Administrative Law Prof Blog

Improper delegation of power to an attorney

From the Law of the Land blog of Patty Salkin (Albany), "Attorneys for Plan Commission Lack Authority in a Mediation to in Essence, Approve Subdivision Application".

Following denial of its request for primary plat approval for a subdivision, [the developer] appealed and the trial court ordered mediation. Eventually the [parties] reached a written settlement agreement ... providing that [the developer] submit a revised primary and sketch plan ... then the [plan] Commission would, at its next regular meeting, approve the Agreement ... [The developer] made the agreed upon submission, and the Commission met as scheduled, but ... voted to reject the Agreement. The trial court ordered the Agreement be enforced ...  Although the Commission complied, the trial court found that the Commission acted in bad faith in failing to approve the subdivision after having granted its attorneys (who had agreed to the Agreement) full settlement authority. However, the trial court said that the Commission could not be sanctioned therefore since governmental entities are not subject to sanctions ...  [T]he Court of Appeals ... agreed that the Commission was immune from sanctions, [but] found that held that the Commission did not act in bad faith.

The Indiana Supreme Court reversed in part, finding that government entities are not exempt from sanctions under the State ADR Rules, further noting that when governmental entities enter into mediation agreements in court, they are on the same basis as any other litigant and subject themselves to the Court’s authority to control actions, including the imposition of sanction for noncompliance.  The [Supreme] Court agreed, however, that the Commission did not act in bad faith for failing to approve the subdivision because such action remained subject to the Commission’s final approval at a public meeting. Specifically, the Court agreed with the Commission that it is precluded from delegating authority to its attorneys to approve subdivision plans pursuant to a mediation agreement.

EMM

Theory: Agency self-limitation

Elizabeth Magill (Virginia) has published "Agency Self-Regulation" on bepress. Abstract:

Discretion is at the center of most accounts of bureaucracy. Legal scholars in particular have called for agency supervisors, such as Congress, the courts, or the President, to tame that agency discretion. Strangely absent from these accounts is a ubiquitous phenomenon: administrative agencies routinely limit their own discretion when no source of authority requires them to do so.

This Article aims to create a category of such “self-regulation” and argue that scholars have been mistaken to ignore it. It first defines the category of self-regulation, including the feature of administrative law that makes the category interesting, which is that courts will under certain conditions force agencies to follow their self-regulatory measures. That feature of administrative law gives agencies some capacity—albeit limited—to credibly commit to the stability of their self-regulatory measures. The Article next identifies what an agency can accomplish by self-regulating. That includes controlling delegation within the agency, inducing reliance by outside parties, protecting agencies’ policy choices into the future and from political interference today, and producing public goods like information or reputation. Finally, the Article concludes by demonstrating that serious study of self-regulation could change the way we understand agencies and the need for and utility and wisdom of various controls on their behavior.

EMM

Arising from contract or statutory obligations?

When the state regulates the contractual relations between private parties, does the matter "arise" from the contract or from the statutory requirements of the regulation? This issue arose in a recent Arizona case where a tile contractor appealed from a decision of the state Registrar of Contractors that it had failed to perform in "a professional and workmanlike manner". Keystone Floor & More, LLC, v. Arizona Register Of Contractors, an Arizona Agency; and Bum Suk Kang, Ariz. App. No. 1 CA-CV 07-0900, filed July 2, 2009.

The trial court affirmed the Registrar's decision and awarded the customer attorneys' fees for the matter in the trial court (not for the matter before the Registrar), under a state law providing for attorneys' fees for the prevailing party in matters arising under contract. The contractor appealed the award of attorneys' fees, arguing that the action in the trial court arose under its statutory obligations under the regulatory scheme. The Court of Appeals agreed, reversing the trial court. While a contract was a predicate to the regulatory action, the matter before the trial court arose from the Registrar's decision which was based on the contractor's statutory obligation to perform in "a professional and workmanlike manner". If the customer had sued the contractor in Superior Court for breach of contract, the result would have been different.

