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| Author | : Gary Elvin Marchant |
| Publisher | : American Enterprise Institute |
| Total Pages | : 112 |
| Release | : 2004 |
| Genre | : Business & Economics |
| ISBN | : 9780844741895 |
This study examines how the European Union has used the precautionary principle in legal decisions.
| Author | : Michael A. Foley |
| Publisher | : Bloomsbury Publishing USA |
| Total Pages | : 266 |
| Release | : 2003-06-30 |
| Genre | : Law |
| ISBN | : 0313057117 |
Justice Marshall once remarked that if people knew what he knew about the death penalty, they would reject it overwhelmingly. Foley elucidates Marshall's claim that fundamental flaws exist in the implementation of the death penalty. He guides us through the history of the Supreme Court's death penalty decisions, revealing a constitutional quagmire the Court must navigate to avoid violating the fundamental tenant of equal justice for all. Nearly 100 influential Supreme Court capital punishment-related cases from 1878-2002 are examined, beginning with Wilkerson v. Utah, which question not the legitimacy of capital punishment, but the methods of execution. Over time, focus shifted from the constitutionality of certain methods to the fairness of who was being sentenced for capital crimes—and why. The watershed 1972 ruling Furman v. Georgia reversed the Court's stand on capital punishment, holding that the arbitrary and capricious imposition of the death penalty is cruel and unusual punishment, and therefore unconstitutional. Furman clarified that any new death penalty legislation must contain sentencing procedures that avoid the arbitrary infliction of a life-ending verdict, which led to the current complex tangle of issues surrounding the death penalty and its constitutional viability.
| Author | : LandMark Publications |
| Publisher | : |
| Total Pages | : 550 |
| Release | : 2017-05-22 |
| Genre | : |
| ISBN | : 9781521340929 |
THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that discuss, analyze and interpret the arbitrary and capricious standard under the Administrative Procedure Act. The selection of decisions spans from 2014 to the date of publication.Under the APA, an agency action, finding, or conclusion can be set aside where it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" or is "unsupported by substantial evidence." 5 U.S.C. � 706(2)(A), (E). This standard is "exceedingly deferential." Defs. of Wildlife v. U.S. Dep't of Navy, 733 F.3d 1106, 1115 (11th Cir. 2013) (quoting Fund for Animals, Inc. v. Rice, 85 F.3d 535, 541(11th Cir. 1996)). Mendoza v. Secretary, Department of Homeland Security, (11th Cir. 2017)To determine whether the agency's action was arbitrary and capricious, we examine whether the agency came to a rational conclusion and do not substitute our own judgment for that of the agency. Id. We set aside an agency action as arbitrary and capricious only where (1) the agency "relied on factors which Congress has not intended it to consider," (2) the agency "failed to consider an important aspect of the problem," (3) the agency explained its decision in a way "that runs counter to the evidence," or (4) the action "is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Id. (quoting Miccosukee Tribe of Indians of Fla. v. United States, 566 F.3d 1257, 1264 (11th Cir. 2009)).
| Author | : LandMark Publications |
| Publisher | : |
| Total Pages | : 536 |
| Release | : 2018-03-11 |
| Genre | : |
| ISBN | : 9781980499886 |
THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply the arbitrary and capricious standard under the Administrative Procedure Act. * * * Under Administrative Procedure Act § 706(2)(A), a reviewing court may set aside an agency action if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).An agency interpretation would surely be "arbitrary" or "capricious" if it were picked out of a hat, or arrived at with no explanation, even if it might otherwise be deemed reasonable on some unstated ground. Catskill Mountains Chapter of Trout v. EPA, 846 F. 3d 492, (2nd Cir. 2017). * * * So long as any change is reasonably explained, it is not arbitrary and capricious for an agency to change its mind in light of experience, or in the face of new or additional evidence, or further analysis or other factors indicating that the agency's earlier decision should be altered or abandoned. Cf. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 514-16 (2009). New England Power Generators Association, Inc. v. Federal Energy Regulatory Commission, (DC Cir. 2018). * * *It is well-settled that the NLRB -- like any other agency -- cannot "turn[] its back on its own precedent and policy without reasoned explanation." Dupuy v. NLRB, 806 F.3d 556, 563 (D.C. Cir. 2015); see also E.I. Du Pont de Nemours & Co. v. NLRB, 682 F.3d 65, 70 (D.C. Cir. 2012) (explaining that the NLRB must "give a reasoned justification for departing from its precedent"). Generally speaking, "the requirement that an agency provide reasoned explanation for its action ... demand[s] that it display awareness that it is changing position. An agency may not, for example, depart from a prior policy sub silentio or simply disregard rules that are still on the books." FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009). And if "a party makes a significant showing that analogous cases have been decided differently, the agency must do more than simply ignore that argument." LeMoyne-Owen Coll. v. NLRB, 357 F.3d 55, 61 (D.C. Cir. 2004). Thus, when the Board fails to explain -- or even acknowledge -- its deviation from established precedent, "its decision will be vacated as arbitrary and capricious." Manhattan Ctr. Studios, Inc., v. NLRB, 452 F.3d 813, 816 (D.C. Cir. 2006). ABM Onsite Services v. NLRB, 849 F. 3d 1137 (DC Cir. 2017).
| Author | : Frank R. Baumgartner |
| Publisher | : Oxford University Press |
| Total Pages | : 417 |
| Release | : 2018 |
| Genre | : Law |
| ISBN | : 0190841540 |
Forty years and 1,400 executions after the U.S. Supreme Court ruled the death penalty constitutional, eminent political scientist Frank Baumgartner and a team of younger scholars have collaborated to assess the empirical record and provide a definitive account of how the death penalty has been implemented. A Statistical Portrait of the Death Penalty shows that all the flaws that caused the Supreme Court to invalidate the death penalty in 1972 remain and indeed that new problems have arisen. Far from "perfecting the mechanism" of death, the modern system has failed.
