• Selected
• Entire List

Abstract:
For many years, Congress has had various bills before it to create alternatives to the current practice of Article III review (in district courts) of Social Security disability cases. This report, prepared initially for the Social Security Advisory Board, reviews the various legislative proposals and statutory alternatives such as the Veterans Administration administrative/judicial review structure. It concludes that, on balance, review before an Article I court (with Court of Appeals review limited to purely legal issues) has numerous advantages over the present system. These advantages include improvements in the accuracy and consistency of results (the federal district courts have vastly divergent reversal rates) and in the creation of a regulatory feedback loop that would allow the SSA and its ALJs to learn why cases get reversed or remanded in the first place. The report disfavors the alternative of Article III review in a specialized federal court of appeals.

Social Security Disability Cases

Abstract:
After a promising start in the 1980s and 1990s, the use of negotiated rulemaking (a process by which agencies and stakeholders negotiate the terms of a proposed rule, before the usual process of notice-and-comment) has waned in the current decade to the point where it is now used half as often as it was in the 1990s. Moreover, most negotiated rulemakings this decade have not been voluntarily undertaken; they have been congressionally mandated.

This paper describes the technique, documents and laments its disuse and suggests reasons for why this is happening.

administrative law, rulemaking, negotiated rulemaking, regulation

Abstract:
This paper was originally an address to the Ohio Northern Law School as part of the Dean's Lecture Series in 2007. It recounts the reduction in rulemaking by federal agencies in the past few decades and provides reasons for this - additional procedural and analytical requirements added by the Congress, White House and the courts. It also suggests that the electronic rulemaking revolution may be provide a way out of this burden, but one fraught with legal and practical challenges.

Administrative Law, Rulemaking, Regulation