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Full-Text Articles in Law
Reckoning With Adjudication's Exceptionalism Norm, Emily S. Bremer
Reckoning With Adjudication's Exceptionalism Norm, Emily S. Bremer
Journal Articles
Unlike rulemaking and judicial review, administrative adjudication is governed by a norm of exceptionalism. Agencies rarely adjudicate according to the Administrative Procedure Act’s formal adjudication provisions, and the statute has little role in defining informal adjudication or specifying its minimum procedural requirements. Due process has almost nothing to say about the matter.
The result is that there are few uniform, cross-cutting procedural requirements in adjudication, and most hearings are conducted using procedures tailored for individual agencies or programs. This Article explores the benefits and costs of adjudication’s exceptionalism norm, an analysis that implicates the familiar tension between uniformity and specialization …
Designing The Decider, Emily S. Bremer
Designing The Decider, Emily S. Bremer
Journal Articles
The Administrative Procedure Act (APA) contains several provisions designed to ensure that presiding officials in so-called formal adjudications are able to make fair, well-informed, independent decisions. But these provisions do not apply to the vast majority of federal adjudicatory hearings. In this world of adjudication outside the APA, agencies enjoy broad procedural discretion, including substantial freedom to “design the decider.” This Article defines the scope of this discretion and explores how various agencies have exercised it. The discussion is enriched by examples drawn from an expansive new database of federal adjudicatory procedures. The Article argues that, although agency discretion to …
Introductory Note To The Optional Protocol To The International Covenant On Economic, Social And Cultural Rights, Tara J. Melish
Introductory Note To The Optional Protocol To The International Covenant On Economic, Social And Cultural Rights, Tara J. Melish
Journal Articles
This Introductory Note to the publication in ILM of the newly-adopted Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) seeks to put the primary source document in proper context by briefly explaining its history, content, and significance in international law. The Note is accompanied by the text of the OP-ICESCR, adopted by the U.N. General Assembly on December 10, 2008 to commemorate the 60th anniversary of the Universal Declaration of Human Rights. The OP creates an individual complaints procedure for alleged violations of the ICESCR, rectifying a thirty year asymmetry in human rights treaty law.
The Vocation Of International Arbitrators, Catherine A. Rogers
The Vocation Of International Arbitrators, Catherine A. Rogers
Journal Articles
This Essay examines the vocation of the international arbitrator. I begin by evaluating, under sociological frameworks developed in literature on Weberian theories of the professions, how the arbitration community is organized and regulated. Arbitrators operate in a largely private and unregulated market for services, access to which is essentially controlled by what might be considered a governing cartel of the most elite arbitrators. I conclude my description with an account of how recently international arbitrators have begun to display a professional impulse, meaning efforts to present themselves as a profession to obtain the benefits of professionalization. Professional status is often …
Regulating International Arbitrators: A Functional Approach To Developing Standards Of Conduct, Catherine A. Rogers
Regulating International Arbitrators: A Functional Approach To Developing Standards Of Conduct, Catherine A. Rogers
Journal Articles
Some scholars have protested that arbitrators are subject to less exacting regulation than barbers and taxidermists. The real problem with international arbitrators, however, is not that they are subject to less regulation, but that no one agrees about how they should be regulated. The primary reason for judicial and scholarly disagreement is that, instead of a coherent theory, analysis of arbitrator conduct erroneously relies on a misleading judicial referent and a methodologic failure to separate conduct standards (meaning those norms or rules that guide arbitrators' professional conduct) from enforcement standards (meaning those narrow grounds under which an arbitral award can …
Elihu Root And Crisis Prevention, Mary Ellen O'Connell
Elihu Root And Crisis Prevention, Mary Ellen O'Connell
Journal Articles
Elihu Root pursued two themes relevant to international law and crisis. He believed firmly in the value of arbitration and adjudication to prevent crisis. He also worked toward the codification and greater specificity of international law so that judges and arbitrators would have more law available to apply in aid of crisis prevention. When crisis had not been prevented, as in the case of World War I, Root did not in fact believe international law-either process or substance-had much to offer. In his view, the Kaiser started World War I because he was bent on hegemony. Arbitration would not stop …