Administrative Law Commons^™

The Last Should Be First—Flip The Order Of The Chevron Two-Step, Richard Murphy

William & Mary Bill of Rights Journal

No abstract provided.

Administrative Searches, Technology And Personal Privacy, Russell L. Weaver

William & Mary Bill of Rights Journal

No abstract provided.

Chevron And The Legitimacy Of "Expert" Public Administration, Sidney Shapiro, Elizabeth Fisher

William & Mary Bill of Rights Journal

No abstract provided.

The Definite Article: The D.C. Circuit's Redefinition Of Recess Appointments, Jeff Vandam

NULR Online

No abstract provided.

The Achievement Gap And Disparate Impact Discrimination In Washington Schools, Sarah Albertson

Seattle University Law Review

In today’s public schools, students designated as “white” and “Asian” consistently outperform students from other ethnic groups in test scores and graduation rates. These disparities, commonly called “the achievement gap,” are a symptom of greater issues, or “opportunity gaps.” Washington State has recently taken a further step to address the achievement gap and racial discrimination in schools. In 2010, the Washington legislature passed the Equal Education Opportunity Law (EEOL), HB 3026, in response to the recommendations in commissioned achievement gap studies. The EEOL authorizes the Office of the Superintendent of Public Instruction (OSPI) to enforce this law through regulations. This …

Eitanit Construction Products V. State, Neal Hendel, Asher Grunis, Zvi Zylbertal

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

This is a motion challenging the constitutionality of section 74 of the Prevention of Hazards from Asbestos and Harmful Dust Act, 2011 (“Asbestos Act”). The motion is directed primarily at the obligation of the moving party (“Eitanit”), an asbestos-cement factory in the Nahariya area, to shoulder the cost of half the project’s expenses, up to NIS 150m.

The High Court of Justice (written by …

Toward Genuine Tribal Consultation In The 21st Century, Colette Routel, Jeffrey K. Holth

Faculty Scholarship

The tribal right to consultation requires the federal government to consult with Indian tribes prior to the approval of any federal project, regulation, or agency policy. This article, which provides the first comprehensive analysis of this right, highlights the current inconsistencies in interpretation and application of the consultation duty. It then attempts to provide suggestions for changes that can be implemented by the legislative, executive or judicial branches.

In Part I, we provide a brief overview of the development of the trust responsibility and explain how it came to include three substantive duties: to provide services to tribal members, to …

The Movement Of U.S. Criminal And Administrative Law: Processes Of Transplanting And Translating, Toby S. Goldbach, Benjamin Brake, Peter Katzenstein

Indiana Journal of Global Legal Studies

This article examines the transplanting and translating of law in the domains of criminal procedure and administrative law. The transnational movement of law is full of unexpected twists and turns that belie the notion of the United States as a legal behemoth. Furthermore, the movement of legal procedures which occurs both within and across countries with common and civil law legal traditions challenges preconceived notions of an orderly divide between legal families. While the spread of elements of the U.S. jury system and methods of plea bargaining reveals the powerful influence of U.S. legal ideas, the ways that these procedures …

Globalization, The Rule Of (Administrative) Law, And The Realization Of Democratic Governance In Africa: Realities, Challenges, And Prospects, Migai Akech

Indiana Journal of Global Legal Studies

This article reviews the impact of globalization on democracy in Africa. It sees globalization, which has largely taken the shape of neoliberalism, as leading to the development of a minimalist conception of democracy in African countries. Further, this article contends that administrative law norms, which are increasingly embraced in Constitutions and judicial decisions world over, can be useful instruments for deepening democracy in Africa. That is, the establishment and implementation of elaborate regimes of administrative law (containing principles, procedures, and remedies that circumscribe the exercise of both public and private power) can contribute to the realization of democratic governance in …

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 …

Charles Koch: The Casebook And The Scholarship, William S. Jordan Iii

Akron Law Faculty Publications

In this tribute article, William S. Jordan III reflects on the scholarly contributions and pedagogical legacy of Charles H. Koch Jr., a renowned administrative law scholar and casebook author. Jordan highlights Koch's nuanced approach to administrative law, particularly his emphasis on constitutional values, due process, and the practical realities of agency governance. The article explores how Koch’s scholarship influenced the development of administrative law doctrine and teaching, especially through his widely used casebook. Jordan pays special attention to how Koch integrated European administrative law perspectives into U.S. scholarship, helping bridge comparative and domestic legal frameworks. The article serves as both …

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 …

Notice-And-Comment Sentencing, Richard A. Bierschbach, Stephanos Bibas

Articles

No abstract provided.

