According to common conception, laws should make actors internalize all the costs and benefits of their actions to make them behave efficiently. This article shows that even when only partial internalization is possible, private law can create efficient incentives by ensuring that each actor internalizes an identical proportion of the costs and benefits.This proportional internalization principle has profound implications. In tort law, it offers a new mechanism for dividing liability between multiple parties. In contract law, it suggests a new default rule for joint ventures. And, in restitution law, it presents an alternative doctrinal formulation for restitution for unrequested benefit.
{"title":"The Proportional Internalization Principle in Private Law","authors":"Omer Pelled","doi":"10.1093/jla/laz006","DOIUrl":"https://doi.org/10.1093/jla/laz006","url":null,"abstract":"According to common conception, laws should make actors internalize all the costs and benefits of their actions to make them behave efficiently. This article shows that even when only partial internalization is possible, private law can create efficient incentives by ensuring that each actor internalizes an identical proportion of the costs and benefits.This proportional internalization principle has profound implications. In tort law, it offers a new mechanism for dividing liability between multiple parties. In contract law, it suggests a new default rule for joint ventures. And, in restitution law, it presents an alternative doctrinal formulation for restitution for unrequested benefit.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89679140","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Recoupment inquiries play an increasingly important role in antitrust analysis, yet they raise a number of conundrums: How can a failure of recoupment due to the plausible long-run profit recovery being dwarfed by short-run losses be reconciled with a defense of no predation that presupposes no short-run sacrifice to begin with? How can recoupment inquiries be diagnostic with respect to competing explanations for defendants’ behavior—such as product promotion or “legal” predation—that likewise require recoupment? This article addresses these questions and others by grounding recoupment and predatory pricing analysis more broadly in a decision framework that focuses on classification (distinguishing illegal predation from other explanations for firms’ pricing) and on the magnitudes of the deterrence benefits and chilling costs of imposing liability. Regarding the latter, although concerns for the chilling of procompetitive activity sensibly drive predatory pricing analysis, the great variation in chilling costs across competing explanations for alleged predation is unrecognized. Much of the analysis here is not particular to recoupment; the investigation aims to inform future research, policy, and practice regarding many aspects of predatory pricing as well as other forms of anticompetitive conduct. Forthcoming, Journal of Legal Analysis (2018)
{"title":"Recoupment and Predatory Pricing Analysis","authors":"L. Kaplow","doi":"10.1093/JLA/LAY003","DOIUrl":"https://doi.org/10.1093/JLA/LAY003","url":null,"abstract":"Recoupment inquiries play an increasingly important role in antitrust analysis, yet they raise a number of conundrums: How can a failure of recoupment due to the plausible long-run profit recovery being dwarfed by short-run losses be reconciled with a defense of no predation that presupposes no short-run sacrifice to begin with? How can recoupment inquiries be diagnostic with respect to competing explanations for defendants’ behavior—such as product promotion or “legal” predation—that likewise require recoupment? This article addresses these questions and others by grounding recoupment and predatory pricing analysis more broadly in a decision framework that focuses on classification (distinguishing illegal predation from other explanations for firms’ pricing) and on the magnitudes of the deterrence benefits and chilling costs of imposing liability. Regarding the latter, although concerns for the chilling of procompetitive activity sensibly drive predatory pricing analysis, the great variation in chilling costs across competing explanations for alleged predation is unrecognized. Much of the analysis here is not particular to recoupment; the investigation aims to inform future research, policy, and practice regarding many aspects of predatory pricing as well as other forms of anticompetitive conduct. Forthcoming, Journal of Legal Analysis (2018)","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2018-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84469988","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Jon Kleinberg,Jens Ludwig,Sendhil Mullainathan,Cass R Sunstein
Abstract The law forbids discrimination. But the ambiguity of human decision-making often makes it hard for the legal system to know whether anyone has discriminated. To understand how algorithms affect discrimination, we must understand how they affect the detection of discrimination. With the appropriate requirements in place, algorithms create the potential for new forms of transparency and hence opportunities to detect discrimination that are otherwise unavailable. The specificity of algorithms also makes transparent tradeoffs among competing values. This implies algorithms are not only a threat to be regulated; with the right safeguards, they can be a potential positive force for equity.
