Michael Eric Herz

Arthur Kaplan Professor of Law

Co-Director, Floersheimer Center for Constitutional Democracy

Education

B.A., 1979, Swarthmore College

J.D., 1982, University of Chicago

Areas of Expertise

Administrative Law
Constitutional Law
Environmental Law

Bio

Professor Herz came to Cardozo from the Environmental Defense Fund, where he was a staff attorney for three years. Previously, he clerked for Associate Justice Byron R. White of the U.S. Supreme Court and for Chief Judge Levin H. Campbell of the U.S. Court of Appeals for the First Circuit.

 

Professor Herz was Cardozo's Vice Dean from 2006 to 2009 and served as Senior Associate Dean from 1996 to 2000; he is currently the co-director of Cardozo's Floersheimer Center for Constitutional Democracy.  He was a visiting professor at New York University School of Law from 2000 to 2001 and 2005 to 2006, has taught at Columbia and Princeton, and spent a year as a Fellow in Princeton's Program in Law and Public Affairs. Professor Herz is a former Chair of the ABA's Section of Administrative Law and Regulatory Practice and serves as a public member of the Administrative Conference of the United States.

Publications

Books:

2013-2014 Supplement to Administrative Law and Regulatory Policy: Problems, Text, and Cases.  Wolters Kluwer 2013.  (with Stephen Breyer, Richard Stewart, Cass Sunstein, and Adrian Vermeule)

The Content and Context of Hate Speech: Rethinking Regulation and Responses (Cambridge University Press 2012) (co-editor with Peter Molnar)

Administrative Law and Regulatory Policy: Problems, Text, and Cases (7th edition, Wolters Kluwer 2011) (with Stephen Breyer, Richard Stewart, Cass Sunstein, and Adrian Vermeule)

Elements of Law (2d edition, Lexis-Nexis 2010) (with Eva Hanks & Steven Nemerson)

A Guide to Judicial and Political Review of Federal Agencies (American Bar Association 2005) (co-editor with John F. Duffy)


Articles and Book Chapters:

"Data, Views, or Arguments": A Rumination, 22 William & Mary Bill of Rights Journal 351 (2013)

Using Social Media in Rulemaking: Possibilities and Barriers (Report for the Administrative Conference of the United States, 2013)

Some Thoughts on Judicial Review and Collaborative Governance, 2009 Journal of Dispute Resolution 361

Purposivism and Institutional Competence in Statutory Interpretation, 2009 Michigan State Law Review 89

Law Lags Behind: FOIA and Affirmative Disclosure of Information, 7 Cardozo Journal of International & Comparative Law 577 (2009)

The Role of One Religiously Affiliated Law School, 59 Journal of Legal Education 136 (2009)

Les Grands Débats Autour du Droit de l’Environnement aux États-Unis, in Droit et environnement, Pouvoirs No. 127, at 87 (2008)

Judicial Review of Statutory Issues Outside of the Chevron Doctrine, in A Guide to Judicial and Political Review of Federal Agencies (American Bar Association 2005) (John F. Duffy & Michael Herz eds.)

Abandoning Recess Appointments?: A Comment on Hartnett (and Others), 26 Cardozo L. Rev. 443 (2005)

The Rehnquist Court and Administrative Law, 99 Northwestern Law Review  297 (2004)

Rulemaking, in Developments in Administrative Law and Regulatory Practice, 2002-2003, at 129 (Jeffrey Lubbers ed. 2004)

Harnessing Information Technology to Improve the Environmental Impact Review Process, 12 New York University Environmental Law Journal 18 (2003) (with Michael B. Gerrard)

Nearest to Legitimacy: Justice White and Strict Rational Basis Scrutiny, 74 University of Colorado Law Review 1329 (2003)

The Uneasy Case for DOJ Control of Federal Litigation, 5 University of Pennsylvania Journal of Constitutional Law 558 (2003) (with Neal Devins)

Rulemaking, in Developments in Administrative Law and Regulatory Practice, 2001-2002, at 147 (Jeffrey Lubbers ed. 2003)

Washington, Patton, Schwarzkopf, and . . . Ashcroft?, 19 Constitutional Commentary 663 (2002)

How The Electoral College Imitates the World Series, 23 Cardozo Law Review1191 (2002)                           

The Supreme Court in Real Time: Haste, Waste, and Bush v. Gore, 35 Akron Law Review 185 (2002)

Reading the Clean Air Act after Brown & Williamson, 31 Environmental Law Reporter 10151 (2001)

The Consequences of DOJ Control of Litigation on Agencies’ Programs, 52 Administrative Law Review 1033 (2000) (with Neal Devins)

Judicial Review, in Developments in Administrative Law and Regulatory Practice, 1998-99, at 45 (Jeffrey Lubbers ed. 2000)

