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Full-Text Articles in Law
Offices Of Goodness: Influence Without Authority In Federal Agencies, Margo Schlanger
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 …
The Puzzling Presumption Of Reviewability, Nicholas Bagley
The Puzzling Presumption Of Reviewability, Nicholas Bagley
Articles
The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors - appellate-style arbitrariness review - was not only unheard of prior to the twentieth century, but …
The Puzzling Presumption Of Reviewability, Nicholas Bagley
The Puzzling Presumption Of Reviewability, Nicholas Bagley
Articles
The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors - appellate-style arbitrariness review - was not only unheard of prior to the twentieth century, but …
The Equal Employment Opportunity Commission And Structural Reform Of The American Workplace, Margo Schlanger, Pauline T. Kim
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 …
Prosecutorial Discretion And Environmental Crime, David M. Uhlmann
Prosecutorial Discretion And Environmental Crime, David M. Uhlmann
Articles
Prosecutorial discretion exists throughout the criminal justice system but plays a particularly significant role for environmental crime. Congress made few distinctions under the environmental laws between acts that could result in criminal, civil, or administrative enforcement. As a result, there has been uncertainty about which environmental violations will result in criminal enforcement and persistent claims about the overcriminalization of environmental violations. To address these concerns — and to delineate an appropriate role for criminal enforcement in the environmental regulatory scheme — I have proposed that prosecutors should reserve criminal enforcement for violations that involve one or more of the following …
Essential Health Benefits And The Affordable Care Act: Law And Process, Nicholas Bagley, Helen Levy
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
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 …
Private Control Over Access To Public Law: The Perplexing Federal Regulatory Use Of Private Standards, Nina A. Mendelson
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 …