The interface between administrative procedures and the common law forms of action, even the single form of action under the Rules, can get interesting. Results in cases like this one will depend on the wording of statutes, regulations, and rules of civil procedure. YMMV. EMM

Developer and town slug it out for more than a decade

On her Law of the Land blog, Patty Salkin (Albany) narrates a battle between a developer and a New York town in "Town’s Request for Supplemental Information Related to Downsizing of Shopping Mall Upheld":

After more than eleven years of legal wrangling, the New York Court of Appeals denied cert, finally closing the chapter and letting stand a holding that the Town’s request for a Supplemental Environmental Impact Statement (“SEIS”) in response to a developer’s submission of a mitigated development plan was not arbitrary and capricious.  The Second Department held that “[t]he Town Board, as the lead agency, ‘may require a supplemental EIS, limited to the specific significant adverse environmental impacts not addressed or inadequately addressed in the [original] EIS that arise from:  (a) changes proposed for the project; (b) newly discovered information; or (c) a change in circumstances related to the project.’” Oyster Bay Assocs. Ltd. P’ship v. Town Board of Oyster Bay, 58 A.D.3d 855, 859, 874 N.Y.S.2d 492, 496 (2d Dep’t 2009) ...

The original Application was submitted on January 21, 1998 by developer Oyster Bay Associates Limited Partnership (“Developer”) to the Town Board, by which the Developer sought to construct a 960,000 square foot shopping mall ...

Conclusion

More than a decade after the Application was submitted and a host of procedural twists and turns initiated by both the Developer and the Town, this project has been sent back by the Courts for the Developer to continue the zoning approval process.  In a Newsday article dated April 8, 2009 a spokesperson for the Developer stated that the “attorneys were reviewing the decision and trying to determine the next course of action.” (see, "Court: Syosset mall project must restart permit process",  http://www.newsday.com/news/local/nassau/ny-1ima110912633857apr08,0,607756,print.story) [$].  The Town Supervisor, on the other hand, “applauded [the Appellate Court] ruling.”  The Developer’s options have seemingly run out with the recent Court of Appeals decision and it must submit the SEIS to the Town for review.  To be sure, we can expect more legal challenges as the Developer continues through the zoning process, eleven and one-half years after it started.

EMM

New administrative law articles

From the University of Washington's Current Index to Legal Periodicals:

