Administrative Law Commons^™

Analyzing Justice Cardozo’S Opinions On The Constitutionality Of The New Deal, Robert J. Pushaw Jr

Touro Law Review

No abstract provided.

Making Treaty Implementation More Like Statutory Implementation, Jean Galbraith

Michigan Law Review

Both statutes and treaties are the “supreme law of the land,” and yet quite different practices have developed with respect to their implementation. For statutes, all three branches have embraced the development of administrative law, which allows the executive branch to translate broad statutory directives into enforceable obligations. But for treaties, there is a far more cumbersome process. Unless a treaty provision contains language that courts interpret to be directly enforceable, they will deem it to require implementing legislation from Congress. This Article explores and challenges the perplexing disparity between the administration of statutes and treaties. It shows that the …

#Betterrules: The Appropriate Use Of Social Media In Rulemaking, Stephen M. Johnson

Articles

In December 2015, the Government Accountability Office (GAO) concluded that the Environmental Protection Agency’s (EPA’s) use of various social media tools in a rulemaking under the Clean Water Act violated prohibitions in federal appropriations laws against publicity, propaganda, and lobbying. Although academics previously explored whether the use of technology in rulemaking might violate the Administrative Procedures Act (APA), the Paperwork Reduction Act, or the Federal Advisory Committee Act, none predicted that one of the first firestorms surrounding the use of social media in rulemaking would arise out of federal appropriations laws. ...

As the Administrative Conference of the United States …

Internal Administrative Law Before And After The Apa, Gillian E. Metzger, Kevin M. Stack

Faculty Scholarship

From his early work on social security to more recent scholarship excavating the first hundred years of administrative life in the United States, Professor Jerry L. Mashaw has forcefully argued for the centrality of “internal administrative law.” Internal administrative law, as Mashaw elaborates the term, is the set of practices, procedures, and pronouncements that administrative agencies adopt to structure their work. In his view, understanding administrative institutions and their promise for systemic legality depends upon recognizing their internal administrative law. Yet, as Mashaw observes, despite its importance, internal administrative law remains at the outskirts of the field of administrative law …

Re-Thinking Executive Control Of And Accountability For The Agency, Benedict Sheehy, Don Feaver

Osgoode Hall Law Journal

The organization of many Western governments has undergone dramatic structural and procedural changes over the past century. A large portion of public administration previously done by departments within a more centralized structure of government has been shifted to administrative units, often referred to as “agencies” that fall outside the constitutional core—an “agencified” model. This article investigates the historical contexts and legal developments associated with these changes and illuminates how “agencification” has altered the balance between executive control powers and executive accountability obligations. It examines how the organizational changes have been addressed in both the responsible government models of the United …

"Gatekeeping" Agency Reliance On Scientific And Technical Materials After Daubert: Ensuring Relevance And Reliability In The Administrative Process, Paul S. Miller, Bert W. Rein

Touro Law Review

No abstract provided.

Chapter 11 Shapeshifters, Lindsey Simon

Scholarly Works

Logic and equity would seem to demand that when administrative agencies are creditors to a bankrupt debtor, they should have the same status as other creditors. But a creditor agency retains its regulatory authority over the debtor, permitting it to continue with agency business such as conducting enforcement proceedings and awarding licenses. As a result, though bankruptcy law and policy both strongly support equal distribution of the estate, administrative agencies have been able to circumvent these goals through the use of “shapeshifting” behaviors. This Article evaluates two dangerous shapeshifting scenarios:

(1) where the agency avoids the limitations of creditor status …

Politics And Agencies In The Administrative State: The U.S. Case, Peter L. Strauss

Faculty Scholarship

The pending American presidential election, culminating a period of extreme political partisanship in our national government generally, gives point to an essay on politics and agencies in the American regulatory state. In our two-party system, it has often been the case in recent times, including the last six years, that the President comes from one of our two major political parties and one or both houses of Congress are controlled by the other. All American agencies (including, in the American case, the so-called independent regulatory bodies) are associated with the President in the executive branch, yet dependent on the Senate …

Superstatute Theory And Administrative Common Law, Kathryn E. Kovacs

Indiana Law Journal

This Article employs William Eskridge and John Ferejohn’s theory of superstatutes as a tool to argue that administrative common law that contradicts or ignores the Administrative Procedure Act (APA) is illegitimate. Eskridge and Ferejohn conceive of statutes that emerge from a lengthy, public debate and take on great normative weight over time as “superstatutes.” Superstatute theory highlights the deficiency in deliberation about the meaning of the APA. The APA bears all the hallmarks of a superstatute. Unlike the typical federal superstatute, however, the APA is not administered by a single agency. Thus, to respect and encourage the civic-republican style of …

The Case For Categorical Nonenforcement, Leigh Osofsky

Articles

No abstract provided.

Quitting In Protest: A Theory Of Presidential Policy Making And Agency Response, Charles M. Cameron, John M. De Figueiredo, David E. Lewis

Faculty Scholarship

This paper examines the effects of centralized presidential policy-making, implemented through unilateral executive action, on the willingness of bureaucrats to exert effort and stay in the government. Extending models in organizational economics, we show that policy initiative by the president is a substitute for initiative by civil servants. Yet, total effort is enhanced when both work. Presidential centralization of policy often impels policy-oriented bureaucrats ("zealots") to quit rather than implement presidential policies they dislike. Those most likely to quit are a range of moderate bureaucrats. More extreme bureaucrats may be willing to wait out an opposition president in the hope …

Chevron Inside The Regulatory State: An Empirical Assessment, Christopher J. Walker

Fordham Law Review

No abstract provided.

