17 chapters
have results for Administrative Law and Process
Contributors 14 results (showing 5 best matches)
- is Professor of Law and Associate Dean of the University Faculty at Cornell University. She received her J.D. summa cum laude from Boston University, and then clerked for Raymond J. Pettine, chief judge of the U.S. District Court for District of Rhode Island, and for Spottswood W. Robinson, chief judge of the U. S. Court of Appeals for the District of Columbia Circuit. She practiced as a litigator with Foley, Hoag & Eliot, Boston, MA. She joined the Cornell faculty in 1985 and was a visiting professor at Harvard Law School in 1991. With Peter Strauss and Todd Rakoff, she is co-author of the leading casebook in administrative law,
- Professor Levin is the co-author (with Michael Asimow and Arthur Earl Bonfield) of
- is Betts Professor of Law at Columbia Law School, teaching courses in Administrative Law, Legal Methods, and Legislation. He joined the faculty in 1971, after spending two years in judicial clerkships (with Chief Judge David Bazelon of the D.C. Circuit and Justice William J. Brennan, Jr.), two years teaching criminal law at the national university of Ethiopia, and three years as an attorney in the Office of the Solicitor General, briefing and arguing cases before the United States Supreme Court. During 1975–77, Professor Strauss was on
- is the Vice Provost of Academic Affairs at the University of Southern California and the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, Political Science, and Policy, Planning and Development. She is also the Director of the USC–Caltech Center for the Study of Law and Politics (CSLP). Her primary scholarly interests are legislative process, direct democracy, the federal budget process, study of democratic institutions, statutory interpretation, and administrative law. She is the co-author of the Third Edition of the leading casebook on legislation and statutory interpretation,
- is the Director of the Institute for Public Representation and Associate Professor of Law at Georgetown University Law Center. He teaches courses in civil procedure, first amendment litigation and federal courts, and co-directs the Institute for Public Representation, a clinical law program at the Law Center handling a broad array of civil rights, civil liberties, first amendment, and open government litigation. Prior to joining the Georgetown faculty in 2002, Professor Vladeck spent over 25 years with Public Citizen Litigation Group, serving as its Director from 1992 to 2002. He has handled a wide range of complex litigation, including first amendment, health and safety, civil rights, class actions, preemption and open government cases. He has argued a number of cases before the United States Supreme Court, state courts of last resort, and over 50 cases before the federal courts of appeal. Professor Vladeck also testifies before Congress, advises Members of Congress on legal...
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Jerry L. Mashaw, The Story of Motor Vehicle Mfrs Ass’n of the US v. State Farm Mutual Automobile Ins. Co.: Law, Science and Politics in the Administrative State 235 results (showing 5 best matches)
- RISIS AND
- We are thus still inclined to ascribe the failure of regulatory policies to track the best scientific or technological understanding of a problem as a failure somehow to design a “good” administrative process, that is, one that is impervious to the forces—political, social and economic—that deflect administrators from the path of scientific virtue. But the truth of the matter may be that we do not always want the law to follow science—even law as made by administrators. Our practice belies our proclaimed rationalistic commitments. The problem from this perspective is not how to reform law to better accommodate science, but how to reframe our aspirational norms about administrative law to better accommodate what we really seem to demand of administration.
- To get some perspective on these questions we must become time travelers. We must traverse the extraordinary history of motor vehicle safety regulation both before and after the was but a high-visibility legal event in an administrative, political, and legal donnybrook spanning now nearly four decades. Examining that story will take us from the heyday of public support for energetic federal regulation to the increasingly common vision of government as a problem rather than a solution; from the 1960s and early 1970s reformation of administrative law to its counterreformation in the 1980s and beyond. It is a story of high drama and low comedy; of highvisibility actors—figures such as Ralph Nader, Richard Nixon, and Lee Iacocca—and of subterranean bureaucratic warfare; and, as the decision itself suggests, of constant competition between scientific understandings and political and legal imperatives. The ...provides a microcosmic glimpse of the development of the administrative...
