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Articles 1 - 5 of 5
Full-Text Articles in Law
Against Administrative Judges, Kent H. Barnett
Against Administrative Judges, Kent H. Barnett
Scholarly Works
The single largest cadre of federal adjudicators goes largely ignored by scholars, policymakers, courts, and even litigating parties. These Administrative Judges or “AJs,” often confused with well-known federal Administrative Law Judges or “ALJs,” operate by the thousands in numerous federal agencies. Yet unlike ALJs, the significantly more numerous AJs preside over less formal hearings and have no significant statutory protections to preserve their impartiality. The national press has recently called attention to the alleged unfairness of certain ALJ proceedings, and regulated parties have successfully enjoined agencies’ use of ALJs. While fixes are necessary for ALJ adjudication, any solution that ignores …
Standing For (And Up To) Separation Of Powers, Kent H. Barnett
Standing For (And Up To) Separation Of Powers, Kent H. Barnett
Scholarly Works
The U.S. Constitution requires federal agencies to comply with separation-of-powers (or structural) safeguards, such as by obtaining valid appointments, exercising certain limited powers, and being sufficiently subject to the President’s control. Who can best protect these safeguards? A growing number of scholars call for allowing only the political branches — Congress and the President — to defend them. These scholars would limit or end judicial review because private judicial challenges are aberrant to justiciability doctrine and lead courts to meddle in minor matters that rarely effect regulatory outcomes.
This Article defends the right of private parties to assert justiciable structural …
Chapter 11 Shapeshifters, Lindsey Simon
Chapter 11 Shapeshifters, Lindsey Simon
Scholarly Works
Logic and equity would seem to demand that when administrative agencies are creditors to a bankrupt debtor, they should have the same status as other creditors. But a creditor agency retains its regulatory authority over the debtor, permitting it to continue with agency business such as conducting enforcement proceedings and awarding licenses. As a result, though bankruptcy law and policy both strongly support equal distribution of the estate, administrative agencies have been able to circumvent these goals through the use of “shapeshifting” behaviors. This Article evaluates two dangerous shapeshifting scenarios:
(1) where the agency avoids the limitations of creditor status …
Why Bias Challenges To Administrative Adjudication Should Succeed, Kent H. Barnett
Why Bias Challenges To Administrative Adjudication Should Succeed, Kent H. Barnett
Scholarly Works
How much confidence would you have in a judge whom your opponent hired, can pay bonuses to, and can seek to discipline or remove? I recently argued that numerous administrative adjudicators very likely suffer from an unconstitutional appearance of partiality because the agencies that are often parties in administrative hearings can hire, pay bonuses to, discipline, and remove these adjudicators.
In this Article for the Missouri Law Review’s Symposium on A Future Without the Administrative State?, I contend that challenges to adjudicators’ appearance of partiality are well positioned to be part of the new wave of structural challenges to the …
Beyond Absurd: Jim Thorpe And A Proposed Taxonomy For The Absurdity Doctrine, Hillel Y. Levin, Joshua M. Segal, Keisha N. Stanford
Beyond Absurd: Jim Thorpe And A Proposed Taxonomy For The Absurdity Doctrine, Hillel Y. Levin, Joshua M. Segal, Keisha N. Stanford
Scholarly Works
In light of the Third Circuit's recent decision interpreting the Native American Graves Repatriation Act, this Article argues that the Supreme Court must clarify the Absurdity Doctrine of statutory interpretation. The Article offers a framework for doing so.