This Note examines the disparate treatment of greenhouse gas (GHG) emissions in the regulatory cost–benefit analysis and the National Environmental Policy Act (NEPA) review contexts. In Zero Zone, Inc. v. United States Department of Energy, the Seventh Circuit upheld the use of the social cost of carbon (SCC) when agencies consider GHG emissions in their cost–benefit analyses. At the same time, courts have almost uniformly rejected...
Administrative Law
Introduction President Donald Trump has quickly marshalled the powers of the presidency to challenge President Barack Obama’s environmental legacy. Facing an increasingly intransigent Congress, the Obama Administration placed significant emphasis on rulemaking and other administrative actions to push its progressive agenda. Whatever the merits of this approach, many of these actions are not safe from […]
Dozens of multimember agencies across the federal government are subject to partisan balance requirements, which mandate that no more than a simple majority of agency members may hail from a single party. Administrative law scholars and political scientists have questioned whether these provisions meaningfully affect the ideological composition of federal agencies. In theory, Presidents can comply with these requirements by appointing ideologically...
The All Writs Act, 28 U.S.C. § 1651, authorizes federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” The Act has applications in a variety of contexts, including law enforcement investigations, the detention of military prisoners, and the management of complex multidistrict litigation. Another important but less studied area is the Act’s use...
Introduction Professors Hanoch Dagan and Avihay Dorfman’s article Just Relationships is a fundamental reinterpretation of the moral ideals of large swaths of private law. Its significance, however, may go beyond even that broad ambition. In this Response, I suggest that Just Relationships is also an exemplar—perhaps par excellence—of an emergent form of critical discourse, which […]
This Essay examines the roles that federal administrative agencies have begun to play in response to the rise of private arbitration, particularly in the consumer and employment contexts. Such agency actions have included enforcement strategies designed to mimic the effects of private litigation when such litigation may not be possible due to the presence of arbitration agreements. And, in some cases, they have involved regulatory responses, including...
In Remedial Restraint in Administrative Law, Professor Nicholas Bagley argues that we should replace administrative law’s ordinary remand rule with a more restrained, context-specific standard of first assessing whether the parties challenging the action were actually prejudiced by agency error. He bases this argument in part on his belief that the states challenging the Obama Administration’s sweeping...
The traditional portrait of the administrative state often features the politically-appointed agency head at its center: the Administrator of the Environmental Protection Agency, for instance, or the Secretary of the Department of Labor. This picture of bureaucratic power, however, is incomplete. For much of that power is, in fact, subdelegated within the agency. The implication is that decision rights are often exercised not by statutory delegates,...
When a court determines that an agency action violates the Administrative Procedure Act, the conventional remedy is to invalidate the action and remand to the agency. Only rarely do the courts entertain the possibility of holding agency errors harmless. The courts’ strict approach to error holds some appeal: Better a hard rule that encourages procedural fastidiousness than a remedial standard that might tempt agencies to cut corners. But the...
Administrative law presumes a neat system of agency rulemaking and adjudication followed by judicial review. But the reality of the administrative state departs starkly from this model. One such departure is the use of audited self-regulatory organizations (SROs)—private organizations comprised of specific industries that formulate binding law to regulate themselves. Although SROs operate subject to the oversight of federal agencies, their power...