- represents a triumphant vindication of reason as administrative law’s core value and of independent judicial review of administrative action as the keystone of the rule of law in the administrative state. In a unanimous Supreme Court blocked the Reagan administration’s attempt to rescind the centerpiece of the federal government’s ambitious program to make American automobiles safer for their occupants—Federal Motor Vehicle Safety Standard 208, the so-called “airbags” or “passive restraints” rule. Although ideologically committed to deregulation, and elected in part on the basis of its promise to provide economic relief for the American automobile industry, the Reagan team at the Department of Transportation (DOT) was instructed by the Supreme Court that politics was not enough. The administration had presented no “adequate basis and explanation for rescinding the passive restraint requirement.” ...again. Through the force of independent judicial review politics and ideology were...
- vision of judicial review of administrative action. After courts should be more deferential to agency administrative interpretations and more willing to rely on the political accountability of administrators to an elected president. Post- and critics . To the extent that the National Highway Traffic Safety Administration had trouble in court with respect to its rulemaking activities, and it had plenty, that trouble usually was not because of alleged misinterpretation of its statutes. Rationality review of NHTSA’s rules has focused largely on the agency’s application of law to fact and on its rationalization for its policy choices, as illuminated by the critical commentary of participants in its rulemaking processes.
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Roy A. Schotland, A Sporting Proposition—SEC v. Chenery 85 results (showing 5 best matches)
- I have long urged, and still believe, that the administrative process deserves fostering in our system as an expeditious and nontechnical method of
- underlying the action under review. If the action rests upon an administrative determination—an exercise of judgment in an area which Congress has entrusted to the agency—of course it must not be set aside because the reviewing court might have made a different determination were it empowered to do so. But if the action is based upon a determination of law as to which the reviewing authority of the courts does come into play, an order may not stand if the agency has misconceived the law. ‘The administrative process will best be vindicated by clarity in its exercise.’ All we ask of the [agency] is to give clear indication that it has exercised the discretion with which Congress has empowered it…. We merely hold that an administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained.
- Interviewer: “[T]he Commission was beset with all kinds of litigation challenging the Constitutionality of the Act, the administrative process, and just about anything else that the lawyers could dream up. Did the work … carry forward during that litigation or was the litigation disruptive?
- Once more, the SEC brought the case to the Supreme Court—a Court whose membership had now changed, and which produced the opinion you doubtless have encountered in taking Administrative Law. Now Justice Murphy, one of the dissenters, wrote the majority opinion, and he found that the SEC had now successfully
- Years ago, Administrative Law classes spent substantial time arguing about both and required a general rule that would operate only prospectively? Did the fact that Justice Frankfurter joined the Jackson dissent show that he (and his other co-signers) had originally shared the view Justice Jackson would later so forcefully express? How, it was argued, could Frankfurter—one of the pioneer professors of Administrative Law—have intended a constraint that would so hamper agency action, just as
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Editor’s Note to Readers 10 results (showing 5 best matches)
- What a privilege it has been to ask administrative law scholars whose work I greatly admire if they would contribute essays to this volume, and to have so many of them agree! However many of their essays you come to read, I know your appreciation for administrative law and administrative law practice will be deepened and concretized by them.
- In selecting essay subjects for this volume our general purpose has been to make more concrete, to set in context, a number of the issues you are likely to encounter in the standard law school course on Administrative Law by exploring a limited number of cases in depth. In general, these are the canonical cases, but that is not invariably the case. If David Vladeck of Georgetown Law School, one of the country’s leading public interest litigators, could be persuaded to annotate his experiences trying to provoke the Occupational Safety and Health Administration into issuing a rule regulating a hazardous industrial chemical commonly used in hospitals (inter alia)—and thus to illustrate the course of a contemporary rulemaking and the political controls over it—the fact that the opinions resulting from his effort did not come from the Supreme Court was hardly a negative. Giving you a sense of what it means to practice administrative law is an important ambition of these pages.
