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Full-Text Articles in Law

Overreach And Innovation In Equality Regulation, Olatunde C.A. Johnson Jan 2017

Overreach And Innovation In Equality Regulation, Olatunde C.A. Johnson

Faculty Scholarship

At a time of heightened concern about agency overreach, this Article highlights a less appreciated development in agency equality regulation. Moving beyond traditional bureaucratic forms of regulation, civil rights agencies in recent years have experimented with new forms of regulation to advance inclusion. This new "inclusive regulation" can be described as more open ended, less coercive, and more reliant on rewards, collaboration, flexibility, and interactive assessment than traditional modes of civil rights regulation. This Article examines the power and limits of this new inclusive regulation and suggests a framework for increasing the efficacy of these new modes of regulation.


Appointments, Innovation, And The Judicial-Political Divide, Gillian E. Metzger Jan 2015

Appointments, Innovation, And The Judicial-Political Divide, Gillian E. Metzger

Faculty Scholarship

The federal appointments process is having its proverbial day in the sun. The appointment and removal of federal officers figured centrally in the Supreme Court's two major recent separation-of-powers decisions, Free Enterprise Fund v. Public Company Accounting Oversight Board and National Labor Relations Board v. Noel Canning. The appointments process has featured even more prominently in the political sphere, figuring in a number of congressional-presidential confrontations. Such simultaneous top billing in the judicial and political spheres is hardly coincidental. After all, it was President Obama's use of the Recess Appointments Clause in response to pro forma sessions that ...


Agency Threats, Tim Wu Jan 2011

Agency Threats, Tim Wu

Faculty Scholarship

There are three main ways in which agencies regulate: rulemaking; adjudication; and informal tools of guidance, also called nonlegislative or interpretative rules. Over the last two decades, agencies have increasingly favored the use of the last of these three, which can include statements of best practices, interpretative guides, private warning letters, and press releases.

Scholars are hardly unaware of this trend. In a series of papers, writers have explored the use of informal regulation as it affects the relationship between agencies and the federal courts, asking when nonlegislative rules can be challenged as unenforceable for want of process. This Essay ...


Political Control Of Federal Prosecutions: Looking Back And Looking Forward, Daniel C. Richman Jan 2009

Political Control Of Federal Prosecutions: Looking Back And Looking Forward, Daniel C. Richman

Faculty Scholarship

This Essay explores the mechanisms of control over federal criminal enforcement that the administration and Congress used or failed to use during George W. Bush's presidency. It gives particular attention to Congress, not because legislators played a dominant role, but because they generally chose to play such a subordinate role. My fear is that the media focus on management inadequacies or abuses within the Justice Department during the Bush administration might lead policymakers and observers to overlook the hard questions that remain about how the federal criminal bureaucracy should be structured and guided during a period of rapidly shifting ...


Administrative Law As The New Federalism, Gillian E. Metzger Jan 2008

Administrative Law As The New Federalism, Gillian E. Metzger

Faculty Scholarship

Despite the recognized impact that the national administrative state has had on the federal system, the relationship between federalism and administrative law remains strangely inchoate and unanalyzed. Recent Supreme Court case law suggests that the Court is increasingly focused on this relationship and is using administrative law to address federalism concerns even as it refuses to curb Congress's regulatory authority on constitutional grounds. This Article explores how administrative law may be becoming the new federalism and assesses how well-adapted administrative law is to performing this role. It argues that administrative law has important federalism-reinforcing features and represents a critical ...


The "Original Intent" Of U.S. International Taxation, Michael J. Graetz, Michael M. O'Hear Jan 1997

The "Original Intent" Of U.S. International Taxation, Michael J. Graetz, Michael M. O'Hear

Faculty Scholarship

The Sixteenth Amendment took effect on February 25, 1913, permitting Congress to tax income "from whatever source derived," and on October 3rd of that year, Congress approved a tax on the net income of individuals and corporations. The United States regime for taxing international income took shape soon thereafter, during the decade 1919-1928. In the Revenue Act of 1918, the United States enacted, for the first time anywhere in the world, a credit against U.S. income for taxes paid by a U.S. citizen or resident to any foreign government on income earned outside the United States. The Revenue ...