| Author | : August Reinisch |
| Publisher | : Cambridge University Press |
| Total Pages | : 1633 |
| Release | : 2020-07-16 |
| Genre | : Law |
| ISBN | : 1108882706 |
This book outlines the protection standards typically contained in international investment agreements as they are actually applied and interpreted by investment tribunals. It thus provides a basis for analysis, criticism, and stocktaking of the existing system of investment arbitration. It covers all main protection standards, such as expropriation, fair and equitable treatment, full protection and security, the non-discrimination standards of national treatment and MFN, the prohibition of unreasonable and discriminatory measures, umbrella clauses and transfer guarantees. These standards are covered in separate chapters providing an overview of textual variations, explaining the origin of the standards and analysing the main conceptual issues as developed by investment tribunals. Relevant cases with quotations that illustrate how tribunals have relied upon the standards are presented in depth. An extensive bibliography guides the reader to more specific aspects of each investment standard permitting the book's use as a commentary of the main investment protection standards.
| Author | : Sofia Ranchordás |
| Publisher | : Routledge |
| Total Pages | : 224 |
| Release | : 2015-06-12 |
| Genre | : Law |
| ISBN | : 1317606124 |
This book examines different legal systems and analyses how the judge in each of them performs a meaningful review of the proportional use of discretionary powers by public bodies. Although the proportionality test is not equally deep-rooted in the literature and case-law of France, Germany, the Netherlands and the United Kingdom, this principle has assumed an increasing importance partly due to the influence of the European Court of Justice and European Court of Human Rights. In the United States, different standards of judicial review are applied to review ‘arbitrary and capricious’ agency discretion. However, do US judges achieve a similar result to the proportionality or reasonableness test? Drawing together a selection of key experts in the field, this book analyses the principle of proportionality in the judicial review of administrative decisions from different perspectives. The principle is first examined in the context of recent developments in the literature and case-law, including the inevitable EU influence, then light shall be shed on the meaning of this principle in the specific case-law of the European Court of Justice and European Court of Human Rights. Finally, the authors go on to explore the ways in which US judges consciously ‘sanction’ the ‘disproportionate’ and/or unreasonable’ use of agency discretion. In the legal systems where the proportionality test plays a very limited role, Ranchordás and de Waard also try to clarify why this is the case and look at what alternative solutions have been found. This book will be of great interest to scholars of public and administrative law, and EU law.
| Author | : Jerry L. Mashaw |
| Publisher | : |
| Total Pages | : 300 |
| Release | : 2013-10-01 |
| Genre | : |
| ISBN | : 9780674423466 |
Combining superb investigative reporting with incisive analysis, Jerry Mashaw and David Harfst provide a compelling account of the attempt to regulate auto safety in America. Their penetrating look inside the National Highway Traffic Safety Administration (NHTSA) spans two decades and reveals the complexities of regulating risk in a free society. Hoping to stem the tide of rising automobile deaths and injuries, Congress passed the National Traffic and Motor Vehicle Safety Act in 1966. From that point on, automakers would build cars under the watchful eyes of the federal regulators at NHTSA. Curiously, however, the agency abandoned its safety mission of setting, monitoring, and enforcing performance standards in favor of the largely symbolic act of recalling defective autos. Mashaw and Harfst argue that the regulatory shift from rules to recalls was neither a response to a new vision of the public interest nor a result of pressure by the auto industry or other interest groups. Instead, the culprit was the legal environment surrounding NHTSA and other regulatory agencies such as the EPA, OSHA, and the Consumer Product Safety Commission. The authors show how NHTSA's decisions as well as its organization, processes, and personnel were reoriented in order to comply with the demands of a legal culture that proved surprisingly resistant to regulatory pressures. This broad-gauged view of NHTSA has much to say about political idealism and personal ambition, scientific commitment and professional competition, long-range vision and political opportunism. A fascinating illustration of America's ambivalence over whether government is a source of--or solution to--social ills, The Struggle for Auto Safety offers important lessons about the design and management of effective health and safety regulatory agencies today.
| Author | : Florence Wagman Roisman |
| Publisher | : |
| Total Pages | : 19 |
| Release | : 1989 |
| Genre | : Administrative law |
| ISBN | : |
| Author | : Michael A. Foley |
| Publisher | : Praeger |
| Total Pages | : 0 |
| Release | : 2003-06-30 |
| Genre | : Law |
| ISBN | : 0275975878 |
Justice Marshall once remarked that if people knew what he knew about the death penalty, they would reject it overwhelmingly. Foley elucidates Marshall's claim that fundamental flaws exist in the implementation of the death penalty. He guides us through the history of the Supreme Court's death penalty decisions, revealing a constitutional quagmire the Court must navigate to avoid violating the fundamental tenant of equal justice for all. Nearly 100 influential Supreme Court capital punishment-related cases from 1878-2002 are examined, beginning with Wilkerson v. Utah, which question not the legitimacy of capital punishment, but the methods of execution. Over time, focus shifted from the constitutionality of certain methods to the fairness of who was being sentenced for capital crimes—and why. The watershed 1972 ruling Furman v. Georgia reversed the Court's stand on capital punishment, holding that the arbitrary and capricious imposition of the death penalty is cruel and unusual punishment, and therefore unconstitutional. Furman clarified that any new death penalty legislation must contain sentencing procedures that avoid the arbitrary infliction of a life-ending verdict, which led to the current complex tangle of issues surrounding the death penalty and its constitutional viability.
