Haideotriton and H. wallacei

Number of Pages: 2Integrative BiologyGeological Science

Auer Deference: Doubling Down on Delegation\u27s Defects

Together with the better-known Chevron deference rule, the doctrine articulated in Auer v. Robbins two decades ago—which makes reasonable administrative constructions of ambiguous administrative rules binding on courts in most circumstances—has become a focal point for concerns about the expanding administrative state. Auer deference, even more than Chevron deference, enlarges administrative authority in ways that are at odds with basic constitutional structures and due process requirements. Objections to Auer have provided cogent reasons for why courts should not grant deference to administrative interpretations merely because an agency’s rule is unclear. The most commonly voiced objections, however, do not explain why Congress should be disabled in all instances from granting administrators discretionary authority over rule interpretation—even in settings that do not raise serious risks of partiality or unfair surprise in administrative construction. Examining the relationship between statutorily directed deference and constitutional-structural principles clarifies the essential underlying objection to Auer and the limits of that objection. When Congress by law confers discretionary authority that does not exceed its constitutional power to delegate functions to an administrator, courts should respect that assignment of authority, unless it violates other specific constitutional commands. Yet, when delegations are at most only arguably consistent with the Constitution, extending deference—especially expanding deference as Auer does in successive determinations—exacerbates delegations’ difficulties. A reinvigorated nondelegation doctrine would solve the major Auer problem directly, and elimination of Auer-like deference would clearly be preferable to retaining the doctrine in its current form. Short of that, demanding that the statutory basis for deference is clearly articulated would provide a modest first step in cabining problems associated with constitutionally questionable delegations of lawmaking authority. Those who embrace the rule of law, whether advocates or opponents of the modern administrative state, should support that step

Looking With One Eye Closed: The Twilight of Administrative Law

n an article published recently in this Journal, Judge Loren Smith calls for a change in the focus of thinking and writing about administrative law. Attractive though his general themes are, in developing them Judge Smith passes much too quickly over two important points: the difficulty of arriving at political consensus, and the importance to political consensus of exactly those processes to which Smith objects

External Sovereignty and International Law

This essay addresses the need to redefine current notions of sovereignty. It returns to earlier concepts of subjects joining to receive the benefits of peace and security provided by the sovereign. It diverges from most contemporary commentary by avoiding what has become traditional second-tier social contract analysis. In place of a social contract of states, this redefinition of sovereignty recognizes that international law in the twentieth century has developed direct links between the individual and international law. The trend toward democracy as an international law norm further supports discarding notions of a two-tiered social contract relationship between the individual and international law

When Good Observers Go Bad: Change Blindness, Inattentional Blindness, and Visual Experience

Several studies (e.g., Becklen & Cervone, 1983; Mack & Rock, 1998; Neisser & Becklen, 1975) have found that observers attending to a particular object or event often fail to report the presence of unexpected items. This has been interpreted as inattentional blindness (IB), a failure to see unattended items (Mack & Rock, 1998). Meanwhile, other studies (e.g., Pashler, 1988; Phillips, 1974; Rensink et al., 1997; Simons, 1996) have found that observers often fail to report the presence of large changes in a display when these changes occur simultaneously with a transient such as an eye movement or flash of the display. This has been interpreted as change blindness (CB), a failure to see unattended changes (Rensink et al., 1997). In both cases there is a striking failure to report an object or event that would be quite visible under other circumstances. And in both cases there is a widespread (although not universal) belief that the underlying cause has to do with the absence of attention. The question then arises as to how these effects might be related. Is CB the same thing as IB? If not, what is the relation between them? And given that these phenomena deal with failures of subjective perception, what can they teach us about the nature of our visual experience? In particular, what can they teach us about the role played by visual attention

Gyrinophilus

Number of Pages: 2Integrative BiologyGeological Science

Gyrinophilus porphyriticus

Number of Pages: 3Integrative BiologyGeological Science

Fissidens in the Neotropics

The land areas of the Western Hemisphere south of the United States support over 276 species of Fissidens (Wijk et al. 1962, 1969). This number is approximately 30% of the total number of species known. Progress made on a monograph of the family in the neotropics and the adjacent areas is summarized; approximately 50% of the species have been studied. Commonality among the neotropical, African and Asian species of Fissidens is discussed. Changes to be made in the classification of the family are indicated. New characters used in distinguishing species and the classification of the family are enumerated