Chevron and Auer Deference from the Standpoint of Republican Theory

프리만, 트로이 크리스찬 경희대학교 법학연구소 2020 경희법학 Vol.55 No.4

Over the past decade, America’s cornerstone administrative law doctrines of judicial deference to agency interpretations of law, as chiefly associated with the United States Supreme Court cases of Auer v. Robbins and Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. cases, have come under fire. Such criticisms have come from members of the Supreme Court itself, including from the late Justice Scalia, who notably was the author of the opinion of the Court in Auer. This article connects and elucidates the theoretical aspects of republican political and legal theory that underpin many such criticisms. Relying upon the writings of Philip Pettit and other republican theoreticians, as well as judges and scholars of various disciplines, this article explains how republican theories can be used as a basis for determining whether individual rights, both fundamental and mundane, and the republican-inspired constitutional structures meant to serve as a hedge around them are being undermined by one or both of Auer or Chevron deference. Whereas Chevron deference is the most written about subject in American legal scholarship, this article does not attempt to analyze all arguments for or against deference. This article does attempt to explain how well the agency deference aspects of the American administrative litigation system lines up with republican political and legal theoretical norms. Most notably, implicated norms include separation of powers and the right of democratic contestation. Ultimately, the first conclusion drawn is that the Chevron doctrine is a key weakness of the American administrative litigation system that impermissibly stacks the odds against claimants, undermines fundamental notions of fair play necessary to properly check the oppressive behavior of the administrative state, and severely limits the ability to realize the benefits of separation of powers. If Chevron is deemed to be a key weakness of the American administrative legal system, the second conclusion of this article is that Auer is abhorrent to it. For Chevron deference instructs courts to give controlling weight to an agency’s reasonable interpretation of ambiguous statutory law passed by Congress. While that has some separation of powers implications, the problems get even worse with Auer, which mandates that judges give controlling weight to an agency’s interpretation of its own regulation. The Auer doctrine not only implicates serious separation of powers issues due to the agency writing, interpreting and implementing the relevant regulation, it also undermines the basic right of each person living in a democracy to contest power wielded against such person by the administrative state under the individual right of democratic contestation.

An Analysis of Condemnee Repurchase Rights Laws in the United States and the Republic of Korea

프리만, 트로이 크리스찬 전남대학교 법학연구소 2010 법학논총 Vol.30 No.3

Private property rights have long been numbered among some of the most revered human rights and are enshrined in national and international human rights charters. Nevertheless, private property rights are often abused by governments,particularly when they exercise eminent domain powers. One way to assure that eminent domain power is not abused is to assure that it is used to take property only for public use. Condemnee repurchase rights allow those who have had their property taken by government to reclaim it if the condemning authority fails to use the property for its stated public purpose and can protect the public use requirement of reasonable eminent domain laws. This article explains the need for condemnee repurchase rights in the context of the condemnation practices underlying the development involved in the United States Supreme Court’s 2005 Kelo decision and the ill‐fated Seattle Monorail Project. The failure of both projects and the injustices to condemnees involved in both demonstrate the need for condemnee repurchase rights. The Seattle Monorail Project, in particular, highlights the extremely negative burden placed on condemnees who are allowed only to re‐purchase condemned land at market prices at public auction. Even though condemnees only lost their property to the condemning authority for a short period of time, a rising real estate market allow the government to claim windfall profits on the backs of ordinary citizens. Before the stark injustices manifest in Kelo and the Seattle Monorail Project are forgotten,jurisdictions across the United States and around the world should make sure their condemnee repurchase laws meet the criteria set forth herein. After Kelo, over 40 states in the United States of America changed their laws to better protect condemnees. Most of the focus of such laws focused on restricting the ability of government to use eminent domain to acquire private property for private use. Some also addressed condemnee repurchase rights as well. Remarkably, the State of Washington, the home of the Seattle Monorail Project’s injustices, has failed to enact any post‐Kelo or post‐monorail laws to protect condemnees. While the Washington State’s attorney general did appoint a commission to look at such issues, the legislature has failed to act. Beyond discussing Washington State’s failures, this article reviews and analyzes the repurchase rights laws (or lack thereof) of a few select jurisdictions in the United States of America – Guam, Nevada and New York, as well as the Republic of Korea, and suggests (i) that condemnee repurchase laws should more uniformly protect condemnees in all jurisdictions and (ii) which provisions of such laws are most favorable to the preservation of condemnee rights while maintaining the government’s ability to properly exercise its power of eminent domain. Each of the selected jurisdiction’s statutes are analyzed in the context of five fundamental questions: (1) What conditions should trigger a condemnee’s right of first refusal or other repurchase rights? (2) Who has to instigate the reversion or resale procedure, the condemnor or the condemnee? (3) Who instigates the reversion or resale procedure, the condemnor or the condemnee? (4) How long should repurchase rights last and should they be extended for any reason? (5) What should the re‐acquisition price paid by the condemnee be? (6) What impact should (a) improvement or changes on the property or (b) only partial use of condemned property have on a condemnee’s repurchase rights? In the context of the questions raised, major advantages and deficiencies in each of the statutes analyzed are noted and recommendations for improvement are made.

