Law Commons^™

Congress, The Courts, And Party Polarization: Why Congress Rarely Checks The President And Why The Courts Should Not Take Congress’S Place, Neal Devins

Neal E. Devins

No abstract provided.

Mending Holes In The Rule Of (Administrative) Law, Evan J. Criddle

Evan J. Criddle

No abstract provided.

The Constitution Of Agency Statutory Interpretation, Evan J. Criddle

Evan J. Criddle

No abstract provided.

Fiduciary Administration: Rethinking Popular Representation In Agency Rulemaking, Evan J. Criddle

Evan J. Criddle

Do administrative agencies undermine popular sovereignty when they make federal law? Over the last several decades, some scholars have argued that rulemaking by unelected agency officials imperils popular sovereignty and that federal law should resolve the apparent tension between regulatory practice and democratic principle by allowing the President to serve as a proxy for the "will of the people" in the administrative state. According to this view, placing federal rulemaking power firmly within the President's managerial control would advance popular preferences throughout the federal system.

This conventional wisdom is misguided. As political scientists have long recognized, the electorate's relative disengagement …

Chevron's Consensus, Evan J. Criddle

Evan J. Criddle

No abstract provided.

Hierarchically Variable Deference To Agency Interpretations, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

When courts review agency action, they typically accord agency decisions a degree of deference. As many courts and commentators have recognized, the law in this area is complicated because it features numerous standards of review, including several distinct regimes for evaluating agencies’ legal interpretations. There is, however, at least one important respect in which uniformity rather than variety prevails: the applicable standards of review do not vary depending on which court is reviewing the agency. Whichever standard governs a particular case—Chevron, Skidmore, or something else—all courts in the judicial hierarchy are supposed to apply that same standard.

This Article proposes …

The Giving Reasons Requirement, Martin Shapiro

Martin Shapiro

No abstract provided.

The Importance Of Resource Allocation In Administrative Law, Eric Biber

Eric Biber

The Supreme Court's landmark decision in Massachusetts v. EPA, requiring the federal government to reconsider its refusal to regulate greenhouse gases as an air pollutant, is the most recent example of judicial review of an agency's decision not to take a regulatory action. Despite the importance of this type of judicial review, it has received little analysis by scholars, and the case law in the field is confused. Accordingly, there are serious questions about the nature and scope of judicial review of agency decisions not to act — with some scholars and leading judges calling for sharp limitations on this …

Two Sides Of The Same Coin: Judicial Review Of Administrative Agency Action And Inaction, Eric Biber

Eric Biber

No abstract provided.

Provisional Precedent: Protecting Flexibility In Administrative Policymaking, Kenneth A. Bamberger

Kenneth A. Bamberger

No abstract provided.

Reviewing Agency Action For Inconsistency With Prior Rules And Regulations, Harold J. Krent

Harold J. Krent

No abstract provided.

The Failed Promise Of Regulatory Variables, Harold J. Krent

Harold J. Krent

No abstract provided.