{"title":"Discrimination in the Age of Algorithms","authors":"Jon Kleinberg,Jens Ludwig,Sendhil Mullainathan,Cass R Sunstein","doi":"10.1093/jla/laz001","DOIUrl":"https://doi.org/10.1093/jla/laz001","url":null,"abstract":"Abstract The law forbids discrimination. But the ambiguity of human decision-making often makes it hard for the legal system to know whether anyone has discriminated. To understand how algorithms affect discrimination, we must understand how they affect the detection of discrimination. With the appropriate requirements in place, algorithms create the potential for new forms of transparency and hence opportunities to detect discrimination that are otherwise unavailable. The specificity of algorithms also makes transparent tradeoffs among competing values. This implies algorithms are not only a threat to be regulated; with the right safeguards, they can be a potential positive force for equity.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138520804","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article provides the first comprehensive, global examination of state and international practice bearing on Article 49(6) of the Fourth Geneva Convention, which provides that an “Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” This provision is a staple of legal and diplomatic international discussions of the Arab-Israeli conflict, and serves as the basis for criticism of Israeli settlement policy. Despite its frequent invocation in the Israeli context, scholars have never examined – or even considered – how the norm has been interpreted and applied in any other occupation context in the post-WWII era. For example, the International Committee of the Red Cross’s (ICRC) influential Study on Customary International Humanitarian Law lists 107 instances of national practice and UN practice applying or interpreting the prohibition, and all but two relate to Israel. Many questions exist about the scope and application of Art. 49(6)’s prohibition on “transfer,” but they have generally been answered on purely theoretically. To better understand what Art. 49(6) does in fact demand, this Article closely examines its application in all other cases in which it could apply. Many of the settlement enterprises studied in this Article have never been discussed or documented. All of these situations involved the movement of settlers into the occupied territory, in numbers ranging from thousands to hundreds of thousands. Indeed, perhaps every prolonged occupation of contiguous habitable territory has resulted in significant settlement activity.Clear patterns emerge from this systematic study of state practice. Strikingly, the state practice paints a picture that is significantly inconsistent with the prior conventional wisdom concerning Art. 49(6). First, the migration of people into occupied territory is a near-ubiquitous feature of extended belligerent occupations. Second, no occupying power has ever taken any measures to discourage or prevent such settlement activity, nor has any occupying power ever expressed opinio juris suggesting that it is bound to do so. Third, and perhaps most strikingly, in none of these situations have the international community or international organizations described the migration of persons into the occupied territory as a violation of Art. 49(6). Even in the rare cases in which such policies have met with international criticism, it has not been in legal terms. This suggests that the level of direct state involvement in “transfer” required to constitute an Art. 49(6) violation may be significantly greater than previously thought. Finally, neither international political bodies nor the new governments of previously occupied territories have ever embraced the removal of illegally transferred civilian settlers as an appropriate remedy.The deeper understanding – based on a systematic survey of all available state practice – of the prohibition on settlements should
本条第一次全面、全面地审查了与《日内瓦第四公约》第49条第6款有关的国家和国际惯例，该条规定“占领国不得将其本国平民的一部分驱逐或移送到其占领的领土”。这一规定是关于阿以冲突的法律和外交国际讨论的主要内容，也是批评以色列定居点政策的依据。尽管它经常在以色列的背景下被引用，但学者们从来没有研究过——甚至没有考虑过——在二战后的任何其他占领背景下，这一规范是如何被解释和应用的。例如，红十字国际委员会(ICRC)颇具影响力的《习惯国际人道主义法研究》(Study on Customary International Humanitarian Law)列出了107个国家实践和联合国实践适用或解释禁令的例子，除了两个以外，其余都与以色列有关。关于第49条第(6)款禁止“转让”的范围和适用，存在着许多问题，但一般都是在纯理论上得到了解答。为了更好地理解第49条第(6)款的实际要求，本文仔细审查了它在所有其他可能适用的情况下的适用情况。本文研究的许多聚落企业从未被讨论或文献记载。所有这些情况都涉及移民进入被占领领土，人数从数千到数十万不等。事实上，也许每一次对连续可居住领土的长期占领都会导致大量的定居活动。这种对国家实践的系统研究，形成了清晰的模式。引人注目的是，国家实践描绘了一幅与第49(6)条之前的传统智慧明显不一致的画面。首先，人民向被占领土的迁移是长期交战占领的一个几乎无处不在的特征。第二，没有任何占领国采取任何措施阻止或阻止这种定居活动，也没有任何占领国在法律上表示它必须这样做。第三，也许也是最引人注目的是，在所有这些情况下，国际社会或国际组织都没有将人员向被占领领土的移徙描述为违反第49(6)条。即使在少数情况下，这些政策遭到了国际社会的批评，但也不是在法律上。这表明，构成第49(6)条违反所要求的国家直接参与“转让”的程度可能比以前认为的要大得多。最后，无论是国际政治机构还是以前被占领领土的新政府，都从未把驱逐非法转移的平民定居者作为一种适当的补救办法。基于对所有现有国家实践的系统调查对禁止定居点的更深入了解，应该为关于阿拉伯-以色列冲突的法律讨论提供信息，包括国际刑事法院可能对这种活动进行的调查。更广泛地说，本文对第49条第6款的新理解也可以为如何正确对待几个正在进行的占领提供重要启示，从西撒哈拉和北塞浦路斯，到俄罗斯对乌克兰和格鲁吉亚的占领，本条首次记录了这些占领的解决政策。