American Commercial Mortgage-Backed Securities: -Revisiting Assumptions, Structures and Players After the Meltdown-

프리만, 트로이 크리스찬 한국상사법학회 2011 商事法硏究 Vol.30 No.2

Prior to the America-centered international financial market meltdown of 2007-2008, the United State of America was at the forefront of both innovation and generation of asset-backed securities (“ABS”), including commercial mortgage-backed securities (“CMBS”). In contrast, the Republic of Korea started using asset securitization in earnest as a tool to help Korea recover from its own financial crisis in the late 1990s but no category of ABS, particularly CMBS, ever became a significant share of the Korean economy prior to the recent international meltdown. As the recent financial chaos subsides and the United States, Korea and other countries consider ramping up their CMBS and other ABS markets, they should pay attention to the role that American CMBS played in the meltdown. Additionally, while CMBS markets are stalled, we have time now to analyze basic assumptions and structures used in the United States, so that CMBS can be better financial products wherever they are used in the future. In order to explore elements of CMBS products and their role in the recent market meltdown, this article explains some basic elements of ABS and CMBS. Thereafter, we discuss the destructive effect that sub-prime residential mortgage-backed securities (“RMBS”) had on financial markets and the devastation brought upon CMBS markets as collateral damage. While CMBS markets were being pummeled by investor weariness of any type of mortgage-backed securities, regulators added a death blow to the market by instituting mark-to-market accounting rules that pro-cyclically drove down book values of CMBS products and simultaneously further eroded investor appetite for CMBS products. In order to avoid similar problems in the future, mark-to-market rules should not be applied as they were in 2007 and 2008. In the wake of the market meltdown, basic assumptions about fungibility and homogeneity of CMBS products and bankruptcy remote entities, as well as the roles of ratings agencies and servicers, have shown weaknesses that are addressed herein. Particularly, the lack of homogeneity of CMBS products, as well as the project-level real properties and mortgages that ultimately collateralize them, demand greater due diligence and less reliance on models and ratings agencies’ratings than other large categories of ABS products. Furthermore, in the years leading up the financial crisis, ratings agencies showed major weakness in their practices of rating CMBS. Modeling weaknesses and interests that align too closely with issuers make it so that CMBS market participants should seriously discount ratings agencies’ work, particularly in CMBS. Their role as gatekeepers is questionable and the role of B-piece buyers in serving as gatekeepers should be strengthened. CMBS structures generally require bankruptcy remote entities to serve as both the project-level borrowers and, as with other ABS structures, the issuer special purpose vehicle. The requirements related thereto are explained and the General Growth Properties bankruptcy filing is briefly discussed. While the ultimate result of the General Growth Properties case did not shake the foundation of the bankruptcy-remote SPV borrower model, it did have an immediate impact on cash flows to investors and reinforced the need for CMBS lenders to be more careful in how independent directors are replaced. While B-piece buyers may serve as better gatekeepers than ratings agencies in some regards, B-piece buyers’ historically common role as special servicers has often left them open to conflicts of interest, where they can utilize their powers as special servicers to delay or eliminate payments to senior investors. Beyond B-piece buyers, other servicers involved in CMBS products, due to fee arrangements, found themselves underfunded and, consequently, cutting their understaffed operations when they should have been ramping them up during and after the 2007-2008 financial meltdown. This deficiency has ...

