Law Commons^™

Why The Court Should Reexamine Administrative Law's Chenery Ii Doctrine, Gary S. Lawson, Joseph Postell

Faculty Scholarship

Part I of this article begins by discussing some fundamental constitutional principles that were raised, sometimes implicitly and indirectly, in the Chenery cases. Those principles point to limits on administrative adjudication that go well beyond those recognized in current doctrine. We do not here seek to push those principles as far as they can go, though we offer no resistance to anyone who wants to trod that path. Instead, we identify and raise those principles to help understand the scope and limits of actual doctrine. Our modest claims here are that constitutional concerns about at least some classes of agency …

Against The Chenery Ii "Doctrine", Gary S. Lawson, Joseph Postell

Faculty Scholarship

The Supreme Court’s 1947 decision in SEC v. Chenery Corp. (“Chenery II”) is generally taken as blanket authorization for agencies to make law through either adjudication or rulemaking if their organic statutes permit both modes. We think this is an overreading of the doctrine. The decision in Chenery II need not be read so broadly, and there are good reasons to read it more narrowly. The most important reason is that agency lawmaking through adjudication presents serious constitutional concerns involving due process of law and subdelegation of legislative power, at least if the agency action deprives people of life, liberty, …

Property's Boundaries, James Toomey

Elisabeth Haub School of Law Faculty Publications

Property law has a boundary problem. Courts are routinely called upon to decide whether certain kinds of things can be owned--cells, genes, organs, gametes, embryos, corpses, personal data, and more. Under prevailing contemporary theories of property law, questions like these have no justiciable answers. Because property has no conceptual essence, they maintain, its boundaries are arbitrary--a flexible normative choice more properly legislative than judicial.

This Article instead offers a straightforward descriptive theory of property's boundaries. The common law of property is legitimated by its basis in the concept of ownership, a descriptive relationship of absolute control that exists outside of …

Using Odr Platforms To Level The Playing Field: Improving Pro Se Litigation Through Odr Design, J.J. Prescott

Book Chapters

Court-connected ODR has already shown itself capable of dramatically improving access to justice by eliminating barriers rooted in the fact that courts traditionally resolve disputes only during certain hours, in particular physical places, and only through face-to-face proceedings. Given the centrality of courthouses to our system of justice, too many Americans have discovered their rights are too difficult or costly to exercise. As court-connected ODR systems spread, offering more inclusive types of dispute resolution services, people will soon find themselves with the law and the courts at their fingertips. But robust access to justice requires more than just raw, low-cost …

Court Review: The Journal Of The American Judges Association, Vol. 59, No. 3, Eve M. Brank, David Dreyer, David Prince

Court Review: The Journal of the American Judges Association

Articles

Judicial Discipline, Examining Ethics Oversight for the Highest Levels of Our Least Accountable Branch; David Prince

Civil Cases in the Supreme Court’s October Term 2022; Thomas M. Fisher

Departments

Editor’s Note; David Dreyer

President’s Column: A Legacy of Leadership and Service; Yvette Mansfield Alexander

Thoughts from Canada: Uttering Threats in Canada and the United States, a Comparative Analysis; Wayne K. Gorman

Crossword: Name That Games; Tracy Bennett and Vic Fleming

The Resource Page: Junk Science and the Judicial System; The Elevator Effect; Mindfulness and Judging: Resources for Judges; New Online Database: Judges and the Judiciary: Exploring America's Court System; …

Court Review: The Journal Of The American Judges Association, Vol. 59, No. 2, Eve M. Brank, David Dreyer, David Prince

Court Review: The Journal of the American Judges Association

Articles

Judicial Strategies for Evaluating the Validity of Guilty Pleas; Kelsey S. Henderson, Erika N. Fountain, Allison D. Redlich, and Jason A. Cantone

Courtroom Technology from the Judge’s Perspective: A 2022-23 Update; Fredric I. Lederer

The Science of Children’s Lies (and their Detection): A Primer for Justice Practitioners; Vincent Denault and Victoria Talwar

Jury Trial Innovation Round #2; Judge Gregory E. Mize

Departments

Editor’s Note; David Prince

President’s Column:2023, the Year of Excellence! Yvette Mansfield Alexander

Thoughts from Canada: The Supreme Court of Canada Considers How the “Plain View” Doctrine Applies to Searches of Electronic Devices; Wayne K. Gorman

Crossword:Employment …

The Not-So-Standard Model: Reconsidering Agency-Head Review Of Administrative Adjudication Decisions, Rebecca S. Eisenberg, Nina A. Mendelson

