Law Commons^™

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

Donald J. Kochan

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

John C. Eastman

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 …

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 …

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

Donald J. Kochan

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’s impact outside of …

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 reviewing the …

Jurisdiction Revisited: The Inherent Supervisory Power Of The Courts To Review Administrative Decisions - The Case Of R (Ignaoua) V Sshd [2013] Ewca Civ 1498, Patrick Matthew Hassan-Morlai

Patrick Matthew Hassan-Morlai

The Court of Appeal handed down its decision in R (Ignaoua) v SSHD on 21 November. Ignaoua emphasizes that Parliament does not purport to remove the court’s jurisdiction to entertain judicial review proceedings under Section 15 of the Justice and Security Act 2013. This paper argues that the provisions in both the primary and secondary legislation in Ignaoua are clear enough to convey Parliament’s intention to give the Home Secretary the power to terminate judicial review proceedings or appeal from judicial review proceedings relating to a direction to exclude a foreign national from the United Kingdom. However, the Court of …

Dodd-Frank Regulators, Cost-Benefit Analysis, And Agency Capture, Paul Rose, Christopher J. Walker

Christopher J. Walker

The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) has raised the stakes for financial regulation by requiring more than twenty federal agencies to promulgate nearly 400 new rules. Scholars, regulated entities, Congress, courts, and the agencies themselves have all recognized — even before Dodd-Frank — the lack of rigorous cost-benefit analysis in the context of financial rulemaking. The D.C. Circuit has struck down several financial regulations because of inadequate cost-benefit analysis, with three more challenges to be decided this summer. Members of Congress have introduced legislation to address this problem, including a call for the President to intervene …

The Importance Of Cost-Benefit Analysis In Financial Regulation, Paul Rose, Christopher J. Walker

Christopher J. Walker

This report reviews the role, history, and application of cost-benefit analysis in rulemaking by financial services regulators.

For more than three decades — under both Democratic and Republican administrations — cost-benefit analysis has been a fundamental tool of effective regulation. There has been strong bipartisan support for ensuring regulators maximize the benefits of proposed regulations while implementing them in the most cost-effective manner possible. In short, it is both the right thing to do and the required thing to do.

Through the use of cost-benefit analysis in financial services regulation, regulators can determine if their proposals will actually work to …

Functional Government In 3-D, Robert L. Glicksman, Alejandro E. Camacho

Robert L. Glicksman

The creation of new administrative agencies and the realignment of existing governmental authority are commonplace and high-stakes events, as illustrated by the recent creation of the Department of Homeland Security after 9/11 and of new financial regulatory agencies after the global recession of 2009. Scholars and policymakers have not devoted sufficient attention to this subject, failing to clearly identify the different dimensions along which government authority may be structured or to consider the relationships among them. Analysis of these institutional design issues typically also gives short shrift to whether authority should be allocated differently based on agency function. These failures …

Regulating The Family: The Impact Of Pro-Family Policy Making Assessments On Women And Non-Traditional Families, Robin S. Maril

Robin S. Maril

Beginning in the 1980s, pro-family advocates lobbied the Reagan administration to take a stronger, more direct role in enforcing traditional family norms through agency rulemaking. In 1986 the White House Working Group on the Family published a report entitled, The Family: Preserving America’s Future, detailing what its authors perceived to be the biggest threats to the “American household of persons related by blood, marriage or adoption – the traditional . . . family.” These threats included a lax sexual culture carried over from the 1960s, resulting in rising divorce rates, children born “out of wedlock,” and increased acceptance of “alternative …

Policy Tailors And The Rookie Regulator, Sarah Tran

Sarah Tran

Commentators have long lamented the lack of policy tailoring in the patent system. But unlike other administrative agencies, who regularly tailor regulatory policies to the needs of specific industries, the U.S. Patent and Trademark Office (“PTO”) was widely believed to lack the authority and institutional competence for such policymaking. This Article provides the first comprehensive analysis of recent legislative reforms to the PTO’s policymaking authority. It shows the reforms empower the PTO to have a larger say in patent policy than ever before. The big question is thus: to what extent is it good policy for a rookie regulator to …

How To Win The Deference Lottery, Christopher J. Walker

Christopher J. Walker

In response to Jud Mathews, Deference Lotteries, 91 Texas Law Review 1349 (2013).

In Deference Lotteries, Jud Mathews proposes that the deference framework in administrative law be viewed through the game theory lens of a lottery. Such an approach helps us think critically about how varying standards of review may affect the behavior of agencies and courts engaged in the judicial review process. This Response suggests that the lottery lens can also help agencies think more strategically about how to develop and defend interpretations of statutes they administer. Assuming the validity of the lottery framework, the Response suggests a playbook …

An Increased Role For The Department Of Education In Addressing Federalism Concerns, Benton C. Martin

Benton C. Martin

The No Child Left Behind Act of 2001 (NCLB), one of the most important pieces of education legislation in our nation’s history, is overdue for reauthorization. Prior attempts at reauthorization have failed because of political controversy surrounding the Act, including controversy surrounding the extent of the federal role in education. NCLB does not fit squarely into traditional models of federalism and new theories of federalism have emerged to address the unique new dynamics raised by its expansive use of the federal spending power. This Article argues these theories point to practical changes that Congress can make to improve NCLB.

Although …

Ripe Standing Vines And The Jurisprudential Tasting Of Matured Legal Wines – And Law & Bananas: Property And Public Choice In The Permitting Process, Donald J. Kochan

Donald J. Kochan

From produce to wine, we only consume things when they are ready. The courts are no different. That concept of “readiness” is how courts address cases and controversies as well. Justiciability doctrines, particularly ripeness, have a particularly important role in takings challenges to permitting decisions. The courts largely hold that a single permit denial does not give them enough information to evaluate whether the denial is in violation of law. As a result of this jurisprudential reality, regulators with discretion have an incentive to use their power to extract rents from those that need their permission. Non-justiciability of permit denials …