The Legislative Role in Procedural Rulemaking Through Incremental Reform
The Legislative Role in Procedural Rulemaking Through Incremental Reform

Author: Briana Rosenbaum

Publisher:

Published: 2019

Total Pages: 58

ISBN-13:

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Public policy theory generally studies two types of institutional change: major changes at critical moments and incremental change. Using an institutional public policy theoretical lens, this Article explores congressional efforts to incrementally change the substantive law through procedural change and litigation reform. While much attention has been paid to the 115th Congress's policy-based proposals, scant attention has been paid to the fact that Congress had, at the same time, proposed sweeping changes to court access. From trans-substantive measures affecting procedure in every civil case, to targeted measures changing the procedures in police misconduct cases and medical malpractice lawsuits, the legislature proposed scaling back access to remedies in courts in almost every type of case. These bills -- while seemingly “procedural” -- have the potential to shape individual rights and remedies, incentives to sue, and the costs of litigation.The Article uses an institutional incremental approach to viewing legislative procedural law change. It examines both historical and current legislative efforts at litigation and procedural reform, identifying “major” and incremental policy proposals. Viewing legislative litigation reform in this light reveals that the legislature has taken an active role in the development of procedural law and retrenchment of court access, not just through major reform legislation, but through small, targeted actions that can have great effects over time. This Article then provides observations on the character and efficacy of legislative procedural reform. Unlike procedure generated from the court-centered REA process, incremental legislative procedure is often targeted to, and motivated by, altering remedies in a particular substantive area, nontransparent, and unmoored from adjudication and practice-based normative values. The history suggests that procedural scholars should rethink the legislative role in shaping the adjudicatory process.

Rights and Retrenchment
Rights and Retrenchment

Author: Stephen B. Burbank

Publisher: Cambridge University Press

Published: 2017-04-18

Total Pages: 299

ISBN-13: 110818409X

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This groundbreaking book contributes to an emerging literature that examines responses to the rights revolution that unfolded in the United States during the 1960s and 1970s. Using original archival evidence and data, Stephen B. Burbank and Sean Farhang identify the origins of the counterrevolution against private enforcement of federal law in the first Reagan Administration. They then measure the counterrevolution's trajectory in the elected branches, court rulemaking, and the Supreme Court, evaluate its success in those different lawmaking sites, and test key elements of their argument. Finally, the authors leverage an institutional perspective to explain a striking variation in their results: although the counterrevolution largely failed in more democratic lawmaking sites, in a long series of cases little noticed by the public, an increasingly conservative and ideologically polarized Supreme Court has transformed federal law, making it less friendly, if not hostile, to the enforcement of rights through lawsuits.

Reforming Law Reform
Reforming Law Reform

Author: Michael Tilbury

Publisher: Hong Kong University Press

Published: 2014-01-01

Total Pages: 293

ISBN-13: 9888208241

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As a special administrative region of China, Hong Kong has its own legal system rooted in the common law. Reforms to this system take into account Hong Kong’s unique conditions as an international city and draw widely on practices around the world. Since 1980, recommendations from a Law Reform Commission, chaired by the Secretary for Justice, have resulted in comprehensive revisions in key areas of law, ranging from commercial arbitration and interception of communications to divorce and copyright. Recently, however, the government has been slow to act on the Commission’s recommendations. Questions have also arisen about whether the Commission — under-resourced, part-time and government-led — can really meet the needs of an increasingly sophisticated society. Is law reform itself also in need of reform? This collection of essays by distinguished experts from around the world seeks answers to the question. The book explores the varied experience of law reform in Hong Kong and other common law jurisdictions and makes recommendations for strengthening the process of law reform both in Hong Kong and elsewhere. Michael Tilbury is Kerry Holdings Professor in Private Law in the Faculty of Law, the University of Hong Kong. Simon N. M. Young is a professor in the Faculty of Law, the University of Hong Kong and was formerly Director of the Centre for Comparative and Public Law. Ludwig Ng is a partner in ONC Lawyers, Hong Kong. "This important book should be a wake-up call to lawmakers in Hong Kong and beyond on the urgent need for effective law reform. It is especially important for Hong Kong whose competitive advantage is being harmed by institutional paralysis and official lethargy. The editors’ modest recommendations deserve urgent action by Hong Kong’s governors to bring up to date its archaic and outmoded legislation." —Lord Lester of Herne Hill, QC "Law reform is essential, especially in these fast-changing times. The law reform agency plays an important role in this process. This work examines the experience of the agency in Hong Kong and elsewhere and discusses how its effectiveness can be enhanced. This valuable contribution deserves to be read." —The Hon. Andrew Li, Chief Justice of Hong Kong, 1997–2010 "This is probably the first collection in Hong Kong of writings on law reform, examining clinically how law reform is, and can be processed with reference to other law reform institutions, in the pursuit of effectively meeting the often shifting needs of society and economy. Important chapters on reform of different areas of law are also included in this book. The editors and contributors are to be congratulated for masterminding such an admirable source of information and inspirational ideas." —Stephen Kai-yin Wong, Barrister, Secretary of the Law Reform Commission of Hong Kong "In this collection of essays the learned editors—Tilbury, Young and Ng—have drawn together an outstanding group of authors, representing many years of experience in law reform across the common law world. From the UK, Canada, Australia and Hong Kong, the insights of the authors are both reflective and forward-looking, providing a rich resource towards 'reforming law reform'." —Professor Rosalind Croucher, President, Australian Law Reform Commission

Going by the Book
Going by the Book

Author:

Publisher: Transaction Publishers

Published:

Total Pages: 418

ISBN-13: 1412824710

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The extent to which government should be involved with regulation in the private sector is much debated. More fundamentally, one might ask exactly what is regulation, why is it needed, how is it formulated, and how is it enforced? These questions are especially relevant at a time in United States history when federal involvement in spheres traditionally left to individuals is being widely debated on all sides of the political spectrum.

