Showing papers by "Cass R. Sunstein published in 1983"

Deregulation and the Hard-Look Doctrine

Abstract: In the last fifteen years, courts have begun to command regulatory initiatives and to invalidate deregulation. These developments reflect a shift in the underlying premises of administrative law, a shift that appears to be leading, for the first ime, to a public law divorced from traditional principles of private law. It should not be surprising that this is occurring. The consequence of the New Deal and the enormous growth of regulatory activity since World War II has been the creation of a vast administrative apparatus. The existence of that apparatus represents a substantial rejection of the common-law system of private ordering-a system that afforded the original basis for judicial doctrines controlling administrative action: Public law was built on private law. But things have changed. The electoral process has proved insufficient todiscipline agency decisions, and courts have rejected the notion that political supervision is an adequate safeguard against unlawful or arbitrary failure to regulate. Federal common law,' statutory interpretation,2 and constitutional

Public Employee Strikes, Executive Discretion, and the Air Traffic Controllers

Abstract: On August 3, 1981, the Professional Air Traffic Controllers Organization ("PATCO") launched the first completely nationwide and undisguised strike in history against the federal government. President Reagan, true to his word,1 ordered the discharge of striking controllers who had not returned to work within a two-day grace period.2 Up to the time of this writing, the Administration has rejected all suggestions for a general amnesty. Its position has been that the strikers, by violating federal laws and their no-strike oath,4 have forfeited their jobs with the Federal Aviation Administration ("FAA") forever.'

Politics and Adjudication

Abstract: The subject of adjudication has in recent years produced considerable interest among lawyers, political theorists, and the public at large. The interest has been fueled by two decisions of the Supreme Court of the United States: Brown v. Board of Education, the desegregation case decided in 1954, and Roe v. Wade, the abortion decision of 1973. The outcomes of those cases appeared to turn on value choices not directly attributable to those of the framers of the Constitution and thus on principles of the Court's own choosing.' As a result, the decisions called into question the traditional distinction in American law between "reason," the realm of adjudication, and "will," the realm of politics.2 It was an easy step to the conclusion that there is nothing distinctive about the legal process, that dispute settlement in the courts is no different from the making of policy in the legislative branch, and that conventional understandings of adjudication have to be revised accordingly. This view has in turn produced substantial ferment in modern legal scholarship.3