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Full-Text Articles in Law
The Undemocratic Roots Of Agency Rulemaking, Emily S. Bremer
The Undemocratic Roots Of Agency Rulemaking, Emily S. Bremer
Journal Articles
Americans often credit—or blame—Congress for the laws and policies that govern their lives. But Congress enacts broad statutes that give federal administrative agencies the primary responsibility for making and enforcing the regulations that control American society. These administrative agencies lack the political accountability of those in public office. To address this democratic deficit, an agency seeking to adopt a new regulation must publish a notice of proposed rulemaking and provide an opportunity for the public to comment on the proposal. Heralded as “one of the greatest inventions of modern government,” the Administrative Procedure Act’s (APA) notice-and-comment rulemaking procedure is understood …
The Case Against Chevron Deference In Immigration Adjudication, Shoba Wadhia, Christopher Walker
The Case Against Chevron Deference In Immigration Adjudication, Shoba Wadhia, Christopher Walker
Journal Articles
The Duke Law Journal’s fifty-first annual administrative law symposium examines the future of Chevron deference—the command that a reviewing court defer to an agency’s reasonable interpretation of an ambiguous statute the agency administers. In the lead article, Professors Kristin Hickman and Aaron Nielson argue that the Supreme Court should narrow Chevron’s domain to exclude interpretations made via administrative adjudication. Building on their framing, this Article presents an in-depth case study of immigration adjudication and argues that this case against Chevron has perhaps its greatest force when it comes to immigration. That is because much of Chevron’s theory for congressional delegation …
Technical Standards Meet Administrative Law: A Teaching Guide On Incorporation By Reference, Emily S. Bremer
Technical Standards Meet Administrative Law: A Teaching Guide On Incorporation By Reference, Emily S. Bremer
Journal Articles
When an agency incorporates by reference, it promulgates a rule that identifies—but does not reprint—material already published elsewhere. The incorporated materials thus become binding law without actually being printed in the agency's regulations. Sometimes the incorporated materials are privately developed technical standards, which are often copyrighted and available only for a fee. This restriction on access undermines transparency and public participation in the rulemaking process. Finding a solution is challenging because the problem is multidimensional, implicating public policy in the areas of administrative law, federal standards law and policy, and copyright.
This teaching guide is part of module that offers …
The Supervisory Power Of The Supreme Court, Amy Coney Barrett
The Supervisory Power Of The Supreme Court, Amy Coney Barrett
Journal Articles
Relying on something it calls supervisory power or supervisory authority, the Supreme Court regularly prescribes rules of procedure and evidence for inferior courts. Both scholars and the Court have treated the Court's exercises of this authority as unexceptional exercises of the inherent authority that Article III grants every federal court to regulate procedure in the course of adjudication. Article III's grant of inherent authority, however, is conventionally understood as permitting a federal court to regulate its own proceedings. When the Supreme Court exercises supervisory power, it regulates the proceedings of other federal courts. More than a reference to every court's …