• Atwood, Denise A. Comment. Riding helmetless: personal freedom or societal burden? 1 Phoenix L. Rev. 269-293 (2008). [H]|[L]|[W]
• Bauerle, Keith G. The Ninth Circuit's "clarifications" in Lands Council v. McNair: much ado about nothing? 2 Golden Gate U. Envtl. L.J. 203-254 (2009). [H]|[L]|[W]
• Bergman, Hannah H. Comment. The CIA's public operational files: accessing files exempt from the CIA Information Act of 1984 because of investigations into illegal or improper activity. 3 Fla. A&M U. L. Rev. 99-128 (2008). [H]|[L]|[W]
• Brisman, Avi and Alison Rau. From fear of crime to fear of nature: the problem with permitting loaded, concealed firearms in national parks. 2 Golden Gate U. Envtl. L.J. 255-272 (2009). [H]|[L]|[W]
• Colbert, R. Caleb. Note. No, you can't: the Ninth Circuit says "no" to change. (Natural Resources Defense Council v. Environmental Protection Agency, 526 F.3d 591, 2008.) 16 Mo. Envtl. L. & Pol'y Rev. 574-593 (2009). [H ]|[ L]|[W]
• Fisher, Kristina G. The Rhino in the Colonia: how Colonias Development Council v. Rhino Environmental Services, Inc. set a substantive state standard for environmental justice. 39 Envtl. L. 397-430 (2009). [H]|[L]|[W]
• Greene, Matthew H. The HOPE VI paradox: why do HUD's most successful housing developments fail to benefit the poorest of the poor? 17 J.L. & Pol'y 191-229 (2008). [H]|[L]|[W]
• Ho, Joshua H. Enhancing safety, security, and environmental protection of the Straits of Malacca and Singapore: the cooperative mechanism. 40 Ocean Dev. & Int'l L. 233-247 (2009). [H]|[L]|[W]
• Miller, Kenneth. Penn Central for tomorrow: making regulatory takings predictable. 39 Envtl. L. Rep. News & Analysis 10457-10470 (2009). [H ]|[L]|[W]
• Potapov, Alex. Making regulatory takings reform work: the lessons of Oregon's Measure 37. 39 Envtl. L. Rep. News & Analysis 10516-10540 (2009). [H ]|[L]|[W]
• Rana, Shruti. "Streamlining" the rule of law: how the Department of Justice is undermining judicial review of agency action. 2009 U. Ill. L. Rev. 829-893. [H]|[L]|[W]
• Rubin, Gary. CFTC Regulation 1.59 fails to adequately regulate insider trading. 53 N.Y.L. Sch. L. Rev. 599-624 (2008/09). [H]|[L]|[W]
• Seele, Erin P. Note. The door finally opens to challenge agency decisions thet affect the environment. (Board of County Commissioners of Sumner County v. Bremby, 189 P.3d 494, 2008.) 16 Mo. Envtl. L. & Pol'y Rev. 612-630 (2009). [H ]|[ L]|[W]
• Smith, Douglas G. An administrative approach to the resolution of mass torts? (Reviewing Richard A. Nagareda, Mass Torts in a World of Settlement.) 2009 U. Ill. L. Rev. 895-909. [H]|[L]|[W]
• Snyder, Jennifer. Comment. The decision in American Council of the Blind v. Paulson: the Department of Treasury violated the Rehabilitation Act by failing to issue currency that was readily distinguishable by the visually impaired. (Am. Council of the Blind v. Paulson, 525 F.3d 1256, 2008.) 47 Duq. L. Rev. 133-148 (2009). [H]|[L]|[W]
• Tait, Matthew. Note. A remedy even the plaintiffs don't like. The D.C. Circuit's vacatur of the Clean Air Interstate Rule. (North Carolina v. E.P.A., 531 F.3d, 2008.) 16 Mo. Envtl. L. & Pol'y Rev. 552-572 (2009). [H ]|[ L]|[W]
• Zotos, Nick A. Service collection abuse of discretion: what is the appropriate standard of review and scope of the record in collection due process appeals? 62 Tax Law. 223-239 (2008). [H]|[L]|[W]

EMM

State APA interpretation (New York)

From the New York Public Personnel Law blog, "New York’s Administrative Procedures Act does not require a State agency to issue a declaratory ruling when requested":

The genesis of this lawsuit was the New York State’s Department of Agriculture and Markets' declining to issue a declaration that foie gras is an adulterated food product within the meaning of Agriculture and Markets Law §200. The Humane Society of the United States and various other organizations and individuals generally opposed to the production of foie gras then initiated an CPLR Article 78 action seeking a court order compelling the Commissioner to issue the requested declaration or, in the alternative, a review of his determination not to issue such declaration.

§204 of the State Administrative Procedure Act provides that, when petitioned to issue a declaratory ruling, an agency must either issue the ruling or issue a statement declining to issue such ruling. However, said the Appellate Division, “There is no requirement that the agency issue a declaratory ruling when requested and a petitioner has no rights under the statute other than a timely response by the agency.”

There was a procedural matter involved as well – did the petitioners have standing to maintain this action? The Appellate Division held that “Supreme Court properly granted [the [Commissioner’s] motion to dismiss the petition based on petitioners' lack of standing.”

