Administrative Law Commons^™

The Rulemaking Continuum, Peter L. Strauss

Faculty Scholarship

The two papers we have before us tell both descriptive and normative stories about current issues of rulemaking. Each suggests, in its field of attention, pressures that operate to increase proceduralization and agency responses to those pressures, as well as an attitude toward these developments. In rulemaking, as in other activities, discretion and order are in constant tension; one might find in that tension the very engine that makes the processes of public law go. Like the studies that assisted the move away from formal rulemaking, and the perceptions underlying the Supreme Court's Vermont Yankee decision, which quieted the judicial …

Positive Canons: The Role Of Legislative Bargains In Statutory Interpretation, Mathew D. Mccubbins, Roger G. Noll, Barry R. Weingast

Faculty Scholarship

No abstract provided.

Judicial Deference To Executive Precedent, Thomas W. Merrill

Faculty Scholarship

In 1984, the Supreme Court adopted a new framework for determining when courts should defer to interpretations of statutes by administrative agencies. Previous decisions had looked to multiple contextual factors in answering this question. Chevron U.S., Inc. v. National Resources Defense Council, Inc. appeared to reject this approach and require that federal courts defer to any reasonable interpretation by an agency charged with administration of a statute, provided Congress has not clearly specified a contrary answer. The Court justified this new general rule of deference by positing that Congress has implicitly delegated interpretative authority to all agencies charged with enforcing …

Sunstein, Statutes, And The Common Law – Reconciling Markets, The Communal Impulse, And The Mammoth State, Peter L. Strauss

Faculty Scholarship

Professor Cass Sunstein's new book, After the Rights Revolution: Reconceiving the Regulatory State, builds upon, and in important ways seeks to integrate, much of Professor Sunstein's work over the past several years. He has been one of our most prolific and influential writers on issues of governmental structure, approaching the subject both from more or less conventional administrative law perspectives and from the constitutional perspectives of separation of powers. His work has dealt with a tension often addressed in the literature, that between the eighteenth-century Madisonian constitutional engine of limited, internally checked government and the realities of our sprawling …

Adjudicative Retroactivity In Administrative Law , Abner S. Greene

Faculty Scholarship

Although decided forty-five years ago, SEC v Cbenery Corp. ("Cbenery II") remains the Supreme Court's leading statement on the issue of retroactivity in administrative adjudication. According to Chenery II, administrative agencies may give meaning to statutory terms through adjudication, even if the rules applied in a particular adjudication have not been previously announced. The Court acknowledged that "announcing and applying a new standard of conduct" in an adjudicative proceeding would have a retroactive effect, but concluded that the agency's duty to be faithful to the "statutory design or to legal and equitable principles" may override concerns about retroactivity. The Court …

Penalties In Settlements Of Citizen Suit Enforcement Actions Under The Clean Water Act, Marcia R. Gelpe

Faculty Scholarship

This article critiques the feminist view Ute Gerhard offers in “Debating Women's Equality: Toward a Feminist Theory of Law from a European Perspective”. Throughout Debating Women's Equality, Gerhard appears to have three ambitious objectives in mind: (1) to decry the paucity of research into women's legal history while beginning to do the needed work, focusing primarily on Germany but also broadly exploring European trends, (2) to demonstrate that German/European women's legal history ultimately vindicates reliance on “equal rights” as a political strategy for women, and (3) to develop an understanding of legal equality that can serve as a meaningful tool …

Aids And Government: A Plan Of Action, Taunya L. Banks

Faculty Scholarship

No abstract provided.

Reconsidering Role Assumption In Clinical Education, Minna J. Kotkin

Faculty Scholarship

No abstract provided.

Notice-And-Comment Rights For Administrative Decisions Affecting International Trade: Heightened Need, No Response, William Araiza

Faculty Scholarship

No abstract provided.

Independent Agencies – Independent From Whom?, Sally Katzen, Edward Markey, James Miller, Joseph Grundfest, R. Gaull Silberman, Peter L. Strauss

Faculty Scholarship

No abstract provided.

Administrative Law Symposium: Question & Answer With Professors Elliott, Strauss, And Sunstein, Dick Pierce, Donald Elliott, Peter L. Strauss, Cass Sunstein

Faculty Scholarship

No abstract provided.

There May Be Cracks In The Foundation: An Analysis Of Pennsylvania's Current Approach To Legislative Review Of Agency Rulemaking , Nicholas J. Johnson

Faculty Scholarship

As the legislative delegation of power to administrative agencies has grown over recent decades, so have calls for controls on agencies exercise of that power and particularly for controls on agency rulemaking. In response, various state legislatures have introduced a myriad of designs introducing legislative oversight and control over administrative regulations. Pennsylvania has joined these states by offering a means of legislative review of agency rulemaking in the form of the Regulatory Review Act of 1989 (Act 19). Pursuant to the Act, the Pennsylvania Legislature created an entity called the Independent Regulatory Review Commission and assigned to the Commission the …

Structure And Process, Politics And Policy: Administrative Arrangements And The Political Control Of Agencies, Mathew D. Mccubbins, Roger D. Noll, Barry R. Weingast

Faculty Scholarship

No abstract provided.

