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Full-Text Articles in Law

Energy Emergencies, Amy L. Stein Nov 2020

Energy Emergencies, Amy L. Stein

Northwestern University Law Review

Emergency powers are essential to the proper functioning of the government. Emergencies demand swift and decisive action; yet, our system of government also values deliberation and procedures. To enable such agility in a system fraught with bureaucracy, Congress frequently delegates unilateral statutory emergency powers directly to its most nimble actor: the President. The powers Congress delegates to the President are vast and varied, and often sacrifice procedural requirements in favor of expediency. Most scholars and policymakers have come to terms with this tradeoff, assuming that the need to respond quickly is outweighed by any loss of accountability.

This Article challenges ...


A False Sense Of Security: How Congress And The Sec Are Dropping The Ball On Cryptocurrency, Tessa E. Shurr Oct 2020

A False Sense Of Security: How Congress And The Sec Are Dropping The Ball On Cryptocurrency, Tessa E. Shurr

Dickinson Law Review

Today, companies use blockchain technology and digital assets for a variety of purposes. This Comment analyzes the digital token. If the Securities and Exchange Commission (SEC) views a digital token as a security, then the issuer of the digital token must comply with the registration and extensive disclosure requirements of federal securities laws.

To determine whether a digital asset is a security, the SEC relies on the test that the Supreme Court established in SEC v. W.J. Howey Co. Rather than enforcing a statute or agency rule, the SEC enforces securities laws by applying the Howey test on a ...


The Opioid Litigation: The Fda Is Mia, Catherine M. Sharkey Apr 2020

The Opioid Litigation: The Fda Is Mia, Catherine M. Sharkey

Dickinson Law Review

It is readily agreed that federal preemption of state tort law alters the balance between federal and state power. Federal preemption is a high-profile defense in almost all modern products liability cases. It is thus surprising to see how little attention has been given to federal preemption by courts and commentators in the opioid litigation. Opioid litigation provides a lens through which I explore the role of state and federal courts and the Food and Drug Administration (FDA) in striking the right balance of power. My purpose here is not to resolve the divide among the few courts that have ...


Reflections On The Effects Of Federalism On Opioid Policy, Matthew B. Lawrence Apr 2020

Reflections On The Effects Of Federalism On Opioid Policy, Matthew B. Lawrence

Dickinson Law Review

No abstract provided.


Solving The Congressional Review Act’S Conundrum, Cary Coglianese Mar 2020

Solving The Congressional Review Act’S Conundrum, Cary Coglianese

Faculty Scholarship at Penn Law

Congress routinely enacts statutes mandating that federal agencies adopt specific regulations. For example, when Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010, it required the Securities and Exchange Commission (SEC) to adopt a regulation compelling energy companies to disclose payments they make to governmental entities. Although this disclosure regulation is specifically required by the Dodd-Frank Act, it is also a regulation subject to disapproval by Congress under a process outlined in a separate statute known as the Congressional Review Act (CRA).

In 2017, Congress passed a joint resolution disapproving the SEC’s disclosure rule under ...


Litigating Epa Rules: A Fifty-Year Retrospective Of Environmental Rulemaking In The Courts, Cary Coglianese, Daniel E. Walters Jan 2020

Litigating Epa Rules: A Fifty-Year Retrospective Of Environmental Rulemaking In The Courts, Cary Coglianese, Daniel E. Walters

Faculty Scholarship at Penn Law

Over the last fifty years, the U.S. Environmental Protection Agency (EPA) has found itself repeatedly defending its regulations before federal judges. The agency’s engagement with the federal judiciary has resulted in prominent Supreme Court decisions, such as Chevron v. NRDC and Massachusetts v. EPA, which have left a lasting imprint on federal administrative law. Such prominent litigation has also fostered, for many observers, a longstanding impression of an agency besieged by litigation. In particular, many lawyers and scholars have long believed that unhappy businesses or environmental groups challenge nearly every EPA rule in court. Although some empirical studies ...