EMM

Why statutory and regulatory construction is so important

Posted by James Robenalt on Williams Kastner's Northwest Indian Law & Business Advisor blog, "Washington Court Rules Tribes Are Not 'Persons' Under CERCLA":

In a June 19, 2009 ruling from the United States District Court, Eastern District of Washington, in Pakootas v. Teck Cominco, Judge Lonny Suko held that Indian Tribes were not subject to CERCLA liability because they are not “persons” as defined under the statute. ... The Tribes moved to dismiss the counterclaim, contending that they were not “person[s]” subject to liability under CERCLA, 42 U.S.C. Section 9607(a). This section imposes liability upon “person[s]” for costs incurred in responding to a release of hazardous substances. “Person[s]” is defined in Section 9601(21) as an “individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, United State Government, State, municipality, commission, political subdivision of a State, or any interstate body.”

In considering the arguments, the Court ultimately held that CERCLA’s definition of “person” is plain: it does not include “Indian tribes.” As the Court noted, CERCLA has existed for over 30 years, and Congress has had “adequate opportunity” to specifically include “Indian tribes” among the entities covered by the term “person.” The Court further noted that such an interpretation would not lead to an “absurd result.” While Teck argued that Tribes could “operate a dump for the disposal of hazardous substances, with complete impunity under CERCLA,” the Court stated that such a conclusion was of “dubious validity.” A tribe’s “disposal activities,” according to the Court, were otherwise subject to regulation under other federal environmental statutes, such as the Resource Conservation and Recovery Act (RCRA) and the Safe Drinking Water Act (SDWA).

EMM

Standing of third parties to sue in administrative matters

It's intuitive that a regulated person has standing to ask for judicial review of an adverse administrative action. However, other people may be affected by the action - when can they sue? It would be unwieldy and arguably a violation of separation of powers to let anybody sue. So where - and how - do we draw the line?  Patty Salkin (Albany) highlights a decision from the Indiana Supreme Court that addresses the issue of how to draw the line between those whose interests are affected directly enough that due process (and its state equivalents) mandates a right to demand judicial review and those who are not. In Federal courts this question goes to the courts' jurisdiction. "Property Owner Lacks Standing to Challenge CAFO Located One-Third of a Mile Away" on the Law of the Land blog.

Following approval by the board of zoning appeals of a special exception to allow for a concentrated animal feeding operation (CAFO) which would house 2,000 cows on 27 acres, Thomas, who owned property located one-third of a mile from the site appealed to the circuit court. The circuit court dismissed the matter finding that Thomas had failed to show that she was an aggrieved party for purposes of standing based on evidence at the hearing relating to the impact of the CAFO operation on the value of Thomas’s property. The appeals court reversed and remanded, finding that the trial court heard evidence outside of the pleadings and had treated the motion to dismiss as a motion for summary judgment. [T]he Indiana Supreme Court reversed, basically approving of the procedure followed by the trial court in holding an evidentiary hearing and deciding whether Thomas had standing based on the conflicting evidence presented.

EMM

New administrative law articles

From the University of Washington's Current Index to Legal Periodicals:

