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Articles 121 - 150 of 165
Full-Text Articles in Administrative Law
Longstanding Agency Interpretations, Anita S. Krishnakumar
Longstanding Agency Interpretations, Anita S. Krishnakumar
Fordham Law Review
How much deference—or what kind—should courts give to longstanding agency interpretations of statutes? Surprisingly, courts and scholars lack a coherent answer to this question. Legal scholars long have assumed that longstanding agency statutory interpretations are treated with heightened deference on judicial review, and federal courts sometimes have made statements suggesting that this is the case. But in practice, federal court review of longstanding agency interpretations—at both the U.S. Supreme Court and courts of appeals—turns out to be surprisingly erratic. Reviewing courts sometimes note the longevity of an agency’s statutory interpretation as a plus factor in their deference analysis but at …
You Didn't Even Notice! Elements Of Effective Online Privacy Policies, Amanda Grannis
You Didn't Even Notice! Elements Of Effective Online Privacy Policies, Amanda Grannis
Fordham Urban Law Journal
No abstract provided.
Regleprudence – At Oira And Beyond, Nestor M. Davidson, Ethan J. Leib
Regleprudence – At Oira And Beyond, Nestor M. Davidson, Ethan J. Leib
Faculty Scholarship
There are significant domains of legality within the administrative state that are mostly immune from judicial review and have mostly escaped the attention of legal theorists. While administrative law generally focuses on the products of agency action as they are reviewed by the judiciary, there are important aspects of regulatory activity that are legal or law-like but rarely interrogated by systematic analysis with reference to accounts about the role and nature of law. In this Article, we introduce a category of analysis we call "regleprudence," a sibling of jurisprudence and legisprudence. Once we explore some regleprudential norms, we delve into …
The Legitimacy Of Administrative Law, Jed H. Shugerman
The Legitimacy Of Administrative Law, Jed H. Shugerman
Faculty Scholarship
Reviewing Daniel R. Ernst, Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940; Joanna Grisinger, The Unwieldy American State: Administrative Politics Since the New Deal; Philip Hamburger, Is Administrative Law Unlawful?; Jerry L. Mashaw, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law; and Nicholas R. Parrillo, Against the Profit Motive: The Salary Revolution in American Government, 1780-1940.
Three Steps Forward: Shared Regulatory Space, Deference, And The Role Of The Court, Amanda Shami
Three Steps Forward: Shared Regulatory Space, Deference, And The Role Of The Court, Amanda Shami
Fordham Law Review
When a party files suit challenging the legitimacy of an agency’s interpretation of its governing statute, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. instructs courts to defer to the agency’s interpretation where (1) the court has found that Congress had not foreclosed the agency’s interpretation, and (2) the agency’s interpretation was a reasonable or permissible exercise of its authority. However, sometimes Congress enacts statutes delegating authority over a given regulatory space to more than one agency. When two agencies have shared authority under the same regulatory scheme, those agencies may disagree regarding the interpretation of certain provisions that …
Chevron And Skidmore In The Workplace: Unhappy Together, James J. Brudney
Chevron And Skidmore In The Workplace: Unhappy Together, James J. Brudney
Fordham Law Review
No abstract provided.
Improving Agencies’ Preemption Expertise With Chevmore Codification , Kent Barnett
Improving Agencies’ Preemption Expertise With Chevmore Codification , Kent Barnett
Fordham Law Review
No abstract provided.
Foreword: Chevron At 30: Looking Back And Looking Forward, Peter M. Shane, Christopher J. Walker
Foreword: Chevron At 30: Looking Back And Looking Forward, Peter M. Shane, Christopher J. Walker
Fordham Law Review
No abstract provided.
What 30 Years Of Chevron Teach Us About The Rest Of Statutory Interpretation , Abbe R. Gluck
What 30 Years Of Chevron Teach Us About The Rest Of Statutory Interpretation , Abbe R. Gluck
Fordham Law Review
No abstract provided.
Chevron Inside The Regulatory State: An Empirical Assessment, Christopher J. Walker
Chevron Inside The Regulatory State: An Empirical Assessment, Christopher J. Walker
Fordham Law Review
No abstract provided.
The Three Phases Of Mead, Kristin E. Hickman
Chevron And Deference In State Administrative Law , Aaron J. Saiger
Chevron And Deference In State Administrative Law , Aaron J. Saiger
Fordham Law Review
No abstract provided.
Federalism At Step Zero, Miriam Seifter
Chevron’S Generality Principles, Emily Hammond
Chevron’S Generality Principles, Emily Hammond
Fordham Law Review
No abstract provided.