Golden Rules For Transboundary Pollution, Thomas W. Merrill Jan 1997

Golden Rules For Transboundary Pollution, Thomas W. Merrill

Faculty Scholarship

Environmental law is becoming ever more centralized. In the United States, state and local pollution laws have been eclipsed by federal regulation. In the European Community, and to a lesser degree under the North American Free Trade Agreement (NAFTA), national controls have been supplemented by regional regulation. And the growing importance of treaties regulating particular aspects of the global environment has reinforced calls for more general regimes of international environmental regulation.

One inevitably given justification for this centralizing trend is that pollution is a transboundary phenomenon. Air and water pollution, and to a lesser extent groundwater contamination, can cross political ...


The Rulemaking Continuum, Peter L. Strauss Jan 1992

The Rulemaking Continuum, Peter L. Strauss

Faculty Scholarship

The two papers we have before us tell both descriptive and normative stories about current issues of rulemaking. Each suggests, in its field of attention, pressures that operate to increase proceduralization and agency responses to those pressures, as well as an attitude toward these developments. In rulemaking, as in other activities, discretion and order are in constant tension; one might find in that tension the very engine that makes the processes of public law go. Like the studies that assisted the move away from formal rulemaking, and the perceptions underlying the Supreme Court's Vermont Yankee decision, which quieted the ...


Considering Political Alternatives To "Hard Look" Review, Peter L. Strauss Jan 1989

Considering Political Alternatives To "Hard Look" Review, Peter L. Strauss

Faculty Scholarship

That is absolutely right. I am sufficiently confused by the facts that are already on the table – two of them in particular. One (the dog that I thought was barking in that interesting first chart Don Elliott put up, on which he did not remark), is that the first two periods of judicial review he showed us had 337 and 294 cases of judicial review each; for the third period, for the same length of time, the figure is about 800. Something is going on there. The other is just a square conflict that our moderator is much better positioned ...


The Lawyer As Informer, Gerard E. Lynch Jan 1986

The Lawyer As Informer, Gerard E. Lynch

Faculty Scholarship

From the schoolyard "tattletale" to the police officer's "confidential informant" to the Pentagon "whistle blower," our society is deeply ambivalent toward those who report the wrongdoing of others to the authorities. On the one hand, society values informers. Without informers, serious misbehavior would certainly escape correction. The police officers' code of silence with respect to fellow officers' crimes, for example, may be a major obstacle to eliminating police corruption and brutality. On the other hand, society scorns informers as betrayers of confidence. Even one who violates an antisocial pact such as the police officers' code of silence is viewed ...


Sterilization Of Mentally Retarded Persons: Reproductive Rights And Family Privacy, Elizabeth S. Scott Jan 1986

Sterilization Of Mentally Retarded Persons: Reproductive Rights And Family Privacy, Elizabeth S. Scott

Faculty Scholarship

Sterilization is one of the most frequently chosen forms of contraception in the world; many persons who do not want to have children select this simple, safe, and effective means of avoiding unwanted pregnancy. For individuals who are mentally disabled, however, sterilization has more ominous associations. Until recently, involuntary sterilization was used as a weapon of the state in the war against mental deficiency. Under eugenic sterilization laws in effect in many states, retarded persons were routinely sterilized without their consent or knowledge.

Sterilization law has undergone a radical transformation in recent years. Influenced by a distaste for eugenic sterilization ...


Was There A Baby In The Bathwater? A Comment On The Supreme Court's Legislative Veto Decision, Peter L. Strauss Jan 1983

Was There A Baby In The Bathwater? A Comment On The Supreme Court's Legislative Veto Decision, Peter L. Strauss

Faculty Scholarship

Examining the Supreme Court's recent decisions in the legislative veto case, Professor Strauss stresses the importance of a distinction no Justice observed between use of the veto in matters affecting direct, continuing, political, executive-congressional relations, and use of the veto in a regulatory context. Only the latter, he argues, had to be reached by the Court; and only the latter presents the constitutional difficulties that troubled the Court. The utility of the veto in the political context makes the opinions' sweep regrettable.