Articles

The Supreme Court has invalidated multiple legislative design choices for independent agency structures in recent years, citing Article II and the need for political accountability through presidential control of agencies. In United States v. Arthrex, Inc., the Court turned to administrative adjudication, finding an Appointments Clause violation in the assignment of certain final patent adjudication decisions to appellate panels of unconfirmed administrative patent judges. As a remedy, a different majority declared unenforceable a statutory provision that had insulated Patent and Trademark Office (PTO) administrative adjudication decisions from political review for almost a century. The Court thereby enabled the politically appointed …

Court Review: The Journal Of The American Judges Association, Vol. 58, No. 4, Eve M. Brank, David Dreyer, David Prince

Court Review: The Journal of the American Judges Association

Interview

Stresses of the Job in Modern Times: Coaching Resilience in Judges, Peer-to-Peer, an Interview with Jan Bouch; David Prince

Articles

Prosecutorial Misconduct: Assessment of Perspectives from the Bench, Saul M. Kassin, Stephanie A. Cardenas, Vanessa Meterko, and Faith Barksdale

Limiting Access to Remedies: Select Criminal Law and Procedure Cases from the Supreme Court’s 2021-22 Term, Eve Brensike Primus and Justin Hill

You Can Change Judging and Justice, Thomas R. French

The Online Courtroom: Leveraging Remote Technology in Litigation American Bar Association, Tort, Trial, and Insurance Practice Section, J. Gary Hastings

Departments

Editor’s Note, Eve Brank, David Dreyer, and David …

Racial Justice And Administrative Procedure, Sophia Z. Lee

All Faculty Scholarship

This article argues that commemorating the Administrative Procedure Act (APA) should involve accounting for the role it has played in both advancing and thwarting racial justice, as well as the role racial justice advocates have played in shaping its interpretation. The APA was not designed to advance racial justice; indeed, its provisions insulated some of the mid-twentieth century's most racially pernicious policies from challenge. Yet racial justice advocates have long understood that administrative agencies could be a necessary or even uniquely receptive target for their efforts and the APA shaped those calculations. Along the way, racial justice advocates left their …

Law School News: Adjunct Professor Of The Year 2021: David Coombs 05/19/2021, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Law Of The Gun: Unrepresentative Cases And Distorted Doctrine, Eric Ruben

Faculty Journal Articles and Book Chapters

There is a familiar saying, “If all you have is a hammer, everything looks like a nail.” The so-called Law of the Hammer takes a distinctive form in adjudication. If all judges see is one repeating fact pattern for a given area of law, they might perceive it as archetypical and build the law around it. If that fact pattern does not accurately reflect the field, however, the result can be analytical distortion in terms of both the choice of doctrine and its implementation.

This Article uses Second Amendment jurisprudence to illustrate this phenomenon. It reveals how District of Columbia …

Fair Play: Notes On The Algorithmic Soccer Referee, Michael J. Madison

Articles

The soccer referee stands in for a judge. Soccer’s Video Assistant Referee (“VAR”) system stands in for algorithms that augment human deciders. Fair play stands in for justice. They are combined and set in a polycentric system of governance, with implications for designing, administering, and assessing human-machine combinations.

Contract Interpretation And The Parol Evidence Rule: Toward Conceptual Clarification, Joshua M. Silverstein

Faculty Scholarship

Contract interpretation is one of the most important topics in commercial law. Unfortunately, the law of interpretation is extraordinarily convoluted. In essentially every American state, the jurisprudence is riddled with inconsistency and ambiguity. This causes multiple problems. Contracting parties are forced to expend additional resources when negotiating and drafting agreements. Disputes over contractual meaning are more likely to end up in litigation. And courts make a greater number of errors in the interpretive process. Together, these impacts result in significant unfairness and undermine economic efficiency. Efforts to remedy the doctrinal incoherence are thus warranted.

The goal of this Article is …

The Adjudication Business, Pamela K. Bookman

Faculty Scholarship

The recent proliferation of international commercial courts around the world is changing the global business of adjudication. The rise of these courts also challenges the traditional accounts of the competitive relationship between and among courts and arbitral tribunals for this business. London and New York have long been considered the forum of choice in international commercial contracts—whether parties opt for litigation or arbitration. More recently, however, English-language-friendly international commercial courts have been established in China (2018), Singapore (2015), Qatar (2009), Dubai (2004), the Netherlands (2019), Germany (2018), France (2010), and beyond.

