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What, if anything, legitimates the administrative state? By "legitimacy" I refer not to any thick normative notion, but to sociological and public legitimacy (1)--the ambient sense in the polity that, [...]

INTRODUCTION I. OVERVIEW OF CONSENT PROCEDURES A. Consent Agents 1. Chief Executive Officers 2. Agencies and Administrative Officials 3. Joint Agents B. Consent Actions 1. Legislative Enactments 2. Official Acts [...], Cooperative federalism programs and spending grants are like contracts. There is a federal offer and a state acceptance; there are terms and conditions, obligations and penalties. And there is a "meeting of the minds"--a moment when the states consent to a federal offer and the deal is done. But because the states are not monolithic actors--and many officials, acting through many different political processes, could conceivably speak for the state--the federal government establishes procedures that dictate which state actors may consent on the state's behalf and how. I call these "consent procedures." These procedures are ubiquitous: they appear in every program and facilitate every grant that requires voluntary state participation. But they are not innocuous. Some require a particular state officer to serve as the state's spokesperson. Others require the states to express their consent by proceeding through certain state-level processes. Still others automatically enroll the states and infer their ongoing consent from their failure to opt out. In Professors Richard Thaler and Cass Sunstein's popular framing, Congress controls the "choice architecture" within which states make the decision to join or reject voluntary cooperative programs. Like "choice architecture," consent procedures do more than operate as processes for registering state consent. Many also shape how states internally discuss, deliberate, and decide whether to join federal programs. They affect the formation as much as the expression of state consent. This Article is the first to identify and critically analyze these procedures. It canvasses their many forms and features. It contextualizes them in the Court's federalism jurisprudence and identifies potential constitutional concerns. It asks whether and under what conditions they are consistent with the core values of American federalism. And it describes ways that different stakeholders--Congress, federal agencies, and the states--can navigate them going forward. The federal government's largely unnoticed ability to set consent procedures is a consequential feature of twenty-first-century federalism. Federal-state collaboration is increasingly Congress's regulatory model of choice, and the terms of these collaborations will be the federalism fight of this new century. Consent procedures force to the forefront fundamental questions about the degree of autonomy, self-determination, and respect the states deserve when they are negotiating, defining, and agreeing upon the terms of their cooperative ventures--questions that become more pressing with each legislative session.

III. CONSENT PROCEDURES AND FEDERALISM VALUES In this Part, I extend my analysis of consent procedures beyond doctrine to how they relate to the broader goods that the Supreme Court [...]

III. EVALUATING BYPASSING By "bypassing" federalism, FERC has been able to promote and develop demand response programs without the necessity of statutory amendment. In today's era of divided government, in [...]

ABSTRACT: Presidential unilateralism has become a defining feature of the executive branch. But a related and equally important phenomenon has been largely ignored: federal agency efforts to circumvent statutory federalism [...]

This Article analyzes when and why administrative agencies avoid rulemaking procedural requirements such as the Administrative Procedure Act's (APA's) notice-and-comment process. This Article's original empirical analysis shows that agencies invoke [...]

B. Restraint as Strategy Certainly, in some cases agencies might best avoid unnecessary confrontation by taking action to appease a political principal or other actor. But avoiding decisions partially (as [...]

Fifty years ago, Alexander Bickel famously suggested that courts use tools like standing, ripeness, and the political question doctrine to avoid reaching the merits of difficult cases. Yet despite the [...]

Whenever a federal agency proposes a significant regulatory action, that action must be reviewed by the Office of Information and Regulatory Affairs in the White House Office of Management and [...]

Arbitrariness is a lack of reason. Whenever any government agency does anything wrong, it goes against reason. But that is not enough to make for arbitrary government. Arbitrary government is [...]

ABSTRACT Greater-or-nothing rules exist throughout constitutional law and constitute a growing trend. These rules give the government a choice: do nothing or take the desired action plus do something more. [...]

VI. SEPARATE RATES In NME cases, Commerce still employs the legal fiction that all enterprises in China or Vietnam are owned or controlled by the Chinese or Vietnamese governments, unless [...]

TABLE OF CONTENTS I. INTRODUCTION II. COMMERCE DEPARTMENT PROCEDURAL ISSUES A. Notice of Initiation B. Due Process C. Combination Rates D. Zeroing E. Entry Date Indicating POR Sale F. Determining [...], In this Article, the authors review the decisions of the Court of International Trade issued during 2011 arising from antidumping duty (and to some extent, countervailing duty) enforcement efforts of the Department of Commerce (Commerce) with regard to non-market economy countries, i.e., the People 's Republic of China and Vietnam. The Court's opinions covered a number of procedural issues, regarding both Commerce 's procedures and the Court's own procedures. Various substantive issues were also addressed, including the selection of mandatory respondents, the scope of antidumping orders, qualification for separate rates, selection of appropriate surrogate values, and the imposition of adverse facts available in case of non-cooperative respondents.

ABSTRACT This Article challenges the conventional view of contemporary international adjudication. It identifies a new generation of international tribunals, which has been largely ignored by commentators, and argues that these [...]

In February 2008, the Swedish Competition Agency dissolved its Department of Economic Analysis, moving fifteen economics specialists, including six Ph.D. economists, into the agency's three competition law departments. (1) Monica [...]