Showing papers by "Cass R. Sunstein published in 1985"
Book•
01 Jan 1985
TL;DR: The bicentennial of the Constitution is approaching in a time of considerable dissatisfaction with the American scheme of governance as discussed by the authors, and many of the concerns have a common root in the problems produced by the existence of interest groups or "factions," and their influence over the political process.
Abstract: The bicentennial of the Constitution is approaching in a time of considerable dissatisfaction with the American scheme of governance. The dissatisfaction takes various forms, but many of the concerns have a common root in the problems produced by the existence of interest groups, or "factions," and their influence over the political process. The scheme is challenged on the grounds that it allows powerful private organizations to block necessary government action;1 that the lawmaking process has been transformed into a series of accommodations among competing elites;2 and that the rise of a large bureaucracy exercising broad discretionary power has undermined original constitutional goals by circumventing the safeguards of separation of powers and electoral accountability.3 The problem of faction has been a central concern of constitutional law and theory since the time of the American Revolution. Madison made control of factions the centerpiece of his defense of the proposed Constitution. His antifederalist opponents objected on the ground that his solution was a false one, addressing only a symptom of the underlying problem. This de-
151 citations
TL;DR: In the last twenty years, courts have made substantial inroads on principles of prosecutorial discretion, which have traditionally shielded agency inaction from judicial review as discussed by the authors, and these rulings are part of a more general movement in publiclaw doctrine, which has abandoned the traditional focus on private autonomy in favor of an effort to ensure the identification and implementation of the values set out in the governing statute.
Abstract: Of the many innovations in modern administrative law, the recognition of a private right to initiate administrative action may be the most important. In the last twenty years, courts have made substantial inroads on principles of prosecutorial discretion, which have traditionally shielded agency inaction from judicial review.' For example, courts have required agencies to promulgate rules,2 to issue regulatory standards,3 and to undertake enforcement activity.4 These rulings are part of a more general movement in publiclaw doctrine, which has abandoned the traditional focus on private autonomy in favor of an effort to ensure the identification and implementation of the values set out in the governing statute.5
12 citations
TL;DR: In this paper, the authors explore the legal grounds on which courts may test whether a failure to enforce the law, or to issue regulations, should be invalidated, with reference to the leading Supreme Court decision on the topic.
Abstract: Is it lawful for the executive branch not to take action to enforce the Affordable Care Act? The Clean Air Act? When may courts review agency inaction? This essay explores these questions, with reference to the leading Supreme Court decision on the topic. It offers an assortment of legitimate grounds on which courts may test the question whether a failure to enforce the law, or to issue regulations, should be invalidated.
1 citations