Law Commons^™

Agency Threats, Tim Wu

Duke Law Journal

Most legal writers are implicitly or explicitly critical of the use of threats as an alternative to rulemaking or adjudication. The general presumption is that the use of threats is a kind of symptom of an underlying malady - a broken rulemaking or adjudication process. For example, Professor Lars Noah describes the use of threats as an “intractable problem,” given the difficulty of “controlling the exercise of such wide-ranging discretionary power.” In this brief Essay, I write in defense of regulatory threats in particular contexts.

The use of threats instead of law can be a useful choice - not simply …

Administrative Law In The 1930s: The Supreme Court’S Accommodation Of Progressive Legal Theory, Mark Tushnet

Duke Law Journal

In the first decades of the twentieth century, Progressive politicians and legal theorists advocated the creation and then the expansion of administrative agencies. These agencies, they argued, could address rapidly changing social circumstances more expeditiously than could courts and legislatures, and could deploy scientific expertise, rather than mere political preference, in solving the problems social change produced. The proliferation of administrative agencies in the New Deal-the SEC, the NLRB, and others-meant that defending administrative agencies from close judicial oversight became intertwined with defending the New Deal itself In a series of contentious cases decided by the Hughes Court, Progressives believed …

Executive Deference In U.S. Refugee Law: Internationalist Paths Through And Beyond Chevron, Bassina Farbenblum

Duke Law Journal

No abstract provided.

Restructuring Immigration Adjudication, Stephen H. Legomsky

Duke Law Journal

For decades, the immigration adjudication system has been under relentless attack from both the left and the right. The left has been concerned with the fairness of the proceedings, the accuracy and consistency of the outcomes, and the acceptability of both the procedures and the outcomes to the parties and to the public. The right has focused on the fiscal costs and elapsed times of these proceedings. This Article demonstrates that all of these criticisms have been well founded and that the roots of the problems are severe underfunding, reckless procedural shortcuts, the politicization of the process, and a handful …

Practical Impediments To Structural Reform And The Promise Of Third Branch Analytic Methods: A Reply To Professors Baum And Legomsky, Russell R. Wheeler

Duke Law Journal

No abstract provided.

Not Peace, But A Sword: Navy V. Egan And The Case Against Judicial Abdication In Foreign Affairs, Jason Rathod

Duke Law Journal

In the United States' system of separation of powers, the judiciary must safeguard the rights of individuals from abuses by the political branches of government. Yet, when it comes to matters touching foreign affairs, scholars such as John Yoo and jurists such as Antonin Scalia argue that the executive branch is entitled to virtually unreviewable discretion. They point to Navy v. Egan for support. There, the Court held that an administrative body that hears appeals from adverse actions against government employees was precluded from reviewing the merits of security clearance determinations because the executive branch deserves "super-strong" deference in foreign …

The Nlrb In Administrative Law Exile: Problems With Its Structure And Function And Suggestions For Reform, Catherine L. Fisk, Deborah C. Malamud

Duke Law Journal

No abstract provided.

The Parliament Of The Experts, Adrian Vermeule

Duke Law Journal

In the administrative state, how should expert opinions be aggregated and used? If a panel of experts is unanimous on a question of fact, causation, or prediction, can an administrative agency rationally disagree, and on what grounds? If experts are split into a majority view and a minority view, must the agency follow the majority? Should reviewing courts limit agency discretion to select among the conflicting views of experts, or to depart from expert consensus? I argue that voting by expert panels is likely, on average, to be epistemically superior to the substantive judgment of agency heads, in determining questions …

Depoliticizing Administrative Law, Cass R. Sunstein, Thomas J. Miles

Duke Law Journal

A large body of empirical evidence demonstrates that judicial review of agency action is highly politicized in the sense that Republican appointees are significantly more likely to invalidate liberal agency decisions than conservative ones, while Democratic appointees are significantly more likely to invalidate conservative agency decisions than liberal ones. These results hold for both (a) judicial review of agency interpretations of law and (b) judicial review of agency decisions for "arbitrariness" on questions of policy and fact. On the federal courts of appeals, the most highly politicized voting patterns are found on unified panels, that is, on panels consisting solely …