{"title":"Unsettled: A Global Study of Settlements in Occupied Territories","authors":"E. Kontorovich","doi":"10.2139/SSRN.2835908","DOIUrl":"https://doi.org/10.2139/SSRN.2835908","url":null,"abstract":"This Article provides the first comprehensive, global examination of state and international practice bearing on Article 49(6) of the Fourth Geneva Convention, which provides that an “Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” This provision is a staple of legal and diplomatic international discussions of the Arab-Israeli conflict, and serves as the basis for criticism of Israeli settlement policy. Despite its frequent invocation in the Israeli context, scholars have never examined – or even considered – how the norm has been interpreted and applied in any other occupation context in the post-WWII era. For example, the International Committee of the Red Cross’s (ICRC) influential Study on Customary International Humanitarian Law lists 107 instances of national practice and UN practice applying or interpreting the prohibition, and all but two relate to Israel. Many questions exist about the scope and application of Art. 49(6)’s prohibition on “transfer,” but they have generally been answered on purely theoretically. To better understand what Art. 49(6) does in fact demand, this Article closely examines its application in all other cases in which it could apply. Many of the settlement enterprises studied in this Article have never been discussed or documented. All of these situations involved the movement of settlers into the occupied territory, in numbers ranging from thousands to hundreds of thousands. Indeed, perhaps every prolonged occupation of contiguous habitable territory has resulted in significant settlement activity.Clear patterns emerge from this systematic study of state practice. Strikingly, the state practice paints a picture that is significantly inconsistent with the prior conventional wisdom concerning Art. 49(6). First, the migration of people into occupied territory is a near-ubiquitous feature of extended belligerent occupations. Second, no occupying power has ever taken any measures to discourage or prevent such settlement activity, nor has any occupying power ever expressed opinio juris suggesting that it is bound to do so. Third, and perhaps most strikingly, in none of these situations have the international community or international organizations described the migration of persons into the occupied territory as a violation of Art. 49(6). Even in the rare cases in which such policies have met with international criticism, it has not been in legal terms. This suggests that the level of direct state involvement in “transfer” required to constitute an Art. 49(6) violation may be significantly greater than previously thought. Finally, neither international political bodies nor the new governments of previously occupied territories have ever embraced the removal of illegally transferred civilian settlers as an appropriate remedy.The deeper understanding – based on a systematic survey of all available state practice – of the prohibition on settlements should ","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2017-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77757554","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Thisarticleexplorestheprevalenceofunenforceableandmisleadingtermsinresidential rental contracts. For this purpose, the study analyzes a sample of seventy residential leasesfromtheGreaterBostonAreaintermsofMassachusettsLandlordandTenantLaw. The article’s findings reveal that landlords often use deceptive—as well as clearly in-valid—provisions in their contracts, and regularly fail to disclose the vast majority of the mandatory rights and remedies that the law bestows upon tenants in their leases. Building on psychological insights and on survey evidence, the article suggests that this drafting pattern may significantly affect tenants’ decisions and behavior. In particu-lar,whenaproblemoradisputewiththelandlordarises,tenantsarelikelytoperceivethe terms in their lease agreements as enforceable and binding, and consequently forgo validlegalrightsandclaims.Therefore,thearticleexpectsthatsuchclauseswillpersistas long as monitoring and enforcement mechanisms do not sufficiently deter landlords from using such terms in their contracts. In light of this evidence, the article discusses preliminary policy prescriptions.