• Bryant, Beth C. Adapting to uncertainty: law, science, and management in the Steller sea lion controversy. 28 Stan. Envtl. L.J. 171-211 (2009). [H]|[L]|[W]
• Bunbury, Mark A., Jr. Recent development. "Forty acres and a mule"...not quite yet: Section 14012 of the Food, Conservation, and Energy Act of 2008 fails black farmers. 87 N.C. L. Rev. 1230-1251 (2009). [H]|[L]|[W]
• Clarke, Donald C. The private attorney-general in China: potential and pitfalls. 8 Wash. U. Global Stud. L. Rev. 241-255 (2009). [H]|[L< /A>]|[W]
• Dudley, Andrew. Comment. Opening borders: congressional delegation of discretionary authority to suspend or repeal the laws of the United States. 41 Ariz. St. L.J. 273-313 (2009). [H]|[L]|[W]
• Gray, John. Comment. Choosing the nuclear option: the case for a strong regulatory response to encourage nuclear energy development. 41 Ariz. St. L.J. 315-348 (2009). [H]|[L]|[W]
• Harris, Michael Ray. Standing in the way of judicial review: assertion of the deliberative process privilege in APA cases. 53 St. Louis U. L.J. 349-416 (2009). [H]|[L]|[W]
• Manley, Lesley. Comment. Should states serve as laboratories for mine safety regulation? 41 Ariz. St. L.J. 379-401 (2009). [H]|[L]|[W]
• Merriam, Dwight H. Regulating backyard wind turbines. 10 Vt. J. Envtl. L. 291-313 (2009). [H]|[L]|[W]
• Muys, Jerome C. Section 5 of the Boulder Canyon Project Act and 43 C.F.R. Part 417 occupy the field of determination of reasonable beneficial use of Lower Colorado River water. 15 Hastings W.-Nw. J. Envtl. L. & Pol'y 197- 214 (2009). [ H]|[L]|[W]
• Reiter, Keramet. Comment. Experimentation on prisoners: persistent dilemmas in rights and regulations. 97 Cal. L. Rev. 501-566 (2009). [H]|[L]|[W]
• Robinson, Andrew J. Comment. Language, national origin, and employment discrimination: the importance of the EEOC guidelines. 157 U. Pa. L. Rev. 1513-1539 (2009). [H]|[L]|[W]
• Seidenfeld, Mark. Why agencies act: a reassessment of the ossification critique of judicial review. 70 Ohio St. L.J. 251-321 (2009). [H]|[L]|[W]
• Spriggs, Matthew J. Note. "Don't tase me bro!" An argument for clear and effective taser regulation. 70 Ohio St. L.J. 487-518 (2009). [H]|[L]|[W]
• van der Vaart, D. R. and John C. Evans. Location, location, location: did North Carolina go far enough? 10 Vt. J. Envtl. L. 267-290 (2009). [H]|[L]|[W]

EMM

Ah, the joys of cell tower fights

Ah, the joys of cell tower fights. They happen often enough that many lawyers run into at least one during their practice careers. On her Law of the Land blog, Patty Salkin (Albany) reviews an Indiana battle in "Municipal Lease for Siting of Cell Tower Did Not Violate Zoning".

In early 2006, T-Mobile approached the Town about the possibility of locating a cell tower in the Town. In October 2006, the Town Council voted to authorize the Town to enter into a site lease. Realizing that it had not followed the statutory procedures required to lease municipal property, the Town began taking the necessary steps to comply with the statutes, and eventually approved again the construction of the cell tower. In December  2006, Scalambrino and other residents of the Town filed a complaint including four counts: (I) ... and (IV) request for a permanent injunction preventing the construction of the cell tower or any other structure that violates the Town’s municipal code. That same day, the trial court held a hearing on and denied the request for a TRO. ...

With respect to the spot zoning argument, the appeals court said, even assuming that the plaintiffs were correct that the ordinances constituted spot zoning, their argument that the amendments did not bear a rational relation to the public health, safety, morals, convenience or general welfare was unpersuasive.  Improved cellular communications in the area had a direct, positive effect on the safety and convenience of the town as well as the surrounding community.  Further, the Town’s decision to supplement its revenues by leasing municipal property was rationally related to improving the town’s general welfare.

EMM

Theory: Judicial unripeness as incentive for regulator rent-seeking

Recently posted on SSRN: "Ripe Standing Vines and the Jurisprudential Tasting of Matured Legal Wines: Property and Public Choice in the Permitting Process" by Donald J. Kochan (Chapman). Abstract:    

From produce to wine, we only consume things when they are ready. The courts are no different. That concept of “readiness” is how courts address cases and controversies as well. Justiciability doctrines, particularly ripeness, have a particularly important role in takings challenges to permitting decisions. The courts largely hold that a single permit denial does not give them enough information to evaluate whether the denial is in violation of law. As a result of this jurisprudential reality, regulators with discretion have an incentive to use their power to extract rents from those that need their permission. Non-justiciability of permit denials creates perverse incentives for regulators. This Article examines that phenomena.

