Law Commons^™

The Role Of Politics In A Deliberative Model Of The Administrative State, Mark Seidenfeld

Scholarly Publications

Since at least the mid-1980s, some scholars of United States administrative law have touted deliberative democracy as a promising theory to justify the modern administrative state. Those who advocate deliberative administration, however, have not easily incorporated the role of democratic politics into their models of that state.

This Article begins by reviewing the historical development of the most prevalent model of political influence on agencies—the presidential control model—and summarizes arguments supporting that model. It proceeds to criticize the presidential control model for failing to promote the goals of a deliberative regulatory state. It then presents deliberative justifications for the administrative …

Auer/Seminole Rock Deference In The Tax Court, Steve R. Johnson

Scholarly Publications

No abstract provided.

Administrative Proxies For Judicial Review: Building Legitimacy From The Inside-Out, David L. Markell, Emily Hammond

Scholarly Publications

Judicial review is considered an indispensable legitimizer of the administrative state. Not only is it a hallmark feature of the Administrative Procedure Act (“APA”), but the various standards of review reinforce democratic norms, promote accountability, and act as a check against arbitrariness. Unreviewable agency actions, therefore, must find their legitimacy elsewhere. This article evaluates the promise of “inside-out” legitimacy as an alternative or complement to judicial review. We theorize, based on insights from the administrative law and procedural justice literatures, that administrative process design can do much to advance legitimacy without the need to rely on judicial review to check …

Auer/Seminole Rock Deference In The Tax Court, Steve R. Johnson

Scholarly Publications

No abstract provided.

Liberty Of Palate, Samuel R. Wiseman

Scholarly Publications

As lawmakers concerned with problems as diverse as childhood obesity, animal cruelty, and listeria have increasingly focused their attention on consumers, legal issues surrounding food choice have recently attracted much broader interest. Bans on large sodas in New York City, fast food chains in South Los Angeles, and foie gras in California and Chicago have provoked national controversy, as have federal raids on raw milk sellers. In response, various groups have decried restrictions on their ability to consume the food products of their choice. A few groups have organized around the principle of what we might call liberty of palate, …