The search for the optimal structure and performance of the administrative or regulatory state in the United States has been ongoing for decades and shows no signs of abating anytime soon. It has spawned a rich debate about the role of key federal government actors, including the judicial, legislative, and executive branches. Consideration of the appropriate roles for administrative agencies, sometimes referred to as the fourth branch of government, has been one of the important strands in this debate. The enormous reach and impact of the administrative state no doubt contributes to the extraordinary amount of attention to and interest in how our government operates. One issue that continues to attract significant attention concerns how much discretion agencies should enjoy in the operation of the administrative state. Another is why agencies act as they do when they have discretion to pursue different courses of action. A forthcoming paper, Agency Behavior and Discretion on Remand, co-authored by leading administrative law scholars Robert L. Glicksman and Emily Hammond, considers how agencies exercise their discretion when a court invalidates an agency action. Professors Glicksman and Hammond hypothesize that four variables in particular may affect influence agency action in the remand context (the type of remand, the timetable for agency response, the valence of the agency’s action, and the timing of the Presidential Administration). My purpose is to suggest that at least four additional variables may influence agency discretionary actions on remand. These include the nature of the statutory scheme an agency is implementing, the distribution of power among relevant actors, the legal and other mechanisms available to the agency to act, and the substantive goals the agency hopes to achieve. My hope is that this paper, in tandem with that by Professors Glicksman and Hammond, will ultimately contribute to an improved understanding of factors that shape agency behavior.
在美国，对行政或监管国家的最佳结构和绩效的探索已经持续了几十年，而且在短期内没有减弱的迹象。它引发了一场关于联邦政府主要行为者的角色的激烈辩论，包括司法、立法和行政部门。审议行政机构(有时被称为政府的第四部门)的适当作用是这场辩论的重要内容之一。行政国家的巨大影响和影响无疑引起了人们对政府运作方式的极大关注和兴趣。在行政国家的运作中，机关应该享有多少自由裁量权，这一问题一直备受关注。另一个问题是，为什么各机构在拥有自由裁量权的情况下会采取不同的行动。由著名行政法学者罗伯特·l·格利克曼(Robert L. Glicksman)和艾米丽·哈蒙德(Emily Hammond)合著的一篇即将发表的论文《还审时的代理行为和裁量权》(Agency Behavior and Discretion on Remand)，探讨了当法院宣布代理行为无效时，代理机构如何行使其裁量权。格利克斯曼教授和哈蒙德教授假设，在还押背景下，有四个变量可能特别影响影响机构的行动(还押类型、机构回应的时间表、机构行动的价值和总统执政的时间)。我的目的是建议，至少有四个额外的变量可能影响机关的酌处还押行动。这些因素包括机构正在执行的法定计划的性质、有关行为者之间的权力分配、机构可以采取行动的法律和其他机制，以及机构希望实现的实质性目标。我希望这篇论文，与格利克曼教授和哈蒙德教授的论文相结合，最终有助于提高对塑造代理行为的因素的理解。
{"title":"Agency Motivations in Exercising Discretion","authors":"David L. Markell","doi":"10.2139/SSRN.2943556","DOIUrl":"https://doi.org/10.2139/SSRN.2943556","url":null,"abstract":"The search for the optimal structure and performance of the administrative or regulatory state in the United States has been ongoing for decades and shows no signs of abating anytime soon. It has spawned a rich debate about the role of key federal government actors, including the judicial, legislative, and executive branches. Consideration of the appropriate roles for administrative agencies, sometimes referred to as the fourth branch of government, has been one of the important strands in this debate. The enormous reach and impact of the administrative state no doubt contributes to the extraordinary amount of attention to and interest in how our government operates. \u0000One issue that continues to attract significant attention concerns how much discretion agencies should enjoy in the operation of the administrative state. Another is why agencies act as they do when they have discretion to pursue different courses of action. A forthcoming paper, Agency Behavior and Discretion on Remand, co-authored by leading administrative law scholars Robert L. Glicksman and Emily Hammond, considers how agencies exercise their discretion when a court invalidates an agency action. Professors Glicksman and Hammond hypothesize that four variables in particular may affect influence agency action in the remand context (the type of remand, the timetable for agency response, the valence of the agency’s action, and the timing of the Presidential Administration). \u0000My purpose is to suggest that at least four additional variables may influence agency discretionary actions on remand. These include the nature of the statutory scheme an agency is implementing, the distribution of power among relevant actors, the legal and other mechanisms available to the agency to act, and the substantive goals the agency hopes to achieve. My hope is that this paper, in tandem with that by Professors Glicksman and Hammond, will ultimately contribute to an improved understanding of factors that shape agency behavior.","PeriodicalId":409476,"journal":{"name":"Journal of Land Use and Environmental Law","volume":"69 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126493958","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article is a short essay that uses an economic analysis of the need for and potential abuses of eminent domain used to transfer property from one private entity to another. It adds to the current literature by suggesting that states can establish mechanisms for evaluating and compensating current landowners for the idiosyncratic value they place on their property, and can establish administrative procedures and judicial review essentially to require local governments to auction the opportunity to obtain the property to the private entity that will provide the greatest benefit to the jurisdiction.