While regulators may have this incentive, I have observed that it is usually not enough to cause them to exercise rent-seeking behaviors in professional civil services. We are fortunate that it is a temptation most seem to resist even when they have ideological or pecuniary reasons to succumb. EMM

Exhaustion of administrative remedy

From the New York Public Personnel Law blog, "The doctrine of the exhaustion of administrative remedy":

Matter of Mirenberg v Lynbrook Union Free School Dist. Bd. of Educ., 2009 NY Slip Op 05138, decided on June 16, 2009, Appellate Division, Second Department. In this decision the Appellate Division set out a synopsis of the doctrine of the exhaustion of administrative remedy.

A clear and concise summary. EMM

Aribitrary and capricious

From Patty Salkin (Albany) on her Law of the Land blog: "Imposition of Scenic and Conservation Easement on Issuance of Natural Resources Permit Invalidated".

A New York appeals court upheld the invalidation of a scenic and conservation easement imposed by a Town as a condition to the issuance of a natural resources special permit. In annulling the condition, the Court agreed with the trial court that it was arbitrary and capricious, and the zoning board of appeals was ordered to issue the special permit without the subject condition. Girard v. Town of East Hampton, 2009 WL 1636359 (N.Y.A.D. 2 Dept. 6/9/2009). The opinion can be accessed at: http://www.nycourts.gov/reporter/3dseries/2009/2009_04901.htm.

The opinion doesn't offer much more information. EMM

Research: OpenRegs.com

From Jason Sowards on the RIPS Law Librarian blog, published by the Research Instruction & Patron Services Special Interest Section of the American Association of Law Libraries:

My inner administrative law geek has found a new site that it cannot get enough of: OpenRegs.com. Why do I love this site? Because it makes formulating a research assignment I give every year that much easier to write.

The assignment: I find a regulation that has recently been proposed (and if it’s on a particularly controversial topic, all the better). I then ask students enrolled in my specialized legal research class on administrative law to (a) prepare a research log of the resources they consulted to learn about the agency and the subject matter of the proposed regulation; and (b) draft a comment based on their research from an assigned viewpoint.

OpenRegs.com provides the same information that one can find in the Federal Register (and to some extent on Regulations.gov, another favorite site of mine), but in a much more user-friendly format. The most important feature I find for purposes of my assignment is that it tells me, to the day, when comment periods for regulations will close. This is vital as I try to choose regulations that are open at the time the class is in session to make the exercise seem more real. The site also incorporates Web 2.0 technologies in the form of blogs and discussion forums, but so far very few people have taken advantage of these features.

Thanks, Jason. EMM

New administrative law articles

From the University of Washington's Current Index to Legal Periodicals:

• Avery, W. Barron A. Disenfranchising the non-riparian: Alabama's water resource management program. 39 Cumb. L. Rev. 437-455 (2008-2009). [H]|[L]|[W]
• Kingsbury, Benedict. The concept of 'law' in global administrative law. 20 Eur. J. Int'l L. 23-57 (2009). [H]|[L]|[W]
• Lee, Ruby L. Note. New trends in global outsourcing of commercial surrogacy: a call for regulation. 20 Hastings Women's L.J. 275-300 (2009). [H]|[L]|[W]
• Moland, Jessica. Student article. Robbing Peter to pay Paul: why ethanol production must be regulated and how to do it. 16 U. Balt. J. Envtl. L. 53-82 (2008). [H]|[L]|[W]
• Neal, Geoffrey D. Note. State government--the Arkansas Freedom of Information Act--public or private record: a simple distinction threatens the future of open government in Arkansas. (Pulaski County v. Arkansas Democrat-Gazette, Inc., 264 S.W.3d 465, 2007.) 31 U. Ark. Little Rock L. Rev. 351-393 (2009). [H]|[L]|[W]
• Ochs, Ashley. Comment. A study in futility: Abigail Alliance for Better Access to Developmental Drugs will not expand access to experimental drugs for the terminally ill. (Abigail Alliance for Better Access to Developmental Drugs v. Von Eschenbach, 495 F.3d 695, 2007.) 39 Seton Hall L. Rev. 559-603 (2009). [H]|[L]|[W]
• Purvis, Nigel. The case for climate protection authority. 49 Va. J. Int'l L. 1007-1062 (2009). [H]|[L]|[W]
• Rozga, Kaj. Note. Retail health clinics: how the next innovation in market-driven health care is testing state and federal law. 35 Am. J.L. & Med. 205-231 (2009). [H]|[L]|[W]
• Schwartz, Jeff. Reconceptualizing investment management regulation. 16 Geo. Mason L. Rev. 521-586 (2009). [H]|[L]|[W]
• Solberg, Lauren B. Note. Over the counter but under the radar: direct- to-consumer genetics tests and FDA regulation of medical devices. 11 Vand. J. Ent. & Tech. L. 711-742 (2009). [H]|[L]|[W]
• Weinstock, Robert A. Note. The Lorax state: parens patriae and the provision of public goods. (Massachusetts v. EPA, 127 S. Ct. 1438, 2007.) 109 Colum. L. Rev. 798-843 (2009). [H]|[L]|[W]
• Demisesquicentennial. Articles by Richard A. Nagareda, Jesse Rothstein, Albert H. Yoon, Max M. Schanzenbach, Emerson H. Tiller, Thomas J. Miles, Cass R. Sunstein, Peter L. Strauss and Eric A. Posner. 75 U. Chi. L. Rev. 603-883 (2008). [H]|[L]|[W]
  • Nagareda, Richard A. Class actions in the administrative state: Kalven and Rosenfield revisited. 75 U. Chi. L. Rev. 603-648 (2008). [H]|[L]|[W]
  • Rothstein, Jesse and Albert H. Yoon. Affirmative action in law school admissions: what do racial preferences do? 75 U. Chi. L. Rev. 649-714 (2008). [H]|[L]|[W]
  • Schanzenbach, Max M. and Emerson H. Tiller. Reviewing the Sentencing Guidelines: judicial politics, empirical evidence, and reform. 75 U. Chi. L. Rev. 715-760 (2008). [H]|[L]|[W]
  • Miles, Thomas J. and Cass R. Sunstein. The real world of arbitrariness review. 75 U. Chi. L. Rev. 761-814 (2008). [H]|[L]|[W]
  • Strauss, Peter L. Overseers or the deciders--the courts in administrative law. 75 U. Chi. L. Rev. 815-829 (2008). [H]|[L]|[W]
  • Miles, Thomas J. and Cass R. Sunstein. The new legal realism. 75 U. Chi. L. Rev. 831-851 (2008). [H]|[L]|[W]
  • Posner, Eric A. Does political bias in the judiciary matter?: implications of judicial bias studies for legal and constitutional reform. 75 U. Chi. L. Rev. 853-883 (2008). [H]|[L]|[W]
  • Linford, Jake. Comment. The right ones for the job: divining the correct standard of review for curtilage determinations in the aftermath of Ornelas v. United States. 75 U. Chi. L. Rev. 885-910 (2008). [H]|[L]|[W]
  • Yoo, David S. Comment. Rule 33(a)'s interrogatory limitation: by party or by side? 75 U. Chi. L. Rev. 911-940 (2008). [H]|[L]|[W]
  • Cuellar, Mariano-Florentino. The political economies of criminal justice. (Reviewing Jonathan Simon, Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear.) 75 U. Chi. L. Rev. 941-983 (2008). [H]|[L]|[W]

EMM