{"title":"On the Unexpected Use of Unenforceable Contract Terms: Evidence from the Residential Rental Market","authors":"Meirav Furth-Matzkin","doi":"10.1093/JLA/LAX002","DOIUrl":"https://doi.org/10.1093/JLA/LAX002","url":null,"abstract":"Thisarticleexplorestheprevalenceofunenforceableandmisleadingtermsinresidential rental contracts. For this purpose, the study analyzes a sample of seventy residential leasesfromtheGreaterBostonAreaintermsofMassachusettsLandlordandTenantLaw. The article’s findings reveal that landlords often use deceptive—as well as clearly in-valid—provisions in their contracts, and regularly fail to disclose the vast majority of the mandatory rights and remedies that the law bestows upon tenants in their leases. Building on psychological insights and on survey evidence, the article suggests that this drafting pattern may significantly affect tenants’ decisions and behavior. In particu-lar,whenaproblemoradisputewiththelandlordarises,tenantsarelikelytoperceivethe terms in their lease agreements as enforceable and binding, and consequently forgo validlegalrightsandclaims.Therefore,thearticleexpectsthatsuchclauseswillpersistas long as monitoring and enforcement mechanisms do not sufficiently deter landlords from using such terms in their contracts. In light of this evidence, the article discusses preliminary policy prescriptions.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2017-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80973289","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"An Autopsy of Cooperation: Diamond Dealers and the Limits of Trust-Based Exchange","authors":"Barak D Richman","doi":"10.1093/jla/lax003","DOIUrl":"https://doi.org/10.1093/jla/lax003","url":null,"abstract":"","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138520851","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Property Is Only Another Name for Monopoly","authors":"Eric A. Posner,E. Glen Weyl","doi":"10.1093/jla/lax001","DOIUrl":"https://doi.org/10.1093/jla/lax001","url":null,"abstract":"","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138520801","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Unsettled: A Global Study Of Settlements In Occupied Territories","authors":"Eugene Kontorovich","doi":"10.1093/jla/lax004","DOIUrl":"https://doi.org/10.1093/jla/lax004","url":null,"abstract":"","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138520803","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In ordinary life, people who assess other people’s assessments typically take into account the other judgments of those they are assessing in order to calibrate the judgment they are now assessing. The restaurant and hotel rating website TripAdvisor is exemplary, because it facilitates calibration by providing access to a rater’s previous ratings. This makes it possible to see whether a particular rating is coming from a rater who is enthusiastic about every place she patronizes, or from someone who is incessantly hard to please. And even when less systematized, as with the assessment of a letter of recommendation or a college transcript, calibration by recourse to the decisional history of those whose judgments we are assessing is a ubiquitous feature of ordinary life. Yet despite the ubiquity and utility of such calibration, the legal system seems perversely to reject it. Appellate courts do not openly adjust their standard of review based on the previous judgments of the judge whose decision they are reviewing, nor do judges who review legislative or administrative decisions, magistrates who evaluate search warrant representations, and even jurors who assess witness perception. In most legal domains, calibration by reference to the other decisions of the judgment being reviewed is invisible, either because it does not exist or because what reviewing bodies know informally is not something they are willing to admit to using. Appellate courts do not, at least openly, look more carefully at the decisions of a trial judge whose decisions are often reversed, and administrative law judges do not acknowledge examining the decisions of some administrators more closely because of what they know about the decisional history of that administrator. However common it is for ordinary people to attempt to calibrate the decisions of those on whom they rely, the law generally resists such calibration, implicitly prohibiting access to a reviewee’s decisional history and discouraging publicly acknowledging that a decisional history has played a role in a reviewer’s decision. Assisted by insights from cognitive psychology and philosophy, this Article examines law’s seeming aversion to calibration, and to explore what this aversion says about the nature of law and legal decision-making.
