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New York University Annual Survey of American Law New York of American Law University Annual Survey nys69-2_cv_nys69-2_cv 9/22/2014 8:41 AM Page 2 (trap 04 plate) Vol. 69 No. 2 Vol. New York University Annual Survey of American Law New York University Annual Survey of American Law New York ARTICLES TOWARD ADEQUACY Sarah L. Brinton SHOULD EVIDENCE OF SETTLEMENT NEGOTIATIONS AFFECT ATTORNEYS’ FEES AWARDS? Seth Katsuya Endo A LOOK INSIDE THE BUTLER’S CUPBOARD: HOW THE EXTERNAL WORLD REVEALS INTERNAL STATE OF MIND IN LEGAL NARRATIVES Cathren Koehlert-Page NOTES EXPERTISE AND IMMIGRATION ADMINISTRATION: WHEN DOES CHEVRON APPLY TO BIA INTERPRETATIONS OF THE INA? Paul Chaffin WHAT MOTIVATES ILLEGAL FILE SHARING? EMPIRICAL AND THEORETICAL APPROACHES Joseph M. Eno 2013 Volume 69 Issue 2 2013 35568-nys_69-2 Sheet No. 1 Side A 10/28/2014 12:36:12 \\jciprod01\productn\n\nys\69-2\FRONT692.txt unknown Seq: 1 23-OCT-14 9:10 NEW YORK UNIVERSITY ANNUAL SURVEY OF AMERICAN LAW VOLUME 69 ISSUE 2 35568-nys_69-2 Sheet No. 1 Side A 10/28/2014 12:36:12 NEW YORK UNIVERSITY SCHOOL OF LAW ARTHUR T. VANDERBILT HALL Washington Square New York City 35568-nys_69-2 Sheet No. 1 Side B 10/28/2014 12:36:12 \\jciprod01\productn\n\nys\69-2\FRONT692.txt unknown Seq: 2 23-OCT-14 9:10 New York University Annual Survey of American Law is in its seventy-first year of publication. L.C. Cat. Card No.: 46-30523 ISSN 0066-4413 All Rights Reserved New York University Annual Survey of American Law is published quarterly at 110 West 3rd Street, New York, New York 10012. Subscription price: $30.00 per year (plus $4.00 for foreign mailing). Single issues are available at $16.00 per issue (plus $1.00 for foreign mailing). For regular subscriptions or single issues, contact the Annual Survey editorial office. Back issues may be ordered directly from William S. Hein & Co., Inc., by mail (1285 Main St., Buffalo, NY 14209-1987), phone (800- 35568-nys_69-2 Sheet No. 1 Side B 10/28/2014 12:36:12 828-7571), fax (716-883-8100), or email ([email protected]). Back issues are also available in PDF format through HeinOnline (http://heinonline.org). All works copyright © 2013 by the author, except when otherwise expressly indicated. For permission to reprint an article or any portion thereof, please address your written request to the New York University Annual Survey of American Law. Copyright: Except as otherwise provided, the author of each article in this issue has granted permission for copies of that article to be made for classroom use, provided that: (1) copies are distributed to students at or below cost; (2) the author and journal are identified on each copy; and (3) proper notice of copyright is affixed to each copy. Manuscripts: The Annual Survey invites the submission of unsolicited manuscripts. Text and citations should conform to the 19th edition of A Uniform System of Citation. Please enclose an envelope with return postage if you would like your manuscript returned after consideration. Editorial Office: 110 West 3rd Street, New York, N.Y. 10012 (212) 998-6540 (212) 995-4032 Fax