The Battle that Never Was: Congress, the White House, and Agency Litigation Authority, 61 Law and Contemporary Problems 205 (Winter 1998) (with Neal Devins)

The Legislative Veto in Times of Political Reversal: Chadha Reconsidered in Light of Current Events, 14 Constitutional Commentary 319 (1997)

Structures of Environmental Criminal Enforcement, 7 Fordham Environmental Law Journal 679 (1996)

"Do Justice!": Variations of a Thrice-Told Tale, 82 Virginia Law Review 111 (1996)

Employee Trip Reduction and Low-Emission Vehicles, in 1 New York Environmental Law Series: Air & Water Pollution 13:501, 13:601 (1995)

An Introduction to American Environmental Law, 4 Tilburg Foreign Law Review 327 (Tilburg University, The Netherlands, 1995)

Rediscovering Francis Lieber: An Afterword and Introduction, 16 Cardozo Law Review 2107 (1995)

The Attorney Particular: The Governmental Role of the Agency General Counsel, in Government Lawyers: The Federal Legal Bureaucracy and Presidential Politics 143 (Cornell W. Clayton ed., 1995)

Justice Byron White and the Argument that the Greater Includes the Lesser, 1994 Brigham Young University Law Review 227

Parallel Universes: NEPA Lessons for the New Property, 93 Columbia Law Review 1668 (1993)

Imposing Unified Executive Branch Statutory Interpretation, 15 Cardozo Law Review 219 (1993)

Choosing Between Normative and Descriptive Versions of the Judicial Role, 75 Marquette Law Review 725 (1992)

Deference Running Riot: Separating Interpretation and Lawmaking Under Chevron, 6 The Administrative Law Journal of The American University 187 (1992)

Judicial Textualism Meets Congressional Micromanagement: A Potential Collision in Clean Air Act Interpretation, 16 Harvard Environmental Law Review 175 (1992)

United States v. United States: When Can the Federal Government Sue Itself?, 32 William & Mary Law Review 893 (1991)

Textualism and Taboo: Interpretation and Deference for Justice Scalia, 12 Cardozo Law Review 1663 (1991)

Environmental Auditing and Environmental Management: The Implicit and Explicit Federal Regulatory Mandate, 12 Cardozo Law Review 1241 (1991)

The Air Toxics Dilemma: Whither Section 112?, 1990 Annual Survey of American Law 135

Permitting and Review for MSW Incinerators, in Recycling and Incineration: Evaluating the Choices 246 (Richard A. Denison & John Ruston eds., 1990)

Wetland Preservation and Restoration: Changing Federal Priorities, 7 Virginia Journal of Natural Resources Law 221 (1988) (with James T.B. Tripp)

Comment, Forfeiture Seizures & the Warrant Requirement, 48 University of Chicago Law Review 960 (1982)

 
Book Reviews and Miscellany:

The challengingly uncategorizable Recess Appointments Clause, SCOTUSBlog (July 15, 2013)

Preface, in Developments in Administrative Law and Regulatory Practice, 2011 (Jeffrey Lubbers ed. 2012)

Chair’s Messages, Administrative and Regulatory Law News (Fall 2011, Winter 2012, Spring 2012, Summer 2012)

Dean Verkuil, 32 Cardozo Law Review 2173 (2011)

Agencies, Courts, and Statutory Purpose, 31 Administrative and Regulatory Law News 8 (Spring 2006)

Entry on New York Times v. United States, The Encyclopedia of American Civil Liberties (Paul Finkelman ed. 2006)

Rulemaking, in Developments in Administrative Law and Regulatory Practice, 2004-2005 (Jeffrey Lubbers ed. 2006) (with Richard Stoll & Katherine Lazarsky)

Robert Dahl’s How Democratic is the American Constitution?: An Introduction, with Notes on the Electoral College, 26 Cardozo L. Rev. 2515 (2005)

A Blackletter Summary of Federal Administrative Law, 54 Administrative Law Review 17 (2002) (Assistant Chief Reporter for project with multiple authors)

Introduction to A Blackletter Summary of Federal Administrative Law, 54 Administrative Law Review 5 (2002) (with Paul Verkuil & John Duffy)

Book Review, The New York Law Journal (July 27, 1999), p. 2 (reviewing Jethro Lieberman, A Practical Guide to the Constitution, and Kermit Hall, The Oxford Guide to U.S. Supreme Court Decisions)

Case Analysis of Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 8 Journal of Environmental Law 179 (London: Oxford University Press, 1996)

The Application of Federal Laws to Congress, 50 The Record of the Association of the Bar of the City of New York 270 (1995) (for the Committee on Federal Legislation)

The Answer Is: Perhaps, 2 New Europe Law Review 137 (1994) (reviewing Christopher Stone, The Gnat is Older Than Man)

Book Review, 63 Quarterly Review of Biology 110 (1988) (reviewing Thomas Hoban and Richard Brooks, Green Justice)