Harvard Journal of Law & Public Policy

Tri-annual journal featuring scholarly review of law and issues of importance to students, educators, and practioners.

Articles from Vol. 37, No. 2, Spring

Agency Oversight as "Whac-a-Mole": The Challenge of Restricting Agency Use of Nonlegislative Rules
INTRODUCTION When agencies want to compel private entities to act, they face a complex array of choices. The Administrative Procedure Act (APA) gives agencies a series of options for pursuing their preferred policy. (1) At one extreme is the possibility...
"Agency Threats" and the Rule of Law: An Offer You Can't Refuse
INTRODUCTION Over the past several decades, scholars and practitioners have documented how regulatory agencies have increasingly relied on guidance, best-practice documents, policy statements, and other informal pronouncements to achieve regulatory...
Building on Executive Order 13,636 to Encourage Information Sharing for Cybersecurity Purposes
Over the past several decades, cybersecurity has emerged as an issue of increasing national concern. (1) Both government and private entities rely heavily on computer networks for functions related to defense, routine economic activity, and operation...
Detainment Power: The Limits of the President's Power to Suspend Habeas Corpus during Military Conflicts
INTRODUCTION The September 11, 2001 terrorist attacks and resultant military involvement in the Middle East brought to light several important questions relating to the President's ability to detain individuals during military conflicts and to restrict...
Don't Mess with Texas Judges: In Praise of the State Judiciary
There is one transcendant advantage belonging to the province of the State governments.... It is that which, being the immediate and visible guardian of life and property, having its benefits and its terrors in constant activity before the public eye,...
Preface
The last ninety years of American government have been characterized by, if nothing else, an ever-expanding administrative state. Given the massive increase in federal power generally, its concentration in the hands of the executive branch raises critical...
Regulatory and Quasi-Regulatory Activity without OMB and Cost-Benefit Review
Whenever a federal agency proposes a significant regulatory action, that action must be reviewed by the Office of Information and Regulatory Affairs in the White House Office of Management and Budget (OMB). (1) OMB review is designed to ensure that...
Responding to Agency Avoidance of OIRA
INTRODUCTION I. PRESIDENTIAL OVERSIGHT OF AGENCY REGULATION THROUGH OIRA REVIEW II. AGENCY AVOIDANCE A. Prior Literature B. Incentives and Strategic Behavior by Agencies and OIRA 1. Presidential and OIRA Incentives...
Rules versus Standards in City of Arlington V. FCC
In the 1984 case Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., (1) the Supreme Court created a two-step test for judicial review of agency decisionmaking. In the first step the court must determine whether Congress has clearly spoken...
Sue, Settle, and Shut out the States: Destroying the Environmental Benefits of Cooperative Federalism
INTRODUCTION I. THE BACKGROUND AND LEGAL STANDARD FOR SUE-AND-SETTLE CONSENT ORDERS A. General Consent Decree Doctrine B. Consent Decree Procedure for Government Entities C. Intervention Under Rule 24 and Joinder ...
Take Care Now: Stare Decisis and the President's Duty to Defend Acts of Congress
INTRODUCTION On January 20, 1981, Ronald Wilson Reagan took the Article II oath of office to become the fortieth President of the United States. (1) Following his inaugural address to the assembled throng on the National Mall streaming west from...
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