Law Commons^™

Administrative Change, Randy J. Kozel, Jeffrey Pojanowski

Jeffrey A. Pojanowski

Determining the standard of review for administrative actions has commanded judicial and scholarly interest like few other topics. Notwithstanding the extensive debates, far less consideration has been given to the unique features of agencies’ deviations from their own precedents. In this article we examine this puzzle of administrative change. By change, we mean a reversal of the agency’s former views about the best way to implement and interpret its regulatory mandate. We trace the lineage of administrative change at the Supreme Court and analyze features that distinguish agency reversals from other administrative actions. In particular, we contend that because administrative …

Administrative Change, Randy J. Kozel, Jeffrey Pojanowski

Randy J Kozel

Determining the standard of review for administrative actions has commanded judicial and scholarly interest like few other topics. Notwithstanding the extensive debates, far less consideration has been given to the unique features of agencies’ deviations from their own precedents. In this article we examine this puzzle of administrative change. By change, we mean a reversal of the agency’s former views about the best way to implement and interpret its regulatory mandate. We trace the lineage of administrative change at the Supreme Court and analyze features that distinguish agency reversals from other administrative actions. In particular, we contend that because administrative …

Calmly To Poise The Scales Of Justice: A History Of The Courts Of The District Of Columbia Circuit, Jeffrey Morris, Chris Rohmann

Jeffrey B. Morris

No abstract provided.

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 …

The Senate And The Recess Appointments, David Arkush

David J. Arkush

This Essay offers a new perspective on the recess appointments controversy in Noel Canning v. NLRB. First, contrary to the dominant view, the case does not present a conflict between the President and the Senate. The Senate majority likely wished to authorize the President's recess appointments, and the majority is the relevant body for the purpose of establishing Senate intent. Second, the courts should defer to the Senate's wishes rather than define the term "recess" themselves.

Easing The Guidance Document Dilemma Agency By Agency: Immigration Law And Not Really Binding Rules, Jill Family

Jill E. Family

The "Reason Giving" Lawyer: An Ethical, Practical, And Pedagogical Perspective, Donald J. Kochan

Donald J. Kochan

Whether as a matter of duty or utility, lawyers give reasons for their actions all the time. In the various venues in which legal skills must be employed, reason giving is required in some, expected in others, desired in many, and useful in most. This Essay underscores the pervasiveness of reason giving in the practice of law and the consequent necessity of lawyers developing a skill at giving reasons. This Essay examines reason giving as an innate human characteristic related directly to our need for answers and our constant yearning to understand the answer to the question “why.” It briefly …