Law Commons^™

Judicial Fidelity, Caprice L. Roberts

Pepperdine Law Review

Judicial critics abound. Some say the rule of law is dead across all three branches of government. Four are dead if you count the media as the fourth estate. All are in trouble, even if one approves of each branch’s headlines, but none of them are dead. Not yet. Pundits and scholars see the latest term of the Supreme Court as clear evidence of partisan politics and unbridled power. They decry an upheaval of laws and norms demonstrating the dire situation across the federal judiciary. Democracy is not dead even when the Court issues opinions that overturn precedent, upends long-standing …

Outsourcing Agency Rulemaking, Christopher J. Walker

Reviews

When it comes to understanding the political dynamics of agency rulemaking, the place to start is Rachel Potter’s book Bending the Rules: Procedural Politicking in the Bureaucracy, about which the Yale Journal on Regulation published a blog symposium in 2019. Through a mix of qualitative and quantitative methods, Potter explores how agency officials—both career civil servants and political appointees—play a role in the rulemaking process and leverage procedural rules to help advance their preferred policy outcomes.

A Typology Of Justice Department Lawyers' Roles And Responsibilities, Rebecca Roiphe

Articles & Chapters

President Trump’s administration has persistently challenged the legitimacy of the Department of Justice (“DOJ”). In the past, DOJ, like other governmental institutions, has been fairly resilient. Informal norms and practices have served to preserve its proper functioning, even under pressure. The strain of the past three years, however, has been different in kind and scale. This Article offers a typology of different roles for DOJ lawyers and argues that over time the institution has evolved by allocating different functions and responsibilities to different positions within DOJ. By doing so, it has for the most part maintained the proper balance between …

Trust Me, I'M A Pragmatist: A Partially Pragmatic Critique Of Pragmatic Activism, Joshua Galperin

Articles

Pragmatism is a robust philosophy, vernacular hand waiving, a method of judicial and administrative decisionmaking, and, more recently, justification for a certain type of political activism. While philosophical, judicial, and administrative pragmatism have garnered substantial attention and analysis from scholars, we have been much stingier with pragmatic activism — that which, in the spirit of the 21st Century’s 140-character limit, I will call “pragtivism.” This Article is intended as an introduction to pragtivism, a critique of the practice, and a constructive framework for addressing some of my critiques.

To highlight the contours of pragtivism, this Article tells the story of …

The Attorney General As Lawyer (?): Confidentiality Upon Resignation From Cabinet, Andrew Flavelle Martin

Dalhousie Law Journal

The unique role of the attorney general raises several special issues oflegal ethics. This paper addresses one previously unaddressed: whether it is appropriate for the attorney general to publicly announce his or her reasons for resighing from Cabinet. Unlike other ministers, the attorney general is almost always a practicing lawyer and thus bound not only by Cabinet solidarity and Cabinet confidentiality, but also by the lawyer's professional duty of confidentiality and by solicitor-client privilege. The paper begins by canvassing a hierarchy ofreasons for a principled resignation and the rare historical examples where these have occurred. It then turns to the …

The Challenge Of Seeing Justice Done In Removal Proceedings, Jason A. Cade

Scholarly Works

Prosecutorial discretion is a critical part of the administration of immigration law. This Article considers the work and responsibilities of the Immigration and Customs Enforcement (ICE) trial attorneys, who thus far have not attracted significant scholarly attention, despite playing a large role in the ground-level implementation of immigration law and policy. The Article makes three main contributions. First, I consider whether ICE attorneys have a duty to help ensure that the removal system achieves justice, rather than indiscriminately seek removal in every case and by any means necessary. As I demonstrate, trial attorneys have concrete obligations derived from statutory provisions, …

Land Ethic Under Attack: Keystone Xl And The War Over Domestic S(Oil), Heather Culp

Environmental and Earth Law Journal (EELJ)

The Keystone XL pipeline has caused recent controversy and renewed the debate over the future of fossil fuels in the United States. The project pits largely conservative groups, who argue that the pipeline will create jobs and decrease America’s dependence on foreign oil, against environmental advocates, indigenous tribes, and private landowners, who are attempting to fend off the project because they believe it will displace them of their own lands as well as disrupt the natural ecosystems that lay in the pipeline’s path. In the wake of a presidential veto of the project and renewed sentiment by the pipeline’s …

1998 Survey Of Ethics In Land-Use Planning, Patricia E. Salkin

Patricia E. Salkin

No abstract provided.