Avoiding Independent Agency Armageddon, Kent H. Barnett

Scholarly Works

In Free Enterprise Fund v. Public Company Accounting Oversight Board, the U.S. Supreme Court invalidated Congress’ use of two layers of tenure protection to shield Public Company Accounting Oversight Board (PCAOB) members from the President’s removal. The SEC could appoint and remove PCAOB members. An implied tenure-protection provision protected the SEC from the President’s at-will removal. And a statutory tenure-protection provision protected PCAOB members from the SEC’s at-will removal. The Court held that these “tiered” tenure protections unconstitutionally impinged upon the President’s removal power because they prevented the President from holding the SEC responsible for PCAOB’s actions in the same …

Rulemaking As Politics, Thirty Years On, Michael Herz

Articles

No abstract provided.

The Chevron Two-Step In Georgia's Administrative Law, David E. Shipley

Georgia Law Review

Like federal and state administrative agencies
throughout the nation, Georgia's many boards,
commissions and authorities make policy when they apply
their governing statutes in promulgating regulations and
in ruling on specific matters like granting or denying an
application for a permit or determining the residency of a
candidate for public office. Sometimes governing statutes
are clear, but sometimes there is ambiguity. When there is
ambiguity in the governing statute, an agency must
interpret that legislation when it promulgates regulations
or decides a particular contested matter. This Article asks
and answers the fundamental question of what deference,
if any, must a …

The Chevron Two-Step In Georgia's Administrative Law, David Shipley

Scholarly Works

The Georgia Supreme Court and Court of Appeals have long accepted the General Assembly’s authority to enact legislation that establishes administrative agencies and empowers those agencies to promulgate rules and regulations to implement their enabling statutes. In addition, the Georgia Constitution provides that the General Assembly may authorize agencies to exercise quasi-judicial powers. Administrative agencies with broad powers enjoy a secure position under Georgia law.

Like federal and state administrative agencies throughout the nation, Georgia’s many boards, commissions and authorities make policy when they apply their governing statutes in promulgating regulations of general applicability, and in ruling on specific matters …

"Deference" Is Too Confusing – Let's Call Them "Chevron Space" And "Skidmore Weight", Peter L. Strauss

Faculty Scholarship

This Essay suggests an underappreciated, appropriate, and conceptually coherent structure to the Chevron relationship of courts to agencies, grounded in the concept of "allocation." Because the term "deference" muddles rather than clarifies the structure's operation, this Essay avoids speaking of "Chevron deference" and "Skidmore deference." Rather, it argues, one could more profitably think in terms of "Chevron space" and "Skidmore weight." "Chevron space" denotes the area within which an administrative agency has been statutorily empowered to act in a manner that creates legal obligations or constraints – that is, its allocated authority. "Skidmore weight" …

Acting Like An Administrative Agency: The Federal Circuit En Banc, Ryan G. Vacca

Akron Law Faculty Publications

When Congress created the Federal Circuit in 1982, it thought it was creating a court of appeals. Little did it know that it was also creating a quasi-administrative agency that would engage in substantive rulemaking and set policy in a manner substantially similar to administrative agencies. In this Article, I examine the Federal Circuit's practices when it orders a case to be heard en banc and illustrate how these practices cause the Federal Circuit to look very much like an administrative agency engaging in substantive rulemaking. The number and breadth of questions the Federal Circuit agrees to hear en banc …

Asylum Rights And Wrongs: What The Proposed Refugee Protection Act Will Do And What More Will Need To Be Done, Michele R. Pistone

Working Paper Series

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) added major new restrictions to U.S. asylum law. Several other laws passed in the wake of 9/11 produced additional restrictions. Various proposals to modify or even eliminate the changes made by IIRI¬RA and the post-9/11 laws have been introduced over the years; the Refu¬gee Protection Act of 2010 (RPA) is the most prominent recent example of these efforts. As this Article details, the RPA has much to commend within it, especially its proposed elimination of the one year deadline for asylum applications that was originally imposed by IIRIRA.

Partner Capture In Public International Organizations, Christopher G. Bradley

Law Faculty Scholarly Articles

A sharp rise of public-private partnerships is changing the way the United Nations and other public international organizations work. Organizations eagerly embrace wealthy, experienced partners, such as major foundations and corporations, in order to fund ambitious projects. But safeguards against potential problems have not kept pace with partnership activities. Looking to fundamental principles of public choice and political economy well-known in the U.S. administrative law context, this Article develops a multifaceted notion of “partner capture” to describe the dangers of this expansion in partnership activities for the U.N. and similar organizations. The dangers include agenda distortion, intra-organizational rivalries, reputational damage, …

The Search For Fair Agency Process: The Immigration Opinions Of Judge Michael Daly Hawkins, 1994-2010, Lenni B. Benson

Articles & Chapters

Judge Michael Daly Hawkins has been a member of the Ninth Circuit Court of Appeals since 1994; but he has been concerned with the forms and varieties of administrative or bureaucratic process his entire career. When he became a member of the federal judiciary, his role was clearly altered. However, his commitment to fairness and integrity in adjudication remained undiminished. This article will explore some of Judge Hawkins’s many immigration decisions, both majority and dissenting opinions, which reflect his commitment to the preservation of a due process.