Who Decides? The Rule of Law, Constitutional Structures and the Judiciary in the United Kingdom, the United States, China and South Korea

프리만, 트로이 크리스찬 경북대학교 법학연구원 2013 법학논고 Vol.0 No.41

Over the past century or so, the intoxicating Anglo-American concoction of values bolstered by constitutional structures have been unleashed into the world through various globalising forces. Built upon the foundation of the rule of law, this brew of market economics and constitutionalism - including enshrined human rights, variations of democratic institutions and the separation of powers – has swept the world like a wave. Since the late twentieth century, this wave has had a growing impact on the governing structures and values of the People’s Republic of China (“China”) and the Republic of Korea (“Korea”). Given the relatively new exposure to Anglo‐American ideas (as well as a few from continental Europe), now is a good time to analyse where China and Korea are with respect to their building up of structures, particularly judicial institutions, that can promote, use and defend the rule of law. Critical to this analysis is determining the answer to this simple question: Who decides?For who decides both (ⅰ) what the law means (interprets the law) and (ⅱ) what types of actions may be taken by executive, judicial and legislative authorities (the limits of governmental action) will have a profound impact on determining to what extent a government respects the rule of law, civil rights, democratic values and economic freedom. Remarkably, the answer to who decides these critical issues is different in not only China and Korea, but also the United Kingdom and the United States. This article analyses certain elements of the constitutional structures of China, South Korea, the United Kingdom and the United States, paying particular attention to the structures that determine how well the rule of law is upheld and where judicial power fits into their respective balance of powers. In China and the United Kingdom, we find courts that are, for very different reasons – one being subject to indirect party control and the other subject democratic hegemony) incapable of checking legislative power and thus systems that have serious deficiencies in upholding the rule of law. In the United States and Korea, we find courts that are structurally empowered. In Korea, there are still questions about whether the courts, particularly the Constitutional Court, can overcome larger societal and cultural issues that stand in the way of a full embrace of the rule of law. There is a strong trend towards Americanization of court power, meaning that judges have become more assertive, and creating more tension between themselves and the legislative and executive officials in their countries. This tension is not something to be feared but it should be embraced as a sign of a healthy, functioning government that is committed to the rule of law. At the same time, it can lead to judiciaries who overstep their bounds, improperly crowd out legislators and thus engage in juristocratic behaviour. All countries, including the United States, need to work to find a better way to balance judicial and legislative hegemony over structural matters. Until a better form of government is devised than those currently on earth, some form of imbalance is inevitable. This is due to the fact that for the rule of law to work, people, some group of imperfect humans, must decide what the law is that does rule. That is why all societies need to pay more careful attention to this question: Who decides?

The Need for A Mandamus-like Remedy in the Republic of Korea

프리만, 트로이 크리스찬 경북대학교 법학연구원 2017 법학논고 Vol.0 No.57

The Republic of Korea, like many young democratized constitutional republics, faces the challenge of having placed its democratic institutions on top of a bureaucratic structure and culture that throughout most of its modern history was largely constructed to serve non-democratic rulers, whether Japanese colonialists or indigenous authoritarians, who had every reason to mistrust the people and engage in “efficient” governmental practices that benefited the state but generally ignored rights, freedoms and even basic privileges of the people. Thus, a key theme in the democratization of Korea has been, and still needs to be, that of administrative reform, to make government agents responsive to the democratically elected public servants and observe the rights of the people, even in common administrative matters. Despite the onset of democracy, the Korean administrative state is relatively strong and has shown a tendency to resist reforms. This paper analyzes key administrative litigation remedies in England, the United States and Germany. It uses those leading democratic common law and civil law jurisdictions and bases for establishing international norms with respect to basic administrative litigation remedies that should be found in a democratic state that upholds basic notions of the rule of law. It then overviews Korean administrative litigation remedies, noting its strengths and weaknesses. Most troublingly, while the Korean Administrative Litigation Act(the “ALA”) specifically provides that certain omissions or inaction(부작위) by Korean administrators provide a basis for judicial appeal, the remedies available in such actions do not provide a clear path towards rectifying the inaction. In Korea, no remedy that can compel a government agency to implement its legal duties, like common law mandamus or German Verpflichtungsklage, is available under present laws and court rulings related thereto. In order to fully protect the rights of Korean litigants under the ALA, Korea should adopt a mandamus-like administrative litigation remedy, similar to those found in England, the United States and Germany.

