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SSRN-Democratizing the Administrative State by Richard Pierce
Scholars have long questioned the political and constitutional legitimacy of the administrative state. By 1980, a majority of Justices seemed to be poised to hold that large portions of the administrative state are unconstitutional. In 1984, the Court stepped back from that abyss and took a major step toward legitimating and democratizing the administrative state. The Court instructed lower courts to defer to any reasonable agency interpretation of an ambiguous agency-administered statute. The Court based this doctrine of deference on the superior political accountability of agencies. Henceforth, politically-unaccountable judges were prohibited from substituting their policy preferences for those of politically-accountable agencies. The Court recognized that agencies are politically accountable to the people because they are subject to the control of the elected President. The Court's 1984 effort to democratize the administrative state has fallen far short of its potential because of temporal problems with the manner in which the Supreme Court defines and implements the deference doctrine the Court announced in 1984 and the other two doctrines that require courts to defer to agency interpretations of agency-administered texts. The most important of those deference doctrines is explicitly premised on the Court's understandable belief that policy decisions should be made by the politically accountable President rather than by politically unaccountable judges. Yet, the Court's present method of implementing the deference doctrines has two unfortunate effects. First, in a high proportion of cases, there is a lag of four to eight years between the time that a President takes office and the time when a court is willing to acquiesce in implementation of the policies preferred by the President. In other words, each President is required to implement the policies preferred by his predecessor for at least one term and perhaps even for two terms. Second, in some important situations, regulatees are required to incur large c
Law.com - In Latest Venue Dispute Ruling, Delaware Court Transfers Part of Patent Case to Texas
A Delaware federal judge's transfer of part of a patent infringement case involving software giant Microsoft Corp. to the Eastern District of Texas is the latest example of the federal courts' shifting approach to patent litigation venue battles. The decision is also notable in that the Eastern District of Texas, known as a plaintiff-friendly venue, has itself recently started to transfer cases to other venues in compliance with recent federal appellate decisions.
SSRN-U.S. Chamber of Commerce Liability Survey: Inaccurate, Unfair, and Bad for Business by Theodore Eisenberg
The U.S. Chamber of Commerce uses its Survey of State Liability to criticize judiciaries and seek legal change but no detailed evaluation of the survey’s quality exists. This article presents evidence that the survey is substantively inaccurate and methodologically flawed. It incorrectly characterizes state law; respondents provide less than 10% correct answers for objectively verifiable responses. It is internally inconsistent; a state threatened with judicial hellhole status ranked first in the survey while venues not on the list ranked lower. The absence of correlation between survey rankings and observable activity suggests that other factors drive the rankings. Two factors may help explain them. First, persistent low ranking of Gulf Coast states indicates that corporate counsel cannot shed hostility to states that were prominent in asbestos and tobacco litigation, notwithstanding changes in state laws. Second, low rankings of populous states suggest respondents fail to distinguish between rates of events and the absolute number of events. Adverse events in large states may occur more often but not necessarily at higher rates than in small states. The Chamber’s uses of the survey fail to account for the sample design, fail to account for the same respondent rating multiple states, fail to account for industry effects, and fail to distinguish among respondents based on their knowledge of a state. The survey may discourage investment in the U.S. and corporate risk managers’ views suggest that the survey promotes corporate behavior that needlessly endangers the public.
SSRN-Plausibility Pleading Revisited and Revised: A Comment on Ashcroft v. Iqbal by Robert Bone
This Essay critically examines the Supreme Court's most recent decision on Rule 8(a)(2) pleading standards, Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), decided in May 2009. The essay supplements and extends the analysis in my recent article, Twombly, Pleadi
SSRN-The Irrepressible Myth of Klein by Howard Wasserman
This paper examines the Reconstruction-era case of United States v. Klein, which imposed some uncertain limitations on congressional control over judicial jurisdiction and judicial decisionmaking. Klein remains one of the mysteries of the constitutional-l
Law.com - FRCP Changes on the Horizon
The majority of the amendments affect various timing requirements and change how some deadlines are calculated.
Law.com - Plaintiffs Groups Mount Effort to Undo Supreme Court's 'Iqbal' Ruling
On May 18, the U.S. Supreme Court gave corporate defendants a gift that keeps on giving: the Iqbal decision, which has made it easier than ever for defendants to shut down lawsuits before they get to the costly discovery stage. Now, four months later, civ
SSRN-Defining and Measuring Judicial Activism: An Empirical Study of Judges on the United States Courts of Appeals by Corey Yung
Existing empirical scholarship about judicial activism has almost exclusively focused on the United States Supreme Court and actions by the judiciary that invalidate legislative, executive, and state actions. This article contends that such limitations gi
SSRN-Between Cases and Classes: The Decision to Consolidate Multidistrict Litigation by Margaret Williams, Tracey George
This paper provides the preliminary results of a convenience sample of ninety MDL orders from 2003 to 2009. The study investigates the rationale for transfer of federal civil litigation by the Panel, where cases are assigned, and to whom. The purpose of t
SSRN-The Consequences of Immigration Reform for the US Courts of Appeals by Chad Westerland
In this paper, I examine the consequences of the changes in the administrative procedures for appeals in immigration cases for circuit court judges. I discuss these changes and offer a model of decision making in immigration appeals. By analyzing a newly
Mary Matsuda, Law and Culture in the District Court of Honolulu, 1844-1845: A Case Study of the Rise of Legal Consciousness
32 Am. J. Legal Hist. 16 (1988)
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