The reality of immigration adjudication in the Ninth Circuit is that there are …

Wilderness, The Courts And The Effect Of Politics On Judicial Decisionmaking, Peter A. Appel

Scholarly Works

Empirical analyses of cases from federal courts have attempted to determine the effect of judges’ political ideology on their decisions. This question holds interest for scholars from many disciplines. Investigating judicial review of the actions of administrative agencies should provide strong evidence on the question of political influence because applicable rules of judicial deference to administrative decisions ought to lead judges to reach politically neutral results. Yet several studies have found a strong correlation between results in these cases and proxies for political ideology. Cases involving the interpretation of environmental law have been of particular interest as a subset of …

Acus 2.0 And Its Historical Antecedents, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Sheleg Lavan V. Ashkelon Municipality, Edmond E. Levy, Edna Arbel, Neal Hendel

Translated Opinions

Facts: The respondent, the Ashkelon municipal government, issued a tender for the provision of cleaning services. The tender documents set a minimum bid price in accordance with the exact amount of the wages for cleaning workers as determined in a government circular establishing a national standard for such wages. Respondent 2 submitted the lowest and ultimately winning bid. As part of the tender process, respondent 2 explained its ability to pay the minimum wage while also covering expenses and earning a profit by noting its expectations that a percentage of its workers at any given time would not have acquired …

The Place Of 'Higher Law' In The Quotidian Practice Of Law: Herein Of Practical Reason, Natural Law, Natural Rights, And Sex Toys, Patrick Mckinley Brennan

Working Paper Series

The question of the place of higher law in the ordinary practice of law is even now dogged by the brooding omnipresence caricature. This Article seeks to introduce and apply a philosophically defensible account of natural law, the one defended by Thomas Aquinas, to various problematics of contemporary law and jurisprudence. The Article argues that such higher law is not so high as to be relevant only to sexy constitutional questions, as is often supposed, but to everything we do in law. The Article argues that liberals and conservatives alike should acknowledge both the place of natural law in the …

Is The United States Tax Court Exempt From Administrative Law Jurisprudence When Acting As A Reviewing Court , Diane L. Fahey

Cleveland State Law Review

Commentators have argued that the Tax Court should fill in the gaps in its statutory authority for collection due process appeals by turning to traditional administrative law jurisprudence, including the APA, which suggestion the Tax Court has resisted despite the fact that the federal district court did so. The majority of the Tax Court insists that it has never been subject to administrative law jurisprudence or the APA, nor could it be. Most of the courts of appeals that have considered the issue have held that the Tax Court is bound by the APA and traditional administrative law jurisprudence when …

Regulatory Adjudication, Marcia L. Mccormick

All Faculty Scholarship

Calls for increased regulation are flying fast and furious these days. We use regulation in the United States to prevent harm that various kinds of activities might cause and also to create positive external benefits that those activities could yield, but might not without incentives. Most regulatory programs in the United States provide a blend of measures designed to create these positive external benefits, promote good practices in the industry, prevent harms, and provide those harmed with remedies. At a time in which we contemplate new ways to regulate to deal with the crises of the day and prevent the …

Tribunal Jurisdiction Over Charter Remedies: Now You See It, Now You Don't, Steve Coughlan

Articles, Book Chapters, & Popular Press

The Supreme Court's decision in R. v. Conway (reported ante p. 201) simplifies the test for deciding whether an administrative tribunal has jurisdiction to grant Charter remedies. At least in principle, it heralds a broader approach to allowing litigants to seek such remedies at the earlier stage of a proceeding, rather than waiting for a review before a court or pursuing a parallel action. The attitude behind Conway signals a greater willingness to allow administrative tribunals to grant Charter remedies. The test on the key question of whether a tribunal has jurisdiction over a particular remedy is still essentially the …

Chevron And Hearing Rights: An Unintended Combination, William S. Jordan

Akron Law Faculty Publications

Section 554(a) of the Administrative Procedure Act provides that if a statute requires an agency an adjudicatory decision “to be determined on the record after opportunity for agency hearing,” that hearing will be subject to various requirements, including the use of an independent Administrative Law Judge, separation of the functions of investigation/prosecution and decision, and a prohibition on ex parte contacts. The courts of appeals have reached three distinct positions with respect to the question of when a statutory hearing requirement triggers § 554(a) of the APA. First, the First Circuit articulated a presumption that, for adjudications, a statutory hearing …