{"title":"In Search of Robin Hood: Suggested Legislative Responses to Kelo","authors":"M. Seidenfeld","doi":"10.2139/SSRN.1006083","DOIUrl":"https://doi.org/10.2139/SSRN.1006083","url":null,"abstract":"This article is a short essay that uses an economic analysis of the need for and potential abuses of eminent domain used to transfer property from one private entity to another. It adds to the current literature by suggesting that states can establish mechanisms for evaluating and compensating current landowners for the idiosyncratic value they place on their property, and can establish administrative procedures and judicial review essentially to require local governments to auction the opportunity to obtain the property to the private entity that will provide the greatest benefit to the jurisdiction.","PeriodicalId":409476,"journal":{"name":"Journal of Land Use and Environmental Law","volume":"221 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115984912","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A retrospective of National Wildlife Refuge System conservation shows a promising trajectory. The system has overcome persistent neglect to contribute to conservation policy. Haltingly, it has kept pace with conservation science to remain the chief American contribution to large-scale wildlife protection. Early on, it pioneered the use of habitat acquisition to protect imperiled species. More recently, it has begun to implement the cutting-edge ecological mandate to maintain biological integrity, diversity, and environmental health. Perhaps the most meaningful feature of the history of the refuge system is how closely it mirrors the development of conservation policy in the twentieth century. This article reviews the evolution of refuge system management and shows how it reflects the major conservation developments over the past century. It begins by surveying the system with special reference to the Pelican Island National Wildlife Refuge and the Arctic National Wildlife Refuge. The article conducts a historical review of conservation policy developments, with particular emphasis on their legal dimensions. It then discusses the current conservation framework for the refuges, which is a form of ecosystem management. The article concludes by observing the ways in which the national wildlife refuges are now the most important federal lands for demonstrating sustainability and ecosystem management on a large scale.
{"title":"The Significance of National Wildlife Refuges in the Development of U.S. Conservation Policy","authors":"Robert L. Fischman","doi":"10.2139/SSRN.699482","DOIUrl":"https://doi.org/10.2139/SSRN.699482","url":null,"abstract":"A retrospective of National Wildlife Refuge System conservation shows a promising trajectory. The system has overcome persistent neglect to contribute to conservation policy. Haltingly, it has kept pace with conservation science to remain the chief American contribution to large-scale wildlife protection. Early on, it pioneered the use of habitat acquisition to protect imperiled species. More recently, it has begun to implement the cutting-edge ecological mandate to maintain biological integrity, diversity, and environmental health. Perhaps the most meaningful feature of the history of the refuge system is how closely it mirrors the development of conservation policy in the twentieth century. This article reviews the evolution of refuge system management and shows how it reflects the major conservation developments over the past century. It begins by surveying the system with special reference to the Pelican Island National Wildlife Refuge and the Arctic National Wildlife Refuge. The article conducts a historical review of conservation policy developments, with particular emphasis on their legal dimensions. It then discusses the current conservation framework for the refuges, which is a form of ecosystem management. The article concludes by observing the ways in which the national wildlife refuges are now the most important federal lands for demonstrating sustainability and ecosystem management on a large scale.","PeriodicalId":409476,"journal":{"name":"Journal of Land Use and Environmental Law","volume":"236 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122959624","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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