Chevron’S Mistake, Lisa Schultz Bressman

Duke Law Journal

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. asks courts to determine whether Congress has delegated to administrative agencies the authority to resolve questions about the meaning of statutes that those agencies implement, but the decision does not give courts the tools for providing a proper answer. Chevron directs courts to construe statutory text by applying the traditional theories of statutory interpretation-whether intentionalism, purposivism, or textualism-and to infer a delegation of agency interpretive authority only if they fail to find a relatively specific meaning. But the traditional theories, despite their differences, all invite courts to construe statutory text as …

The California Greenhouse Gas Waiver Decision And Agency Interpretation: A Response To Professors Galle And Seidenfeld, Nina A. Mendelson

Duke Law Journal

No abstract provided.

Norton V. Suwa And The Unraveling Of Federal Public Land Planning, Michael C. Blumm, Sherry L. Bosse

Duke Environmental Law & Policy Forum

No abstract provided.

E-Rulemaking: Bringing Data To Theory At The Federal Communication Commission, John M. De Figueiredo

Duke Law Journal

This Article examines the theoretical promise of e-rulemaking with an examination of data about all filings at the Federal Communications Commission (FCC) from 1999 to 2004. The Article first reviews the theoretical and empirical literature on e-rulemaking. It then analyzes a dataset of all filings at the FCC using descriptive statistics and regression analysis to determine what drives e-filings and whether the theoretical promise of e-rulemaking is being realized six years into the experiment. The Article finds that though there has indeed been a long-term trend away from paper filings and toward electronic filings, citizen participation seems not to have …

A “Full And Fair” Trial: Can The Executive Ensure It Alone? The Case For Judicial Review Of Trials By Military Commissions At Guantanamo Bay, Jennifer A. Lohr

Duke Journal of Comparative & International Law

No abstract provided.

Institutional Settlement In A Globalizing Judicial System, Ernest A. Young

Duke Law Journal

This article argues that the field of "Federal Courts" scholarship ought to expand to consider the relations not just between state and federal courts, but also between domestic courts and judicial institutions operating at the international level. Both relationships raise similar sorts of "interjurisdictional" problems-issues of standards of review, abstention, procedural defaults, and the like. Moreover, the study of supranational courts would benefit from the Legal Process jurisprudence that dominates the field of domestic Federal Courts law. In particular, I emphasize Henry Hart and Al Sacks' notion of "institutional settlement," which holds that decisions should be allocated to particular institutions …

Judicial Review Of European Administrative Procedure, Jurgen Schwarze

Law and Contemporary Problems

Schwarze examines the requirements set down in the case law of the Court of Justice and the Court of First Instance that serve to guarantee a fair and impartial administrative process. He also considers whether improvements should be made to the design of the administrative process and, if so, what kind.

The European Union’S Mixed Administrative Proceedings, Giacinto Della Cananea

Law and Contemporary Problems

Cananea attempts to shed some light on administrative powers through an examination of mixed administrative proceedings. Another aim is to try to identify the common features of mixed administrative proceedings and, at the same time, those which differentiate them from other types of proceedings.

Providing Judicial Review For Decisions By Political Trustees, Henry H. Perritt Jr.

Duke Journal of Comparative & International Law

No abstract provided.

“Vacation” At Sea: Judicial Remedies And Equitable Discretion In Administrative Law, Ronald M. Levin

Duke Law Journal

Scholars have rarely examined the remedial issues that federal courts may face when they find that an administrative agency has acted unlawfully. This Article presents a broad survey of that topic in the course of exploring a narrower doctrinal issue: the validity of "remand without vacation." That term denotes a practice whereby a court remands an agency action for further work but allows the action to remain in place during the remand proceedings. In recent years many appellate panels have resorted to this practice in order to minimize disruption of an ongoing administrative program or to protect private reliance interests. …

“Regulatory Daubert”: A Proposal To Enhance Judicial Review Of Agency Science By Incorporating Daubert Principles Into Administrative Law, Alan Charles Raul, Julie Zampa Dwyer

Law and Contemporary Problems

In Daubert v. Merrell Dow Pharmaceuticals Inc, the US Supreme Court empowered federal judges to reject irrelevant or unreliable scientific evidence. Daubert provides a suitable framework for reviewing the quality of agency science and the soundness of agency decisions consistent with the standards established for review of agency rulemakings under the Administrative Procedure Act.