The emerging scholarship addressing these new courts tends to …

Regulating Impartiality In Agency Adjudication, Kent H. Barnett

Scholarly Works

Which should prevail—the Take Care Clause of Article II or the Due Process Clause? To Justice Breyer’s chagrin, the majorities in Lucia v. SEC and Free Enterprise Fund v. PCAOB expressly declined to resolve whether the U.S. Constitution condones SEC administrative law judges’ and other similarly situated agency adjudicators’ current statutory protection from at-will removal. The crux of the problem is that, on one hand, senior officials may use at-will removal to pressure agency adjudicators and thereby potentially imperil the impartiality that due process requires. On the other hand, Article II limits Congress’s ability to cocoon executive officers, including potentially …

Reckoning With Adjudication's Exceptionalism Norm, Emily S. Bremer

Journal Articles

Unlike rulemaking and judicial review, administrative adjudication is governed by a norm of exceptionalism. Agencies rarely adjudicate according to the Administrative Procedure Act’s formal adjudication provisions, and the statute has little role in defining informal adjudication or specifying its minimum procedural requirements. Due process has almost nothing to say about the matter.

The result is that there are few uniform, cross-cutting procedural requirements in adjudication, and most hearings are conducted using procedures tailored for individual agencies or programs. This Article explores the benefits and costs of adjudication’s exceptionalism norm, an analysis that implicates the familiar tension between uniformity and specialization …

To Ab Or Not To Ab?: Dispute Settlement In Wto Reform, Bernard M. Hoekman, Petros C. Mavroidis

Faculty Scholarship

Recent debates on the operation of the WTO’s dispute resolution mechanism have focused primarily on the Appellate Body (AB). We argue that this neglects the first-order issue confronting the rules-based trading system: sustaining the principle of de-politicized conflict resolution that is reflected in the negative consensus rule for adoption of dispute settlement findings. Improving the quality of the work of panels by appointing a roster of full-time professional adjudicators, complemented by reforms to WTO working practices that reduce incentives to resort to formal dispute settlement, can resolve the main issues that led to the AB crisis. Effective, coherent, and consistent …

Symposium: The Puzzling And Troubling Grant In Kisor, Gillian E. Metzger

Faculty Scholarship

From one perspective, the Supreme Court’s decision to grant review in Kisor v. Wilkie is not surprising. Dating back at least to Justice Antonin Scalia’s 2011 concurrence in Talk America v. Michigan Bell Telephone Co., through Decker v. Northwest Environmental Defense Center in 2013 and Perez v. Mortgage Bankers Association in 2015, there’s been growing interest on the Supreme Court’s conservative wing in overturning Auer deference, or the doctrine that an agency’s interpretation of its own regulation is “controlling unless plainly erroneous or inconsistent with the regulation.” The campaign to overturn Auer v. Robbins then stalled, with the court denying …

Administrative Adjudication And Adjudicators, Jack M. Beermann

Faculty Scholarship

The appointment, removal, supervision and allocation of cases to Administrative Law Judges (ALJs) and other non-Article III adjudicators in the United States federal government continues to create vexing legal issues for courts and commentators. This article is an effort to address all of these issues together, to facilitate a holistic understanding of the place of non-Article III adjudicators in the federal government. The appointment question revolves around whether non-Article III adjudicators are Officers of the United States, which most are. There are two issues surrounding the removal of non-Article III adjudicators. First, for reasons sounding in due process concerns, adjudicators …

"Cyborg Justice" And The Risk Of Technological-Legal Lock-In, Rebecca Crootof

Law Faculty Publications

Although Artificial Intelligence (AI) is already of use to litigants and legal practitioners, we must be cautious and deliberate in incorporating AI into the common law judicial process. Human beings and machine systems process information and reach conclusions in fundamentally different ways, with AI being particularly ill-suited for the rule application and value balancing required of human judges. Nor will “cyborg justice”—hybrid human/AI judicial systems that attempt to marry the best of human and machine decisionmaking and minimize the drawbacks of both—be a panacea. While such systems would ideally maximize the strengths of human and machine intelligence, they might also …

Due Process For Article Iii—Rethinking Murray's Lessee, Kent H. Barnett

Scholarly Works

The Founders sought to protect federal judges’ impartiality primarily because those judges would review the political branches’ actions. To that end, Article III judges retain their offices during “good behaviour,” and Congress cannot reduce their compensation while they are in office. But Article III has taken a curious turn. Article III generally does not prohibit Article I courts or agencies from deciding “public rights” cases, i.e., when the government is a party and seeking to vindicate its own actions and interpretations under federal law against a private party. In contrast, Article III courts generally must resolve cases that concern “private …