- The back story of many administrative law disputes arises out of judicial encounters with extended legislative responses to social problems. A number of these essays explore the political background of the statutes whose administration was at issue in the cases they discuss. Thus, Congress’s reactions to the Great Crash of 1929 (and the Crash itself) underlay the litigation that brought Administrative Law students not one, but two cases denominated ; and Roy Schotland’s essay starts with an account of the financial manipulations to which some have attributed that cataclysm, and enactment of the Public Utility Holding Company Act of 1935. Elizabeth Garrett’s essay on is a study of Congress’s efforts to solve its enduring collective action problems when enacting budgetary and tax legislation in voluminous measures that too easily become “Christmas trees” for special interest provisions. Your editor’s contribution on ...location at the local, state and federal level, as the building...
- Administrative law, it is hardly necessary to remark, is a protean subject. It engages legislature, executive, agency and court. It extends from regulation of subtle and often hazardous activities affecting health, to regulation of complex economic behavior, to regulation of the incidents of daily living. It uses adjudication and rulemaking in various forms, as well as the persuasive techniques of politics. It occurs at the national, state and local levels in widely varying degrees of formality, before an extraordinary kaleidoscope of institutions. Both how we do it and how we think about it have changed considerably over the century or so it has been an important element in American law school curricula. And where you sit—in the chairs of bureaucrat, protected citizen or regulated industry—can have a great deal of influence over where you will stand on many of its pervasive issues.
- Perhaps your interest lies in securing a concrete understanding how administrative law is practiced at the agency level, and/or how it is experienced by those who are engaged with it there. Most of these essays are revealing on this score—Professor Schotland’s account of the “sporting proposition” that might have but did not resolve the , in the perspective of applicant and state agency and federal administrators; your editor’s similar effort respecting ; Gillian Metzger’s close examination of the difficulties facing the Atomic Energy Commission and those who opposed its licensing nuclear power plants in ; Robert Kagan and Rachel VanSickel–Ward’s revealing study of the problem of administrative inspections and the Fourth Amendment,
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Gillian E. Metzger, The Story of Vermont Yankee 140 results (showing 5 best matches)
- The D.C. Circuit’s stature as the nation’s administrative law court developed in the late 1960s and 1970s. Congress chose to make the D.C. Circuit the center for challenges to administrative regulations issued under new federal environmental and health statutes, such as the Clean Air Act (CAA) and the Occupational Safety and Health Act. In addition, sparked by the Nixon administration’s opposition to its liberal criminal and poverty law decisions, Congress ended the D.C. Circuit’s appellate jurisdiction over local D.C. courts, giving it more time to focus on administrative cases. As its administrative docket grew, the D.C. Circuit began to develop new administrative law doctrines and expand the scope of judicial review, particularly of informal rulemaking.
- Its unqualified and stern language reinforces the impression that it is an administrative law decision of major import, and the opinion is a leading case in every administrative law casebook. But how significant was
- Administrative Common Law and the
- [T]he best way for courts to guard against unreasonable or erroneous administrative decisions is not for the judges themselves to scrutinize the technical merits of each decision. Rather, it is to establish a decision-making process that assures a reasoned decision that can be held up to the scrutiny of the scientific community and the public.
- Administrative Common Law in Judicial Review
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Thomas W. Merrill, The Story of Chevron: The Making of an Accidental Landmark 105 results (showing 5 best matches)
- How often a case becomes great because of a series of fortuities is unclear. Conceivably it happens in administrative law more often than in other fields. Supreme Court opinions play a critical role in administrative law, yet the Court decides relatively few administrative law decisions, and most of the Justices are not particularly conversant with that law. Consequently, the Justices may have more room to “free lance” when assigned to write administrative law opinions than when they write in areas more thickly populated with precedents or subject to closer oversight by other Justices. This freedom, in turn, may generate occasional mutations in the law in the form of idiosyncratic expressions by opinion writers. Most of these mutations probably disappear quickly. But occasionally one strikes a responsive cord and begins to replicate. As ...initially primarily in one lower court, then return to the Supreme Court, whereupon it receives a new imprimatur and proceeds to spread...
