Law Commons^™

Weathering Nepa Review: Superstorms And Super Slow Urban Recovery, John Travis Marshall

John Travis Marshall

Delays in implementing long-term neighborhood housing recovery measures following urban disasters profoundly disrupt a city's revitalization and resurgence. Following recent large-scale urban disasters, some blame the National Environmental Policy Act environmental and historical review requirement for greatly slowing the long-term recovery process. They claim that the National Environmental Policy Act review is ill suited for the exigencies of disasters. Finding effective ways to advance urban disaster recovery as quickly as possible, while not compromising key environmental quality objectives, is a central challenge to implementing effective post-disaster recovery plans. This Article addresses how best to balance necessary regulation with critical disaster …

Federalism And The Rise Of Renewable Energy: Preserving State And Local Voices In The Green Energy Revolution, Daniel Lyons

Daniel Lyons

The rise of renewable energy has disrupted the traditional regulatory structure governing electricity. Unlike traditional fossil fuel power plants, wind and solar facilities are geographically constrained: they exist where the wind blows and the sun shines. Large-scale renewable energy is more likely to flow interstate, from resource-rich prairie and Southwestern states to energy-hungry population centers elsewhere. The difficulties of coordinating interstate electricity policies have led some to call for greater preemption of the states’ traditional duties as chief regulators of the electricity industry. But while preemption would eliminate some state-level roadblocks to interstate cooperation, it would sacrifice many of the …

Supreme Guidance For Wet Growth: Lessons From The High Court On The Powers And Responsibilities Of Local Governments, Michael Allan Wolf

Michael A Wolf

Before the merger of water law and land use planning can occur, local and state regulators need strong guidance from experts in the field, not only in extra-legal fields such as planning, hydrology, geology, engineering, biology, and transportation, but also in mainstream legal areas including legislation (local, state, and federal), administrative law, and enforcement. The purpose of this article is to identify a somewhat unorthodox source of guidance - the United States Supreme Court, specifically the Rehnquist Court from October, 1984, through June, 2005, a period of remarkable stability for the nation’s highest tribunal.

Designing Antitrust Agencies For More Effective Outcomes: What Antitrust Can Learn From Restaurant Guides, D. Daniel Sokol

D. Daniel Sokol

Antitrust policy should be concerned with the quality and effectiveness of the antitrust system. Some efforts at agency effectiveness include self-study of antitrust agencies to determine the factors that lead to improving agency quality. Such studies, however, often focus only on enforcement decisions and other agency initiatives such as competition advocacy. They do not reflect at least one other part of the equation: what do non-government users of the antitrust system think about the quality of antitrust agencies? This Symposium Essay advocates the use of a ratings guide by antitrust practitioners for antitrust agencies to add to the tools in …

Applying Administrative Law Principles To Hydraulic Fracturing, Joel M. Pratt

Joel M Pratt

Because fracking regulators and industry need both legal clarity and the ability to react to new information, courts should apply principles of administrative deference to resolve conflicts between state and local fracking regulations.Under these principles, courts weigh expert agency decision making more heavily when the agency has acted reasonably. When faced with a conflict between state and local fracking laws, courts should adopt administrative principles and privilege expert agency regulations rather than engage in an independent judicial inquiry. Part I provides background on fracking and argues that states are in the best position to regulate the practice. Part II then …

Foreword — Chevron At 30: Looking Back And Looking Forward, Peter M. Shane, Christopher J. Walker

Christopher J. Walker

This Foreword introduces a Fordham Law Review symposium held in March 2014 to mark the thirtieth anniversary of Chevron U.S.A. v. Natural Resources Defense Council. The most-cited administrative-law decision of all time, Chevron has sparked thirty years of scholarly discussion concerning what Chevron deference means, when (or even if) it should apply, and what impact it has had on the administrative state. Part I of the Foreword discusses the symposium contributions that address Chevron’s scope and application, especially in light of City of Arlington v. FCC. Part II introduces the contributions that explore empirically and theoretically Chevron’s impact outside of …

La Tutela Cautelar En El Proceso Contencioso-Administrativo. A Propósito Del Artículo 159 Del Código Tributario., Carlos Tamani

Carlos Tamani

Rainwater Recapture: Development Regulations Promoting Water Conservation, Julian C. Juergensmeyer

Julian C. Juergensmeyer

The increasing need for water conservation in the eastern as well as western parts of the United States is focusing attention on rainwater recapture. The technology available is effective and relatively inexpensive. Using land development regulations to require or encourage new development to incorporate rainwater recapture facilities is one approach to alleviation of local water shortages.

