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Full-Text Articles in Law
U.S. Department Of Justice Executive Branch Engagement On Litigating The Administrative Procedure Act, Aram Gavoor, Steven A. Pratt
U.S. Department Of Justice Executive Branch Engagement On Litigating The Administrative Procedure Act, Aram Gavoor, Steven A. Pratt
GW Law Faculty Publications & Other Works
The Administrative Procedure Act is a broadly worded statute that has benefitted from caselaw to fill many of its gaps, ambiguities, and inconsistencies. But the case method directs judicial attention to slivers of APA inquiry that are required to resolve cases in as-applied challenges to rules and adjudications. There is another method of APA interpretation that has never been deployed in the statute’s 77-year life—that of intentional collaboration between the executive branch and the judiciary. Acting on their litigation and case management authorities as well as their unique power to persuade the judiciary on questions of administrative procedure, the Attorney …
The New Separation Of Powers Formalism And Administrative Adjudication, Robert L. Glicksman, Richard E. Levy
The New Separation Of Powers Formalism And Administrative Adjudication, Robert L. Glicksman, Richard E. Levy
GW Law Faculty Publications & Other Works
The Supreme Court has entered a new era of separation of powers formalism. Others have addressed many of the potentially profound consequences of this return to formalism for administrative law. This paper focuses on an aspect of the new formalism that has received little attention—its implications for the constitutionality of administrative adjudication. The Court has not engaged in an extensive discussion or reformulation of its separation of powers jurisprudence concerning administrative adjudication since its highly functionalist decision in Commodity Futures Trading Commission v. Schor more than three decades ago, but recent opinions of individual Justices show signs that such a …
Judicial Review Of Scientific Uncertainty In Climate Change Lawsuits: Deferential And Nondeferential Evaluation Of Agency Factual And Policy Determinations, Robert L. Glicksman, Daniel Kim, Keziah Groth-Tuft
Judicial Review Of Scientific Uncertainty In Climate Change Lawsuits: Deferential And Nondeferential Evaluation Of Agency Factual And Policy Determinations, Robert L. Glicksman, Daniel Kim, Keziah Groth-Tuft
GW Law Faculty Publications & Other Works
Scientific determinations are often at the heart of environmental disputes. When those disputes take the form of litigation, the courts may be called on to determine whether an administrative agency’s treatment of the science warrants deference. For several reasons, judges are inclined to apply deferential review to agency factual and policy science-based determinations. Most judges are not trained in the language and methods of science. They may be reluctant to intervene on matters on which their lack of expertise risks producing uninformed judgments. If a statute delegates to an agency the responsibility of making those determinations, courts may be loath …
Unitary Judicial Review, Bradford R. Clark
Unitary Judicial Review, Bradford R. Clark
GW Law Faculty Publications & Other Works
Two hundred years have passed since the Supreme Court's decision in Marbury v. Madison, yet debate continues over the origins and legitimacy of judicial review. Although modern commentators generally accept judicial review with little or no reservation, some remain skeptical. One of the strongest and most sustained challenges comes from Larry Kramer, who has recently argued that the Founders did not authorize judicial review of the scope of federal powers under the original Constitution. At the same time, Kramer maintains that the Founders expected judicial review both to prevent states from undermining federal supremacy and to enforce individual rights. Such …
The Supremacy Clause As A Constraint On Federal Power, Bradford R. Clark
The Supremacy Clause As A Constraint On Federal Power, Bradford R. Clark
GW Law Faculty Publications & Other Works
Today, it is widely accepted that the Constitution authorizes courts to review and invalidate state laws that conflict with federal statutes. At the same time, prominent commentators and even some judges maintain that courts should not seriously review the constitutionality of federal statutes alleged to exceed the scope of Congress' enumerated powers. In their view, the constitutional structure protects the states (and thereby reduces the need for judicial review of federal power), but establishes no comparable safeguards to deter states from interfering with federal prerogatives. Contrary to this position, there is an express textual basis for judicial review of federal …
Toward A Jurisprudence Of Cost-Benefit Analysis, Michael B. Abramowicz
Toward A Jurisprudence Of Cost-Benefit Analysis, Michael B. Abramowicz
GW Law Faculty Publications & Other Works
In his book, The Cost-Benefit State, democratic theorist Cass Sunstein urges regulatory agencies to make decisions based on numerical assessments of regulatory consequences, factoring in variables ranging from effects on consumer prices to lives saved. In this Review, I seek to illustrate Sunstein's conception of cost-benefit analysis and critique this conception by suggesting that cost-benefit analysis could serve a more important role than Sunstein would allow. I also argue for a more active judicial role in scrutinizing agency actions than Sunstein would recommend, though not necessarily a less deferential one. In Part I of this review, I outline Sunstein's defense …
Review Of Rulemaking, Participation And The Limits Of Public Law In The Usa And Europe By Theodora Th. Ziamou And Review Of Governing By Numbers: Delegated Legislation And Everyday Policy-Making, By Edward C. Page, Francesca Bignami
GW Law Faculty Publications & Other Works
This article reviews two books: Rulemaking, Participation and the Limits of Public Law in the USA and Europe by Theodora Th. Ziamou and Governing by Numbers by Edward C. Page. In Rulemaking, Ziamou compares the law of rulemaking in the United States, Germany, Greece, and England. Ziamou covers the distinction between administrative rules and other administrative acts, the constitutional law of rulemaking, rulemaking procedure, the ability of private organizations to adopt rules that bind themselves and third parties, and judicial review. Readers are left with a better understanding of American and European rulemaking but may not be convinced that Europe …
Judicial Review Of The Manual For Courts-Martial, Gregory E. Maggs
Judicial Review Of The Manual For Courts-Martial, Gregory E. Maggs
GW Law Faculty Publications & Other Works
In the Manual for Courts-Martial, the President of the United States has established the procedural, evidentiary, and other rules that govern many aspects of the military justice system. This article describes and analyzes nine arguments that litigants have advanced when asking courts to ignore or invalidate Manual provisions: (1) The Manual provision is merely precatory; (2) The Manual provision conflicts with the Uniform Code of Military Justice (UCMJ); (3) The Manual provision conflicts with another Manual provision; (4) The Manual provision conflicts with a federal regulation; (5) The President lacked authority to promulgate the Manual provision; (6) The Manual provision …
The Darkest Domain: Deference, Judicial Review, And The Bill Of Rights, Daniel J. Solove
The Darkest Domain: Deference, Judicial Review, And The Bill Of Rights, Daniel J. Solove
GW Law Faculty Publications & Other Works
Deference presents one of the greatest threats to liberalism in the modern age, undermining judicial review for fundamental constitutional rights such as freedom of speech, freedom of religion, and due process. In contrast to existing critiques which dismiss deference as an ideological tool wielded by conservative judges, this article explores deference more systematically and rigorously, addressing it at its conceptual underpinnings. Deference has a strong conceptual backbone rooted in the long-accepted principle that the judiciary must avoid doing what was done in Lochner - the substitution of judicial judgment for that of the policymaker or legislature. The article argues that …