Illuminating Regulatory Guidance, Cary Coglianese Jan 2020

Illuminating Regulatory Guidance, Cary Coglianese

Faculty Scholarship at Penn Law

Administrative agencies issue many guidance documents each year in an effort to provide clarity and direction to the public about important programs, policies, and rules. But these guidance documents are only helpful to the public if they can be readily found by those who they will benefit. Unfortunately, too many agency guidance documents are inaccessible, reaching the point where some observers even worry that guidance has become a form of regulatory “dark matter.” This article identifies a series of measures for agencies to take to bring their guidance documents better into the light. It begins by explaining why, unlike the ...


Copyright Arbitrage, Kristelia A. Garcia Jan 2019

Copyright Arbitrage, Kristelia A. Garcia

Articles

Regulatory arbitrage—defined as the manipulation of regulatory treatment for the purpose of reducing regulatory costs or increasing statutory earnings—is often seen in heavily regulated industries. An increase in the regulatory nature of copyright, coupled with rapid technological advances and evolving consumer preferences, have led to an unprecedented proliferation of regulatory arbitrage in the area of copyright law. This Article offers a new scholarly account of the phenomenon herein referred to as “copyright arbitrage.”

In some cases, copyright arbitrage may work to expose and/or correct for an extant gap or inefficiency in the regulatory regime. In other cases ...


The Winter Of Discontent: A Circumscribed Chevron, Nicholas R. Bednar Jan 2019

The Winter Of Discontent: A Circumscribed Chevron, Nicholas R. Bednar

Mitchell Hamline Law Review

No abstract provided.


The Statutory Separation Of Powers, Sharon B. Jacobs Jan 2019

The Statutory Separation Of Powers, Sharon B. Jacobs

Articles

Separation of powers forms the backbone of our constitutional democracy. But it also operates as an underappreciated structural principle in subconstitutional domains. This Article argues that Congress constructs statutory schemes of separation, checks, and balances through its delegations to administrative agencies. Like its constitutional counterpart, the “statutory separation of powers” seeks to prevent the dominance of factions and ensure policy stability. But separating and balancing statutory authority is a delicate business: the optimal balance is difficult to calibrate ex ante, the balance is unstable, and there are risks that executive agencies in particular might seek expansion of their authority vis-à-vis ...


Strategic Institutional Positioning: How We Have Come To Generate Environmental Law Without Congress, Donald J. Kochan Dec 2018

Strategic Institutional Positioning: How We Have Come To Generate Environmental Law Without Congress, Donald J. Kochan

Donald J. Kochan

When examining legislation authorizing administrative agencies to promulgate rules, we are often left asking whether Congress “delegates” away its lawmaking authority by giving agencies too much power and discretion to decide what rules should be promulgated and to determine how rich to make their content. If the agencies get broad authority, it is not too hard to understand why they would fulsomely embrace the grant to its fullest. Once agencies are let loose by broad grants of rulemaking authority and they are off to the races, we are also often left scratching our heads wondering why Congress fails to intervene ...


Bankruptcy For Banks: A Tribute (And Little Plea) To Jay Westbrook, David A. Skeel Jr. Oct 2018

Bankruptcy For Banks: A Tribute (And Little Plea) To Jay Westbrook, David A. Skeel Jr.

Faculty Scholarship at Penn Law

In this brief essay, to be included in a book celebrating the work of Jay Westbrook, I begin by surveying Jay’s wide-ranging contributions to bankruptcy scholarship. Jay’s functional analysis has had a profound effect on scholars’ understanding of key issues in domestic bankruptcy law, and Jay has been the leading scholarly figure on cross-border insolvency. After surveying Jay’s influence, I turn to the topic at hand: a proposed reform that would facilitate the use of bankruptcy to resolve the financial distress of large financial institutions. Jay has been a strong critic of this legislation, arguing that financial ...


The Interplay Between Human Rights And Accessibility Laws: Lessons Learned And Considerations For The Planned Federal Accessibility Legislation, Laverne Jacobs Feb 2018

The Interplay Between Human Rights And Accessibility Laws: Lessons Learned And Considerations For The Planned Federal Accessibility Legislation, Laverne Jacobs

Law Publications

In this study, the author analyzes, comparatively, the administrative governance functions of legislation that provides accessibility standards in six jurisdictions that also offer legal protection from discrimination to people with disabilities: Australia, the United Kingdom, the United States and the Canadian provinces of Ontario, Manitoba and Nova Scotia. The following governance functions were examined: a) creating accessibility standards, b) enforcing accessibility standards, c) enforcing decisions,d) encouraging compliance, e) raising public awareness (and promoting systemic culture change) and f) public education. The study was conducted with a view to understanding how human rights laws, principles and values can be used ...