Sustaining An Unsustainable Fuel Source: How Lifecycle Greenhouse Gas Limitations Can Improve The Sustainability Of The Tar Oil Industry, Brittany Debord

Brittany DeBord

The United States seeks to achieve energy security and self-sufficiency by acquiring energy from Canadian tar sands and promoting a domestic tar sands industry. However, support for this industry is inconsistent with the greenhouse gas reduction policies of the Energy Independence and Security Act and the North American Agreement on Environmental Cooperation, since tar oil extraction creates three times more carbon emissions than conventional oil extraction. Legislation limiting lifecycle greenhouse gas emissions has already been implemented through the Renewable Fuel Standard Program in response to concerns that plant-based fuel production leads to greater carbon emissions than intended. Since the lifecycle …

One Hundred Nos: An Empirical Analysis Of The First 100 Denials Of Institution For Inter Partes And Covered Business Method Patent Reviews, Jonathan R. K. Stroud, Jarrad Wood

Jonathan R. K. Stroud

Tasked in 2011 with creating three powerful new patent review trial regimes, the U.S. Patent and Trademark Office—through the efforts of their freshly empowered quasi-judicial body, the Patent Trial and Appeals Board—set to creating a fast-paced trial with minimal discovery and maximum efficiency. In the first two years of existence, the proceedings have proved potent, holding unpatentable many of the claims that reach decisions on the merits. Yet a small subsection of petitions never make it past the starting gate, resulting in wasted time and effort on the parts of petitioners—and likely sighs of relief from the rights-holders. Parties on …

Unfit For Duty: The Officer And Director Bar As A Remedy For Fraud, Renee Jones

Renee Jones

Many commentators have questioned the efficacy of the SEC’s enforcement program in the aftermath of the 2008 financial crisis. Some criticize the agency for allowing corporate defendants to settle charges without admitting or denying liability. Others dispute the impact of astronomical fines levied against too-big-to-fail financial institutions. Still others urge prosecutors to bring criminal charges against those who led the failed financial firms to ruin. This Article, written for a symposium on SEC enforcement, focuses attention on an underutilized weapon in the SEC’s arsenal: the power to bar officers and directors of public companies from future service in such roles. …

The Political Economy Of Administrative Fairness: A Preliminary Enquiry, Eric Tucker

Eric M. Tucker

No abstract provided.

The Geography Of Racial Stereotyping: Evidence And Implications For Vra Preclearance After Shelby County, Christopher Elmendorf, Douglas Spencer

Douglas M. Spencer

The Supreme Court in Shelby County v. Holder (2013) effectively enjoined the preclearance regime of the Voting Rights Act. The Court deemed the coverage formula, which determines the jurisdictions subject to preclearance, insufficiently grounded in current conditions. This paper proposes a new, legally defensible approach to coverage based on between-state differences in the proportion of voting age citizens who subscribe to negative stereotypes about racial minorities and vote accordingly. The new coverage formula could also account for racially polarized voting and minority population size, but, for constitutional reasons, subjective discrimination by voters is the essential criterion. We demonstrate that the …

The Soda Ban Or The Portion Cap Rule? Litigation Over The Size Of Sugary Drink Containers As An Exercise In Framing, Rodger D. Citron, Paige Bartholomew

Rodger Citron

The authors discuss the litigation over New York City’s “Portion Cap Rule,” which restricts the size of sugary drink containers. The authors provide a history of the rule, from its promulgation by the Board of Health to the Appellate Division’s decision invalidating the rule. The authors also comment on the dispute between the parties over how to frame the rule. Opponents of the rule characterize the measure as an unwarranted and unprecedented incursion of consumer choice and personal freedom. Proponents of the rule, including the City, view the rule as a modest measure intended to address obesity, a significant—even alarming—public …

Difusas Razones Para Dejar Sin Efecto Un Precedente. A Propósito De La Stc Exp. N° 04293-2012-Pa/Tc Que Deja Sin Efecto El Control Difuso En Sede Administrativa, Jancarlos Jair Vega Lugo

Jancarlos Jair Vega Lugo

No abstract provided.

