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The Intergenerational Equity Case For A Wealth Tax, Daniel Schaffa

Law Faculty Publications

Intergenerational equity is commonly set aside in favor of other policy objectives, perhaps because of the extreme challenges inherent in adopting and applying an intergenerational equity normative framework. Even when there is a near consensus that the choices of today will have substantial costs in the future, these costs are often downplayed or disregarded. This Article asks whether there are measures that might offer redress to a generation for the costs imposed on it by its predecessors and finds that a one-time wealth tax is a promising option. Although its analysis applies more generally, this Article focuses on the widely …

Death Penalty Exceptionalism And Administrative Law, Corinna Lain

Law Faculty Publications

"In the world of capital punishment, the oft-repeated refrain “death is different” stands for the notion that when the state exercises its most awesome power—the power to take human life—every procedural protection should be provided. Every safeguard should be met. Granted, doing so makes the death penalty cumbersome. And granted, it slows what Justice Blackmun famously called “the machinery of death.” But when the stakes are literally life and death, the idea is that we ought to make sure that whatever the state does, it does right.

Scholars have lamented the way that this idea of death penalty exceptionalism has …

Administrative Law, John Paul Jones

Law Faculty Publications

This article is a report of certain developments during the last two years relating to the Virginia Administrative Process Act ("the VAPA"), which governs rulemaking and adjudication of cases by state agencies as well as judicial review of both.

Administrative Law (Annual Survey Of Virginia Law, 2012), John Paul Jones

Law Faculty Publications

What follows is, first, a report of certain developments during the last two years in the administrative law of Virginia, in particular the law governing rulemaking by state agencies and judicial review of both rules and cases from state agencies and, second, a report of developments in the law relating to Virginia's Freedom of Information Act.

When It Reins It Pours, Noah M. Sachs

Law Faculty Publications

Imagine if the board of a Fortune 500 company required the company’s vice presidents to obtain board approval before implementing any decision. Now imagine that the board is highly polarized and its members are at each other’s throats. A recipe for corporate gridlock, right?

Amazingly, House Speaker John Boehner, Senator Jim DeMint, and other prominent Republicans are embracing this dubious chain-of-command for the federal government. They are promoting a bill called the REINS Act (Regulations from the Executive in Need of Scrutiny), which would stop any major regulation issued by any federal agency from taking effect until it receives approval …

Annual Survey Of Virginia Law: Administrative Law, John Paul Jones

Law Faculty Publications

This article selects from developments since May of 2007 in the law of Virginia pertaining to the work of administrative agencies state and local, as well as access to their meetings and information in their custody. Elsewhere in this issue of the Annual Survey can be found reports of developments in the laws these agencies are bound to carry out.

Fda Regulatory Compliance Reconsidered, Carl W. Tobias

Law Faculty Publications

Many observers consider the Food and Drug Administration (FDA) vital for the protection of consumer health and safety. One hundred years ago, Congress established the entity that would become the FDA and authorized it to regulate foods and drugs, critical responsibilities that the agency has long discharged carefully. Throughout the past century, the FDA's regulatory power has expanded systematically, albeit gradually, while legislatures and courts in the fifty American jurisdictions broadened liability exposure for manufacturers that sold defective products that injured consumers. Observers have recently criticized the agency for overseeing pharmaceuticals too leniently, even as states increasingly narrowed manufacturers' liability …

Adr At The Environmental Protection Agency, Joel B. Eisen

Law Faculty Publications

This chapter examines how the U.S. Environmental Protection Agency (EPA) uses alternative dispute resolution (ADR) methods to help resolve complex environmental disputes. In recent years, the EPA's use of ADR has increased dramatically in a wide variety of settings. The EPA has made ADR a central feature of its environmental enforcement strategy, encouraged its use in Title VI and environmental justice conflict settings, and turned to negotiated rulemaking as an alternative to the cumbersome notice-and-comment process for development of new federal regulations. Other EPA programs, such as the Brownfields Economic Redevelopment Initiative, promote nonadversarial methods for tackling complex environmental problems. …

Annual Survey Of Virginia Law: Administrative Procedure, John Paul Jones

Law Faculty Publications

Since the last report on developments in Virginia's law of administrative procedure,' both her General Assembly and her courts have been busy making new law. This year's General Assembly revamped the Freedom of Information Act ("FOIA"), and made adjustments to laws regulating the periods in which agencies must decide certain types of licensing cases and promulgate certain procedural regulations. Meanwhile, the courts of the Commonwealth were active in the field, addressing open questions concerning the following subjects: rulemaking, due process, evidence, timeliness, and judicial review.