The Future of Legal Education in Korea: introducing American-style externships

프리만, 트로이 크리스찬 전남대학교 법학연구소 2017 법학논총 Vol.37 No.1

As Korean law schools prepare to enter their second decade of training the nation’s lawyers, they will need to find ways to both compete for the best students and also help their students compete for the best jobs domestically and internationally. American-style externships should be considered by some, if not all, Korean law schools as a model to adapt to their curriculum. This article introduces and discusses the key part that experiential education methods, including externships, play in American law schools. Then it discusses elements of various American externship programs and their place within the curriculum at various American law schools, as well as positive and negative elements of externship programs therein. Finally, this article discusses how well aspects of American-style externships might be transferrable to Korean law schools in light of their varying traditions, differences in legal systems, bar exam pressure, law school faculty backgrounds and Korea’s post-bar exam mandatory skills training. Ultimately, the conclusion is made that, despite such differences, there is room for at least giving the opportunity to some students, particularly those aiming at landing international careers that demand skills not emphasized in Korean law schools, to earn academic credit while working under the tutelage of attorneys.

The Global Financial Crisis & Asset-Backed Securitization Regulatory Responses Thereto in the EU and the United States

프리만, 트로이 크리스찬 경북대학교 법학연구원 2013 법학논고 Vol.0 No.43

In her 2009 article in the Cornell International Law Journal, Georgette Chapman Phillips posits that in order for a debt market in any country to function, one must find the following factors underpinning such market: (ⅰ) adequate legal protections, (ⅱ) strong economic foundations and (ⅲ) a low degree of political risk. Phillips discusses general legal protections, such as strong foreclosure laws, the need for stable inflation and real estate values as underpinnings of economic stability and the need for government to respect private property and contract rights. Her three-pronged focus on legal, economic and political fundamentals serves as the basis for analyzing recent and ongoing regulatory efforts in developed countries that are struggling with the important work of re-establishing stable and useful securitization markets. Presently, the United States and the European Union (“EU”) are at the forefront of financial market re‐regulation in the wake of the most recent banking, financial and economic crisis. Since 2007, they, like those regulators in various other jurisdictions around the world, have instituted new regulations on asset-backed securities (“ABS”). Such regulations have been part of a comprehensive, yet fairly disjointed, re-regulation of domestic and international financial markets, including previously lightly regulated areas. While their asset‐backed securitization (“securitization”) regulations have had some positive impact on the functionality of the debt markets in the United States, Europe and beyond, they (1) have thus far failed to provide a coherent legal framework for market participants to rely upon and have (2) increased the political risk associated with involvement in the debt markets. The disjointed and improperly targeted nature of regulatory efforts thus far are evident in the primary areas of securitization regulation thus far, the so‐called “skin in the game” regulations and transparency regulations. In both areas, the United States and the EU have started with similar objectives but are in the process of instituting regulatory regimes that fail to be properly coordinated within their own jurisdictions and across jurisdictions as well. Part of the reasons for this is that regulators, in a bit of panic or maybe opportunism, started the regulatory process before they could fully understand what they were regulating or the true problems they were trying to deal with. As regulators and market participants around the world endeavor to restart ABS markets or even launch them for the first time, they need to do a better job of understanding the institutions and markets they are seeking to regulate. Additionally, they need to acknowledge that no regulations can make up for prudent underwriting and thorough due diligence. No amount of regulation can force such activities to take place.

