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Full-Text Articles in Law

Beyond The Private Attorney General: Equality Directives In American Law, Olatunde C.A. Johnson Jan 2013

Beyond The Private Attorney General: Equality Directives In American Law, Olatunde C.A. Johnson

Faculty Scholarship

American civil rights regulation is generally understood as relying on private enforcement in courts, rather than imposing positive duties on state actors to further equity goals. This Article argues that this dominant conception of American civil rights regulation is incomplete. Rather, American civil rights regulation also contains a set of “equality directives,” whose emergence and reach in recent years have gone unrecognized in the commentary. These federal-level equality directives use administrative tools of conditioned spending, policymaking, and oversight powerfully to promote substantive inclusion with regard to race, ethnicity, language, and disability. These directives move beyond the constraints of the standard ...


Administrative Constitutionalism, Gillian E. Metzger Jan 2013

Administrative Constitutionalism, Gillian E. Metzger

Faculty Scholarship

The U.S. Food and Drug Administration adopts a rule requiring tobacco companies to include graphic images warning of the health risks associated with smoking, defending the rule at length against the claim it violates the First and Fifth Amendments. The Department of Education and the Department of Justice (DOJ) jointly issue guidance explaining how elementary and secondary schools can voluntarily consider race consistently with governing constitutional law. The Office of Legal Counsel (OLC) in DOJ issues a memorandum to the Attorney General concluding that the President had constitutional authority to commit U.S. forces as part of the NATO ...


Mapping The Future Of Insider Trading Law: Of Boundaries, Gaps, And Strategies, John C. Coffee Jr. Jan 2013

Mapping The Future Of Insider Trading Law: Of Boundaries, Gaps, And Strategies, John C. Coffee Jr.

Faculty Scholarship

The current law on insider trading is remarkably unrationalized because it contains gaps and loopholes the size of the Washington Square Arch. For example, if a thief breaks into your office, opens your files, learns material nonpublic information, and trades on that information, he has not breached a fiduciary duty and is presumably exempt from insider trading liability. But drawing a line that can convict only the fiduciary and not the thief seems morally incoherent. Nor is it doctrinally necessary.

The basic methodology handed down by the Supreme Court in SEC v. Dirks and United States v. O'Hagan dictates ...


The Shale Oil And Gas Revolution, Hydraulic Fracturing, And Water Contamination: A Regulatory Strategy, Thomas W. Merrill, David M. Schizer Jan 2013

The Shale Oil And Gas Revolution, Hydraulic Fracturing, And Water Contamination: A Regulatory Strategy, Thomas W. Merrill, David M. Schizer

Faculty Scholarship

The United States is expected to become the world’s largest oil producer by 2020, overtaking Saudi Arabia, and the world’s top natural gas producer by 2015, surpassing Russia. In the past decade, energy companies have learned to tap previously inaccessible oil and gas in shale with “hydraulic fracturing” (“fracturing” or “fracking”), pumping fluid at high pressure to crack the shale and release gas and oil trapped inside. This “shale revolution” has created millions of jobs, enhanced our energy independence, and reduced U.S. greenhouse gas emissions by substituting natural gas for coal.

Even so, fracturing is controversial. It ...


Administrative Constitutionalism, Gillian E. Metzger Jan 2013

Administrative Constitutionalism, Gillian E. Metzger

Faculty Scholarship

Administrative constitutionalism is increasingly becoming a central subject of study. Administrative constitutionalism includes not just the application of established constitutional requirements by administrative agencies, but in addition the elaboration of new constitutional understandings by administrative actors and the construction of the administrative state. This attention to administrative constitutionalism is overdue, as it represents a main mechanism by which constitutional meaning is elaborated and implemented today. But recently offered examples of administrative constitutionalism are notably divergent, suggesting a need for some exegesis of administrative constitutionalism’s different dimensions.

Identifying administrative constitutionalism’s various forms highlights the challenges confronting it as a ...


In Search Of Skidmore, Peter L. Strauss Jan 2013

In Search Of Skidmore, Peter L. Strauss

Faculty Scholarship

In a coup en banc, Justice Scalia appears to have converted his lonely and furious dissent from United States v. Mead Corp. into the eight to one majority holding in City of Arlington v. FCC. Much will doubtless be said about this opinion, as about all Chevron matters generally, but to note here is that 186 years of precedent for the proposition that judges interpreting statutes involving agency authority should give substantial weight to agency views have simply disappeared. Whether agencies have authority to act, a legal question, is either all Chevron (the majority) or no deference at all (Chief ...


The Republic Of Choosing: A Behaviorist Goes To Washington, William H. Simon Jan 2013

The Republic Of Choosing: A Behaviorist Goes To Washington, William H. Simon

Faculty Scholarship

Cass Sunstein’s book Simpler recounts the author’s efforts during his tenure in the first Obama administration to apply the policy tools he helped derive from behavioral economics. In this review, I suggest that, while Sunstein reports some notable achievements, he exaggerates the utility of the behaviorist toolkit. Behaviorist-inspired interventions are marginal to most of the largest policy problems, and they played little role in the Obama administration’s most important initiatives. The book also reflects a misguided political strategy.


The Organizational Premises Of Administrative Law, William H. Simon Jan 2013

The Organizational Premises Of Administrative Law, William H. Simon

Faculty Scholarship

Administrative law is out of touch with forms of public administration developed since the Progressive and New Deal eras. It is strongly influenced by bureaucratic conceptions of administration that see (1) legitimacy in terms of prior authorization; (2) organization as a balance of stable rules and unaccountable discretion, and (3) error detection as a reactive, complaint-driven process. Yet, many public programs developed since the 1970s strive to establish post-bureaucratic or performance-based forms of administration that view (1) legitimacy in terms of exposure to public oversight; (2) administration as a matter of comprehensive but flexible planning, and (3) error detection as ...


An Introduction To Climate Change Liability Litigation And A View To The Future, Michael B. Gerrard, Joseph A. Macdougald Jan 2013

An Introduction To Climate Change Liability Litigation And A View To The Future, Michael B. Gerrard, Joseph A. Macdougald

Faculty Scholarship

This article discusses the advancement of climate change litigation. It explores two approaches to climate change litigation; the first is to use the federal regulatory apparatus and the second is to use the tort system. The article explores key questions in climate change litigation such as, who is responsible for deciding the appropriate level of harmful emissions? How should courts handle the long tail effects of climate change? What are the proper forums to litigate in? And, what is the role of the federal government in climate change litigation?