- Other possible examples of this phenomenon might include Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) (suggesting that preenforcement review of rules is available without regard to whether the rules are interpretive or legislative); Association of Data Processing Service Organizations v. Camp, 397 U.S. 150 (1970) (reading the “legal interest” test for standing out of the APA and creating in its place the “zone of interests” test); Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978) (holding that courts have no authority to prescribe rulemaking procedures in addition to those set forth in the APA); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) (transforming the arbitrary and capricious standard of review into “searching inquiry”). For the exasperated response of an administrative law specialist to another mutation, see Kenneth Culp Davis,
- therefore may be seen as a particularly dramatic example of a more general characteristic of administrative law, namely, that unanticipated judicial innovations play an especially large role in its development. To a much greater extent than, say, civil procedure, administrative law is judge-made law. The most important judges who make that law—the Justices of the Supreme Court—are less than fully engaged in the topic, and are therefore capable of producing surprises. is one of the biggest surprises of all, and legal system has only begun to comprehend the full measure of its significance.
- , after such an inauspicious beginning, acquire this status as a core precedent of administrative law? Two explanations seem most plausible. The first focuses on the D.C. Circuit, and posits that became a leading case initially in the D.C. Circuit, and then migrated back to the Supreme Court along with personnel who had previously served in the D.C. Circuit. The second focuses on the role of the executive branch, and posits that Justice Department lawyers, perceiving the advantages of ’s expanded rule of deference to administrative interpretations, became persistent and eventually successful proselytizers for use of the standard in reviewing agency interpretations of law.
- In all events, there is nothing in the three petitions suggesting that the parties were asking the Court to reconsider basic questions of administrative law. The focus was on the practical significance of the bubble concept, the confusion produced by the three D.C. Circuit decisions, and the claim that the D.C. Circuit had overstepped established bounds of judicial review. For example, the Solicitor General’s petition for certiorari said, “The decision of the court of appeals is contrary to well established limits upon the scope of judicial review of administrative action.”
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Craig N. Oren, Whitman v. American Trucking Ass’ns—The Ghost of Delegation Revived … and Exorcised 131 results (showing 5 best matches)
- is a marvelous introduction to administrative law. The case demonstrates the breadth of the policymaking power that Congress can give to administrative agencies. More important, ’s history shows how heated an administrative agency rulemaking becomes when it concerns a contentious and important issue of public policy. Administrative law, in other words, involves issues that go to the heart of public concern.
- Doubtless we will see more of the fierce controversy that surrounded the 1997 standards; perhaps the courts may have another chance to wrestle with reviewing EPA’s air quality standards. That is another important aspect of administrative law: the work is steady.
- The briefs largely focused on whether EPA’s explanation showed reasoned decision-making, and on whether the agency had violated any of the “regulatory reform” statutes of the 1980s and 1990s. But the delegation doctrine, requiring that Congress set out an intelligible principle when it confers power on administrative agencies, was mentioned in several of the challengers’ briefs. One of these was submitted on behalf of “small business petitioners”—a group including not only Judy’s Bakery and the National Indian Business Association, but also such groups as the Chamber of Commerce of the United States, the National Association of Manufacturers and American Trucking itself.
- Standard-Setting Process For Ozone, PM to be Coordinated Under New EPA Process,
- Once the criteria document and staff paper are approved by CASAC, EPA then prepares a proposed rule for publication in the Federal Register, considers typically thousands of comments, and then promulgates a standard. The agency’s senior management participates in the standard’s consideration, and the final decision is typically made personally by the Administrator. Both the Office of Management and Budget and other governmental agencies become involved; sometimes (as with ), so too will the President or his immediate staff. Years are required to pass through the process; for instance, it took EPA ten years to revise its standard for particulate matter in the late 1980s.