{"title":"Calibrating Legal Judgments","authors":"F. Schauer, Barbara A. Spellman","doi":"10.1093/JLA/LAW010","DOIUrl":"https://doi.org/10.1093/JLA/LAW010","url":null,"abstract":"In ordinary life, people who assess other people’s assessments typically take into account the other judgments of those they are assessing in order to calibrate the judgment they are now assessing. The restaurant and hotel rating website TripAdvisor is exemplary, because it facilitates calibration by providing access to a rater’s previous ratings. This makes it possible to see whether a particular rating is coming from a rater who is enthusiastic about every place she patronizes, or from someone who is incessantly hard to please. And even when less systematized, as with the assessment of a letter of recommendation or a college transcript, calibration by recourse to the decisional history of those whose judgments we are assessing is a ubiquitous feature of ordinary life. Yet despite the ubiquity and utility of such calibration, the legal system seems perversely to reject it. Appellate courts do not openly adjust their standard of review based on the previous judgments of the judge whose decision they are reviewing, nor do judges who review legislative or administrative decisions, magistrates who evaluate search warrant representations, and even jurors who assess witness perception. In most legal domains, calibration by reference to the other decisions of the judgment being reviewed is invisible, either because it does not exist or because what reviewing bodies know informally is not something they are willing to admit to using. Appellate courts do not, at least openly, look more carefully at the decisions of a trial judge whose decisions are often reversed, and administrative law judges do not acknowledge examining the decisions of some administrators more closely because of what they know about the decisional history of that administrator. However common it is for ordinary people to attempt to calibrate the decisions of those on whom they rely, the law generally resists such calibration, implicitly prohibiting access to a reviewee’s decisional history and discouraging publicly acknowledging that a decisional history has played a role in a reviewer’s decision. Assisted by insights from cognitive psychology and philosophy, this Article examines law’s seeming aversion to calibration, and to explore what this aversion says about the nature of law and legal decision-making.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2016-10-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84848265","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article examines the rise of the administrative guidance under the APA. Guidances supply information so private parties can organize their behavior in accordance with law, but also allow agencies, without notice and comment, to indiscriminately expand their power. Separating useful from dangerous guidances requires allowing review of all guidances de novo as questions of law, without Chevron and Skidmore deference, by any interested party, even for nonfinal agency actions. Private selection effects will limit challenges to dangerous guidances without undermining those guidances that reduce uncertainty without improperly expanding the scope of agency power. The purpose of this article is to analyze the role that various guidance statements have played in the modern law of administrative procedure. In one sense this inquiry is an odd one, because the canonical statute of administrative law, the Administrative Procedure Act of 1946 (APA), 5 U.S.C. § 500 et seq, does not use the term “guidance” at all. Historically, the phrase only worked its way into administrative law in the mid-1990s, about 50 years after the passage of the APA
本文考察了APA下行政指导的兴起。指导方针提供了信息，使私人当事人可以依法组织他们的行为，但也允许机构在没有通知和评论的情况下不分青红皂白地扩大他们的权力。将有用的指导意见与危险的指导意见区分开来，需要允许将所有指导意见作为法律问题重新审查，而不需要任何利益相关方服从雪佛龙和斯基德莫尔，即使是非最终机构行动。私人选择效应将限制对危险指导方针的挑战，而不会破坏那些减少不确定性的指导方针，而不会不当扩大代理权力的范围。本文旨在分析各种指导性陈述在现代行政程序法中所起的作用。从某种意义上说，这项调查是一项奇怪的调查，因为行政法的规范法规，即1946年的行政程序法(APA)， 5 U.S.C.§500 et seq，根本没有使用“指导”一词。从历史上看，这个短语直到20世纪90年代中期才进入行政法，大约在APA通过50年后
{"title":"The Role of Guidances in Modern Administrative Procedure: The Case for De Novo Review","authors":"R. Epstein","doi":"10.1093/JLA/LAV012","DOIUrl":"https://doi.org/10.1093/JLA/LAV012","url":null,"abstract":"This article examines the rise of the administrative guidance under the APA. Guidances supply information so private parties can organize their behavior in accordance with law, but also allow agencies, without notice and comment, to indiscriminately expand their power. Separating useful from dangerous guidances requires allowing review of all guidances de novo as questions of law, without Chevron and Skidmore deference, by any interested party, even for nonfinal agency actions. Private selection effects will limit challenges to dangerous guidances without undermining those guidances that reduce uncertainty without improperly expanding the scope of agency power. The purpose of this article is to analyze the role that various guidance statements have played in the modern law of administrative procedure. In one sense this inquiry is an odd one, because the canonical statute of administrative law, the Administrative Procedure Act of 1946 (APA), 5 U.S.C. § 500 et seq, does not use the term “guidance” at all. Historically, the phrase only worked its way into administrative law in the mid-1990s, about 50 years after the passage of the APA","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2016-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81318049","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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