The Interplay Between Human Rights And Accessibility Laws: Lessons Learned And Considerations For The Planned Federal Accessibility Legislation, Laverne A. Jacobs Feb 2018

The Interplay Between Human Rights And Accessibility Laws: Lessons Learned And Considerations For The Planned Federal Accessibility Legislation, Laverne A. Jacobs

Laverne Jacobs

In this study, the author analyzes, comparatively, the administrative governance functions of legislation that provides accessibility standards in six jurisdictions that also offer legal protection from discrimination to people with disabilities: Australia, the United Kingdom, the United States and the Canadian provinces of Ontario, Manitoba and Nova Scotia. The following governance functions were examined: a) creating accessibility standards, b) enforcing accessibility standards, c) enforcing decisions,d) encouraging compliance, e) raising public awareness (and promoting systemic culture change) and f) public education. The study was conducted with a view to understanding how human rights laws, principles and values can be used ...


What Congress's Repeal Efforts Can Teach Us About Regulatory Reform, Cary Coglianese, Gabriel Scheffler Dec 2017

What Congress's Repeal Efforts Can Teach Us About Regulatory Reform, Cary Coglianese, Gabriel Scheffler

Faculty Scholarship at Penn Law

Major legislative actions during the early part of the 115th Congress have undermined the central argument for regulatory reform measures such as the REINS Act, a bill that would require congressional approval of all new major regulations. Proponents of the REINS Act argue that it would make the federal regulatory system more democratic by shifting responsibility for regulatory decisions away from unelected bureaucrats and toward the people’s representatives in Congress. But separate legislative actions in the opening of the 115th Congress only call this argument into question. Congress’s most significant initiatives during this period — its derailed attempts to ...


The President’S Pen And The Bureaucrat’S Fiefdom, John C. Eastman May 2017

The President’S Pen And The Bureaucrat’S Fiefdom, John C. Eastman

John C. Eastman

Perhaps spurred by aggressive use of executive orders and “lawmaking” by administrative agencies by the last couple of presidential administrations, several Justices on the Supreme Court have recently expressed concern that the Court’s deference doctrines have undermined core separation of powers constitutional principles.  This article explores those Justice’s invitation to revisit those deference doctrines and some of the executive actions that have prompted the concern.


The Administrative State: Problems Associated With Congressional Intent, Statutory Interpretation, And The Powers Granted To Administrative Agencies, Serje Havandjian Apr 2017

The Administrative State: Problems Associated With Congressional Intent, Statutory Interpretation, And The Powers Granted To Administrative Agencies, Serje Havandjian

Journal of the National Association of Administrative Law Judiciary

While reading this article, two questions should be kept in mind: (1) why the Court held that the TSA promulgated whistleblowing regulation was not considered to have the force and effect of law, and how that effects other regulations, and (2) how should the Supreme Court respond if a conflict of congressional intent and statutory interpretation arises within another regulatory or administrative agency's internal scheme for regulating such issues? With a careful analysis of statutory interpretation and determining congressional intent, and some luck, this article will try to answer these questions. Ultimately, what we will find is that although ...


Dictation And Delegation In Securities Regulation, Usha Rodrigues Apr 2017

Dictation And Delegation In Securities Regulation, Usha Rodrigues

Indiana Law Journal

When Congress undertakes major financial reform, either it dictates the precise con-tours of the law itself or it delegates the bulk of the rule making to an administrative agency. This choice has critical consequences. Making the law self-executing in federal legislation is swift, not subject to administrative tinkering, and less vulnerable than rule making to judicial second-guessing. Agency action is, in contrast, deliberate, subject to ongoing bureaucratic fiddling, and more vulnerable than statutes to judicial challenge.

This Article offers the first empirical analysis of the extent of congressional delegation in securities law from 1970 to the present day, examining nine ...


The Crushing Of A Dream: Daca, Dapa And The Politics Of Immigration Law Under President Obama, Robert H. Wood Mar 2017

The Crushing Of A Dream: Daca, Dapa And The Politics Of Immigration Law Under President Obama, Robert H. Wood

Barry Law Review

No abstract provided.