http://www.annualsurveyofamericanlaw.org 35568-nys_69-2 Sheet No. 2 Side A 10/28/2014 12:36:12 \\jciprod01\productn\n\nys\69-2\FRONT692.txt unknown Seq: 3 23-OCT-14 9:10 For what avail the plough or sail Or land or life, if freedom fail? EMERSON 35568-nys_69-2 Sheet No. 2 Side A 10/28/2014 12:36:12 35568-nys_69-2 Sheet No. 2 Side B 10/28/2014 12:36:12 \\jciprod01\productn\n\nys\69-2\FRONT692.txt unknown Seq: 4 23-OCT-14 9:10 35568-nys_69-2 Sheet No. 2 Side B 10/28/2014 12:36:12 iv 35568-nys_69-2 Sheet No. 3 Side A 10/28/2014 12:36:12 \\jciprod01\productn\n\nys\69-2\FRONT692.txt unknown Seq: 5 23-OCT-14 9:10 NEW YORK UNIVERSITY ANNUAL SURVEY OF AMERICAN LAW 2013-2014 BOARD OF EDITORS Editor-in-Chief YAEL TZIPORI Managing Editors GABRIEL BRUNSWICK JULIA C. PILCER Development Editors Executive Article Editors Senior Articles Editor JULIAN GINOS MARY BRUST LEAH S. MARTIN ALEX J. GORMAN ILYSSA L. COGHLAN MATTHEW W. DEAVERS Note Editors ARYEH L. ROSKIES HAROLD S. LAIDLAW AMANDEEP SINGH Symposium Editor PETER VAN VALKENBURGH GREGORY SPRINGSTED DAVID A. GIROUX PATRICK R. TOTARO Article Editors SIOBHAN C. ATKINS MICHAEL F. GOON JANE PARK PAUL S. BALIK JORDANA LAUREN HAVIV JEFFREY RITHOLTZ MICHAEL A. CANENCIA PETER HUR THEODORE D. SAMETS JOSEPH M. CASTELLI GAIL L. HYMAN ALEXANDRA SAMOWITZ WALTER A. CIACCI NICOLE IDOKO NICHOLAS C. SCHOLTEN JOSHUA S. COHN CHRISTINE A. KUVEKE MELISSA B. SIEGEL GRAHAM COLE CHARLES M. LUPICA CHRISTOPHER BRODERICK SMITH DANIELLE ELIZABETH DEBOLD CHIP MCCORKLE NAOMI R. SOSNER JOSHUA M. DRAPEKIN ALLEN MINTZ MAX TIERMAN NICOLE A. ESCOBAR BEN NOTTERMAN DANIEL WOLFF 35568-nys_69-2 Sheet No. 3 Side A 10/28/2014 12:36:12 MEAGAN L. FROEMMING GIL OFIR KYUNGEUN KIMBERLY WON Staff Editors K. DANIEL BERMAN COLIN HUSTON-LITER ALLISON C. NICHOLS ELIZABETH BUECHNER FRANCIS JOYNER EMILY NIX CATHERINE Y. CHEN HEATHER KANTER NEAL PERLMAN PATRICK K. CHILELLI JORDAN KASS ROSE C. PLAGER-UNGER JORDAN CHISOLM DOUGLAS KEITH RAFAEL REYNERI DAVID A. CIOS SEAN KIM OLIVER J. RICHARDS BOAZ COHEN DARYL L. KLEIMAN MICHAEL R. ROBERTS HARRY FIDLER CHRISTOPHER K. LEUCHTEN MICHAEL ROMAIS CALEB J. FOUNTAIN ROBERT N. LICALZI JENNIFER SAECKL WILLIAM E. FREELAND CHRISTINA T. LIU SARAH E. SCHUSTER HALEY E. GARRETT JOSHUA LOBERT DANIEL SCHWARTZ RYAN H. GERBER MICHAEL LU JUNINE SO MEGAN GRAHAM JULIENNE MARKEL SHARON STEINERMAN REBECCA GUITERMAN BENJAMIN P.D. MEJIA REYHAN A. WATSON JONNAH HOLLANDER SUSAN E. MILLER SARAH WEISSMAN MAUREEN HOWLEY KATHERINE V. MITCHELL ELIZABETH WILKERSON CHRISTOPHER W. HUGHES JOSEPHINE YOON 35568-nys_69-2 Sheet No. 3 Side B 10/28/2014 12:36:12 \\jciprod01\productn\n\nys\69-2\FRONT692.txt unknown Seq: 6 23-OCT-14 9:10 35568-nys_69-2 Sheet No. 3 Side B 10/28/2014 12:36:12 vi 35568-nys_69-2 Sheet No. 4 Side A 10/28/2014 12:36:12 \\jciprod01\productn\n\nys\69-2\FRONT692.txt unknown Seq: 7 23-OCT-14 9:10 SUMMARY OF CONTENTS ARTICLES TOWARD ADEQUACY Sarah L. Brinton 357 SHOULD EVIDENCE OF SETTLEMENT NEGOTIATIONS AFFECT ATTORNEYS’ FEES AWARDS? Seth Katsuya Endo 417 A LOOK INSIDE THE BUTLER’S CUPBOARD: HOW THE EXTERNAL WORLD REVEALS INTERNAL STATE OF MIND IN LEGAL NARRATIVES Cathren Koehlert-Page 441 NOTES