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Full-Text Articles in Law
Interpreting An Unamendable Text, Thomas W. Merrill
Interpreting An Unamendable Text, Thomas W. Merrill
Vanderbilt Law Review
Many of the most important legal texts in the United States are highly unamendable. This applies not only to the Constitution, which has not been amended in over forty years, but also to many framework statutes, like the Administrative Procedure Act and the Sherman Antitrust Act. The problem is becoming increasingly severe, as political polarization makes amendment of these texts even more unlikely. This Article considers how interpreters should respond to highly unamendable texts. Unamendable texts have a number of pathologies, such as excluding the people and their representatives from any direct participation in legal change. They also pose an …
Designing Administrative Law For Adaptive Management, J.B. Ruhl, Robin Craig
Designing Administrative Law For Adaptive Management, J.B. Ruhl, Robin Craig
Vanderbilt Law School Faculty Publications
Administrative law needs to adapt to adaptive management. Adaptive management is a structured decision-making method the core of which is a multi-step iterative process for adjusting management measures to changing circumstances or new information about the effectiveness of prior measures or the system being managed. It has been identified as a necessary or best practices component of regulation in a broad range of fields, including drug and medical device warnings, financial system regulation, social welfare programs, and natural resources management. Nevertheless, many of the agency decisions advancing these policies remain subject to the requirements of either the federal Administrative Procedure …
The Reviewability Of The President's Statutory Powers, Kevin M. Stack
The Reviewability Of The President's Statutory Powers, Kevin M. Stack
Vanderbilt Law Review
From the Supreme Court's earliest days, it has reviewed some, but not all, challenges to the President's claims that a statute authorized his action. Not surprisingly, the Court's decisions granting review of the President's assertions of statutory powers have garnered more attention than its denials of review. Beginning with Marbury v. Madison1 and Little v. Barreme,2 gaining momentum in the twentieth century with the extensive discussion of statutory authority in Youngstown Sheet & Tube Co. v. Sawyer3 and Dames & Moore v. Regan,4 and accelerating in recent years with Hamdi v. Rumsfeld,5 Hamdan v. Rumsfeld,6 and Medellin v. Texas,7 the …
Recent Developments, James D. Holland
Recent Developments, James D. Holland
Vanderbilt Law Review
The power to parole prisoners derives from the legislative power to define crimes and set penalties for offenses, and has been delegated by Congress and state legislatures to the federal and state parole boards.' Recent litigation of inmates' post-conviction rights in federal and state correctional systems has focused increasingly on the broad discretionary power that parole boards exercise by performing their statutory mandate... The recent development of a flexible concept of due process,' however, has permitted a finer balancing of governmental and individual interests than the prior requirement of a "full panoply" of procedural safeguards, or none at all, and …