Chevron Deference, The Rule Of Law, And Presidential Influence In The Administrative State, Peter M. Shane
Chevron Deference, The Rule Of Law, And Presidential Influence In The Administrative State, Peter M. Shane
Fordham Law Review
No abstract provided.
Chevron At The Roberts Court: Still Failing After All These Years, Jack M. Beermann
Chevron At The Roberts Court: Still Failing After All These Years, Jack M. Beermann
Fordham Law Review
No abstract provided.
Step Zero After City Of Arlington, Thomas W. Merrill
Step Zero After City Of Arlington, Thomas W. Merrill
Fordham Law Review
No abstract provided.
In Search Of Skidmore, Peter L. Strauss
The Creation Of The Department Of Justice: Professionalization Without Civil Rights Or Civil Service, Jed H. Shugerman
The Creation Of The Department Of Justice: Professionalization Without Civil Rights Or Civil Service, Jed H. Shugerman
Faculty Scholarship
This Article offers a new interpretation of the founding of the Department of Justice in 1870 as an effort to shrink and professionalize the federal government. The traditional view is that Congress created the DOJ to increase the federal government’s capacity to litigate a growing docket as a result of the Civil War, and more recent scholarship contends that Congress created the DOJ to enforce Reconstruction and ex-slaves’ civil rights. However, it has been overlooked that the DOJ bill eliminated about one third of federal legal staff. The founding of the DOJ had less to do with Reconstruction, and more …
Chevron Meets Youngstown: National Security And The Administrative State, Joseph Landau
Chevron Meets Youngstown: National Security And The Administrative State, Joseph Landau
Faculty Scholarship
The past several years have witnessed a burst of scholarship at the intersection of national security and administrative law. Many supporters of this approach endorse a heightened, “super-strong” brand of Chevron deference to presidential decisionmaking during times of emergency. Believing that the Executive’s comparative advantage in expertise, access to information, and accountability warrant minimal judicial scrutiny, these Chevron-backers advance an Executive-centric view of national security powers. Other scholars, by contrast, dispute Chevron’s relevance to national security. These Chevron-detractors argue for an interventionist judiciary in national security matters. Both camps criticize the Supreme Court’s scaling of deference to the Executive after …
Accountability And The Bureau Of Consumer Financial Protection, Susan Block-Lieb
Accountability And The Bureau Of Consumer Financial Protection, Susan Block-Lieb
Faculty Scholarship
Some industry and political actors oppose the Consumer Financial Protection Bureau (CFPB) on the grounds that its institutional design ensures its lack of accountability. Specifically, opponents point to the CFPB’s regulatory and financial independence and to the fact that a single director heads the Bureau rather than a bipartisan panel of commissioners. But to focus on the Bureau’s financial independence and single director misses the distinctive political deal struck when Congress created the CFPB. The CFPB has been uniquely and intentionally structured to insulate it not only from interest group influence and executive interference, but also from congressional control, while …
Managing The Regulatory State: The Experience Of The Bush Administration, John D. Graham, Paul R. Noe, Elizabeth L. Branch
Managing The Regulatory State: The Experience Of The Bush Administration, John D. Graham, Paul R. Noe, Elizabeth L. Branch
Fordham Urban Law Journal
This Article traces the history of Presidential management of the regulatory state up to the administration of President George W. Bush. It focuses on the latter's implementation of "smarter regulation," an approach to regulation based on unfunded mandates on the private sector implemented through the Office of Management and Budget, an organization within the Executive Office of the President. It finds cost-benefit analysis an essential, yet often neglected, tool for implementing efficient and effective regulations. It concludes the policies promoted under President Bush's OMB have effectively cut costs by streamlining the rule-making process and discouraging adopting new federal rules, but …
Resisting Regulation With Blue Ribbon Panels, Thomas O. Mcgarity
Resisting Regulation With Blue Ribbon Panels, Thomas O. Mcgarity
Fordham Urban Law Journal
The Article analyzes the use of blue ribbon panels to resolve complicated scientific issues that frequently arise during regulatory proceedings. In particular, it looks at the case of beryllium in order to illustrate how blue ribbon panels appointed and paid for by industry often lend scientific legitimacy to policy advocacy. It concludes that agencies should partially discount scientific evidence provided by industry appointed blue ribbon panels due to expected bias. However, it finds the agency will confront some difficulty convincing the public of the adequacy of regulations that are in conflict with a well-financed campaign by a regulated entity armed …
The Regulatory Flexibility Act At 25: Is The Law Achieving Its Goal?, Keith W. Holman
The Regulatory Flexibility Act At 25: Is The Law Achieving Its Goal?, Keith W. Holman
Fordham Urban Law Journal
The Article traces the issue of lack of representation given small business during rule-making, and the inability of the original Regulatory Flexibility Act (RFA) to adequately address this issue. It argues that the amendment of the RFA by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) has significantly increased small business awareness of and involvement in the regulatory process. It concludes there are several remaining weaknesses to the RFA, and recommends Congress take action to compel all agencies to follow specific procedures for assessing the economic impacts of their regulatory actions on small business.
