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Full-Text Articles in Law

Offices Of Goodness: Influence Without Authority In Federal Agencies, Margo Schlanger Oct 2014

Offices Of Goodness: Influence Without Authority In Federal Agencies, Margo Schlanger

Articles

Inducing governmental organizations to do the right thing is the central problem of public administration. Especially sharp challenges arise when “the right thing” means executing not only a primary mission but also constraints on that mission (what Philip Selznick aptly labeled “precarious values”). In a classic example, we want police to prevent and respond to crime and maintain public order, but to do so without infringing anyone’s civil rights. In the federal government, if Congress or another principal wants an executive agency to pay attention not only to its mission, but also to some other constraining or even conflicting value—I …


Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson Apr 2014

Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson

Articles

• Another Mexican National Executed in Texas in Defiance of Avena Decision • Manhattan Arrest of Indian Consular Official Sparks Public Dispute Between the United States and India • United States Questions Claims Based on China’s “Nine-Dash Line” in the South China Sea • United States Takes Steps to Combat Illegal Trade in Wildlife • U.S. Compromises Facilitate Agreement on World Trade Organization’s Bali Package; Question Remains Whether Bali Package Requires Congressional Approval • Destruction of Syrian Chemical Arms Delayed • Iran Nuclear Agreement Is Implemented Notwithstanding Expressions of Distrust by Iran and the U.S. Congress


Private Control Over Access To Public Law: The Perplexing Federal Regulatory Use Of Private Standards, Nina A. Mendelson Jan 2014

Private Control Over Access To Public Law: The Perplexing Federal Regulatory Use Of Private Standards, Nina A. Mendelson

Articles

To save resources and build on private expertise, federal agencies have incorporated privately drafted standards into thousands of federal regulations — but only by “reference.” These standards range widely, subsuming safety, benefits, and testing standards. An individual who seeks access to this binding law generally cannot freely read it online or in a governmental depository library, as she can the U.S. Code or the Code of Federal Regulations. Instead, she generally must pay a significant fee to the drafting organization, or else she must travel to Washington, D.C., to the Office of the Federal Register’s reading room. This law, under …


The Equal Employment Opportunity Commission And Structural Reform Of The American Workplace, Margo Schlanger, Pauline T. Kim Jan 2014

The Equal Employment Opportunity Commission And Structural Reform Of The American Workplace, Margo Schlanger, Pauline T. Kim

Articles

In one of its most-watched recent cases, the United States Supreme Court struck down a class action alleging that Wal-Mart stores discriminated against female employees in pay and promotion decisions. The plaintiffs alleged that Wal-Mart’s corporate culture and highly discretionary decision-making practices led to sex discrimination on a company-wide basis, and they sought injunctive relief as well as backpay for individual employees. Reversing the Court of Appeals for the Ninth Circuit, the Supreme Court held in Wal-Mart v. Dukes that the proposed class failed to meet the requirements for class action certification under Rule 23 of the Federal Rules of …


Essential Health Benefits And The Affordable Care Act: Law And Process, Nicholas Bagley, Helen Levy Jan 2014

Essential Health Benefits And The Affordable Care Act: Law And Process, Nicholas Bagley, Helen Levy

Articles

Starting in 2014, the Affordable Care Act (ACA) will require private insurance plans sold in the individual and small-group markets to cover a roster of "essential health benefits." Precisely which benefits should count as essential, however, was left to the discretion of the Department of Health and Human Services (HHS). The matter was both important and controversial. Nonetheless, HHS announced its policy by posting on the Internet a thirteen-page bulletin stating that it would allow each state to define essential benefits for itself. On both substance and procedure, the move was surprising. The state-by-state approach departed from the uniform, federal …


Responding To Agency Avoidance Of Oira, Nina A. Mendelson, Jonathan B. Wiener Jan 2014

Responding To Agency Avoidance Of Oira, Nina A. Mendelson, Jonathan B. Wiener

Articles

This Article proceeds as follows: Part I provides a background of the system of presidential oversight of regulation through OIRA review. Part II analyzes: (1) the incentives for agencies to cooperate with or avoid OIRA, (2) a broad array of agency avoidance tactics, and (3) corresponding response options (especially in a repeat-player relationship). Part III argues that response options to agency avoidance should not be unquestioningly pursued or rejected. Instead, they should be evaluated using many of the same principles OIRA employs in reviewing agency regulation, including a systematic consideration of the benefits and costs of particular response actions and …