Judicial Incentives and Indeterminacy in Substantive Review of Administrative Decisions

In the Chevron and State Farm cases the Supreme Court announced what appeared to be controlling standards for substantive review of administrative decisions. Instead, the Chevron framework has broken down, and State Farm has been all but ignored by agencies and the courts, including the Supreme Court. This article accounts for this breakdown by analyzing the impact of judicial incentives on substantive review in administrative law

Judicial Incentives and Indeterminacy in Substantive Review of Administrative Decisions

Uppsatsen tydliggör och beskriver innehållet i elva lokala överenskommelser (LÖK) mellan civilsamhället och offentlig sektor. Studien visar också hur relationen mellan parterna avspeglas i texterna. Uppsatsen visar också på hur olika idéer och synsätt i överenskommelserna kan få praktiska konsekvenser för civilsamhället

Social Security Disability Determinations: Recommendations for Reform

Full-text available at SSRN. See link in this record.This report for the Federal Courts Study Committee, which is reprinted as part of a symposium gathering a number of these reports, focuses on the contribution of Social Security disability claims to dramatic increases in the caseloads of the federal courts. After providing general background concerning the statutory and regulatory standards and procedural apparatus for determining whether a claimant is “disabled” so as to qualify for benefits, the report examines the Social Security caseload crisis. The report gathers caseload statistics at the agency and federal court levels, documenting a dramatic rise in the number of cases at all levels that cannot be linked to any corresponding rise in the number of benefit claims being filed. Instead, the caseload crises appears to be the product of a number of controversial policies and practices adopted by the Social Security Administration (SSA) that led to a dramatic rise in the denial of claims and termination of benefits for claimants already receiving them. These policies included the use of “continuing disability reviews” to terminate benefits even when the claimant’s condition had not changed, the imposition of substantive or evidentiary requirements that made it more difficult to establish disability, administrative oversight efforts widely perceived as pressuring decisionmakers to deny benefits, and an SSA policy of nonacquiescence in adverse judicial decisions. The SSA’s treatment of mental impairments, complaints of pain, and the opinions of treating physicians were particular significant areas of concern. Based on this information and analysis, the report concludes that reform is desirable, that it must balance efficiency and fairness, and it should be comprehensive. In light of these conclusions, the report offers four recommendations interrelated recommendations designed to streamline the process and improve decisional outcomes. First, federal district court review should be eliminated and that court of appeals review should be limited to statutory and constitutional issues and confined to the federal circuit. Second, Congress should create an Article I court of disability review that would have jurisdiction over Social Security, Veteran’s Benefits, and other disability claims, while eliminated the role of the Social Security Administration’s Appeal’s Council. Third, administrative law judges who decide Social Security claims should be removed from the administrative hierarchy of the SSA and placed in an independent corps (although still bound by agency regulations). Fourth, improvements to state level disability determination services that make initial determinations under contract with SSA should be considered. These recommendations, taken together, would streamline the process by reducing the number of steps, increase the objectivity and accuracy of disability decisions at the administrative level, and allow for the development of a specialized judiciary with greater expertise in disability matters

A Genetic Locus Regulates the Expression of Tissue-Specific mRNAs from Multiple Transcription Units

129 GIX- mice, unlike animals of the congeneic partner strain GIX+, do not express significant amounts of the retroviral antigens gp70 and p30. Evidence is presented indicating that the GIX phenotype is specified by a distinct regulatory gene acting on multiple transcription units to control the levels of accumulation of specific mRNA species. The steady-state levels of retroviral-homologous mRNA from the tissues of GIX+ and GIX- mice were examined by blot hybridization using as probes DNA fragments from cloned murine leukemia viruses. RNA potentially encoding viral antigens was reduced or absent in GIX- mice, even though no differences in integrated viral genomes were detected between these congeneic strains by DNA blotting. Tissue-specific patterns of accumulation of these RNA species were detected in brain, epididymis, liver, spleen, and thymus, and several distinct RNA species were found to be coordinately regulated with the GIX phenotype. Measurements of RNA synthesis suggest a major role for transcriptional control in the regulation of some retroviral messages

The Tie That Binds: Some Thoughts About the Rule of Law, Law and Economics, Collective Action Theory, Reciprocity, and Heisenberg's Uncertainty Principle

This is the published version

Postracial Remedies

The Supreme Court’s equal protection jurisprudence is decidedly postracial. The Court has restricted the Equal Protection Clause to intentional discrimination by the government, concluding that the Constitution does not prohibit private acts of discrimination and rejecting challenges based on disparate impact, even when rigorous statistical analysis indicates that race is likely a factor. It has held that remedying the effects of past societal discrimination is an insufficient basis for race-specific remedies such as affirmative action. It has also ended remedies of this sort designed to combat previous state-sponsored racial discrimination, such as court-ordered desegregation measures in the schools and the preclearance provisions of the Voting Rights Act. Constitutional litigation currently provides little or no recourse to address racial disparities in outcomes that are not demonstrably caused by intentional governmental racial discrimination, and race-specific remedies face a level of judicial scrutiny that is especially difficult to satisfy. This Article asks what can be done under these circumstances to ameliorate racial inequality in a manner that is politically feasible and does not run afoul of constitutional limits. It argues that “postracial remedies” are a necessary component of an effective strategy to combat racial disparities in areas such as wealth, incarceration, education, and housing. Postracial remedies seek pragmatic solutions for the economic, social, and structural problems that disproportionately burden blacks in the United States. These remedies are not race specific because they do not treat people differently based on race, but they are race sensitive because they target the manifestations of racial inequality and recognize the salience of race in today’s political and legal environment. This approach, which seeks legally achievable remedies, is also consistent with “antibalkanization” perspectives associated with “race moderates” whose civil rights equal protection jurisprudence is motivated, in part, by a concern with preserving social cohesion. Although postracial remedies are necessary within this postracial ethos, pursuing them does not require acceptance of the postracial narrative or the abandonment of advocacy to combat ongoing racial discrimination