The Unbearable Lightness Of Regulatory Costs, Frank Ackerman
The Unbearable Lightness Of Regulatory Costs, Frank Ackerman
Fordham Urban Law Journal
The Article counters the presumption that increased environmental regulation necessarily decreases economic prosperity. It analyzes the European chemical regulatory structure and deduces that any costs imposed on the consumer are minimal, and more cost effective than watered-down American regulations covering the same subject matter with approximately the same cost imposed on the consumer-taxpayer. It argues the Office of Management and Budget and regulated industries have consistently overestimated the costs of environmental regulation and promoted the theory that environmental regulation causes factories and jobs to move offshore. It concludes that deregulation may not spur growth.
Statutory Interpretation In The Era Of Oira, Lisa Heinzerling
Statutory Interpretation In The Era Of Oira, Lisa Heinzerling
Fordham Urban Law Journal
The Article is a case study regarding a rule governing cooling water towers for power plants promulgated pursuant to the Clean Water Act ("CWA"). It analyzes the history of the Office of Information and Regulatory Affairs ("OIRA") within the Office of Management and Budget ("OMB"), and its influence in compelling the Environmental Protection Agency ("EPA") to conduct cost-benefit analysis of all regulations. It argues that the EPA should not receive Chevron deference since it has acted illegally by interpreting the CWA not as a technology-based environmental law, but instead as a cost-benefit law.
Willful Blindness: Federal Agencies' Failure To Comply With The Regulatory Flexibility Act's Periodic Review Requirement-And Current Proposals To Invigorate The Act, Michael R. See
Fordham Urban Law Journal
The Article first explains the basic requirements of the Regulatory Flexibility Act, and in particular focuses on the periodic review requirement contained in Section 610. It traces the history of Presidential efforts through the promulgation of executive orders to delay the implementation of regulations and require agencies to consult with regulated industries. Reviewing agency action from 1997-2005 following Section 610 review, it found agencies are confused as to when review is necessary, and, though Section 610 is meant to decrease the regulatory burden on small business, agencies often increase the regulatory burden on small business. It concludes the key problem …
The Role Of The Office Of Information And Regulatory Affairs In Federal Rulemaking, Curtis W. Copeland
The Role Of The Office Of Information And Regulatory Affairs In Federal Rulemaking, Curtis W. Copeland
Fordham Urban Law Journal
The Article describes the role of the Office of Information and Regulatory Affairs (OIRA), an office within the Office of Management and Budget (OMB), in reviewing agencies' draft rules. It emphasizes the dramatic effect each Presidential administration has had on the OIRA's review process, and indirectly on all agency action. It finds OIRA has become a "gatekeeper" with regard to agency action, but mentions that scholarly debate continues as to whether OIRA represents the President's interests exclusively or both the often conflicting interests of Congress and the President.
Cost-Benefit Analysis: Where Should We Go From Here?, Sally Katzen
Cost-Benefit Analysis: Where Should We Go From Here?, Sally Katzen
Fordham Urban Law Journal
The Article addresses the criticism of cost benefit analysis (CBA). Although it accepts the monetization of costs will generally oppose regulation, it finds CBA is at least close to an objective standard. It argues the results of CBA are informative, but are not dispositive, and often the procedures used in CBA are imperfect. It concludes financial resources should be devoted to retrospective analyses and/or organization studies in order to achieve rational regulatory decision making.
Isolated And Politicized: The Nlrb's Uncertain Future The National Labor Relations Board In Comparative Context: Introduction, James J. Brudney
Isolated And Politicized: The Nlrb's Uncertain Future The National Labor Relations Board In Comparative Context: Introduction, James J. Brudney
Faculty Scholarship
The National Labor Relations Board has managed to remain unusually detached or isolated in its decision-making even as it has come to operate in an openly partisan manner. There is a certain paradoxical quality to the coexistence of these two descriptors for Board conduct: isolation in agency performance ordinarily suggests a neutral separation from the political process whereas politicization implies a close connection to the elected branches. The explanation for this odd pairing involves a number of factors: some reflect political realities beyond the agency's ability to control, others relate to the structure of the NLRA, and still others are …