Research Report On Federal Agency Alj Hiring After Lucia And Executive Order 13843, Jack M. Beermann

Faculty Scholarship

This draft report examines federal agency hiring practices for administrative law judges ("ALJs"), who preside over formal agency hearings, in light of the Supreme Court's determination that ALJs are constitutional officers and President Trump's executive order to exempt ALJs from certain statutory competitive-service hiring requirements. The report also provides recommendations for best agency hiring practices. Professors Jack Beermann and Jennifer Mascott co-authored this initial draft report. After Professor Mascott stepped down from the Administrative Conference of the United States to work in the Department of Justice's Office of Legal Counsel, Professor Beermann edited the report and produced its final May …

Judges And Judgment: In Praise Of Instigators, Kathryn Judge

Faculty Scholarship

This Essay is about mutual funds. Because of that, it may put many to sleep long before we get to the heart of the matter. I encourage you right now to stay awake, or at least keep one eye propped open. For embedded in this story about mutual funds, rent seeking, the challenge of separating the good and the bad, and the even greater challenge of respecting autonomy in an environment where so many choices seem to be bad ones, is the story of a judge. That judge is the Honorable Richard A. Posner, aka RAP, Dick, Professor Posner, the …

Pran Justice: Social Order, Dispute Processing, And Adjudication In The Venezuelan Prison Subculture, Manuel A. Gomez

Faculty Publications

No abstract provided.

Justice As Harmony: The Distinct Resonance Of Chief Justice Beverley Mclachlin's Juridical Genius, Marcus Moore

All Faculty Publications

Chief Justice McLachlin’s juridical work has earned special praise, but what specifically distinguishes it among the work of other leading jurists has proven elusive for lawyers and social scientists to identify. My experience as a law clerk to McLachlin CJC suggested a distinct approach never comprehensively articulated, but intuitively well-known and widely-emulated among those in her sphere of influence. Drawing on the Chief Justice’s public lectures—where she often explained and offered deeper reflection on the McLachlin Court’s defining jurisprudence—I make the case in this article that at the heart of that approach is a quality best described as the pursuit …

Non-Alj Adjudicators In Federal Agencies: Status, Selection, Oversight, And Removal, Kent H. Barnett, Russell Wheeler

Scholarly Works

This article republishes—in substantively similar form—our 2018 report to the Administrative Conference of the United States (ACUS) concerning federal agencies’ adjudicators who are not administrative law judges (ALJs). (We refer to these adjudicators as “non-ALJ Adjudicators” or “non-ALJs.”) As our data indicate, non-ALJs significantly outnumber ALJs. Yet non-ALJs are often overlooked and difficult to discuss as a class because of their disparate titles and characteristics. To obtain more information on non-ALJs, we surveyed agencies on non-ALJs’ hearings and, among other things, the characteristics concerning non-ALJs’ salaries, selection, oversight, and removal. We first present our reported data on these matters, which …

Introduction: Canada's Chief Justice: Beverley Mclachlin's Legacy Of Law And Leadership, Marcus Moore

All Faculty Publications

Summarizes the legacy of law and leadership of Beverley McLachlin, the longest-serving Chief Justice of the Supreme Court of Canada (2000-2017), and first female Chief Justice.

Designing The Decider, Emily S. Bremer

Journal Articles

The Administrative Procedure Act (APA) contains several provisions designed to ensure that presiding officials in so-called formal adjudications are able to make fair, well-informed, independent decisions. But these provisions do not apply to the vast majority of federal adjudicatory hearings. In this world of adjudication outside the APA, agencies enjoy broad procedural discretion, including substantial freedom to “design the decider.” This Article defines the scope of this discretion and explores how various agencies have exercised it. The discussion is enriched by examples drawn from an expansive new database of federal adjudicatory procedures. The Article argues that, although agency discretion to …

The Pro Bono Collaborative Project Spotlight 12-20-2017, Roger Williams University School Of Law

Pro Bono Collaborative Staff Publications

No abstract provided.

A.J. V. Eighth Judicial Dist. Court, 133 Nev. Adv. Op. 28 (June 1, 2017), Briana Martinez

Nevada Supreme Court Summaries

NRS 62C.240 is triggered when circumstances surrounding a juvenile’s arrest plainly demonstrate that the juvenile was arrested for prostitution or solicitation even if the juvenile is charged with offenses other than prostitution or solicitation.