Once Again: What's Fact, What's Law, And Who Decides, John Paul Jones

Law Faculty Publications

Professor Jones critiques a Virginia Circuit opinion, J. W Burress, Inc. v. Department of Motor Vehicles

Participant Compensation In The Clinton Administration, Carl W. Tobias

Law Faculty Publications

A half-decade ago in the pages of this journal, I suggested that the Bush Administration, the federal administrative agencies, and Congress seriously consider revitalizing participant compensation. Participant compensation is the agency payment of expenses that members of the public incur when they are involved in administrative proceedings. Initiatives in the executive and legislative branches supported my recommendation that both branches revive this valuable mechanism for facilitating citizen participation in agency processes.

Much to my chagrin, the Bush Administration neither introduced legislation which would have specifically authorized participant compensation nor suggested that agencies rely on their implied authority to reimburse parties, …

Unnecessary Immunity: Fetta V. Board Of Medicine, John Paul Jones

Law Faculty Publications

Prof. Jones critiques the holding of the Supreme Court of Virginia in Fetta v. Va. Bd. of Medicine, 421 S.E.2d 410 (Va. 1992).

Administrative Law Judges: Past, Present And Future, John Paul Jones

Law Faculty Publications

Prof. Jones' account of the history of administrative law judges. The text of this article is taken from his address at the annual conference and seminar of the National Association of Administrative Law Judges, held October 16-19, 1991 in Richmond, Virginia.

Fact, Fiction, And Forest Service Appeals, Carl W. Tobias

Law Faculty Publications

People who live in the western United States have long considered the United States Forest Service to be a mammoth, hierarchical bureaucracy. The Forest Service has responsibility for managing the national forests, which in some western states comprise substantial components of the total land base. The Forest Service administers the national forests pursuant to numerous congressional mandates. Perhaps the most important and most difficult task that Congress has assigned the Forest Service is to manage the national forests for multiple uses, including resource (timber, mineral, oil and gas) extraction, recreation, fish and wildlife, and water quality. Implementation of this multiple-use …

Reviving Participant Compensation, Carl W. Tobias

Law Faculty Publications

Over the last quarter century, Congress has clearly recognized the importance of expanding public participation in federal administrative agency proceedings. It has expressly required that many agencies solicit citizen input and facilitate active public involvement in administrative processes while commanding governmental officials to consider thoroughly in their decisionmaking the views of all interests that might be affected. Congress has attempted to develop some mechanisms for promoting increased citizen participation in agency processes, but the legislative branch has been relatively unsuccessful in actually enhancing public involvement. Because citizen participants, such as public interest groups or individual consumers, have comparatively few resources …

Early Alternative Dispute Resolution In A Federal Administrative Agency Context: Experimentation With The Offeror Process At The Consumer Product Safety Commission, Carl W. Tobias

Law Faculty Publications

During the 1980s Alternative Dispute Resolution (ADR) has come of age. Much experimentation with consensual decisional processes has been conducted in the context of federal administrative agency proceedings. The Administrative Conference of the United States (ACUS) has stamped its imprimatur on the concept of ADR, the Environmental Protection Agency has negotiated successfully several rulemakings, and a plethora of additional agencies have implemented, are experimenting with, or are contemplating the application of, consensual decisional processes. The efficacy of ADR remains controversial and debate continues over how best to implement consensual procedures, while much agency experimentation has proceeded slowly by trial and …

Administrative Procedure (Annual Survey Of Virginia Law, 1987), John Paul Jones

Law Faculty Publications

After three years of working major changes to the Virginia Administrative Process Act (VAPA), the General Assembly paid scant attention to the Commonwealth's fundamental law of administrative procedure in 1987. During its most recent session, the legislature produced only three amendments to VAPA, inserting a regulation severability provision, modifying VAPA's impact on Voluntary Formulary changes, and narrowing the exemption enjoyed by the Virginia Marine Resources Commission. In two other statutory changes affecting administrative procedure, the General Assembly expressly provided for agency subdelegation and specified the method for computing time for a rule of court. While severability has evolved into an …