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Cynthia R. Farina, Due Process at Rashomon Gate: The Stories of Mathews v. Eldridge 117 results (showing 5 best matches)
- Administrative costs seem the least problematic because they are measurable and can be expressed in monetary terms. But they can cause serious problems because they can so readily be shifted and traded against costs that are not readily monetizable. For example, costs are shifted to private parties when they (or their representatives) are forced to substitute their efforts for those of the agency in obtaining, organizing or presenting evidence. Or, costs may be shifted from the agency to society through a reduction in the accuracy, fairness or speed of the administrative decision process. These shifts may be efficient or inefficient—but the problem is that the shift is likely to avoid appraisal. The transferred administrative costs will not appear in the public expenditure budget. Moreover, some of the trade-offs (as, for example, increased delay costs to claimants, or the value of a process perceived as fair) are hard fully to monetize.
- “new” due process jurisprudence—either by excluding social welfare benefits like disability from the interests protected by the due process clauses, or by considering any process provided by the legislature (or the agency acting as rulemaker) to be the process “due” —it had to make a choice. It had to cast its lot with one, and only one, approximation of “whether the administrative procedures provided here are constitutionally sufficient [in light] of the governmental and private interests that are affected.”
- Jerry Mashaw—Distinguished Scholar of the Administrative Process, and SSA in Particular
- Jerry Mashaw—Distinguished Scholar of the Administrative Process, and SSA in Particular
- Jerry Mashaw, Distinguished Scholar of the Administrative Process, and SSA in Particular
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Robert Kagan and Rachel VanSickle-Ward, Marshall v. Barlow’s Inc.: Legitimizing Regulatory Enforcement 86 results (showing 5 best matches)
- But we cannot agree that the Fourth Amendment interests at stake in these inspection cases are merely “peripheral.” … For instance, even most law-abiding citizen has a very tangible interest in limiting the circumstances under which the sanctity of his home may be broken by official authority, for the possibility of criminal entry under the guise of official sanction is a serious threat to personal and family security. And … [l]ike most regulatory laws, fire, health and housing codes are enforced by criminal processes … Even in cities where discovery of a violation produces only an administrative compliance order, refusal to comply is a criminal offense, and the fact of compliance is verified by a second inspection, again without a warrant. (387 U.S. at 530–31).
- stands as a definitive rejection of judicial efforts to control burgeoning informal rulemaking by adding to the procedural requirements contained in the Administrative Procedure Act. Yet judicial expansion of the APA’s procedural requirements has continued apace, and the Court’s simultaneous sanction of searching substantive scrutiny sits oddly with its excoriation of the D.C. Circuit for that court’s perceived procedural excesses. To understand , Professor Metzger puts the decision in its administrative and judicial context, exploring the case law and practical dilemmas facing administrators, advocates, and judges as the case unfolded. As her story tells it, is very much a creature of its time, when dramatic expansions in congressionally-mandated regulation led to multiple political and institutional struggles—between advocates and agencies, between agencies and courts, and between the Supreme Court and the D.C. Circuit. But the cautionary tale of ..., and the decision’... ...and...
