Suchergebnisse

Abstract
At least since Aristotle, practical skill has been thought to be a possible model for individual ethical development and action. Jonathan Birch's ambitious proposal is that practical skill and tool-use might also have played a central role in the historical emergence and evolution of our very capacity for normative guidance. Birch argues that human acquisition of motor skill, for example in making and using tools, involves formation of an internal standard of correct performance, which serves as a basis for normative guidance in skilled thought and action, and in the social transfer of skills. I suggest that evaluativemodeling, guidance, and learning play a more basic role in motor skill than standards of correctness as such-indeed, such standards can provide effective normative guidance thanks to being embedded within evaluative modeling and guidance. This picture better fits the evidence Birch cites of the flexibility, adaptability, and creativity of skills, and can support a generalized version of Birch's 'skill hypothesis'.

This essay, written for an occasion celebrating the scholarship of Prof. William Funk of Lewis & Clark Law School, builds in good part on his analyses of soft law documents – statements of general policy and interpretive rules – that today one generally finds discussed under the rubric "guidance." These are agency texts of less formality than hard law regulations adopted under the procedures of 5 U.S.C. §553, that inform the public how an agency intends to administer its responsibilities, as a matter of policy or (what may seem just one instance of that) via the interpretation of its governing statutes. The APA is explicit that in adopting these texts, agencies are not required to use the notice-and-comment process ordinarily required for the adoption of regulations having the force of law; but it also signals that, like agency caselaw precedent, guidance may be relied upon to a private party's disadvantage if it has been published or come to its actual notice. Guidance documents, revealing agency policy and perhaps showing the way to safe compliance, can structure the behavior of agency staff and be highly influential for the regulated; but they are not in themselves enforceable against actors in the outside world – hence, soft law. Typically, they are the product of agency staff, and do not (as regulations do) require the imprimatur of the agency's political leadership for their adoption. Documents like these are common world-wide in regulatory contexts, much more numerous than regulations (as regulations are more numerous than statutes). In American administrative law they have often been caught up in disputes whether the notice and comment procedures engaging the agency's political leadership needed to have been used for their adoption. Judicial concerns are that ostensible soft law has often been used to evade the increasingly demanding obligations associated with notice and comment rulemaking. A common test has been whether, although nominally soft law, they are "practically binding." The basic arguments of this essay are, first, that this approach fails to differentiate highly desirable internal agency law (that is, policies "binding" on some agency staff) from what "binds" the public; and, second, that soft law instruments can often be found "final" for purposes of judicial review – if they are, in effect, the agency's internal law – and that use of the equitable standards for declaratory judgment long ago endorsed for pre-enforcement review of rulemaking will then permit dealing with the legality of soft law on its merits, and not as a matter of procedural compliance. Questions about "Auer deference" now pending in the Supreme Court are also addressed.

"Missile Guidance, Second Edition provides a timely survey of missile control and guidance theory, based on extensive work the author has done using the Lyapunov approach. This new edition also presents the Lyapunov-Bellman approach for choosing optimal parameters of the guidance laws, and direct and inverse optimal problems are considered. This material is important for readers working in the area of optimization and optimal theory. This edition also contains updated coverage of guidance and control system components, since the efficiency of guidance laws depends on their realization. The text concludes with information on the new generation of intercept systems now in development."--Provided by publisher

Debates over administrative agencies' reliance on guidance documents have largely neglected the most authoritative source of guidance about the meaning of agency regulations: their preambles. This Article examines and defends the guidance function of preambles. Preambles were designed not only to provide the agency's official justification for the regulations they introduce, but also to offer guidance about the regulation's meaning and application. Today, preambles include extensive guidance ranging from interpretive commentary to application examples. Based on the place of preamble guidance as part of the agency's formal explanation of the regulation and the rigorous internal agency vetting which accompanies that formal role, this Article argues that preamble guidance has greater authority than other forms of guidance. That greater authority has important implications. Under current judicial doctrine, preamble guidance warrants greater deference than other forms of guidance. Preamble guidance's superiority also grounds the agency's obligation to act consistently with it—and to revise preamble guidance only in documents issued by the agency, as opposed to lower-level officials, with the same publicity as the original preamble. This obligation should be expressly adopted as a form of internal administrative law either by individual agencies or central executive branch regulators.