Dictation And Delegation In Securities Regulation, Usha Rodrigues Jan 2017

Dictation And Delegation In Securities Regulation, Usha Rodrigues

Scholarly Works

When Congress undertakes major financial reform, either it dictates the precise contours of the law itself or it delegates the bulk of the rulemaking to an administrative agency. This choice has critical consequences. Making the law self-executing in federal legislation is swift, not subject to administrative tinkering, and less vulnerable than rulemaking to judicial second-guessing. Agency action is, in contrast, deliberate, subject to ongoing bureaucratic fiddling and more vulnerable than statutes to judicial challenge.

This Article offers the first empirical analysis of the extent of congressional delegation in securities law from 1970 to the present day, examining nine pieces of ...


Chevron's Interstitial Steps, Cary Coglianese Jan 2017

Chevron's Interstitial Steps, Cary Coglianese

Faculty Scholarship at Penn Law

The Chevron doctrine’s apparent simplicity has long captivated judges, lawyers, and scholars. According to the standard formulation, Chevron involves just two straightforward steps: (1) Is a statute clear? (2) If not, is the agency’s interpretation of the statute reasonable? Despite the influence of this two-step framework, Chevron has come under fire in recent years. Some critics bemoan what they perceive as the Supreme Court’s incoherent application of the Chevron framework over time. Others argue that Chevron’s second step, which calls for courts to defer to reasonable agency interpretations of ambiguous statutory provisions, amounts to an abdication ...


Preemption In The Rehnquist And Roberts Courts: An Empirical Analysis, Michael Greve, Jonathan Klick, Michael A. Petrino, J. P. Sevilla Jan 2016

Preemption In The Rehnquist And Roberts Courts: An Empirical Analysis, Michael Greve, Jonathan Klick, Michael A. Petrino, J. P. Sevilla

Faculty Scholarship at Penn Law

This article presents an empirical analysis of the Rehnquist Court’s and the Roberts Court’s decisions on the federal (statutory) preemption of state law. In addition to raw outcomes for or against preemption, we examine cases by subject-matter, level of judicial consensus, tort versus regulatory preemption, party constellation, and origin in state or federal court. We present additional data and analysis on the role of state amici and of the U.S. Solicitor General in preemption cases, and we examine individual justices’ voting records. Among our findings, one stands out: over time and especially under the Roberts Court, lawyerly ...


Take It To The Limit: The Illegal Regulation Prohibiting The Take Of Any Threatened Species Under The Endangered Species Act, Jonathan Wood Aug 2015

Take It To The Limit: The Illegal Regulation Prohibiting The Take Of Any Threatened Species Under The Endangered Species Act, Jonathan Wood

Jonathan Wood

The Endangered Species Act forbids the “take” – any activity that adversely affects – any member of an endangered species, but only endangered species. The statute also provides for the listing of threatened species, i.e. species that may become endangered, but protects them only by requiring agencies to consider the impacts of their projects on them. Shortly after the statute was adopted, the U.S. Fish and Wildlife Service and National Marine Fisheries Service reversed Congress’ policy choice by adopting a regulation that forbids the take of any threatened species. The regulation is not authorized by the Endangered Species Act, but ...


Purposivism In The Executive Branch: How Agencies Interpret Statutes, Kevin M. Stack Jul 2015

Purposivism In The Executive Branch: How Agencies Interpret Statutes, Kevin M. Stack

Northwestern University Law Review

After decades of debate, the lines of distinction between textualism and purposivism have been carefully drawn with respect to the judicial task of statutory interpretation. Far less attention has been devoted to the question of how executive branch officials approach statutory interpretation. While scholars have contrasted agencies’ interpretive practices from those of courts, they have not yet developed a theory of agency statutory interpretation.

This Article develops a purposivist theory of agency statutory interpretation on the ground that regulatory statutes oblige agencies to implement the statutes they administer in that manner. Regulatory statutes not only grant powers but also impose ...