- and , the Court was quick add that while a warrant was required for administrative searches, “Probable cause in the criminal law sense is not required.” (436 U.S. at 320). Rather:
- Thus an April 1978 Memorandum from the EPA enforcement office to enforcement officials around the country summarized the Supreme Court’s standard for an administrative warrant (a general administrative plan based on neutral criteria) and then noted:
- ) was willing to relax the 4th Amendment’s “warrants only on probable cause” standard to accommodate the needs of regulatory programs. Here Justice White stressed the non-criminal, preventive nature of administrative inspections and indicated—ironically, echoing Frankfurter’s balancing test in —that “In determining whether a particular inspection is reasonable—and thus in determining whether there is probable cause to issue a warrant for that inspection—the need for the inspection must be weighed in terms of [the] reasonable goals of code enforcement.” (387 U.S. at 535). A systematic search of all properties in an area of a city, the opinion asserted, is a “reasonable” search, and probable cause to issue a warrant exists if there are reasonable administrative standards for conducting an area inspection. In sum, the 4th Amendment’s warrant clause applies to administrative searches, but the test for issuing a warrant is whether the inspection is pursuant to a “reasonable” systematic
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David C. Vladeck, Unreasonable Delay, Unreasonable Intervention:] The Battle to Force Regulation of Ethylene Oxide 132 results (showing 5 best matches)
- participation in and judicial review of federal regulations, and to impose substantive standards on decisionmakers foreign to the statutes they administer. Unless it is checked, the program embodied in Executive Order 12,291 will fundamentally damage the administrative process by which our laws are implemented, the legislative system by which our laws are enacted and monitored, and the separation of powers upon which our system of government rests.
- Participants in OSHA hearings have no right to cross examine adverse witnesses, but an Administrative Law Judge presides over the hearings and, as a matter of discretion, generally permits participants to question other witnesses, within strict time limits. As a result, there are opportunities to ensure that witnesses are asked the hard questions if the OSHA panel fails to do so.
- To put my role in perspective, a brief explanation is in order. Prior to joining the faculty of Georgetown University Law Center, I spent more than twenty-five years as a staff attorney at, and then director of, Public Citizen Litigation Group, a Washington, D.C., public interest law firm founded by Ralph Nader and Alan Morrison. One mission of the Litigation Group was to use the courts to force administrative agencies to better protect the public. I was assigned to help Public Citizen Health Research Group—a sister organization within Public Citizen—prepare and file the petition for an emergency standard, with the understanding that I would handle the litigation that was certain to follow. Among the important administrative law cases handled by the Litigation Group are Cheney v. United States Dist. Court, 124 S. Ct. 2576 (2004); INS v. Chadha, 462 U.S. 919 (1983); Bowsher v. Synar, 478 U.S. 714 (1986); Raines v. Byrd, 521 U.S. 811 (1997); Mistretta v. United States, 488 U.S. 361...
- These concerns have sparked an ongoing and spirited debate over the legality and wisdom of presidential control over the regulatory process. Many experts defend the OMB review process as a brake on overly zealous, pro-regulatory bureaucrats and as a way for an Administration to manage and rationalize its regulatory policy. As they point out, since President Gerald Ford, every U.S. President has employed some form of centralized review. And since President Reagan, every President has relied on OMB to spearhead regulatory policy, as well as engage in regulatory review. When President Clinton came into office in 1992, he entertained the idea of moving away from centralized OMB review. He instead embraced it, issuing an Executive Order carrying forward the core elements of Executive Order 12,291, but adding provisions to make OMB review more transparent. President George W. Bush has further solidified OMB’s hold on the regulatory process.
- “Hybrid Rulemaking” Under the Administrative Procedure Act: A Legal and Empirical Analysis
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Peter L. Strauss, Citizens to Preserve Overton Park v. Volpe—of Politics and Law, Young Lawyers and the Highway Goliath 269 results (showing 5 best matches)
- The political character of the remedies thus created is clear when one sees that Congress attached no substantive requirement to its hearing demands. It did not ask the hearer to opine or to judge, or to articulate a reasoned conclusion; it does not seem to have imagined that judicial review could ensue. Within the structure of the highway grant program, as it was understood, the federal government had little if any enforcement role. Congress put such federal responsibility as there was in the Bureau of Public Roads, a unit of the Department of Commerce. The BPR served largely as a conduit for grant program funds, and did not actively supervise state highway commissions. Refusing funds because a state made the wrong choice, or imperfectly implemented procedures, does not seem to have been part of its repertoire. .... Such congressional discussion of the provisions as there was—and there was very little—focused on the immediate political benefits of having an opportunity to be...