Crisis On The Immigration Bench: An Ethical Perspective, Michele Benedetto

Journal of the National Association of Administrative Law Judiciary

The troubled status of the immigration court system has garnered much attention from scholars, appellate judges, and even the United States Attorney General. This article suggests a new lens through which to examine the acknowledged crisis in immigration courts: judicial ethics. Because the term judicial ethics encompasses a broad array of principles, the article narrows its focus to bias and incompetence on the part of immigration judges in the courtroom. Immigration judges operate as a unique judiciary under the Executive Branch of government. An examination of the modern immigration court system, including inadequate disciplinary procedures for immigration judges, reveals that …

Chasing The Atticus Code - Preserving Adjudication Integrity In Local Administrative Hearings , Michael N. Widener

Journal of the National Association of Administrative Law Judiciary

In the United States administrative law realm, there purportedly exist more than 19 thousand municipal governments, 16 thousand town or township governments; three thousand county governments, 13 thousand school districts and 35 thousand special district governments. This essay argues that these local adjudicative loci largely neglect the ethical guidance or direction of lawyers serving in government-official capacities without holding elected nor judicial positions. I dub these decision-makers “Atticus.” Citizens support the notion of external codes of professional responsibility for such persons not necessarily because they believe that “lawyering rules” are well constructed or property enforced, but because they doubt lawyers …

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

Patricia E. Salkin

No abstract provided.

Judging Ethics For Administrative Law Judges: Adoption Of A Uniform Code Of Judicial Conduct For The Administrative Judiciary, Patricia E. Salkin

Patricia E. Salkin

No abstract provided.

Administrative Justice And Adjudicative Ethics In Canada, Lorne Sossin

Articles & Book Chapters

In this article, I explore both the idea and practice of adjudicative ethics in the context of administrative justice in Canada. This is a large topic and one which is particularly timely as accountability, transparency and conflict of interest are all renewed areas of interest for governments across Canada. Elsewhere, I have suggested it is time to approach administrative justice as a justice system rather than as a disparate set of tribunals and boards. One way in which this coordination can be expressed is through a shared process of accountability for the conduct of adjudicators. My hope in elaborating adjudicative …

Lawyering At The Intersection Of Public Law And Legal Ethics: Government Lawyers As Custodians Of The Rule Of Law, Adam M. Dodek

Dalhousie Law Journal

Government lawyers are significant actors in the Canadian legal profession, yet they are largely ignored by regulators and by academic scholarship. The dominant view of lawyering fails to adequately capture the unique role of government lawyers. Government lawyers are different from other lawyers by virtue of their role in creating and upholding the rule of law Most accounts of government lawyers separate public law duties of government from ethical duties of lawyers; for example, acknowledging the "public interest" role ofgovernment lawyers but asserting that this has no impact on their ethical duties as lawyers. Instead of this compartmentalized approach, this …

Allocating Influence, Heidi R. Anderson

Heidi R Anderson

As more lawmaking is achieved at the administrative agency level, the issue of whether and how to apply the rules of legal ethics to lawyers that lobby agency decision makers grows more important; however, at this time, the ethics of influencing is a murky area in need of clarification. Any attempt to clarify the ethics of influencing should start with a core principle underlying modern legal ethics — the avoidance and/or resolution of conflicts of interest. Accordingly, this Article addresses a conflict of interest — the “allocating influence conflict”— that, to date, has escaped proper identification or analysis. In its …

Agenda: Shifting Baselines And New Meridians: Water, Resources, Landscapes, And The Transformation Of The American West, University Of Colorado Boulder. Natural Resources Law Center

Shifting Baselines and New Meridians: Water, Resources, Landscapes, and the Transformation of the American West (Summer Conference, June 4-6)

The Center’s 29th annual conference will focus on the changes in the West resulting from rapid population growth, development, disrupted historical weather patterns and the effects of those changes on land, water, and energy resources. Speakers and panelists will address the adaptability of the legal and political institutions and how the transformation of the West may foreshadow fundamental changes to these institutions.

The agenda includes panel discussions that will address:

• Water for the 21^st Century —the big questions in Western water and rethinking Western water law.
• The Future of Energy —practical and sophisticated solutions to overcome the energy …

Slides: Meaningful Engagement: The Public's Role In Resource Decisions, Mark Squillace

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: Mark Squillace, Director, Natural Resources Law Center, University of Colorado Law School

22 slides

Private Rights And Collective Governance: A Functional Approach To Natural Resources Law, Eric T. Freyfogle

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

4 pages.