EXPERTISE AND IMMIGRATION ADMINISTRATION: WHEN DOES CHEVRON APPLY TO BIA INTERPRETATIONS OF THE INA? Paul Chaffin 503 WHAT MOTIVATES ILLEGAL FILE SHARING? EMPIRICAL AND 35568-nys_69-2 Sheet No. 4 Side A 10/28/2014 12:36:12 THEORETICAL APPROACHES Joseph M. Eno 587 35568-nys_69-2 Sheet No. 4 Side B 10/28/2014 12:36:12 \\jciprod01\productn\n\nys\69-2\FRONT692.txt unknown Seq: 8 23-OCT-14 9:10 35568-nys_69-2 Sheet No. 4 Side B 10/28/2014 12:36:12 viii 35568-nys_69-2 Sheet No. 5 Side A 10/28/2014 12:36:12 \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 1 28-OCT-14 9:10 TOWARD ADEQUACY SARAH L. BRINTON* ABSTRACT Each year, hundreds of people, companies, organizations, and associations sue the federal government for injuries they have suf- fered at the hands of federal agencies. Such suits are often brought under the judicial review provisions of the Administrative Proce- dure Act (APA), which Congress enacted expressly to allow broad access to courts in an age of increasing administrative agency ac- tion. By the terms of the APA itself, all final agency action for which there is no other adequate remedy in a court is reviewable under the APA. But the very language meant to welcome such suits into court also acts as a bar: to be eligible for judicial review under the APA, agency actions must have “no other adequate remedy in a court” (NOARC). Despite the facial ambiguity of the NOARC require- ment—“adequacy is in the eye of the beholder,” as one scholar re- cently wrote—NOARC is a provision that has long been ignored by academia, treatise writers, and the Supreme Court. The Justices have only explicitly addressed the meaning of NOARC in one case, Bowen v. Massachusetts, 487 U.S. 879 (1988), with a patchwork opin- ion marked by its meandering analysis and muddled reasoning. With only Bowen as a guide, confusion has abounded—in the Court’s own jurisprudence, in the lower courts, and in the active 35568-nys_69-2 Sheet No. 5 Side A 10/28/2014 12:36:12 advocacy of practitioners. Recent cases demonstrate that the question of NOARC is not an esoteric one. Rather, the rights of children in need of state-pro- vided mental health care services, of women and Hispanic farmers to retain long-held family lands, and of U.S. citizens with Mexican American surnames applying for U.S. passports have all depended on the meaning of the NOARC requirement. And yet, no consensus about NOARC exists. In light of the NOARC requirement’s wide impact and high stakes, our anemic NOARC jurisprudence must be replaced with robust dialogue about the meaning of NOARC and * Research Fellow, J. Reuben Clark Law School, Brigham Young University. She thanks Jed Brinton, Jay Bybee, Evan Criddle, Steven Menashi, Diane Roldan,´ Gul Raza, Rebecca Rygg Jensen, and the faculty of the J. Reuben Clark Law School for their contributions and assistance. The author welcomes comments: [email protected]. 357 35568-nys_69-2 Sheet No. 5 Side B 10/28/2014 12:36:12 \\jciprod01\productn\N\NYS\69-2\NYS201.txt unknown Seq: 2 28-OCT-14 9:10 358 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol.
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