Law Commons^™

An Extended Hypothetical For Teaching Administrative Law, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

The President And Choices Not To Enforce, Peter L. Strauss

Faculty Scholarship

The executive branch is often called upon to assess how a particular statute it is charged to administer fits within the larger framework of the law. Professor Dawn Johnsen's thoughtful analysis addresses an important subset of these challenges: situations in which the President believes a particular statute is inconsistent with one or another provision of the Constitution and, therefore, should not be enforced. My purpose here is to explore the context of executive non-enforcement more broadly, in a way that may help in understanding the particular problem she addresses.

Issues of constitutional structure and function are among the most daunting …

Does The Solicitor General Advantage Thwart The Rule Of Law In The Administrative State?, Jim Rossi

Vanderbilt Law School Faculty Publications

Linda Cohen and Matthew Spitzer's study, "The Government Litigant Advantage," sheds important light on how the Solicitor General's litigation behavior may impact the Supreme Court's decision making agenda and outcomes for regulatory and administrative law cases. By emphasizing how the Solicitor General affects cases that the Supreme Court decides, Cohen and Spitzer's findings confirm that administrative law's emphasis on lower appellate court decisions is not misplaced. Some say that D.C. Circuit cases carry equal-if not more-precedential weight than Supreme Court decisions in resolving administrative law issues. Cohen and Spitzer use positive political theory to provide a novel explanation for some …

Battle On The Benches: The Wagner Act And The Federal Circuit Courts Of Appeals, 1935-1942, Douglas J. Feeney-Gallagher

Seattle University Law Review

This paper examines the efforts of some circuit court judges to preserve the integrity of the judicial branch against the encroaching power of the New Deal administrative agencies, especially as represented by the National Labord Relations Board (NLRB). This paper offers a historical overview of the relationship between two circuits and the NLRB; one circuit welcomed the Board's aggressive enforcement of the Act, while the other expressed hostility towards the labor agency's powers and interpretation of the Wagner Act. An examination of the NLRB opinions in these two circuits illustrates the opposing judicial attitudes toward the new turn in labor …

Democracy Within Federalism: An Attempt To Reestablish Middle Ground, Alexander Hanebeck

San Diego Law Review

the conflict between the two levels of government, state and federal, is a very old one. The main battleground of this debate, however, has been over states' rights and the protection of individual rights by federal courts. As John Hart Ely observed, this is not where federalism hangs in the balance. He correctly points out what is becoming obvious in recent Supreme Court decisions. For the existence of states as independent entities, it is more important where legislative competence lies. 3 This Article is concerned with the groundwork for a debate over the distribution of legislative competence, because it attempts …

Conserving Ecosystems Through The Secretarial Order On Tribal Rights, Sandra B. Zellmer

Faculty Law Review Articles

No abstract provided.

A Case Study In The Intersection Of Law And Science: The 1999 Report Of The Committee Of Scientists, Charles F. Wilkinson

Publications

No abstract provided.

Introduction, To Cost-Benefit Analysis, Matthew D. Adler, Eric A. Posner

Faculty Scholarship

No abstract provided.

Paradigm Changes In Telecommunications Regulation, Phil Weiser

Publications

No abstract provided.

Reducing The Democratic Deficit: Representation, Diversity, And The Canadian Judiciary, Or Towards A "Triple P" Judiciary, Richard Devlin Frsc, A. Wayne Mackay, Natasha Kim

Articles, Book Chapters, & Popular Press

The authors review the current structures for judicial appointments in Canada and provide statistical information about the results of these mechanisms in respect to diversity of representation on the courts. They are also critical of the fairness and openness of judicial appointments processes. After examining several variants of the dominant liberal view of law and of judges, the authors proffer and articulate a neo-realist theory of law and what they term a "bungee cord theory of judging." According to the former, law is inevitably a form of politics; according to the latter, judges are unavoidably political actors. In consequence, the …

American Trucking Associations, Inc. V. United States Environmental Protection Agency: A Speed-Bump Along The Highway Of Judicial Deference To Agency Determinations, Amy Quandt

Villanova Environmental Law Journal

No abstract provided.

Municipal Ethics Remain A Hot Topic In Litigation: A 1999 Survey Of Issues In Ethics For Municipal Lawyers, Patricia E. Salkin

Scholarly Works

No abstract provided.

