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作者：Shepard, Scott Andrew
摘要：Emissions caps work on a simple and compelling premise. Regulated entities, in the process of creating something desirable, like energy, create and expel a problematic byproduct, such as carbon. They do this because thy exclusively reap a significant set of benefits (e.g., profits, market share, job security) from their efforts in the process of providing the generalized benefits that accrue from adding more energy resources to the market, and providing that energy to their customers. However,...
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作者：Merrill, Thomas W.
作者单位：Columbia University
摘要：Chevron U.S.A. Inc. v. NRDC is one of the most famous cases in administrative law, but it was not regarded that way when it was decided. To the justices who heard the case, Chevron was a controversy about the validity of the bubble concept under the Clean Air Act, not about the standard of review of agency interpretations of statutes. Drawing on Justice Blackmun's papers, Professor Merrill shows that the Court was initially closely divided, but Justice Stevens' opinion won them over, with no o...
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作者：Jacobs, Sharon
作者单位：University of Colorado System; University of Colorado Boulder
摘要：Fifty years ago, Alexander Bickel famously suggested that courts use tools like standing, ripeness, and the political question doctrine to avoid reaching the merits of difficult cases. Yet despite the increasingly central role of administrative agencies in government, there have been no darts to date to apply Bickel's insights to the bureaucracy. This Article remedies that deficit. The Article provides a three-part taxonomy of administrative restraint and offers case studies from federal agenc...
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作者：Vidovich, Jack
作者单位：American University
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作者：[Anonymous]
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作者：Francel, Michael T.
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作者：Sitaraman, Ganesh
作者单位：Vanderbilt University
摘要：For decades, courts and scholars have been engaged in a protracted and largely polarized debate over a seemingly simple question: how should courts address cases that implicate foreign affairs? On the one hand are those who seek expansive deference to the Executive's conduct of foreign affairs. On the other are those who argue that the courts must enforce the rule of law in foreign affairs cases lest they abdicate their responsibility to keep the Executive in check. This Article provides an al...
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作者：Jordao, Eduardo; Rose-Ackerman, Susan
作者单位：Getulio Vargas Foundation; Yale University
摘要：The legitimacy of modern states depends on the ability of democratic institutions to reflect citizens' preferences and values and on the state's abiliy to use technical expertise competently. Legitimacy has a threefold character based on rights, democratic responsiveness, and competence. We argue that courts can help reconcile these competing aspects of executive legitimacy. Our premise may seem implausible because courts are the archetypal counter-majoritarian institution, and judges typicall...
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作者：Lu, Lynn D.
作者单位：City University of New York (CUNY) System
摘要：As the Supreme Court recently confirmed, regulation of behavior through the tax code is nothing new. Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2596 (2012). From the individual mandate's shared responsibility payment to the income-tax deduction for charitable donations, tax provisions raise or lower the cost of particular conduct. In doing so, tax rules, like all administrative rules, reflect normative values and protect important public interests. Yet the need for swift and cert...
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作者：Liu, Frederick
摘要：According to the conventional wisdom, the Chevron doctrine rests on a presumption about congressional intent-a presumption that when a statute is ambiguous, Congress intended the gap to be filled by the agency charged with administering the statute. But the presumption is a mere fiction; when Congress enacts a statute, it generally has no view on who should resolve the ambiguities that later arise. This Article proposes a new theory of Chevron, one that rests on a simple reality: no matter how...
