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Full-Text Articles in Law
Porous Bureaucracy: Legitimating The Administrative State In Taiwan, Anya Bernstein
Porous Bureaucracy: Legitimating The Administrative State In Taiwan, Anya Bernstein
Journal Articles
Scholars and politicians have sometimes presented bureaucracy as inherently conflicting with democracy. Notably, bureaucrats themselves are rarely consulted about that relationship. In contrast, I draw on interviews and participant observation to illuminate how government administrators understand their own place in democratic government in Taiwan, one of the few successful third-wave democracies. The administrators I work with root their own legitimacy not in separated powers or autonomous expertise, but in their ongoing collaboration with legislators and publics. They define their own accountability not just as executive legislative mandates but as producing them in the first place, and figure bureaucracy as a …
An Empirical Examination Of Agency Statutory Interpretation, Amy Semet
An Empirical Examination Of Agency Statutory Interpretation, Amy Semet
Journal Articles
How do administrative agencies interpret statutes? Despite the theoretical treatment scholars offer on how agencies construe statutes, far less is known empirically about administrative statutory interpretation even though agencies play a critical role in interpreting statutes. This Article looks behind the black box of agency statutory interpretation to review how administrative agencies use canons and other tools of statutory interpretation to decide cases. Surveying over 7,000 cases heard by the National Labor Relations Board (“NLRB”) from 1993-2016, I analyze the statutory methodologies the Board uses in its decisions in order to uncover patterns of how the Board interprets statutes over …
Statutory Interpretation, Administrative Deference, And The Law Of Stare Decisis, Randy J. Kozel
Statutory Interpretation, Administrative Deference, And The Law Of Stare Decisis, Randy J. Kozel
Journal Articles
This Article examines three facets of the relationship between statutory interpretation and the law of stare decisis: judicial interpretation, administrative interpretation, and interpretive methodology. In analyzing these issues, I emphasize the role of stare decisis in pursuing balance between past and present. That role admits of no distinction between statutory and constitutional decisions, calling into question the practice of giving superstrong deference to judicial interpretations of statutes. The pursuit of balance also suggests that one Supreme Court cannot bind future Justices to a wide-ranging interpretive methodology. As for rules requiring deference to administrative interpretations of statutes and regulations, they are …
Interpenetration Of Powers: Channels And Obstacles For Populist Impulses, Anya Bernstein
Interpenetration Of Powers: Channels And Obstacles For Populist Impulses, Anya Bernstein
Journal Articles
Discussions of populism often focus on the most visible points of executive power: individual leaders. Yet individual leaders only accomplish things through administrative apparatuses that enable and support their power. Rejecting a political theology that imagines sovereignty as inhering in a single decision-maker, this article turns to political pragmatics focused on the people who populate the government. I draw on interviews with administrators in the government of two successful but quite different democracies. The first is the United States, an old, flagship democratic state. The second is Taiwan, which transitioned from a four-decade military dictatorship to a vibrant democracy in …