- The briefs were timely filed on all sides. Influenced by what had gone before, as well as by the strategic sense that arose from the Three Sisters’ Bridge controversies, petitioner’s brief tended to emphasize two arguments—first, that the new statutes imposed an obligation that could be satisfied only by written findings, and that at the least, in the absence of written findings, the Secretary had made the statutorily required decisions (as distinct from how they were made, which petitioners conceded to be an improper inquiry); second, that any review should use the substantial evidence test, under which one would find questions of fact precluding summary judgment. Implicit in the first argument was a relatively absolutist take on the requirements imposed by § 138 and § 4(f); petitioners also argued that the findings policy the Secretary had subsequently adopted should be applied in this case; and that the SG’s motion to remand implicitly conceded the need for submission of the
- The place of politics and political power raised the most delicate questions. One way to understand these questions is to consider that political influences are often felt outside the usual formalities of a hearing process, even a process as informal and legislative as accompanied highway decision-making. If in fact these administrative judgments were subject to the controls of judicial review, what was the “record” against which they should be measured? How could that record be prepared and authenticated for judicial use? The processes we have been describing were fundamentally bureaucratic and political ones. Certainly at that time, no one was thinking about creating internal records of decision, like those that attend trials. We have been viewing the development of I–40 as one almost necessarily would, through newspaper accounts, congressional records, correspondence and other informal means. How could one establish what actually had happened inside the government, as questions...
- is easily one of the most important cases in the administrative law repertoire, with 4,640 citing opinions listed by Sheppards as of the end of 2004. The great bulk of those citations draw on its elaboration of the scope of review appropriate for agency exercises of judgment. In the instance, as you know, what was at issue was the Secretary of Transportation’s judgment that federal funds could be expended to build Interstate 40 through Overton Park, in Memphis, Tennessee, in the face of a pair of federal statutes that seemed severely to burden that judgment in order to protect parkland values. What may not be so readily apparent to you is that the case helps mark a turning point in American administrative law, brought about by a relatively small number of recent law school graduates. Its legal innovations occurred at the hands of lawyers just a few years out of law school, who successfully entered largely uncharted territory
- Betts Professor of Law, Columbia University. The original version of this essay, which appeared as Peter L. Strauss,
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Ronald M. Levin, The Story of the Abbott Labs Trilogy: The Seeds of the Ripeness Doctrine 179 results (showing 5 best matches)
- Administrative Common Law in Judicial Review
- Rulemaking’s Promise: Administrative Law and Legal Culture in the 1960s and 1970s
- Administrative Law and the Legacy of Henry J. Friendly
- On Ripeness and “Pragmatism” in Administrative Law
- opinion is also famous in administrative law circles for its broad language ascribing a “basic presumption of judicial review” to the Administrative Procedure Act and announcing that “only upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent should the courts restrict access to judicial review.” In order to keep the focus of this story on ripeness, the Court’s teachings on the issue of preclusion of judicial review will not be discussed in this chapter.
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Table of Contents 5 results
- Jerry L. Mashaw, The Story of Motor Vehicle Mfrs Ass’n of the US v. State Farm Mutual Automobile Ins. Co.: Law, Science and Politics in the Administrative State
- Peter L. Strauss, Citizens to Preserve Overton Park v. Volpe—of Politics and Law, Young Lawyers and the Highway Goliath
- Cynthia R. Farina, Due Process at Rashomon Gate: The Stories of Mathews v. Eldridge
- Craig N. Oren, Whitman v. American Trucking Ass’ns—The Ghost of Delegation Revived … and Exorcised
- Robert Kagan and Rachel VanSickle-Ward, Marshall v. Barlow’s Inc.: Legitimizing Regulatory Enforcement
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Elizabeth Garrett, The Story of Clinton v. City of New York: Congress Can Take Care of Itself 153 results (showing 5 best matches)
- Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 472–73 (2001). At the time LIVA was enacted, some influential administrative law scholars had long argued that the executive branch could respond to constitutional delegation concerns by providing more specific guidance to constrain discretion. See, e.g., K
- The second concern, and the one that ultimately convinced the majority of the Supreme Court to strike LIVA down, was that the President’s cancellation effected a repeal of law without congressional involvement. This constitutional argument is based on the Court’s assessment of the legislative veto in The legislative veto, a process whereby one house of Congress or sometimes one committee could block regulatory action, had been found unacceptable because it allowed a part of Congress to make law, bypassing bicameralism and presentment. The President’s cancellation could be attacked on similar grounds; if cancellation was the equivalent of repealing a law, then the President was making law without the involvement of Congress.