City Of Arlington V. Fcc: Jurisdictional Or Nonjurisdictional, Where To Draw The Line?, Whitney Ruijuan Hao

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Iowa Unemployment Appeals Telephone Hearing Process, Bruce Graham

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Adapting Alternate Dispute Resolution For Use In Administrative Proceedings, Victor Lawrence

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Marco V. Doherty: Forcing An Agency To Play By Its Own Rules: Administrative Res Judicata, Matt Bove

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Agency Inaction, Abner J. Mikva

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Another Moment In The Evolution Of Administrative Agency Power: The Opinion In Schultz V. Springfield Forest Products, Drew K. Mahady

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Agency Fact Finding, Walter J. Kendall Iii

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Administrative Law Judges, Judicial Independence, And Judicial Review: Qui Custodiet Ipsos Custodes?, W. Michael Gillette

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Paternalistic Discrimination: The Chevron Deference Misplaced In Chevron U.S.A., Inc. V. Echazabal, Tricia M. Patterson

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Bates V. Dow Agrosciences: Overcoming Federal Preemption And Giving The People A Voice , Kim Ly

Journal of the National Association of Administrative Law Judiciary

This note explores the U.S. Supreme Court's ruling in Bates v. Dow Agrosciences LLC. Part II discusses the historical background and procedural history of the case. Part III lays out the facts of the Bates case. Part IV analyzes the majority opinion given by Justice Stevens and Justice Breyer's concurring opinion, and the opinion of Justice Thomas, concurring in part and dissenting in part. Part V considers Bates's judicial, legislative and administrative impact. Part VI concludes the discussion of the Bates decision.

No More Secrets: Under Ballard V. Commissioner, Special Trial Judge Reports Must Be Revealed , Katherine Kmiec Turner

Journal of the National Association of Administrative Law Judiciary

This case note evaluates Ballard v. Commissioner, its roots, and its impact on the Tax Court and administrative agencies. First, the history of the United States Tax Court is provided with a focus on the special trial judges and the structure of Tax Court Rule that was the central focus of Ballard. Second, there is a brief comparison of other positions, such as a magistrate, to the special trial judge. Third, this article simplifies the complicated, prior history of Ballard that includes three different petitioners, weeks of trial, and numerous courts proceedings and opinions. Fourth, the Ballard opinion is analyzed …

Ordinary Administrative Law As Constitutional Common Law , Gillian E. Metzger

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Summary Of Administrative Law Judge Responsibilities, Daniel F. Solomon

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Rhetorical Judgments: Using Holistic Assessment To Improve The Quality Of Administrative Decisions, Roger J. Klurfeld, Steven Placek

Journal of the National Association of Administrative Law Judiciary

Federal, state, and local governments issue hundreds of thousands of administrative decisions annually. Considering the number of encounters the public has with administrative appeal agencies, administrative decisions may be the largest category of legal writing and reading interaction the public has with the legal system. Many of these agencies have identified writing quality - however they define it - as a priority in their strategic plans, but the overwhelming number of hearings and decisions, coupled with regulatory guidelines for timeliness, may subordinate this goal to other management priorities. Improving the quality of administrative decisions at these agencies presents a practical …

The California Youth Authority: Planning For A Better Tomorrow, Pearl S. West

Pepperdine Law Review

No abstract provided.

Regulatory Reform: Toward More Balanced And Flexible Federal Agency Regulation, Donald T. Bliss

Pepperdine Law Review

The Reagan administration's desire to stimulate the national economy has resulted in a fundamental change in our federal regulatory scheme. By executive order No. 12,291, the regulatory process has been brought under the scrutiny and control of the President in order to insure the pursuit of rational economic objectives. This recent executive decree represents the latest attempt to meet the challenge of a decade long attack on federal regulation. The author critically examines the scope of this order while prospectively analyzing the attendant problems this particular type of reform will encounter. Mr. Bliss ultimately suggests the Reagan administration's approach to …

The Soda Ban Or The Portion Cap Rule? Litigation Over The Size Of Sugary Drink Containers As An Exercise In Framing, Rodger D. Citron, Paige Bartholomew

Scholarly Works

The authors discuss the litigation over New York City’s “Portion Cap Rule,” which restricts the size of sugary drink containers. The authors provide a history of the rule, from its promulgation by the Board of Health to the Appellate Division’s decision invalidating the rule. The authors also comment on the dispute between the parties over how to frame the rule. Opponents of the rule characterize the measure as an unwarranted and unprecedented incursion of consumer choice and personal freedom. Proponents of the rule, including the City, view the rule as a modest measure intended to address obesity, a significant—even alarming—public …

The Jurisdiction Of The D.C. Circuit, Matthew B. Lawrence, Eric M. Fraser, David Kessler, Stephen A. Calhoun

Faculty Articles

The U.S. Court of Appeals for the D.C. Circuit is unique among federal courts, well known for an unusual caseload that is disproportionally weighted toward administrative law. What explains that unusual caseload? This Article explores that question. We identify several factors that “push” some types of cases away from the Circuit and several factors that “pull” other cases to it. We give particular focus to the jurisdictional provisions of federal statutes, which reveal congressional intent about the types of actions over which the D.C. Circuit should have special jurisdiction. Through a comprehensive examination of the U.S. Code, we identify several …