Transition Losses In The Electric Power Market: A Challenge To The Premises Underlying The Arguments For Compensation, Lois R. Lupica

Faculty Publications

In this Article, Professor Lois R. Lupica examines whether the electric utility industry, currently j.n the midst of deregulation, ought to sustain the resulting transition losses. Due to the signifi· cant modification of legal rules affecting the electric power market and changes in regulatory policy, the utilities currently have expenditures and expectations that are unrecoverable in a competitive market. In recent years, momentum has moved in the direction of compensating the electric utilities and their investors for these losses. Professor Lupica challenges the arguments for transition loBS recovery and ultimately concludes that the doctrinal premises in support oftransition loss recovery …

Globalization And The Design Of International Institutions, Cary Coglianese

All Faculty Scholarship

In an increasingly globalized world, international rules and organizations have grown ever more crucial to the resolution of major economic and social concerns. How can leaders design international institutions that will effectively solve global regulatory problems? This paper confronts this question by presenting three major types of global problems, distinguishing six main categories of institutional forms that can be used to address these problems, and showing how the effectiveness of international institutions depends on achieving “form-problem” fit. Complicating that fit will be the tendency of nation states to prefer institutional forms that do little to constrain their sovereignty. Yet the …

Re-Examining The Role Of Patents In Appropriating The Value Of Dna Sequences, Rebecca S. Eisenberg

Articles

As public and private sector initiatives race to complete the sequence of the human genome, patent issues have played a prominent role in speculations about the significance of this achievement. How much of the genome will be subject to the control of patent holders, and what will this mean for future research and the development of products for the improvement of human health? Is a patent system developed to establish rights in mechanical inventions of an earlier era up to the task of resolving competing claims to the genome on behalf of the many sequential innovators who elucidate its sequence …

A Comparison Of The Administrative Law Of The Catholic Church And The United States, John J. Coughlin

Journal Articles

Some years ago, an international symposium of jurists described administrative law as encompassing "the entire range of action by government with respect to the citizen or by the citizen with respect to the government, except for those matters dealt with by the criminal law, and those left to private civil litigation where the government's only participation is in furnishing an impartial tribunal with the power of enforcement."

The broad parameters of the concept of administrative law attest to its importance in any legal system. Indeed, for at least the past fifty years, comparative legal scholars have focused on diverse national …

Implementing Cost-Benefit Analysis When Preferences Are Distorted, Matthew D. Adler, Eric A. Posner

Faculty Scholarship

Cost-benefit analysis is routinely used by government agencies in order to evaluate projects, but it remains controversial among academics. This paper argues that cost-benefit analysis is best understood as a welfarist decision procedure and that use of cost-benefit analysis is more likely to maximize overall well-being than is use of alternative decision-procedures. The paper focuses on the problem of distorted preference. A person's preferences are distorted when his or her satisfaction does not enhance that person's well-being. Preferences typically thought to be distorted in this sense include disinterested preferences, uninformed preferences, adaptive preferences, and objectively bad preferences; further, preferences may …

Established By Practice: The Theory And Operation Of Independent Federal Agencies, Marshall J. Breger, Gary J. Edles

Scholarly Articles

Over the years numerous articles have surveyed the indicia of independence and the place of independent agencies within a separation of powers framework. In this article, we review the structure and internal operations of independent agencies, note several similarities and differences among them, and address various recurring issues affecting them. We further consider the future of this regulatory form as we enter the new millennium. We focus on agencies-whether multi-member or not-where at least one individual is appointed by the President to a full-time, fixed-term position with the advice and consent of the Senate and has protection against summary removal …

Using Cases As Case Studies For Teaching Administrative Law, John S. Applegate

Articles by Maurer Faculty

No abstract provided.

Willard Hurst And The Administrative State: From Williams To Wisconsin, Daniel R. Ernst

Georgetown Law Faculty Publications and Other Works

This article follows Willard Hurst from his undergraduate days at Williams College through the start of his teaching career at Wisconsin in the fall of 1937. During these years Hurst acquired an abiding interest in the rise of the administrative state as well as some of the insights he would use to account for it in his mature work. For the most part, the article proceeds chronologically through four episodes in Hurst's training: (1) his year-long study of Charles and Mary Beard's "Rise of American Civilization" undertaken as an undergraduate at Williams College; (2) his three years as a student …

Compliance With Non-Binding Norms Of Trade And Finance, David Wirth

David A. Wirth

No abstract provided.

Technology Shifts And The Law: Year 2000 Readiness For Banks And Thrifts

Patricia A. McCoy

No abstract provided.

The Reform Of Ethics Rules In Arkansas Government, Robert B. Leflar

Robert B Leflar

This essay outlines existing conflict-of-interest rules in Arkansas government, particularly for state agencies, boards and commissions. The essay identifies weaknesses in the rules, and suggests disclosure requirements and certain restrictions on voting by board members with conflicts.