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Articles 1 - 11 of 11
Full-Text Articles in Law
Proportionality And Federalization, Stephen F. Smith
Proportionality And Federalization, Stephen F. Smith
Stephen F. Smith
No abstract provided.
Administrative Change, Randy J. Kozel, Jeffrey Pojanowski
Administrative Change, Randy J. Kozel, Jeffrey Pojanowski
Jeffrey A. Pojanowski
Determining the standard of review for administrative actions has commanded judicial and scholarly interest like few other topics. Notwithstanding the extensive debates, far less consideration has been given to the unique features of agencies’ deviations from their own precedents. In this article we examine this puzzle of administrative change. By change, we mean a reversal of the agency’s former views about the best way to implement and interpret its regulatory mandate. We trace the lineage of administrative change at the Supreme Court and analyze features that distinguish agency reversals from other administrative actions. In particular, we contend that because administrative …
Administrative Change, Randy J. Kozel, Jeffrey Pojanowski
Administrative Change, Randy J. Kozel, Jeffrey Pojanowski
Randy J Kozel
Determining the standard of review for administrative actions has commanded judicial and scholarly interest like few other topics. Notwithstanding the extensive debates, far less consideration has been given to the unique features of agencies’ deviations from their own precedents. In this article we examine this puzzle of administrative change. By change, we mean a reversal of the agency’s former views about the best way to implement and interpret its regulatory mandate. We trace the lineage of administrative change at the Supreme Court and analyze features that distinguish agency reversals from other administrative actions. In particular, we contend that because administrative …
Holdings, Dicta, And The Paradigms Of Precedent, Randy J. Kozel
Holdings, Dicta, And The Paradigms Of Precedent, Randy J. Kozel
Randy J Kozel
In United States v. Windsor, the Supreme Court invalidated a key provision of the federal Defense of Marriage Act. In doing so, it raised significant questions about the power of states to limit the institution of marriage to opposite-sex couples. That issue was not presented in Windsor itself, but Windsor’s reasoning and rhetoric have already begun to play a pivotal role in ensuing challenges to state laws. Determining the future effects of Windsor, or of any other Supreme Court decision, requires defining the scope of judicial precedent. One account of precedent is restrictive: Only a court’s holdings must …
Direct Democracy And Hastily Enacted Statutes, John C. Nagle
Direct Democracy And Hastily Enacted Statutes, John C. Nagle
John Copeland Nagle
No abstract provided.
State Courts And The Interpretation Of Federal Statutes, Anthony J. Bellia
State Courts And The Interpretation Of Federal Statutes, Anthony J. Bellia
Anthony J. Bellia
Scholars have long debated the separation of powers question of what judicial power federal courts have under Article III of the Constitution in the enterprise of interpreting federal statutes. Specifically, scholars have debated whether, in light of Founding-era English and state court judicial practice, the judicial power of the United States should be understood as a power to interpret statutes dynamically or as faithful agents of Congress. This Article argues that the question of how courts should interpret federal statutes is one not only of separation of powers but of federalism as well. State courts have a vital and often …
The Supreme Court, Cafa, And Parens Patriae Actions: Will It Be Principles Or Biases?, Donald G. Gifford, William L. Reynolds
The Supreme Court, Cafa, And Parens Patriae Actions: Will It Be Principles Or Biases?, Donald G. Gifford, William L. Reynolds
William L. Reynolds
The Supreme Court will hear a case during its 2013-2014 term that will test the principles of both its conservative and liberal wings. In Mississippi ex rel. Hood v. AU Optronics Corp., Justices from each wing of the Court will be forced to choose between the modes of statutory interpretation they usually have favored in the past and their previously displayed pro-business or anti-business predispositions. The issue is whether the defendant-manufacturers can remove an action brought by a state attorney general suing as parens patriae to federal court. Beginning with their actions against tobacco manufacturers in the mid-1990s, state …
Scaled Legislation & The Legal History Of The Common Good, Jill M. Fraley
Scaled Legislation & The Legal History Of The Common Good, Jill M. Fraley
Jill M. Fraley
None available.
Regulation By Amicus: The Department Of Labor's Policy Making In The Courts, Deborah Thompson Eisenberg
Regulation By Amicus: The Department Of Labor's Policy Making In The Courts, Deborah Thompson Eisenberg
Deborah Thompson Eisenberg
This Article examines the practice of “regulation by amicus”: that is, an agency’s attempt to mold statutory interpretation and establish policy by filing “friend of the court” briefs in private litigation. Since the United States Supreme Court recognized agency amicus interpretations as a source of controlling law entitled to deference in Auer v. Robbins, agencies have used amicus curiae briefs—in strategic and at times aggressive ways—to advance the political agenda of the President in the courts. Using the lens of the U.S. Department of Labor’s amicus activity in wage and hour cases, this Article explores the tension between the extraordinary …
Reconsidering Statutory Interpretive Divergence Between Elected And Appointed Judges, Bertrall L. Ross
Reconsidering Statutory Interpretive Divergence Between Elected And Appointed Judges, Bertrall L. Ross
Bertrall L Ross
No abstract provided.
Book Review - 'The Elements Of Legislation' By Neil Duxbury, Brian Christopher Jones
Book Review - 'The Elements Of Legislation' By Neil Duxbury, Brian Christopher Jones
Brian Christopher Jones
No abstract provided.