Drones, Henry H. Perritt Jr., Eliot O. Sprague

Henry H. Perritt, Jr.

Preventative Legislation Ensures Intended Parents Of Gestational Surrogacy Benefits Under The California Family Rights Act, Jennifer Jackson

Jennifer Jackson

We live in a rapidly evolving technological age, which now allows parents to enter surrogacy contracts. In such a world, the law often lags in catching up to technology and the ramifications that may ensue. This paper focuses on the California Family Rights Act (CFRA) and the consequences it has on surrogacy agreements and the rights intended parents. While the CFRA includes broad language as to the definition of a “child,” case law shows that surrogate born children may be unintentionally excluded. As a result, this paper analyzes the arguments both for and against revision to the CFRA and concludes …

Response To Questions In The First White Paper, 'Modernizing The Communications Act', Randolph J. May, Richard A. Epstein, Justin (Gus) Hurwitz, Daniel Lyons, James B. Speeta, Christopher S. Yoo

Daniel Lyons

The House Energy and Commerce Committee has begun a process to review and update the Communications Act of 1934, last revised in any material way in 1996. As the Committee begins the review process, this paper responds to questions posed by the Committee that all relate, in fundamental ways, to the question: "What should a modern Communications Act look like?" The Response advocates a "clean slate" approach under which the regulatory silos that characterize the current statute would be eliminated, along with almost all of the ubiquitous 'public interest' delegation of authority found throughout the Communications Act. The replacement regime …

Building A Framework For Governance: Retrospective Review And Rulemaking Petitions, Reeve T. Bull

Reeve T Bull

Of the various regulatory reform efforts advocated by legal scholars and politicians in recent years, perhaps none holds greater promise than retrospective review of agency regulations, whereby agencies revisit existing rules to determine whether they remain appropriate in light of changed circumstances. The Obama Administration has embraced the principles of retrospective review, issuing three executive orders on the subject, and it has trumpeted billions of dollars in economic savings resulting from those efforts. Nevertheless, numerous scholars have criticized these initiatives, contending that agencies reviewing their own regulations are unlikely to repeal or fundamentally overhaul existing rules. This article addresses the …

Falling Behind: Processing And Enforcing Permits For Animal Agriculture Operations In Maryland Is Lagging, Rena I. Steinzor, Anne Havemann

Rena I. Steinzor

After decades of failed interstate agreements, the Chesapeake Bay is choking on too many nutrients. The estuary’s last, best chance of recovery is the Environmental Protection Agency's Total Maximum Daily Load (“TMDL”) program, also known as a pollution diet. To meet this deadline, all polluters, including large animal farms, will need to sharply reduce the pollutants they release into the Bay. The Maryland Department of the Environment (MDE) must ensure that each Concentrated Animal Feeding Operation (“CAFO”) has developed a facility-specific permit that details when and where manure is applied to fields and how waste is stored and handled. Then …

Restoring Limits On The Fcc's Ancillary Authority, Daniel A. Lyons

Daniel Lyons

No abstract provided.

The Eye Of The Beholder: Participation And Impact In Telecommunications (De)Regulation, Dorit Reiss

Dorit R. Reiss

The California Public Utilities Commission addressed both pricing deregulation and universal service in telecommunications during the last decade. Both decisions had a similar cast of characters, and similarly elaborate processes. In relation to price deregulation, the utilities positions were accepted on every issue addressed; in relation to universal service, consumer organizations’ positions were accepted in about 60% of the issues. This article tells the story of how those decisions were made, and examines the reasons for the difference in impact. The article examines and reject an explanation of capture; accepts in part a focus on the influence of the commissioner …

Relying On Government In Comparison: What Should The United States Learn From Abroad In Relation To Administrative Estoppel?, Dorit R. Reiss

