Agency Commons^™

Hierarchically Variable Deference To Agency Interpretations, Aaron-Andrew P. Bruhl

Notre Dame Law Review

When courts review agency action, they typically accord agency decisions a degree of deference. As many courts and commentators have recognized, the law in this area is complicated because it features numerous standards of review, including several distinct regimes for evaluating agencies’ legal interpretations. There is, however, at least one important respect in which uniformity rather than variety prevails: the applicable standards of review do not vary depending on which court is reviewing the agency. Whichever standard governs a particular case—Chevron, Skidmore, or something else—all courts in the judicial hierarchy are supposed to apply that same standard.

This Article proposes …

Why Should We Care About An Agency’S Special Insight?, Stephen M. Degenaro

Notre Dame Law Review

This Note offers some additional thoughts on the outer limits of Seminole Rock deference. Part I discusses the three concerns associated with unchecked Seminole Rock deference that comprise the self-delegation problem—violation of constitutional norms, exploitation of a statutory loophole, and perverse incentives. It explores the potential for abuse they create and recommends what the limitations should look like in order to avoid this potential. Part II explains the two rationales for Seminole Rock deference: the pragmatic and originalist rationales. It describes how the two rationales relate to each other, explains how courts use pragmatic and originalist arguments in their opinions, …

The National Historic Preservation Act: Preserving History, Impacting Foreign Relations?, Mark P. Nevitt

Faculty Articles

Japanese Prime Minister Shinzo Abe, the highest political leader in Japan, shook his head in disbelief. His tenure as Prime Minister had been tense, partly due to the ongoing question of a replacement airfield for the U.S. Marines in Futenma. A predecessor, Yukio Hatoyama, also suffered political fallout stemming from his reversal of a public promise to find a replacement location for the U.S. Marine Corps Air Station. Prior to the Hatoyama administration, the Japanese government had selected a new location for the Marine Air Station, a remote area far removed from the busy city of Okinawa in Henoko. Moving …

Training Curriculum: Human Resources And Administrative Investigations (Facilitator’S Guide), Brenda V. Smith, Jaime M. Yarussi, Rebecca Heinsen, Melissa C. Loomis, Caleb J. Bess, Tonya Davis, Kathy Dennehy, A.T. Wall, Lorie Brisbin, Susan Carle, Richard Ugelow, Lisa Capers, Aaron Aldrich

Reports

The enclosed Human Resources and Administrative Investigations curriculum was developed by the Project on Addressing Prison Rape at American University, Washington College of Law as part of contract deliverables for the National PREA Resource Center (PRC), a cooperative agreement between the National Council on Crime and Delinquency and the Bureau of Justice Assistance (BJA). The Prison Rape Elimination Act (PREA) standards served as the basis for the curriculum’s content and development, with the goal of the Human Resources and Administrative Investigations curriculum to satisfy specific PREA standards requirements.

It is recommended that the Human Resources and Administrative Investigations curriculum be …

New Powers- New Vulnerabilities? A Critical Analysis Of Market Inquiries Performed By Competition Authorities, Tamar Indig, Michal Gal

Michal Gal

In the past two decades the number of jurisdictions which have empowered their Competition Authorities to engage in market inquiries (MIs) has grown substantially. Although jurisdictions differ in the scope and procedure adopted for such studies, they all share an important common trait: attempting to allocate the roots of limited competition in the studied market. Market studies differ from traditional competition law tools in their triggers, range, object, and the level of pro-activity of the Competition Authority. They are not triggered by a suspicion of anti-competitive conduct of specific firm(s), but rather allow the Authority to use a broad prism …

Empowering The Consumer: A Discussion On Minnesota's Dual Agency Statute And A Proposed Solution That Puts The Consumer First, Micheal Fleming

Student Scholarship

Many Americans across this county strive to achieve the dream of home ownership. The obstacles that stand in the way of achieving that dream can be staggering and unique to the persons pursuing home ownership. To a certain extent, it is expected that there be some proverbial hoops of fire to jump through before finally turning that key to a new home. What the consumer does not expect is to find a statutory scheme that creates unnecessary obstacles, such as a broker with a divided loyalty and information barriers, at the expense of the public. This statutory scheme is enshrined …

