Suchergebnisse

Notice-and-comment rulemaking is often held out as the purest example of participatory democracy in actual American governance. K.C. Davis called notice-and-comment rulemaking the "most democratic of procedures" because all may participate. Regulators are required to accept comments from any interested person and consider and respond to them before making a final decision. Direct public engagement has been seen as an antidote to the democracy deficit that plagues policymaking by unelected bureaucrats. Central to this conception is a belief that the comment process will involve a meaningful exchange of views. In the words of the DC Circuit, notice and comment involves "an exchange of views, information, and criticism between interested persons and the agency." Indeed, it is this broad participation and exchange that is seen as legitimating the resulting regulations.Of course, the reality has always fallen far short of these ideals. Many anticipated that electronic rulemaking would enable more democratic rulemaking, finally allowing effective and broad public participation. This has not in fact happened. This paper reviews the course of e-rulemaking in the United States and offers some suggestions for how it might be restructured in a more limited, but more meaningful, democratic way.

Résumé Alors que le droit de l'environnement moderne des États-Unis approche de son quarantième anniversaire, il reste marqué par une série de débats fondamentaux. Ceux-ci ne concernent pas la question de la nécessité pour le gouvernement d'introduire des réglementations pour protéger l'environnement ; un consensus existe à ce propos (avec l'exception notable du réchauffement de la planète). Mais la question de savoir quel niveau et quelle branche du gouvernement devraient imposer ces réglementations, sur la base de quels principes généraux et sous quelle forme suscite de profonds désaccords. Ces désaccords apparaissent clairement dans les débats actuels : faut-il réglementer les émissions de gaz à effet de serre et, le cas échéant, comment le faire ?

"The contributors to this volume consider whether it is possible to establish carefully tailored hate speech policies that are cognizant of the varying traditions, histories, and values of different countries. Throughout, there is a strong comparative emphasis, with examples (and authors) drawn from around the world. All the authors explore whether or when different cultural and historical setting justify different substntive rules given that such cultural relativism can be used to justify content-based restrictions and so endanger freedom of expression"--

Today the executive branch is generally seen as the most dangerous branch. Many worry that the executive branch now defies or subsumes the separation of powers. In response, several Supreme Court Justices and prominent scholars assert that the very separation-of-powers principles that determine the structure of the federal government as a whole apply with full force within the executive branch. In particular, they argue that constitutional law prohibits the accumulation of more than one type of power-—legislative, executive, and judicial—-in the same executive official or government entity. We refer to this as the anti-accumulation principle. The consequences of this principle, applied to its full extension, are vast. It would invite a new era of constitutional policing of the internal structure of the executive branch and administrative agencies. This Article argues that separation-of-powers law contains no antiaccumulation principle. Unable to find textual support in the Constitution for this principle, proponents latch on to but misread James Madison's famous statement that the "accumulation of all powers . . . in the same hands . . . may justly be pronounced the very definition of tyranny." Functional considerations—like fairness, avoiding the triumph of faction, and efficiency—-also do not justify the anti-accumulation principle or its application internally to the executive branch. The anti-accumulation principle is generally posited by jurists and scholars whose leanings are formalist and conservative. However, a set of liberal scholars commit the same error. More focused on checks and balances than on pure separation of powers, these scholars either defend or seek to reform the current structure of the executive branch. In doing so, they either invoke or assume the existence of an anti-accumulation principle, working from the premise that the principles that justified the allocation of power among the three branches must also apply within the executive branch. While the executive branch needs greater ...

In 1970, when the National Environmental Policy Act (NEPA) was enacted, the new and exciting information management technologies were the handheld four-function calculator and the eight-track tape cassette. Three decades later, after the personal computer, the digital revolution, and the World Wide Web, the implementation of NEPA is still stuck in the world of 1970. Other aspects of the bureaucracy have seen reform-the E-Government Strategy, an E-Government Act, the creation of a new Office of Electronic Government within the Office of Management and Budget (OMB), and, to focus on the environmental arena, the breathtaking success of the web-based Toxic Release Inventory. Yet the storage and dissemination of environmental impact review documents continue on the original, emphatically non-electronic, model. This Article suggests several improvements that can and indeed must be made to the environmental impact review process in light of both the technological and legal developments of the last thirty years.

Today the executive branch is generally seen as the most dangerous branch. Many worry that the executive branch now defies or subsumes the separation of powers. In response, several Supreme Court Justices and prominent scholars assert that the very separation-of-powers principles that determine the structure of the federal government as a whole apply with full force within the executive branch. In particular, they argue that constitutional law prohibits the accumulation of more than one type of power—legislative, executive, and judicial—in the same executive official or government entity. We refer to this as the anti-accumulation principle. The consequences of this principle, applied to its full extension, are vast. It would invite a new era of constitutional policing of the internal structure of the executive branch and administrative agencies. This Article argues that separation-of-powers law contains no anti-accumulation principle. Unable to find textual support in the Constitution for this principle, proponents latch on to but misread James Madison's famous statement that the "accumulation of all powers . . . in the same hands . . . may justly be pronounced the very definition of tyranny." Functional considerations—like fairness, avoiding the triumph of faction, and efficiency— also do not justify the anti-accumulation principle or its application internally to the executive branch. The anti-accumulation principle is generally posited by jurists and scholars whose leanings are formalist and conservative. However, a set of liberal scholars commit the same error. More focused on checks and balances than on pure separation of powers, these scholars either defend or seek to reform the current structure of the executive branch. In doing so, they either invoke or assume the existence of an anti-accumulation principle, working from the premise that the principles that justified the allocation of power among the three branches must also apply within the executive branch. While the executive branch needs greater constraint, separation of powers neither requires greater internal divisions nor provides a robust menu for reform. To the extent valid constitutional concerns underlie the anti-accumulation principle, they rest on due process and should be evaluated as such.

This updated edition provides a thorough overview of the law of judicial and political control of federal agencies. The primary focus is on the availability and scope of judicial review, but the book also discusses the control exercised by the U.S. President and Congress. This comprehensive guide is a companion to two other titles published by the Section of Administrative Law and Regulatory Practice: A Guide to Federal Agency Adjudication and A Guide to Federal Agency Rulemaking. ; https://larc.cardozo.yu.edu/faculty-edited/1017/thumbnail.jpg