Bureaucratic Justice
Bureaucratic Justice

Author: Jerry L. Mashaw

Publisher: Yale University Press

Published: 1983-01-01

Total Pages: 260

ISBN-13: 9780300034035

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Anyone interested in 'good government' should read Jerry Mashaw's new book on how the social Security Administration implements congressionally mandated policy for controlled consistent distribution of disability benefits. . . . He offers an important perspective on bureaucracy that must be considered when devising procedures for not only disability determinations but also other forms of administrative adjudication.--Linda A. O'Hare, American Bar Association Journal A major contribution to the ongoing debate about administrative law and mass justice.--Lance Liebman and Richard B. Stewart, Harvard Law Review Profound implications for the future of democratic government. . . . Practical, analytical policymaking for a complex decision system of great significance to many Americans.--Paul R. Verkuil, Yale Law Journal An exceptionally valuable book for anyone who is concerned about the role of law in the administrative state. Mashaw manages to range broadly without becoming superficial, and to present a coherent and challenging theory in lively, readable prose. Bureaucratic Justice seems certain to become a standard reference work for administrative lawyers, and for anyone else who seeks the elusive goal of developing more humane and more effective public bureaucracies.--Barry Boyer, Michigan Law Review Strongly recommended for use in graduate seminars in public policy or law. . . . If we are to develop a positive model of bureaucratic competence, we must answer the insightful questions rased in this cogent book.--David L. Martin, American Political Science Review Mashaw provides an excellent analysis of middle range processes of decision making.--Gerald Turkel, Qualitative Sociology Stimulating and provocative and . . . makes a contribution to the ongoing dialogue about due process in public administration.... It is tightly organized, cogently argued, and full of pithy historical illustrations. . . . One of the best such works in many years. --Annals of the American Academy of Political and Social Science A thoughtful, challenging, and very useful book.--Choice Inspires a new direction in administrative law scholarship.--A.I. Ogus, Oxford Journal of Legal Studies

The Role of Governments in Legislative Agenda Setting
The Role of Governments in Legislative Agenda Setting

Author: Bjorn Erik Rasch

Publisher: Routledge

Published: 2013-07-04

Total Pages: 328

ISBN-13: 1136870458

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Setting the agenda for parliament is the most significant institutional weapon for governments to shape policy outcomes, because governments with significant agenda setting powers, like France or the UK, are able to produce the outcomes they prefer, while governments that lack agenda setting powers, such as the Netherlands and Italy in the beginning of the period examined, see their projects significantly altered by their Parliaments. With a strong comparative framework, this coherent volume examines fourteen countries and provides a detailed investigation into the mechanisms by which governments in different countries determine the agendas of their corresponding parliaments. It explores the three different ways that governments can shape legislative outcomes: institutional, partisan and positional, to make an important contribution to legislative politics. It will be of interest to students and scholars of comparative politics, legislative studies/parliamentary research, governments/coalition politics, political economy, and policy studies.

The Legislative Branch
The Legislative Branch

Author: Sarah A. Binder

Publisher: Institutions of American Democracy Series

Published: 2005

Total Pages: 628

ISBN-13: 9780195309164

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Contains eighteen essays in which political scientists and scholars of public policy examine the performance of the U.S. Congress as a democratic institution, covering ideals and development, elections and representation, structures and processes, policy and performance, and assessments and prospects.

The Litigation State
The Litigation State

Author: Sean Farhang

Publisher: Princeton University Press

Published: 2010-08-02

Total Pages: 321

ISBN-13: 1400836786

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Of the 1.65 million lawsuits enforcing federal laws over the past decade, 3 percent were prosecuted by the federal government, while 97 percent were litigated by private parties. When and why did private plaintiff-driven litigation become a dominant model for enforcing federal regulation? The Litigation State shows how government legislation created the nation's reliance upon private litigation, and investigates why Congress would choose to mobilize, through statutory design, private lawsuits to implement federal statutes. Sean Farhang argues that Congress deliberately cultivates such private lawsuits partly as a means of enforcing its will over the resistance of opposing presidents. Farhang reveals that private lawsuits, functioning as an enforcement resource, are a profoundly important component of American state capacity. He demonstrates how the distinctive institutional structure of the American state--particularly conflict between Congress and the president over control of the bureaucracy--encourages Congress to incentivize private lawsuits. Congress thereby achieves regulatory aims through a decentralized army of private lawyers, rather than by well-staffed bureaucracies under the president's influence. The historical development of ideological polarization between Congress and the president since the late 1960s has been a powerful cause of the explosion of private lawsuits enforcing federal law over the same period. Using data from many policy areas spanning the twentieth century, and historical analysis focused on civil rights, The Litigation State investigates how American political institutions shape the strategic design of legislation to mobilize private lawsuits for policy implementation.