer B fail simply because of the inconsistency? These questions implicate important themes, such as fairness, the rule of law, separation of powers, administrative exigencies, the role of common law making in a highly positivistic system, and the sustainability of legal regimes.

A constitutional standard …

Transparency And Public Participation In The Rulemaking Process: Recommendations For The New Administration, Cary Coglianese, Heather Kilmartin, Evan Mendelson

All Faculty Scholarship

Each year, federal regulatory agencies create thousands of new rules that affect the economy. When these agencies insulate themselves too much from the public, they are more likely to make suboptimal decisions and decrease public acceptance of their resulting rules. A nonpartisan Task Force on Transparency and Public Participation met in 2008 to identify current deficiencies in agency rulemaking procedures and develop recommendations for the next presidential administration to improve the quality of regulations and the legitimacy of regulatory proceedings. This report summarizes the Task Force's deliberations, indicating ways that federal agencies could do a better job of seeking citizen …

Private Rights And Collective Governance: A Functional Approach To Natural Resources Law, Eric T. Freyfogle

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

4 pages.

"Eric T. Freyfogle, Max L. Rowe Professor of Law, University of Illinois College of Law"

Self-Regulation And Securities Markets, Adam C. Pritchard

Articles

Enron, Arthur Andersen, Tyco, ImClone, WorldCom, Adelphia - as American investors reel from accounting scandals and self-dealing by corporate insiders, the question of trust in the securities markets has taken on a new urgency. Securities markets cannot operate without trust. Markets known for fraud, insider trading, and manipulation risk a downward spiral as investors depart in search of safer investments. Today, many investors are rethinking the wisdom of entrusting their financial futures to the stock market. Absent trust in the integrity of the securities markets, individuals will hoard their money under the proverbial mattress.

Municipal Ethics Remain A Hot Topic In Litigation: A 1999 Survey Of Issues In Ethics For Municipal Lawyers, Patricia E. Salkin

Scholarly Works

No abstract provided.

1998 Survey Of Ethics In Land-Use Planning, Patricia E. Salkin

Scholarly Works

No abstract provided.

The Benefits Of Professional Public Land Management, Elizabeth Estill

Challenging Federal Ownership and Management: Public Lands and Public Benefits (October 11-13)

13 pages (includes illustration).

Contains references.

Jurisdiction, Fairness And Reasonableness, Julius H. Grey, Lynne-Marie Casgrain

Dalhousie Law Journal

There is no doubt that in the days of procedural refinements, arbitrary distinctions and uncertainty as to the purpose of judicial review, the subject was exceedingly complicated and unnecessarily subtle. With the new dominance of relatively simple concepts, and more obvious policy goals, we may reduce the subject to a wholesome simplicity, so that both the government and the citizens can know and understand their rights. To do so, we have to consider the fundamental concepts one by one, and then apply them to recent jurisprudence and to the policy of modern administrative law.

Fairness After The Charter: A Rose By Any Other Name?, A. Wayne Mackay

Articles, Book Chapters, & Popular Press

On at least a short term basis the Charter of Rights and Freedoms has made a significant dent in the Canadian legal landscape. Not only has it produced a veritable cottage industry for practising lawyers and legal academics - it has raised some of the most fundamental questions about which institutions should shape public policy in Canada. The courts have a bold new mandate to measure the acts of the legislative and executive branches of the government against the new standards of the Charter. When these agencies are found wanting, they are to be checked and their illegal actions invalidated. …

Section 558( C ) Of The Administrative Procedure Act: Provision For Informal Agency Hearings Prior To License Revocation Or Suspension, Joan P. Snyder

University of Michigan Journal of Law Reform

This Note argues that section 558(c) should be interpreted to require an agency to provide a hearing prior to license suspension or revocation. Part I argues that all courts that have adjudicated whether section 558(c) requires a hearing have misconstrued the statute by failing to consider the general policies served by the APA. Part II examines section 558(c) in light of the major policies of the APA, uniformity and fairness in administrative procedure. It argues that these policies are best served by an interpretation that requires a hearing prior to suspension or revocation of any federal license. It does, however, …

Legislative Formality, Administrative Rationality, Harold H. Bruff

Publications

No abstract provided.

Busfare Increases And Administrative Irregularities, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.

Constitutional Law - Price Fixing - Limits Of Administrative Discretion

Michigan Law Review

An order of the New York Milk Control Board prescribed a minimum selling price to be charged by wholesale dealers to their customers and also a minimum buying price to be paid by the dealers to producers. Competition fixed the minimum selling price as the maximum obtainable. Plaintiff, a wholesale dealer, could not operate at a profit and sued to enjoin enforcement of the order as arbitrary and hence violative of due process. Held, that upon these facts only, with nothing to show that efficient dealers could not operate profitably, the price limits were not arbitrary. Hegeman Farms Corp. …