Manella, Pujals & Co. V. Barry, 7 U.S. 415 (1806), Nicole Whitecar

Legal History Publications

Manella v. Barry highlights issues of agency and contract interpretation in the international maritime trade context. In the midst of America’s entry into the Quasi-War with France, a Baltimore shipping merchant brokered a large tobacco trade with a Spanish firm and experienced the risks of conducting trade over the high seas during wartime. Three out of seven ships were captured, and the Spanish firm sought to recover from the Baltimore merchant for the price of the lost cargo. Both the Circuit Court of Maryland and John Marshall’s Supreme Court sided with James Barry, holding that the Baltimore merchant was not …

Stuck Between A Rock And A Hard Place: Are Public Accounting Firms Subject To Diverging Standards Of Conduct Between Federal Courts And The Pcaob In Securities Fraud Claims?, Pierre Ciric

Journal of Business & Technology Law

No abstract provided.

Constitutional Conflict And Congressional Oversight, Andrew Mccanse Wright

Marquette Law Review

In matters of oversight, Congress and the President have fundamentally incompatible views of their institutional roles within the constitutional structure. This Article offers an explanation of divergent branch behavior and legal doctrine. Congress, much like a party to litigation, views itself as having fixed substantive rights to obtain desired information from the Executive and private parties. In contrast, the Executive views itself like a party to a business transaction, in which congressional oversight requests are the opening salvo in an iterative negotiation process to resolve competing interests between co-equal branches. In general, legislators want to litigate and executive officers want …

The Monitor-Client Relationship, Veronica Root

Faculty Scholarship

After the government discovers wrongdoing by a corporation, the corporation and the government often enter into an agreement stating that the corporation will retain a “monitor.” A corporate compliance monitor, unlike the gatekeeper, is not charged with “monitoring” the corporation in an attempt to detect and prevent wrongdoing. A monitor, unlike the probation officer, is not solely charged with ensuring that the corporation complies with a previously determined set of requirements. Instead, a corporate compliance monitor is responsible for (i) investigating the extent of the wrongdoing already detected and reported to the government, (ii) discovering the cause of the corporation’s …

The Fiduciary Character Of Agency And The Interpretation Of Instructions, Deborah A. Demott

Faculty Scholarship

This chapter in a forthcoming book justifies the conventional characterization of common-law agency as a fiduciary relationship. An agent serves as the principal’s representative in dealings with third parties and facts about the world, situating the agent as an extension of the principal for legally-salient purposes. A principal’s power to furnish instructions to the agent is the fundamental mechanism through which the principal exercises control over the agent, a requisite for an agency relationship. The agent’s fiduciary duty to the principal provides a benchmark for the agent’s interpretation of those instructions. The chapter draws on philosophical literature on the identity …

Restatements And Non-State Codifications Of Private Law, Deborah A. Demott

Faculty Scholarship

This paper offers a vantage point through which to assess the phenomenon of projects codifying private law that are undertaken by private persons or institutions, distinct from legislatures and state-sponsored codification and law-revision projects. The private institution on which this paper focuses is the American Law Institute (ALI). ALI works in statutory form—most notably the Uniform Commercial Code and the Model Penal Code—as well as through projects that generate “Principles” to guide legal development within their specific fields and “Restatements” that authoritatively cover the law in a field.

The history of the Restatements sketched in this essay fits within the …

The Contours And Composition Of Agency Doctrine: Perspectives From History And Theory On Inherent Agency Power, Deborah A. Demott

Faculty Scholarship

This Essay explores the history of formulations of agency doctrine, arguing that agency law can best be rationalized as a distinctive subject by recognizing that an agent acts as an extension of the principal. The Essay relies on historical material related to the drafting of the Restatements of Agency, the disagreements among Reporters and other participants about the contours agency law, and the intellectual backdrop against which these experts worked. Their disputes, preceded as they were by challenges to the fundamental coherence of agency law, led to successive formulations of agency doctrine; while attempting to provide a comprehensive level of …

Cheating On Their Taxes: When Are Tax Limitations Effective At Limiting State Taxes, Expenditures, And Budgets?, Colin H. Mccubbins, Mathew D. Mccubbins

Faculty Scholarship

No abstract provided.