Dorit R. Reiss

The United States’ Supreme Court had never upheld a claim of estoppel against the government. A citizen relying on government’s advice does that at her peril: if the government was wrong, if it misrepresented the statute or interpreted it wrongly, it can (by some interpretations, must) go back on its word and the citizen has no recourse. The Supreme Court provided many arguments for that position, but the core of them involves protection of what the Europeans refer to as “the principle of legality”: the executive does not have the ability to waive requirements from primary legislation or deviate from …

The Scored Society: Due Process For Automated Predictions, Danielle Keats Citron, Frank A. Pasquale

Danielle Keats Citron

Big Data is increasingly mined to rank and rate individuals. Predictive algorithms assess whether we are good credit risks, desirable employees, reliable tenants, valuable customers—or deadbeats, shirkers, menaces, and “wastes of time.” Crucial opportunities are on the line, including the ability to obtain loans, work, housing, and insurance. Though automated scoring is pervasive and consequential, it is also opaque and lacking oversight. In one area where regulation does prevail—credit—the law focuses on credit history, not the derivation of scores from data.

Procedural regularity is essential for those stigmatized by “artificially intelligent” scoring systems. The American due process tradition should inform …

The Scored Society: Due Process For Automated Predictions, Danielle Keats Citron, Frank A. Pasquale

Frank A. Pasquale

Big Data is increasingly mined to rank and rate individuals. Predictive algorithms assess whether we are good credit risks, desirable employees, reliable tenants, valuable customers—or deadbeats, shirkers, menaces, and “wastes of time.” Crucial opportunities are on the line, including the ability to obtain loans, work, housing, and insurance. Though automated scoring is pervasive and consequential, it is also opaque and lacking oversight. In one area where regulation does prevail—credit—the law focuses on credit history, not the derivation of scores from data. Procedural regularity is essential for those stigmatized by “artificially intelligent” scoring systems. The American due process tradition should inform …

The Corporate Finance Case For Deliberation-Oriented Stress Testing Regulation, Robert F. Weber

Robert F. Weber

No abstract provided.

Taking Administrative Law To Tax, Amandeep S. Grewal

Andy Grewal

Not too long ago, an academic symposium on Taking Administrative Law to Tax would have been just that -- academic. For decades, the tax law sat comfortably isolated from administrative law doctrines that governed other areas of law. Courts frequently applied tax-specific deference standards to IRS guidance, and the tax bar was largely indifferent to the Treasury's many violations of the Administrative Procedure Act. But all that changed when the Supreme Court rejected tax exceptionalism in Mayo v. United States. As the articles in this Symposium show, the Court’s decision has brought great attention to the intersection between tax and …

The Technological And Business Evolution Of Machine Based Gambling In America, Darren Prum, Carlin Mccrory

Darren A. Prum

Machine Based Gambling has become a major source of revenue to many states across the country that need the money but face obstacles to raising taxes within their jurisdiction. The figures are startling with the Commonwealth of Pennsylvania’s cut at over $1.456 Billion in 2011, which exceed the next closest state by $500 million. In addition, there are more than twice as many slot machines available to the public than ATMs. The benefits of machine based gaming has allowed many governments to revitalized tourism locations, make some Native Americans economically self-sufficient, and save horse and dog race tracks from closing …

Carbon Capture And The Information Quality Act, Brendan Burke

Brendan Burke

In January 2014, the U.S. Environmental Protection Agency (EPA) issued a proposed new source performance standard (NSPS) under the Clean Air Act for carbon dioxide (CO2) emissions from new or modified electric utility plants that will effectively require implementation of a process known as carbon capture and sequestration (CCS). The new rule would limit CO2, a previously unregulated greenhouse gas emission, from such generation facilities to a rate of 1,100 pounds per megawatt-hour. Energy producers, especially those employing coal-fired plants, are strongly opposed to these limits. In February 2014, the Center for Regulatory Effectiveness sent a letter to the EPA …

До Питання Визначення Принципів Досудового Врегулювання Публічно-Правових Спорів, Sergey V. Kivalov

Sergey V. Kivalov

Article is devoted to the formation of the basic foundations of pre-trial settlement of public law disputes referred to the jurisdiction of the administrative courts. The system of pre-trial settlement of the principles of public law disputes are characterized by their types and content specific legal principles study procedures. Puts more emphasis on the content of the principles of neutrality and disinterestedness, equality, voluntariness and confidentiality procedures.