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Full-Text Articles in Law

You’Re Fired! Why The Alj Multi-Track Dual Removal Provisions Violate The Constitution & How To Fix Them, Linda D. Jellum Jan 2019

You’Re Fired! Why The Alj Multi-Track Dual Removal Provisions Violate The Constitution & How To Fix Them, Linda D. Jellum

Articles

This Article explains why the for-cause removal provisions for ALJs are unconstitutional and offers three potential solutions to remedy this problem. Part I provides background information, which explains that the APA was a compromise of competing interests. Some wanted ALJs to be completely in-dependent from their agencies to further unbiased decision-making and inde-pendence, and others feared agencies would lose control over setting policy, should ALJs have such an independent function.Ultimately, Congress com-promised by including provisions to make the ALJs more independent, while also ensuring that agencies retained complete control to set policy.

As part of the independence piece of the …


The Brand-X Effect: Declining Chevron Deference In The 21st Century, Stephen Johnson Jan 2018

The Brand-X Effect: Declining Chevron Deference In The 21st Century, Stephen Johnson

Articles

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. is the most frequently cited Supreme Court administrative law decision and has generated substantial scholarship over the past thirty-four ears. Almost three decades ago, Robert Glicksman and Christopher Schroeder examined the nature of judicial review of the actions of the Environmental Protection Agency ("EPA") by the federal courts during the agency's first twenty years of existence, focusing, in part, on the changing nature of that review in light of the Chevron decision. Glicksman and Schroeder concluded that the courts aggressively reviewed EPA's actions during the agency's early years, interpreting the …


Indeconstructible: The Triumph Of The Environmental “Administrative State”, Stephen M. Johnson Jan 2018

Indeconstructible: The Triumph Of The Environmental “Administrative State”, Stephen M. Johnson

Articles

Shortly after the 2017 Presidential inauguration, a senior advisor to the President proclaimed that a top priority of the Administration would be the “deconstruction of the administrative state.” A primary target of the Administration’s deconstruction efforts was the U.S. Environmental Protection Agency (“EPA”) and federal environmental regulations.

While the President can use a variety of tools, including the appointment power, budget power, treaty power, and executive orders, to influence the manner in which the EPA and other agencies interpret and enforce laws, the President has very little power to unilaterally “deconstruct the administrative state.” The “administrative state” is a creation …


Quacks Or Bootleggers: Who’S Really Regulating Hedge Funds?, Jeremy Kidd Jan 2018

Quacks Or Bootleggers: Who’S Really Regulating Hedge Funds?, Jeremy Kidd

Articles

Influential scholars of corporate law have questioned previous federal interventions into corporate governance, calling it quackery. Invoking images of medical malpractice, these critiques have argued persuasively that Congress, in responding to crises, makes policy that disrupts efficient private rules and established state laws. This Article applies the Bootleggers and Baptists theory to show that Dodd–Frank’s hedge fund rules are more than just negligent or reckless, but designed to benefit special interests that compete with the hedge fund model. Those rules offer no solutions to any real or perceived risks arising from hedge fund investing, but might offer an advantage to …


The Shadow Of Free Enterprise: The Unconstitutionality Of The Securities & Exchange Commission's Administrative Law Judges, Linda D. Jellum, Moses M. Tincher Jan 2017

The Shadow Of Free Enterprise: The Unconstitutionality Of The Securities & Exchange Commission's Administrative Law Judges, Linda D. Jellum, Moses M. Tincher

Articles

Six years ago, Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), for the first time giving the Securities and Exchange Commission (SEC) the power to seek monetary penalties through its in-house adjudication. The SEC already had the power to seek such penalties in federal court. With the Dodd-Frank Act, the SEC’s enforcement division could now choose between an adjudication before an SEC Administrative Law Judge (ALJ) or a civil action before an Article III judge. With this new choice, litigants contended that the SEC realized a significant home-court advantage. For example, the Wall Street Journal …


#Betterrules: The Appropriate Use Of Social Media In Rulemaking, Stephen M. Johnson Jan 2017

#Betterrules: The Appropriate Use Of Social Media In Rulemaking, Stephen M. Johnson

Articles

In December 2015, the Government Accountability Office (GAO) concluded that the Environmental Protection Agency’s (EPA’s) use of various social media tools in a rulemaking under the Clean Water Act violated prohibitions in federal appropriations laws against publicity, propaganda, and lobbying. Although academics previously explored whether the use of technology in rulemaking might violate the Administrative Procedures Act (APA), the Paperwork Reduction Act, or the Federal Advisory Committee Act, none predicted that one of the first firestorms surrounding the use of social media in rulemaking would arise out of federal appropriations laws. ...

As the Administrative Conference of the United States …


Advancing Auer In An Era Of Retreat, Stephen M. Johnson Jan 2017

Advancing Auer In An Era Of Retreat, Stephen M. Johnson

Articles

At the dawn of the modern administrative state, the Supreme Court held, in Bowles v. Seminole Rock & Sand Company, that an agency’s interpretation of its own regulation is “of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” A half century later, the Court retained that approach in Auer v. Robbins, a decision authored by Justice Scalia. Auer deference is generally regarded as the most accommodating standard of judicial review applied by courts to agency decision-making.

Although the Supreme Court created Seminole Rock/Auer deference more than seventy years ago, the Court has created exceptions to …