War Is Governance: Explaining The Logic Of The Laws Of War From A Principal-Agent Perspective, Eyal Benvenisti, Amichai Cohen

Michigan Law Review

What is the purpose of the international law on armed conflict, and why would opponents bent on destroying each other’s capabilities commit to and obey rules designed to limit their choice of targets, weapons, and tactics? Traditionally, answers to this question have been offered on the one hand by moralists who regard the law as being inspired by morality and on the other by realists who explain this branch of law on the basis of reciprocity. Neither side’s answers withstand close scrutiny. In this Article, we develop an alternative explanation that is based on the principal–agent model of domestic governance. …

Multiple-Agency Delegations & One-Agency Chevron, William Weaver

Vanderbilt Law Review

Congress frequently delegates to agencies, and a host of Supreme Court decisions have articulated tests for determining what level of deference courts should give to agency interpretations of their statutory directives. Courts have historically undertaken these analyses in the context of a single agency. Congressional authorization of joint rulemaking authority is more complicated, however, and the traditional frameworks for review are inadequate.

When Congress delegates authority to multiple agencies, courts should review the agencies' rules with heightened deference. The traditional framework for judicial review of agency rules is ill equipped when rules are promulgated by multiple coordinated agencies. The prevalence …

Agency And Partnership Law [2013], Pearlie M. C. Koh, Stephen Noel Henry Bull

Research Collection Yong Pung How School Of Law

The laws relating to the creation of an agency, implied authority, holding out and apparent authority, duties of the agent in relation to Agency law are discussed. The laws relating to partnership law and issues such as relationship of partners to third parties, relationships of partners between themselves and capacity to be a partner are highlighted.

Introduction: Speaking Up For Justice, Suffering Injustice: Whistleblower Protection And The Need For Reform, Dana L. Gold

Seattle Journal for Social Justice

No abstract provided.

The Pallant V Morgan Equity Reconsidered, Man Yip

Research Collection Yong Pung How School Of Law

This paper argues that the Pallant v Morgan equity should not be recognised as an independent doctrine because it does not rest on any tenable jurisprudential basis. It shows that a characterisation based on ‘common intention’ should be rejected because it is inconsistent with established legal principles and commercial practice. The alternative explanation based on breach of fiduciary duty, as suggested by Etherton LJ in Crossco No. 4 Unlimited v Jolan Unlimited [2011] 2 All ER 754 fares no better, as there is no reason why the Pallant v Morgan equity cases should be considered separately from other instances of …

Implementing The Prison Rape Elimination Act: A Toolkit For Jails, Brenda V. Smith, Dr. Gary Dennis, Susan W. Mccampbell, Michael S. Mccampbell, Elizabeth Price Layman, Caleb Asbridge, Rachel Bosley, Andie Moss, Jeff Shorba, Shaina Vanek, Jaime Yarussi, American Jail Association, National Institute Of Corrections' Large Jail Network, Nationa Sheriff's Association, American Correctional Association, Larry Cook, Dr. Robert Decomo, Jim Dennis, Nancy Deferrari, John Delaney, Timothy Fay, Diahann Frazier, David Gaspar, Quandara Grant, Dee Halley, Jamey Kessinger, Calvin King, Shawn Laughlin, Andrew Nunnally, Debra Oliver-Hammons, Steven Pizzala, Lisa Plowman, Gayle Ray, Larry Reynolds, Gwyn Smith-Ingley, Chris Sweney, Wynnie Testamark-Samuels, Janie Vergakis, Gregory Winston, Berry Zeeman

Presentations

Minor edits. “The goal of this Toolkit is to provide jails of all sizes, political divisions, and geographic locations with a step-by-step guide for preventing, detecting, and eliminating sexual abuse of inmates in their custody – and for responding effectively to abuse when it occurs. Prison rape includes all forms of inmate sexual abuse within a correctional facility, including state and federal prisons, county and municipal jails, police lock-ups, holding facilities, inmate transportation vehicles, juvenile detention facilities, and community corrections facilities. Protecting arrestees, detainees, and inmates from sexual violence is part of a jail’s core mission. This toolkit will help …