On The Prospect Of “Daubertizing” Judicial Review Of Risk Assessment, Thomas O. Mcgarity

Law and Contemporary Problems

Lawyers for companies subject to federal health, safety and environmental regulation hope that stringent substantive judicial review will relieve their clients of the burdens of much regulation without the need for troublesome legislative battles they seem unable to win. McGarity argues that assigning a Daubert-like (Daubert v. Merrell Dow Pharmaceuticals Inc) gatekeeper role to courts engaged in judicial review of agency risk assessments is a profoundly bad idea.

The Ninth Circuit Errs Again: The Quiet Title Act As A Bar To Judicial Review, E. John Athens Jr.

Alaska Law Review

No abstract provided.

Comment On Ferejohn’S “Judicializing Politics, Politicizing Law”, Michael C. Munger

Law and Contemporary Problems

Munger comments on John Ferejohn's recent article in which Ferejohn examines some key issues raised by the exercise of legislative power by the judicial branch. Ferejohn claims that Americans have chosen to accept the judicialization of politics, leaving the courts the option of exercising power inappropriately. Munger argues that while the courts do have power, they forebear from exercising it for long periods of time.

Judicializing Politics, Politicizing Law, John Ferejohn

Law and Contemporary Problems

Since WWII there has been a profound shift in power away from legislatures and toward courts and other legal institutions around the world. It is no surprise that appointments to both the US Supreme Court and to other federal courts have become partisan political issues. Ferejohn argues that what is at stake, institutionally, is the allocation of legislative power--the power to establish general rules of prospective application.

Icann And The Problem Of Legitimacy, Jonathan Weinberg

Duke Law Journal

Two years ago, an entity called the Internet Corporation for Assigned Names and Numbers (ICANN) was formed to take control of the Internet's infrastructure of domain name and IP address identifiers. Private parties formed ICANN at the behest of the U. S. government; the government is currently using its considerable resources to cement ICANN's authority over the domain name space. ICANN's role is one generally played in our society by public entities. It is setting rules for an international communications medium of surpassing importance. That task had historically been performed by a U. S. government contractor in an explicitly public-regarding …

Wrong Turn In Cyberspace: Using Icann To Route Around The Apa And The Constitution, A. Michael Froomkin

Duke Law Journal

The Internet relies on an underlying centralized hierarchy built into the domain name system (DNS) to control the routing for the vast majority of Internet traffic. At its heart is a single data file, known as the "root." Control of the root provides singular power in cyberspace. This Article first describes how the United States government found itself in control of the root. It then describes how, in an attempt to meet concerns that the United States could so dominate an Internet chokepoint, the U. S. Department of Commerce (DoC) summoned into being the Internet Corporation for Assigned Names and …

Arbitrator Liability: Reconciling Arbitration And Mandatory Rules, Andrew T. Guzman

Duke Law Journal

In this Article, Professor Guzman resolves the tension that exists between mandatory legal rules and the widespread use of arbitration. In recent years, U. S. courts have expanded the range of enforceable arbitration agreements to include agreements that cover areas of law previously thought to be within the exclusive domain of courts. Among the disputes that are now deemed arbitrable are those that implicate mandatory rules such as securities and antitrust laws. Under current law, the willingness of courts to enforce arbitration agreements and to uphold the resulting arbitral awards with minimal judicial review makes it possible for the parties …

Judicial Review Of Agency Action: The Problems Of Commitment, Non-Contractibility, And The Proper Incentives, Nicholas S. Zeppos

Duke Law Journal

No abstract provided.

Judicial Incentives And Indeterminacy In Substantive Review Of Administrative Decisions, Sidney A. Shapiro, Richard E. Levy

Duke Law Journal

No abstract provided.

Judicial Review And The Uncertain Appeal Of Certainty On Appeal, Ronald M. Levin

Duke Law Journal

No abstract provided.