Inside Agency Statutory Interpretation, Christopher J. Walker May 2015

Inside Agency Statutory Interpretation, Christopher J. Walker

Christopher J. Walker

The Constitution vests all legislative powers in Congress, yet Congress grants expansive lawmaking authority to federal agencies. As positive political theorists have long explored, Congress intends for federal agencies to faithfully exercise their delegated authority, but ensuring fidelity to congressional wishes is difficult due to asymmetries in information, expertise, and preferences that complicate congressional control and oversight. Indeed, this principal-agent problem has a democratic and constitutional dimension, as the legitimacy of administrative governance may well depend on whether the unelected bureaucracy is a faithful agent of Congress. Despite the predominance of lawmaking by regulation and the decades-long application of principal-agent ...


Choosing A Court To Review The Executive, Joseph Mead, Nicholas Fromherz Jan 2015

Choosing A Court To Review The Executive, Joseph Mead, Nicholas Fromherz

Urban Publications

For more than one hundred years, Congress has experimented with review of agency action by single-judge district courts, multiple-judge district courts, and direct review by circuit courts. This tinkering has not given way to a stable design. Rather than settling on a uniform scheme—or at least a scheme with a discernible organizing principle—Congress has left litigants with a jurisdictional maze that varies unpredictably across and within statutes and agencies.In this Article, we offer a fresh look at the theoretical and empirical factors that ought to inform the allocation of the judicial power between district and circuit courts ...


Choosing A Court To Review The Executive, Joseph Mead, Nicholas Fromherz Jan 2015

Choosing A Court To Review The Executive, Joseph Mead, Nicholas Fromherz

Law Faculty Articles and Essays

For more than one hundred years, Congress has experimented with review of agency action by single-judge district courts, multiple-judge district courts, and direct review by circuit courts. This tinkering has not given way to a stable design. Rather than settling on a uniform scheme—or at least a scheme with a discernible organizing principle— Congress has left litigants with a jurisdictional maze that varies unpredictably across and within statutes and agencies.

In this Article, we offer a fresh look at the theoretical and empirical factors that ought to inform the allocation of the judicial power between district and circuit courts ...


A Framework For Understanding Property Regulation And Land Use Control From A Dynamic Perspective, Donald J. Kochan Dec 2014

A Framework For Understanding Property Regulation And Land Use Control From A Dynamic Perspective, Donald J. Kochan

Donald J. Kochan

Our land use control system operates across a variety of multidimensional and dynamic categories. Learning to navigate within and between these categories requires an appreciation for their interconnected, dynamic, and textured components and an awareness of alternative mechanisms for achieving one’s land use control preferences and one’s desired ends. Whether seeking to minimize controls as a property owner or attempting to place controls on the land uses of another, one should take time to understand the full ecology of the system. This Article looks at four broad categories of control: (1) no controls, or the state of nature ...


Foreword — Chevron At 30: Looking Back And Looking Forward, Peter M. Shane, Christopher J. Walker Oct 2014

Foreword — Chevron At 30: Looking Back And Looking Forward, Peter M. Shane, Christopher J. Walker

Christopher J. Walker

This Foreword introduces a Fordham Law Review symposium held in March 2014 to mark the thirtieth anniversary of Chevron U.S.A. v. Natural Resources Defense Council. The most-cited administrative-law decision of all time, Chevron has sparked thirty years of scholarly discussion concerning what Chevron deference means, when (or even if) it should apply, and what impact it has had on the administrative state. Part I of the Foreword discusses the symposium contributions that address Chevron’s scope and application, especially in light of City of Arlington v. FCC. Part II introduces the contributions that explore empirically and theoretically Chevron ...


The Ordinary Remand Rule And The Judicial Toolbox For Agency Dialogue, Christopher J. Walker Jan 2014

The Ordinary Remand Rule And The Judicial Toolbox For Agency Dialogue, Christopher J. Walker

Christopher J. Walker

When a court concludes that an agency’s decision is erroneous, the ordinary rule is to remand to the agency to consider the issue anew (as opposed to the court deciding the issue itself). Despite that the Supreme Court first articulated this ordinary remand rule in the 1940s and has rearticulated it repeatedly over the years, little work has been done to understand how the rule works in practice, much less whether it promotes the separation-of-powers values that motivate the rule. This Article is the first to conduct such an investigation—focusing on judicial review of agency immigration adjudications and ...