"Eric T. Freyfogle, Max L. Rowe Professor of Law, University of Illinois College of Law"

The Jurisprudential Foundation Of Law, Especially International Law: The Basis For True Progess & Reform, Morse Tan

ExpressO

This essay makes a unique case for the existence of justice, higher law and virtue by drawing on classic thinkers from both East and West. It asserts that no better jurisprudential foundation can be found. The need for this foundation emerges more clearly in the international context, but it applies to all legal systems.

After introducing the topic, explaining the relevance of this jurisprudence, responding to objections, and critiquing competing approaches, this essay presents pertinent sources from the East. Well-regarded in the East but less known to the West, writers such as Mencius, Tao, Hsuntze, and the Neo Confucianists from …

Justification, Legitimacy, And Administrative Governance, Matthew D. Adler

Faculty Scholarship

Richard Stewart, in his classic article ‘The Reformation of American Administrative Law,’ argues that the demise of the ’transmission belt’ model of administrative governance creates a crisis of agency legitimacy, and he skeptically surveys a range of possible solutions to the legitimacy crisis. I claim that Stewart’s skepticism is misguided. It may be true that no feasible administrative structure is democratically legitimate; but it is also true, given the logic of moral justification, that in every choice situation confronted by agency decisionmakers, or by those who design agencies, there is some morally permissible and justified choice (perhaps a choice that …

How Many Times Do I Have To Tell You?! Epa's Ongoing Struggle With Data From Third-Party Pesticide Toxicity Studies Using Human Subjects, Heidi Gorovitz Robertson

Law Faculty Articles and Essays

This article addresses EPA's current and historic policy struggle regarding the position the Agency should take with respect to pesticide toxicity studies done by third parties in their attempts to register pesticides. Chemical companies often conduct these studies, or seek third-parties to do so, and submit the results to EPA in support of applications for pesticide registration. Although EPA had a high level joint Science Advisory Board/FIFRA Science Advisory Panel make recommendations to it on this subject in 1999, last year EPA asked the National Academy of Sciences to conduct additional, almost certainly duplicative review. Specifically, EPA has asked the …

Hard Choices And Soft Law: Ethical Codes, Policy Guidelines And The Role Of The Courts In Regulating Government, Lorne Sossin, Charles Smith

Articles & Book Chapters

The authors examine a number of examples of "soft law": written and unwritten instruments and influences which shape administrative decision making Rather than rendering bureaucratic processes more transparent and cohesive, or fostering greater accountability and consistency among decision-makers, "soft law" in this context frequently reinforces artificial divisions. Moreover, it insulates decisions and decision-makers from the kinds of critical inquiry typically associated with "hard law. " If it is to realize its potential as a bridge between law and policy, and lend meaning to core principles - like fairness and reliability - soft law ought to be subjected to similarly critical …

Investigating The Special: The Symbolic Function Of The Independent Counsel, Judith Roof

Indiana Law Journal

Symposium on "Law, Morality, and Popular Culture in the Public Sphere" at the Indiana University School of Law-Bloomington, April 6, 2001.

Judging Ethics For Administrative Law Judges: Adoption Of A Uniform Code Of Judicial Conduct For The Administrative Judiciary, Patricia E. Salkin

Scholarly Works

No abstract provided.

Alj Ethics: Conundrums, Dilemmas, And Paradoxes, John L. Gedid

John L. Gedid

No abstract provided.

Modern Ethical Dilemmas For Aljs And Government Lawyers: Conflicts Of Interest, Appearances Of Impropriety, And Other Ethical Considerations, Introduction, Robert C. Power

Robert C Power

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.

1998 Survey Of Ethics In Land-Use Planning, Patricia E. Salkin

Scholarly Works

No abstract provided.

The Form And Substance Of Ethics: Prenatal Diagnosis In The Baird Report, Rachel Ariss

Dalhousie Law Journal

This article analyses the employment of textual tactics in the Final Report of the Royal Commission on New Reproductive Technologies. The author argues that the Commission uses these tactics to persuade several different audiences that its stance is correct, and simultaneously to manage dissent over new reproductive technologies. Analysis of textual tactics opens the ethical position of the Commission to substantive questioning. The authorfocuses on the Commission's discussion of prenatal diagnosis for genetic anomalies and concludes that the Commission fails to engage with ethical arguments put forward by persons with disabilities and their advocates. The conclusion also encourages the development …

Incommensurability And Cost-Benefit Analysis, Matthew D. Adler

Faculty Scholarship

No abstract provided.