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Administrative Law

Without Standing, Are We All Sitting Ducks? - Event Video

2014 National Lawyers Convention
Jonathan H. Adler, Amanda Cohen Leiter, Robert N. Weiner, Patrick Wyrick, A. Raymond Randolph, Eileen O'Connor November 17, 2014

For a federal court to consider an issue, there must be a case or controversy, and the parties before the court must have standing, i.e., a stake in the outcome of the decision.  While standing is important in our system of justice, the courts are not the only avenue for relief (the ballot box, theoretically, being another).  This panel will explore the history, development and current status of standing doctrine in regulatory litigation, with particular focus on the extent to which standing and related justiciability requirements have come to serve as a shield against meaningful judicial review of agency actions.

The Federalist Society's Administrative Law & Regulation Practice Group presented this panel on "Without Standing, Are We All Sitting Ducks?" on Saturday, November 15, during the 2014 National Lawyers Convention.

Featuring:

  • Prof. Jonathan H. Adler, Johan Verheij Memorial Professor of Law, Case Western Reserve University School of Law
  • Prof. Amanda Cohen Leiter, Associate Professor of Law, American University Washington College of Law   
  • Mr. Robert N. Weiner, Partner, Arnold & Porter LLP
  • Mr. Patrick Wyrick, Solicitor General, State of Oklahoma
  • Moderator: Hon. A Raymond Randolph, U.S. Court of Appeals for the D.C. Circuit
  • Introduction: Hon. Eileen O'Connor, Partner, Pillsbury Winthrop Shaw Pittman LLP; and Chairman, Administrative Law & Regulation Practice Group

Mayflower Hotel
Washington, DC

Why Government Fails So Often: And How It Can Do Better - Podcast

Administrative Law & Regulation Practice Group Podcast
Peter H. Schuck, Brian Callanan October 09, 2014

From healthcare to workplace conduct, the federal government is taking on ever more responsibility. At the same time, Americans have never been more disaffected with Washington, with many seeing it as an intrusive, incompetent, wasteful giant. The most alarming consequence of ineffective policies, in addition to unrealized social goals, is the growing threat to the government's democratic legitimacy. Understanding why government fails so often--and how it might become more effective--is an urgent responsibility of citizenship. In his book, Why Government Fails So Often: And How It Can Do Better, lawyer and political scientist Peter Schuck provides a wide range of examples and an enormous body of evidence to explain why so many domestic policies go awry--and how to right the foundering ship of state. Professor Schuck joined a Teleforum conference call to discuss the book, with Brian Callanan of King & Spalding offering comments.

Executive Order 13672: The LGBT Executive Order - Podcast

Religious Liberties Practice Group Podcast
Carl H. Esbeck, Stanley Carlson-Thies, Robin Fretwell Wilson September 18, 2014

On July 21, 2014 President. Obama issued Executive Order 13672, amending EO 11246 which has been around since 1965. The new EO added sexual orientation and gender identity to the list of prohibited bases of employment discrimination by federal contractors. The order applies to all employees of a contractor, not just those working on a federal contract. It also requires the contractor to hold itself out to the public as an equal opportunity employer with respect to these newly protected classes, and to post in conspicuous places notice to employees and job applicants of its nondiscrimination duties.

Some religious organizations are federal contractors. This has long been the practice with respect to international relief efforts, as well as for services to meet the religious needs of those in prison and serving in the armed forces. Religious organizations petitioned the White House for an exemption from these new requirements. Although they did not succeed, they were able to convince President Obama to leave intact a more limited religious exception permitting religious organizations to staff on a religious basis, an exception drawn from Title VII of the 1964 Civil Rights Act.

  • Prof. Carl H. Esbeck, R.B. Price Professor Emeritus and Isabelle Wade & Paul C. Lyda Professor of Law Emeritus, University of Missouri, Columbia School of Law
  • Dr. Stanley W. Carlson-Thies, Founder and President, Institutional Religious Freedom Alliance; Senior Fellow and former Director of Social Policy Studies, Center for Public Justice; former Director, White House Office of Faith-Based & Community Initiatives
  • Prof. Robin Fretwell Wilson, Director, Program in Family Law and Policy, University of Illinois College of Law

Stealth Regulation -- Agency Circumvention of OIRA and the APA? - Podcast

Administrative Law & Regulation Practice Group Podcast
John D. Graham, Todd J. Zywicki September 10, 2014

John D. Graham, former Administrator of the Office of Information and Regulatory Affairs (OIRA), and Professor Todd J. Zywicki participated in a Teleforum conference call discussing the use of stealth regulatory tactics by federal agencies to circumvent OIRA review and rulemaking standards under the Administrative Procedures Act. Dr. Graham and Prof. Zywicki addressed the range of tactics used by agencies to bypass OIRA and APA regulatory standards, the implications of such tactics to the democratic accountability and technical competence of agencies, and options for pursuing reform. Both Speakers drew from a multi-author research collaboration organized by the Mercatus Center at George Mason University and edited by Dr. Graham that was published in Volume 37, Issue 2 and the Federalist Edition, Volume 1, Issue 1 of the Harvard Journal of Law and Public Policy.

  • Dr. John D. Graham, Dean, Indiana University School of Public and Environmental Affairs, and former Administrator, Office of Information and Regulatory Affairs (2001-2006)
  • Prof. Todd J. Zywicki, Foundation Professor of Law, George Mason University School of Law, and Senior Scholar, Mercatus Center at George Mason University

Redressing Politicized Spending - Podcast

Administrative Law & Regulation Practice Group Podcast
Daniel Z. Epstein, John Hudak September 10, 2014

Politicized spending by the Executive Branch is of increasing interest to social science scholars, transparency advocates, and lawyers. Beginning in 2010, in response to perceived abuses, Congress instituted an earmark moratorium; however, recent research details how political influence perseveres in the merit-based allocation of taxpayer funds. Unlike federal contracts, however, limited judicial remedies exist for challenging politicization in discretionary spending. A recent piece in the Federalist Society’s Engage details how courts will generally defer to agency determinations concerning spending, thus presenting difficulties for lawyers who seek to challenge political spending decisions in the Executive Branch. Our experts discussed the extent and effect of the political influence on spending and the importance of transparency.

Cause of Action, a government accountability group, also is launching a website detailing the phenomenon of Executive Branch earmarks and the transparency problems that persist. The website is available at www.ExecutiveBranchEarmarks.com/.

  • Daniel Z. Epstein, Executive Director, Cause of Action
  • Dr. John Hudak, Fellow, Governance Studies and Managing Editor, FixGov Blog, The Brookings Institution