Great Expectations And Mismatched Compensation: Government Sponsored Public Participation In Proceedings Of The Consumer Product Safety Commission, Carl W. Tobias

Law Faculty Publications

During the last twenty years, numerous proposals for enhancing the quality of federal administrative agency decisionmaking have been offered, but few actually were implemented. One controversial approach, with which fourteen agencies experimented, has been the reimbursement of non-regulated individuals and organizations for the costs of their involvement in administrative proceedings. A principal purpose of that public funding was to improve agency decisionmaking by rectifying the participatory imbalance between regulated parties and non-commercial interests involved in administrative initiatives; however, little of the government- supported citizen activity that occurred has been analyzed. Participant compensation effectively has been discontinued and most agency proceedings …

Administrative Procedure (Annual Survey Of Virginia Law, 1986), John Paul Jones

Law Faculty Publications

Since the last report, administrative law in Virginia has continued to develop on both the legislative and judicial fronts. This year's General Assembly enacted amendments to the state's administrative procedure statute which embody the third and final round of recommendations by the Governor's Regulatory Reform Advisory Board. The major changes were the standardization of procedures for obtaining judicial review of state agency action and the embodiment in statute of a corps of independent hearing officers.

Administrative Procedure (Annual Survey Of Virginia Law, 1985), John Paul Jones

Law Faculty Publications

Both the General Assembly and the Supreme Court of Virginia have been active recently in administrative law. For the past three years, a broadly-based movement for bureaucratic reform has influenced the legislative and executive branches of state government. The instrument for formal expression of this reform has been the Governor's Regulatory Reform Advisory Board. In 1985, the General Assembly and the Governor responded obligingly to a second round of suggestions from the Board for amendment of the commonwealth's general administrative process act. These legislative changes involved the definition of regulation, i.e., the output of a statutorily controlled administrative rulemaking process, …

Legislative Changes To Virginia Administrative Rulemaking, John Paul Jones

Law Faculty Publications

The year 1983 was an active one for administrative law reform in Virginia. The Governor's Regulatory Reform Advisory Board completed its first full year of studying the state administrative process in Virginia, developing proposals for its improvement and drafting enabling legislation. The Board received a wide variety of suggestions from state employees, businesses, and the public at large in open hearings and through private correspondence. The result was the Board's first annual report, containing a series of proposed legislative reforms. The common thread of these reforms was an increased public involvement in bureaucratic decision-making creating broadly applicable regulations with the …

Of Public Funds And Public Participation: Resolving The Issue Of Agency Authority To Reimburse Public Participants In Administrative Proceedings, Carl W. Tobias

Law Faculty Publications

A number of federal agencies have recently relied upon implied power to reimburse expenses incurred by public participants in administrative proceedings. When the United States Department of Agriculture (USDA) and the Food and Drug Administration (FDA) attempted to exercise this authority, their efforts were challenged by parties who, relying on a purportedly controlling decision of the Second Circuit, contended that participant funding was an impermissible exercise of administrative power. The USDA initiative was upheld in district court, but the FDA program was invalidated by a divided Fourth Circuit panel.

The dispute over agency reimbursement has not been confined to the …

Of Crabbed Interpretations And Frustrated Mandates: The Effect Of Environmental Policy Acts On Pre-Existing Agency Authority, Carl W. Tobias, Daniel N. Mclean

Law Faculty Publications

When Congress passed the National Environmental Policy Act (NEPA) in 1969, the legislation was acclaimed as one of the most important environmental measures ever enacted. States soon followed the federal lead, so that by 1976 thirty jurisdictions had adopted statutes similar to the national legislation. The Montana legislature was in the vanguard, passing the Montana Environmental Policy Act (MEPA) in 1971.

The federal agencies now appear to have accepted full responsibility for implementation of NEPA, despite some initial reluctance. Several agencies contended at first that the statute did not authorize them to consider in decisionmaking any environmental factors not expressly …

Annual Survey Of Virginia Law - Administrative Law, William Hamilton Bryson

Law Faculty Publications

This year's survey of Administrative Law focuses upon the four cases involving administrative agencies or municipal corporations decided last term by courts sitting in Virginia. Though few in number, the cases presented a wide range of issues including the review of a determination of the State Corporation Commission on an application for a branch bank, a condemnation case, the availability of a tort remedy against a municipal corporation and a contest over the constitutionality of the Virginia Industrial Building Authority.