Open Access. Powered by Scholars. Published by Universities.®
- Discipline
Articles 1 - 8 of 8
Full-Text Articles in Law
Why The Court Should Reexamine Administrative Law's Chenery Ii Doctrine, Gary S. Lawson, Joseph Postell
Why The Court Should Reexamine Administrative Law's Chenery Ii Doctrine, Gary S. Lawson, Joseph Postell
Faculty Scholarship
Part I of this article begins by discussing some fundamental constitutional principles that were raised, sometimes implicitly and indirectly, in the Chenery cases. Those principles point to limits on administrative adjudication that go well beyond those recognized in current doctrine. We do not here seek to push those principles as far as they can go, though we offer no resistance to anyone who wants to trod that path. Instead, we identify and raise those principles to help understand the scope and limits of actual doctrine. Our modest claims here are that constitutional concerns about at least some classes of agency …
Against The Chenery Ii "Doctrine", Gary S. Lawson, Joseph Postell
Against The Chenery Ii "Doctrine", Gary S. Lawson, Joseph Postell
Faculty Scholarship
The Supreme Court’s 1947 decision in SEC v. Chenery Corp. (“Chenery II”) is generally taken as blanket authorization for agencies to make law through either adjudication or rulemaking if their organic statutes permit both modes. We think this is an overreading of the doctrine. The decision in Chenery II need not be read so broadly, and there are good reasons to read it more narrowly. The most important reason is that agency lawmaking through adjudication presents serious constitutional concerns involving due process of law and subdelegation of legislative power, at least if the agency action deprives people of life, liberty, …
Administrative Adjudication And Adjudicators, Jack M. Beermann
Administrative Adjudication And Adjudicators, Jack M. Beermann
Faculty Scholarship
The appointment, removal, supervision and allocation of cases to Administrative Law Judges (ALJs) and other non-Article III adjudicators in the United States federal government continues to create vexing legal issues for courts and commentators. This article is an effort to address all of these issues together, to facilitate a holistic understanding of the place of non-Article III adjudicators in the federal government. The appointment question revolves around whether non-Article III adjudicators are Officers of the United States, which most are. There are two issues surrounding the removal of non-Article III adjudicators. First, for reasons sounding in due process concerns, adjudicators …
Research Report On Federal Agency Alj Hiring After Lucia And Executive Order 13843, Jack M. Beermann
Research Report On Federal Agency Alj Hiring After Lucia And Executive Order 13843, Jack M. Beermann
Faculty Scholarship
This draft report examines federal agency hiring practices for administrative law judges ("ALJs"), who preside over formal agency hearings, in light of the Supreme Court's determination that ALJs are constitutional officers and President Trump's executive order to exempt ALJs from certain statutory competitive-service hiring requirements. The report also provides recommendations for best agency hiring practices. Professors Jack Beermann and Jennifer Mascott co-authored this initial draft report. After Professor Mascott stepped down from the Administrative Conference of the United States to work in the Department of Justice's Office of Legal Counsel, Professor Beermann edited the report and produced its final May …
Fairness At A Time Of Perplexity: The Civil Law Principle Of Fairness In The Court Of Justice Of The European Union, Daniela Caruso
Fairness At A Time Of Perplexity: The Civil Law Principle Of Fairness In The Court Of Justice Of The European Union, Daniela Caruso
Faculty Scholarship
The general principle of fairness, recently articulated by the Court of Justice of the European Union in the context of consumer law, is bound to prompt ambivalent scholarly reactions. Fairness in private law could be dismissed as hopelessly indeterminate: yet another venue of judicial balancing, a technique already seen ad nauseam in Luxembourg, whereby lip service is paid to conflicting considerations, but no real solace can be found against regressive outcomes of law and policy choices. At the same time, the judicial articulation of a general principle of fairness in private law could be seen as a prompt for domestic …
"Simple" Takes On The Supreme Court, Robert L. Tsai
"Simple" Takes On The Supreme Court, Robert L. Tsai
Faculty Scholarship
This essay assesses black literature as a medium for working out popular understandings of America’s Constitution and laws. Starting in the 1940s, Langston Hughes’s fictional character, Jesse B. Semple, began appearing in the prominent black newspaper, the Chicago Defender. The figure affectionately known as “Simple” was undereducated, unsophisticated, and plain spoken - certainly to a fault according to prevailing standards of civility, race relations, and professional attainment. Butthese very traits, along with a gritty experience under Jim Crow, made him not only a sympathetic figure but also an armchair legal theorist. In a series of barroom conversations, Simple ably critiqued …
Stipulating The Law, Gary S. Lawson
Stipulating The Law, Gary S. Lawson
Faculty Scholarship
In Free Enterprise Fund v. Public Company Accounting Oversight Board, the Supreme Court decided important questions of structural constitutionalism on the assumption, shared by all of the parties, that members of the Securities and Exchange Commission are not removable at will by the President. Four Justices strongly challenged the majority’s willingness to accept what amounts to a stipulation by the parties on a controlling issue of law. As a general matter, the American legal system does not allow parties to stipulate to legal conclusions, though it welcomes and encourages stipulations to matters of fact. I argue that one ought to …
A Primer On The New Habeas Corpus Statute, Larry Yackle
A Primer On The New Habeas Corpus Statute, Larry Yackle
Faculty Scholarship
The Antiterrorism and Effective Death Penalty Act (Pub. L. 104-132), signed into law on April 24, 1996, represents Congress' attempt to deal with the problems deemed to beset federal habeas corpus for state prisoners. This new statute addresses many important aspects of habeas law and practice and, as to them, now occupies the field to the exclusion of previous arrangements-whether developed as a construction of preexisting statutes or as interstitial decisional law. On the whole, however, Pub. L. 104-132 presupposes the basic framework now in place. This matter-of-fact point (that the new statute takes the preexisting habeas landscape as its …