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Full-Text Articles in Law

The People's Agent: Executive Branch Secrecy And Accountability In An Age Of Terrorism, Sidney A. Shapiro, Rena I. Steinzor Oct 2009

The People's Agent: Executive Branch Secrecy And Accountability In An Age Of Terrorism, Sidney A. Shapiro, Rena I. Steinzor

Rena I. Steinzor

The increase in government secrecy is an important and troubling policy trend. Although the trend predates the 2000 presidential election, the movement towards government secrecy has accelerated dramatically in the Bush Administration. The case for open government is usually based on political principles embraced by the Framers of the U.S. Constitution. This article seeks to bolster these arguments by applying “agency theory” to the question of how much secrecy is too much. While agency theory is most often used to analyze private sector economic relationships, commentators have also applied it to the analysis of methods for holding legislators and Executive …


Invoking And Avoiding The First Amendment: How Internet Service Providers Leverage Their Status As Both Content Creators And Neutral Conduits, Rob M. Frieden Jun 2009

Invoking And Avoiding The First Amendment: How Internet Service Providers Leverage Their Status As Both Content Creators And Neutral Conduits, Rob M. Frieden

Rob Frieden

Much of the policy debate and scholarly literature on network neutrality has addressed whether the Federal Communications Commission (“FCC”) has statutory authority to require Internet Service Providers (“ISPs”) to operate in a nondiscriminatory manner. Such analysis largely focuses on questions about jurisdiction, the scope of lawful regulation, and the balance of power between stakeholders, generally adverse to government oversight, and government agencies, apparently willing to overcome the same inclination. The public policy debate primarily considers micro-level issues, without much consideration of broader concerns such as First Amendment values. While professing to support marketplace resource allocation and a regulation-free Internet, the …


The Law And Economics Of Cybersecurity: An Introduction, Mark F. Grady, Francesco Parisi Mar 2009

The Law And Economics Of Cybersecurity: An Introduction, Mark F. Grady, Francesco Parisi

Mark F. Grady

One of the most controversial theoretical issues of our time is the governance of cybersecurity. Computer security experts, national security experts, and policy analysts have all struggled to bring meaningful analysis to cybersecurity; however, the discipline of law & economics has yet to be fully applied to the issue. This introduction presents work by leading national scholars who examine this complex national security challenge from a law and economics perspective. The focus spans from a discussion of pure market solutions to public-private issue analysis, providing a valuable basis for policy considerations concerning the appropriate governmental role on the issue of …


Factual Premises Of Statutory Interpretation In Agency Review Cases, Todd S. Aagaard Feb 2009

Factual Premises Of Statutory Interpretation In Agency Review Cases, Todd S. Aagaard

Todd S Aagaard

This Article examines factual premises of statutory interpretation in agency review cases, and proposes an approach that would better integrate the treatment of such factual premises into the overall structure of administrative law. Courts frequently encounter questions of statutory interpretation that depend on underlying factual background, context, and implications. When they do so, courts generally assume that they retain the authority to decide the factual premises and thereby to answer questions of statutory interpretation that depend on factual premises. This is problematic from a functional standpoint, because courts often lack the information or expertise necessary to assess these underlying facts …


The Failure Of Adversary Process In The Administrative State, Bryan T. Camp Jan 2009

The Failure Of Adversary Process In The Administrative State, Bryan T. Camp

Bryan T Camp

In a series of hearings in 1997 and 1998, Congress heard allegations that the Internal Revenue Service (“IRS” or “Service”) was abusing taxpayers during the process of collecting taxes. The resulting distrust of the tax bureaucracy led Congress to create a special adversary proceeding providing for judicial review of IRS collection decisions. The proceeding is beguilingly titled “Collection Due Process” (and commonly referred to as “CDP”). My study of CDP’s structure, operation, and of 976 court decisions issued through the end of 2006 demonstrates that it has failed to fulfill its promise. Of the over 15 million collection decisions made …


Chevron And Hearing Rights: An Unintended Combination, William S. Jordan Jan 2009

Chevron And Hearing Rights: An Unintended Combination, William S. Jordan

William S Jordan III

Section 554(a) of the Administrative Procedure Act provides that if a statute requires an agency an adjudicatory decision “to be determined on the record after opportunity for agency hearing,” that hearing will be subject to various requirements, including the use of an independent Administrative Law Judge, separation of the functions of investigation/prosecution and decision, and a prohibition on ex parte contacts. The courts of appeals have reached three distinct positions with respect to the question of when a statutory hearing requirement triggers § 554(a) of the APA. First, the First Circuit articulated a presumption that, for adjudications, a statutory hearing …