Administrative Law Commons^™

Dogs And Tails: Remedies In Administrative Law, Cristie Ford

All Faculty Publications

Administrative law in Canada, as in many other Commonwealth countries, centers around judicial review doctrine. Sometimes, one may even get the sense that administrative law and administrative law remedies begin at the point at which a party to an administrative action seeks judicial review of that action through the courts. Yet an overly tight focus on court action misses the hugely important first step in real-life administrative action: the varied and sometimes creative, purpose-built remedies that a tribunal itself may impose. This chapter seeks to provide a broader overview of administrative law remedies as a whole, including not only judicial …

Evolving Capacities: The B.C. Representative For Children And Youth As A Hybrid Model Of Oversight, Mary Liston

All Faculty Publications

This paper explores hybrid models of oversight through an examination of a new institutional creation: British Columbia’s Representative for Children and Youth (BC RCY). The paper argues that societal changes in the conception of children’s worth have significantly affected approaches to child welfare and have also stimulated institutional innovation. The paper begins with a historical overview of the legal and moral status of children, focusing on the child as the subject of government protection, and then considers the evolution of children’s rights in the twentieth century. This conceptual shift from children as passive objects of paternal state care to (near) …

Understanding Financial Derivatives, Timothy E. Lynch

Faculty Works

Derivatives are commonly defined as some variation of the following: a financial instrument whose value is derived from the performance of a secondary source such as an underlying bond, commodity or index. But this definition is both over-inclusive and under-inclusive. Thus, not surprisingly, derivatives are largely misunderstood, including by many policy makers, regulators and legal analysts. It is important for interested parties such as policy makers to understand derivatives, because the types and uses of derivatives have exploded in the last few decades, and because these financial instruments can provide both social benefits and cause social harms. This Article presents …

Toward A Sustainable Future: An Environmental Agenda For The Second Term Of The Obama Administration, David M. Uhlmann

Other Publications

Much was at stake in the Presidential election of 2012, which was marked by heated debate over the trajectory of the economy, the expiration of the Bush tax cuts, and the fat of the President's health care plan. The candidates disagreed about nearly every issue from foreign policy and the war on terror to a woman's right to choose and same-sex marriage. Lost amid the din and never mentioned in the Presidential debates or most of the campaign speeches was another divisive topic: how our environmental laws and policies should address global climate change and chart a sustainable future for …

Bedside Bureaucrats: Why Medicare Reform Hasn't Worked, Nicholas Bagley

Articles

Notwithstanding its obvious importance, Medicare is almost invisible in the legal literature. Part of the reason is that administrative law scholars typically train their attention on the sources of external control over agencies’ exercise of the vast discretion that Congress so often delegates to them. Medicare’s administrators, however, wield considerably less policy discretion than the agencies that feature prominently in the legal commentary. Traditional administrative law thus yields slim insight into Medicare’s operation. But questions about external control do not—or at least they should not—exhaust the field. An old and often disregarded tradition in administrative law focuses not on external …

Restorative Justice And The Rule Of Law: Rethinking Due Process Through A Relational Theory Of Rights, Bruce P. Archibald

Articles, Book Chapters, & Popular Press

Restorative approaches to criminal justice can be reconciled with fundamental notions of the rule of law through a relational understanding of rights. Firstly, the paper demonstrates how theories of rights have evolved from a liberal understanding in representative democracies, where individual rights holders can trump the interests of others, to a relational theory where rights embody values which structure appropriate relationships among citizens. Second, the paper shows that relational theory can explain how formal criminal justice and restorative justice in a deliberate democracy interrelate, while embodying different, though compatible, rights, duties and remedies among wrongdoers, victims, communities and justice system …

Keep It Light, Chairman White: Sec Rulemaking Under The Crowdfund Act, Andrew A. Schwartz

Publications

Title III of the JOBS Act, known as the CROWDFUND Act, authorizes the “crowdfunding” of securities, defined as raising capital online from many investors, each of whom contributes only a small amount. The Act was signed into law in April 2012, and will go into effect once the Securities and Exchange Commission (“SEC”) promulgates rules and regulations to govern the new marketplace for crowdfunded securities. This Essay offers friendly advice to the SEC as to how to exercise its rulemaking authority in a manner that will enable the Act to achieve its goals of creating an ultralow-cost method for raising …

Placing "Reins" On Regulations: Assessing The Proposed Reins Act, Jonathan H. Adler

Faculty Publications

Over the past several decades, the scope, reach and cost of federal regulations have increased dramatically, prompting bipartisan calls for regulatory reform. One such proposed reform is the Regulations From the Executive in Need of Scrutiny Act (REINS Act). This proposal aims to restore political accountability to federal regulatory policy decisions by requiring both houses of Congress to approve any proposed “major rule.” In effect, the REINS Act would limit the delegation of regulatory authority to federal agencies, and restore legislative control and accountability to Congress. This article seeks to assess the REINS Act and its likely effects on regulatory …

An Introduction To Climate Change Liability Litigation And A View To The Future, Michael B. Gerrard, Joseph A. Macdougald

Faculty Scholarship

This article discusses the advancement of climate change litigation. It explores two approaches to climate change litigation; the first is to use the federal regulatory apparatus and the second is to use the tort system. The article explores key questions in climate change litigation such as, who is responsible for deciding the appropriate level of harmful emissions? How should courts handle the long tail effects of climate change? What are the proper forums to litigate in? And, what is the role of the federal government in climate change litigation?

The President's Enforcement Power, Kate Andrias

Faculty Scholarship

Enforcement of law is at the core of the President’s constitutional duty to “take Care” that the laws are faithfully executed, and it is a primary mechanism for effecting national regulatory policy. Yet questions about how presidents oversee agency enforcement activity have received surprisingly little scholarly attention. This Article provides a positive account of the President’s role in administrative enforcement, explores why presidential enforcement has taken the shape it has, and examines the bounds of the President’s enforcement power. It demonstrates that presidential involvement in agency enforcement, though extensive, has been ad hoc, crisis-driven, and frequently opaque. The Article thus …

Don’T ‘Screw Joe The Plummer’: The Sausage-Making Of Financial Reform, Kimberly D. Krawiec

Faculty Scholarship

This Article examines agency-level activity during the preproposal rulemaking phase—a time period about which little is known despite its importance to policy outcomes—through an analysis of federal agency activity in connection with section 619 of the Dodd–Frank Act, popularly known as the Volcker Rule. By capitalizing on transparency efforts specific to Dodd–Frank, I am able to access information on agency contacts whose disclosure is not required by the Administrative Procedure Act and, therefore, not typically available to researchers.

I analyze the roughly 8,000 public comment letters received by the Financial Stability Oversight Council in advance of its study regarding Volcker …

Making Law Out Of Nothing At All: The Origins Of The Chevron Doctrine, Gary S. Lawson, Stephen Kam

Faculty Scholarship

For more than a quarter of a century, federal administrative law has been dominated by the so-called Chevron doctrine, which prescribes judicial deference to many agency interpretations of statutes. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,2 for which the doctrine is named, has become the most cited case in federal administrative law, and indeed in any legal field, 3 and the scholarship on Chevron could fill a small library.4 Love it5 or hate it,6 Chevron virtually defines modern administrative law.

Even after almost thirty years and thousands of recitations, unanswered questions about this Chevron framework abound. Does this …