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handcuffs and gavel

The Rule of Lenity: A five-minute guide to navigating the intersection of administrative and criminal law

Erica Marshall May 01, 2017
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It is not often that you think of the terms “criminal defense” and “Chevron deference” in the same sentence. But this is starting to change given the ever-expanding number of quasi-civil and criminal statutes passed by Congress.

Indeed, much of the conduct that we would typically consider to be a violation of a regulation, subject to civil penalties in federal court or in an administrative tribunal, is criminalized in the same statute. And it is usually the government’s decision as to whether the case proceeds civilly or with handcuffs. [Read More]

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Capitol dome under construction

To have a better, more honest Congress, change its incentives

Timothy Courtney February 16, 2017
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David Schoenbrod writes for The Hill:

Congress has become one of America’s most unpopular and disparaged institutions — but a practical reform could quickly change all of this to simultaneously benefit the American people and Congressional approval numbers.

Congress’s fall from grace came ironically from the success it helped to produce.  

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Teleforum Preview: Regulatory Crimes: Clay v. U.S. Oral Argument by John J. Park, Jr.

10 Controversial Fixes to the Regulatory State

Daniel Epstein November 15, 2016
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Whether legitimacy, democracy, accountability, non-partisanship, or separation of powers motivates the sentiment, there are a number of ways, albeit controversial, to reform the federal regulatory state:

(1) Codify the principle in McGrain v. Daugherty (1927) as it applies to regulatory decision-making, forcing agencies to publish jurisdictional statements in the federal register prior to beginning investigations or enforcement actions. This would have avoided many of the due process issues at the center of the LabMD case. [Read More]

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Separation of Powers, Essential to Liberty, Is Under Attack by John C. Eastman

Oversight or Abdication?

Daniel Epstein November 07, 2016
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For decades, scholars (and the public) have said that Congress has abdicated its oversight role and that the federal bureaucracy had too much discretion and was largely undeterred because legislative monitoring was so weak. At the end of the 20th century, scholars argued that Congress did not abdicate its oversight role but instead preferred to conduct oversight by responding to whistleblowers, interest groups, constituents and others who came forward with allegations of bureaucratic waste, fraud, or abuse rather than spend the time and energy to actively police each agency all the time. This distinction – between Congress responding to fire-alarms by whistleblowers versus actively police patrolling the bureaucracy – has largely been adopted by legal and political scholars.  [Read More]