Considering Political Alternatives To "Hard Look" Review, Peter L. Strauss

Faculty Scholarship

That is absolutely right. I am sufficiently confused by the facts that are already on the table – two of them in particular. One (the dog that I thought was barking in that interesting first chart Don Elliott put up, on which he did not remark), is that the first two periods of judicial review he showed us had 337 and 294 cases of judicial review each; for the third period, for the same length of time, the figure is about 800. Something is going on there. The other is just a square conflict that our moderator is much better …

One Hundred Fifty Cases Per Year: Some Implications Of The Supreme Court's Limited Resources For Judicial Review Of Agency Action, Peter L. Strauss

Faculty Scholarship

Recent writing about the Supreme Court has stressed the implications of the extraordinary growth in the Court's docket – and, even more, the growth in the overall level of judicial activity in the nation's courts – for its performance of its judicial task. Generally, this writing seeks first to determine whether the Court has been forced to bypass questions it ought normally to hear (for example, square conflicts between two of the federal circuits), editorializes about the increasing bureaucratization of the Court, and passes on to normative questions about what if anything ought to be done to ease the Court's …

Public Rights And The Federal Judicial Power: From Murray's Lessee Through Crowell To Schor, Gordon G. Young

Faculty Scholarship

No abstract provided.

Some Reflections On Gramm-Rudman-Hollings, Gordon G. Young

Faculty Scholarship

No abstract provided.

A Call For Uniformity, Susan P. Leviton

Faculty Scholarship

No abstract provided.

Legislative Oversight Of Administrative Agencies In Minnesota, J. David Prince

Faculty Scholarship

Due to the expanding role of agencies within the Executive branch at both the state and federal level, legislatures are struggling to fulfill their obligation to hold agencies accountable and to modify legislative mandates when necessary. In order for the legislature to fulfill this obligation, it must have the capability to exercise policy formation and oversight goals. This Article will first examine the need for legislative oversight and the legislative oversight mechanism in Minnesota. Next, the Article discusses the legislative controls currently being used at the federal and state level. Executive control mechanisms and their possible use by a legislature …

The Role Of The President And Omb In Informal Rulemaking, Peter L. Strauss, Cass R. Sunstein

Faculty Scholarship

Regulatory reform has been a subject of frequent discussion in the last decade, especially in the context of presidential efforts to assert control over the rulemaking process. Presidents Nixon, Ford, Carter, and Reagan have all attempted to increase presidential authority over regulation. In particular, President Reagan has issued two executive orders that give the Office of Management and Budget (OMB) considerable power over the rulemaking activities of executive agencies.

In this article, we set forth our views on the role of presidential supervision in the regulatory process, with particular attention to the questions raised by the recent executive orders.

Federal Tort Claims At The Agency Level: The Ftca Administrative Process, George A. Bermann

Faculty Scholarship

Tort actions against the federal government and its agencies are currently governed by the FTCA and various other statutes, agency rules and procedures. Claims against the government are increasing rapidly, and the agencies enjoy broad settlement authority, often at the expense of coordination among the appropriate statutes. This Article examines the various procedures allowed and those that are actually practiced by the agencies. The author points out that, though claims officers are supposed to be fair-minded, the process can take on an adversarial nature, often a prelude to litigation rather than settlement. He proposes that the current processes be made …

Legal Education And Public Policy, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.

Administrative Institutions And The Administrative Process, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.

The Place Of Agencies In Government: Separation Of Powers And The Fourth Branch, Peter L. Strauss

Faculty Scholarship

For the past few years the Supreme Court has been struggling with issues of government structure so fundamental that they might have been thought textbook simple, yet with results that seem to imperil the everyday exercise of law-administration. Under what circumstances can Congress assign the adjudication of contested issues in the first instance to tribunals that are not article III courts? The past century has witnessed the profuse growth of legislation assigning to special adjudicative tribunals – administrative agencies and other article I courts – the power to hold trial-type hearings that might otherwise have been placed in the article …

Regulatory Reform: Assessing The California Plan, Marsha N. Cohen

Faculty Scholarship

No abstract provided.

Book Review, Administrative Law, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.

Teaching Administrative Law: The Wonder Of The Unknown, Peter L. Strauss

Faculty Scholarship

Sunday, March 7, 1982

Dear Roger:

You would have enjoyed being among the hundred-odd administrative law teachers and hangers-on who met this past weekend for the AALS Workshop on Administrative Law, organized by Ernest Gellhorn of Virginia, [now dean at Case Western]. Perhaps it was the plane ride home, when I had a chance to read Frank Easterbrook's short but very elegant use of Arrow's Theorem in a recent Harvard Law Review; or perhaps it is just a goodnight's sleep, home away from the sybaritic pleasures of New Orleans, and knowing my dean will want a justification in terms …

Marbury And The Administrative State, Henry Paul Monaghan

Faculty Scholarship

Marbury v. Madison's prominence as a constitutional decision has long deflected interest in examining its other implications. But prior to proclaiming judicial competence to invalidate an act of Congress, the Court sustained judicial authority to enforce the specific statutory duties of administrative officials. Had the doctrine of separation of powers been understood from the beginning to bar any judicial control of administrative power, the constitutional scheme would have gone seriously awry at the outset. Congressional directives either would have been subordinated to the will of the executive department or would have generated collateral and unseemly struggles between the two …

Regulatory Reform In A Time Of Transition, Peter L. Strauss

Faculty Scholarship

As Americans have become both disheartened at the performance of their governments and conscious of their penetration into what were once private lives, regulatory reform has been urged with increasing fervor at both federal and state levels. Some of the reform talk is lawyer's talk, some of it is directed to the most fundamental aspects of the government order, and there is a good bit in between. My purpose here is to examine a number of the directions being suggested at the federal level for regulatory reform during the coming decade. While it would be helpful also to consider state …

Busfare Increases And Administrative Irregularities, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.