- Senators had ample outside analyses of the constitutional issues to inform their debate, and these assessments were available to House members as well. The testimony about constitutional issues raised by expedited and enhanced rescission proposals before the Subcommittee on the Constitution, Federalism, and Property Rights in the Senate Judiciary Committee occurred in January 1995, early in the legislative process. In addition, the American Law Division of CRS produced a memo on the constitutionality of separate enrollment that members frequently referred to. either escape judicial review because of the political question or other related doctrine of deference; it is less definite on the issue whether the deeming process in separate enrollment is consistent with the Constitution’s requirements to enact a bill. Senator-lawyers provided their own views of separate enrollment, most notably Senator Biden, a highranking member of the Judiciary Committee, who believed it constitutional,
- Second, the story of LIVA provides a case study of congressional deliberation of thorny constitutional questions. Everyone expected a constitutional challenge to the Act because it purported to create a line item veto power by statute, which some saw as an end-run around the constitutional amendment process. The legislative history of LIVA clearly reveals, however, that Congress did not completely resolve the constitutional objections to the law. The most sustained discussion of constitutional issues occurred during the Senate debate on a version of the statutory line item veto that bore little resemblance to the LIVA that became law. In the end, Congress punted final resolution of these issues to the courts, providing in the statute an expedited process for any constitutional challenge to reach the Supreme Court.
- Including tax expenditures in the House version of LIVA, and ultimately in the Senate version, was mostly compelled by practical politics, not ideological debate over the notion of tax expenditures. Members of the Appropriations Committees insisted that other committees with jurisdiction over spending programs also be vulnerable to the President’s cancellation power. The federal budget process involves many different committees with jurisdiction over some aspect of federal spending or revenue. The Appropriations Committees, divided into 13 subcommittees at the time Congress was considering LIVA, oversee the annual appropriation process that provides discretionary funds to federal programs. The House Ways and Means Committee and the Senate Finance Committee have jurisdiction over tax bills, including tax expenditures, and some of the most expensive entitlement programs, like Social Security and Medicare. The Budget Committees in both houses coordinate the congressional budgeting process
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- Foundation Press, of Thomson/West, has created this publication to provide you with accurate and authoritative information concerning the subject matter covered. However, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. Foundation Press is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- Allegory of Good Government, detail of Justice inspired by Wisdom, and Allegory of Bad Government, detail of Tyranny, 1338–40 (fresco); Lorenzetti, Ambrogio (1285–c.1348) / Palazzo Pubblico, Siena, Italy, Alinari; Bridgeman Art Library
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- Publication Date: December 6th, 2005
- ISBN: 9781587789595
- Subject: Administrative Law
- Series: Law Stories
- Type: Overviews
- Description: This book explores the statutory and historical setting of the cases presented, rather than mere doctrine. It examines lawyers’ judgments and tactics in detail, and frequently references recently revealed papers of Supreme Court Justices to discuss the often surprising elements of Court decisions. Students learn how disputes are handled at the administrative level, before they ever get to court – a perspective essential to understanding the field, but difficult to discern from the reported cases. The commentary also addresses how decisions can affect future developments, helping students understand how administrative disputes develop and the role lawyers play in developing them.