결혼이주여성의 양육스트레스와 문화적응스트레스, 양육효능감과 유아기질의 영향: 중국, 베트남, 일본 여성 비교 중심으로

프리만, 트로이 크리스찬,안정신 한국가족관계학회 2023 한국가족관계학회지 Vol.27 No.4

Objectives: The purpose of this study was to examine the differences in cultural adaptation stress, parenting efficacy, infant temperament, and parenting stress of Chinese, Vietnamese, and Japanese marriage migrant women. Also, this study aimed to examine how cultural adaptation stress, parenting efficacy, and infant temperament influence parenting stress of marriage migrant women. Method: 276 marriage migrant women from China, Vietnam, and Japan were surveyed. For data analysis, SPSS 18.0 was used to obtain frequencies, means, reliabilities, and correlation coefficients. Variance analysis and hierarchical regression analyses were also performed. Results: The main results of this study were as follows: First, there were statistically significant differences in cultural adaptation stress, parenting efficacy and infant temperament among marriage migrant women by their country of origin. No such difference was observed in parenting stress. Second, the communication problem was most significantly related to parenting stress among Chinese marriage migrant women, followed by parenting efficacy and adaptive infant temperament. For marriage migrant women from Vietnam, hostility was the most significant predictor next to the communication problem. Hostility was also most significantly related to parenting stress among Japanese women, followed by parenting efficacy and orderly temperament of infants. Conclusions: Findings highlight that cultural backgrounds and parenting characteristics should be considered in order to reduce parenting stress among marriage migrant women. 연구목적: 본 연구의 목적은 결혼이주여성의 문화적응스트레스, 양육효능감, 유아기질 및 양육스트레스가 출신국가에 따라서 차이가 있는지 알아보고, 결혼이주여성의 출신국가별 문화적응스트레스와 양육효능감, 유아기질의 양육스트레스에 대한 상대적 영향력을 살펴보는 데 있다. 연구방법: 결혼이주여성 276명을 대상으로 PASW 18.0을 이용하여 빈도, 평균, 신뢰도, 분산분석, 상관계수, 중회귀분석을 실시하였다. 연구결과: 첫째, 결혼이주여성의 문화적응스트레스와 양육효능감 그리고 유아기질에 출신국가 간 통계적으로 유의미한 차이가 있었다. 반면 결혼이주여성의 양육스트레스는 출신국가 간 통계적으로 유의미한 차이가 없는 것으로 나타났다. 둘째, 출신국가에 따라 양육스트레스에 대한 상대적 영향력을 살펴보면, 결혼이주 중국 여성의 양육스트레스에서 의사소통문제, 양육효능감, 유아의 적응적 기질 순으로 미치는 것으로 나타났고, 결혼이주 베트남 여성의 경우는 적대감과 의사소통문제 순으로, 결혼이주 일본 여성의 양육스트레스에는 적대감, 양육효능감, 유아의 규칙적 기질 순으로 영향을 미치는 것으로 나타났다. 결론: 결혼이주여성들의 출신국가에 따라 양육스트레스에 영향을 미치는 변인들의 상대적 영향력이 다르므로 양육스트레스를 경감하기 위해서는 이들의 문화적 배경과 양육관련의 특성들을 고려해야 한다.

The Future of Legal Education in Korea: lessons from an American Law School’s Externship Program

프리만, 트로이 크리스찬 부산대학교 법학연구소 2016 법학연구 Vol.57 No.1

Preparation for legal practice is an issue that American law schools have been grappling with much longer than Korean law schools. Consequently, they have developed a broader range and depth of programs aimed at preparing law students to become confident and competent attorneys. Such programs include various forms of experiential education, including externships. “Externship”, for purposes of this research, means practical on-the-job-training of a law student supervised by a practicing attorney for academic credit wherein the supervising attorney and the student’s school monitors and/or coordinates the work experience for its students. This paper presents a case study introducing and analyzing the apprenticeship model externship program in place in 2014 at the J. Reuben Clark Law School of Brigham Young University (“BYU”), one of the leading externship programs in America. It provides the history, structure and function of the BYU externship program, then discusses elements of the program that might be useful for Korean law schools and their regulators to consider using in the future of Korean legal education. Such elements include BYU’s cost savings structure, methods of providing student externship placements and mechanisms used to tie together academic and professional elements of education and training.

사례발표 : 중국 천주교회의 현실과 성체 안의 친교

존 프리만 우리신학연구소 2010 우리신학 Vol.9 No.-