Law Commons^™

Federal Clean Air Act Preemption Of Public Nuisance Claims: The Case For Supreme Court Resolution, Richard O. Faulk

Richard Faulk

The current circuit-by-circuit and state-by-state approach to the question of preemption precludes any uniform standards for environmental compliance and enforcement, and also vitiates any reliable basis for capital investment, expanded operations, and workforce stability. Because Congress enacted the CAA to promote those goals—as well as jobs and a healthy economy—delaying review prolongs the uncertainty and intensifies the dilemma facing not only the courts, but also the regulated community.

Federal Agencies In The Legislative Process: Technical Assistance In Statutory Drafting, Christopher J. Walker

Christopher J. Walker

Federal agencies draft statutes. Indeed, they are often the chief architects of the statutes they administer. Even when federal agencies are not the primary substantive authors, they routinely respond to congressional requests to provide technical assistance in statutory drafting. Yet despite their substantial role in the legislative process, our understanding about how agencies interact with Congress is greatly undertheorized and perhaps even less understood empirically. This Report, which was commissioned by the Administrative Conference of the United States (ACUS), explores the latter role of federal agencies in the legislative process: the provision of technical assistance in statutory drafting.

To better …

Inside Regulatory Interpretation: A Research Note, Christopher J. Walker

Christopher J. Walker

In response to Kevin M. Stack, Interpreting Regulations, 111 Mich. L. Rev. 355 (2012).

In Interpreting Regulations, Professor Stack provides the first comprehensive approach to regulatory interpretation and situates this approach within the larger literature on legal interpretation. His theory of regulatory interpretation is simple yet pioneering: “a regulation should be read in light of its purposes, with the regulation’s text and the statement of basis and purpose constituting the privileged interpretive sources.” This Research Note takes a look inside regulatory interpretation to explore the empirical foundation for Professor Stack’s novel approach to regulatory interpretation.

In 2013, the author conducted …

Diagnostic Inflation For The People, Benjamin Douglas

Benjamin Douglas

Workplace stress can cause diagnosable mental health problems, and there is every reason to grant psychologically injured workers the same benefits accorded to other injured workers. Nevertheless, numerous jurisdictions deny or restrict these benefits, using arguments that do not stand up to scrutiny. The real reason for the double standard is not rooted in science, medicine or reason, but in employers' need to preserve low expectations for workers' mental well-being, which enables greater employer control over their employees, and shifts the costs of failing mental health to the rest of society. To reclaim workers' compensation for those who are suffering …

Is The Chief Justice A Tax Lawyer?, Stephanie Hoffer, Christopher J. Walker

Christopher J. Walker

King v. Burwell is a crucial victory for the Obama Administration and for the future of the Affordable Care Act. It also has important implications for tax law and administration, as explored in the other terrific contributions to this Pepperdine Law Review Symposium. In this Essay, we turn to another tax-related feature of the Chief Justice’s opinion for the Court: It is hard to ignore the fingerprints of a tax lawyer throughout the opinion. This Essay focuses on two instances of a tax lawyer at work.

First, in the Chief’s approach to statutory interpretation one sees a tax lawyer as …

Vw And Gm Scandals Show Why Regulation Matters, Robert R.M. Verchick, Rena Steinzor

Robert R.M. Verchick

Conservatives love to belittle federal regulations — especially the ones designed to keep our air clean, our water drinkable, our workplaces safe, and our financial markets stable. Conservatives, of course, don’t oppose any of those things. They just think unregulated markets, left on their own, will keep bad things from happening. Customers will see when a dishonest company is putting Americans at risk; and when they do, they will unleash their fury and incinerate it. Unbridled capitalism is the world’s largest self-cleaning oven. Last week’s news from the automotive industry should lay that argument to rest.

Chevron Deference Conflicts With The Administrative Procedure Act, Richard O. Faulk

Richard Faulk

Although Chevron’s reasoning stresses the expertise of agencies as a basis for deference, the APA plainly delegates final interpretive authority to the courts. Since there is no statutory basis for superseding or diminishing the judicial role in the interpretive process, there is no justification for using deferential review to bypass the judiciary’s primary responsibility. It is time—indeed past time—for the Supreme Court to exercise its singular constitutional authority to declare “what the law is”—and to curb the increasingly intrusive and overreaching authority seized by the Executive Branch. The American people, from whom all authority is derived, are entitled to be …

Se Prendere Un Taxi A Londra Configura Un Aiuto Di Stato. Sulla Legittimità Di Escludere Dalle Corsie Preferenziali I Veicoli A Noleggio Con Conducente (Note A Margine Della Sentenza Corte Di Giustizia Europea, Eventech Ltd C. The Parking Adjudicator, 14 Gennaio 2015), Valentina Gastaldo

Valentina Gastaldo

SOMMARIO: 1. Il caso. – 2. Il servizio taxi nella città di Londra. – 3. Il procedimento dinanzi alla High Court of Justice e alla Court of Appeal. – 4. Sulle questioni pregiudiziali. – 5. I principi di diritto. – 6. La nozione di aiuti di Stato nell’ordinamento comunitario. – 7. Il servizio di noleggio di veicoli con conducente all’interno dei paesi dell’Unione Europea. – 8. Alcune brevi considerazioni conclusive per una rilettura critica della sentenza.

Underground Environmental Regulations: Regulations Imposed As Mitigation Measures Under Ceqa Violate The California Administrative Procedure Act, Jonathan Wood

Jonathan Wood

What happens when an agency adopts a regulation under the California Environmental Quality Act as mitigation for a program’s environmental impact, without complying with the procedural requirements of the California Administrative Procedure Act? According to a recent California Court of Appeal decision – Center for Biological Diversity v. Department of Fish and Wildlife – these mitigation measures, which this article refers to as underground environmental regulations, are invalid. This article defends that interpretation and addresses its consequences for agencies and the regulated public. Although these additional procedural protections benefit regulated parties in a variety of ways, they can also burden …

Take It To The Limit: The Illegal Regulation Prohibiting The Take Of Any Threatened Species Under The Endangered Species Act, Jonathan Wood

Jonathan Wood

The Endangered Species Act forbids the “take” – any activity that adversely affects – any member of an endangered species, but only endangered species. The statute also provides for the listing of threatened species, i.e. species that may become endangered, but protects them only by requiring agencies to consider the impacts of their projects on them. Shortly after the statute was adopted, the U.S. Fish and Wildlife Service and National Marine Fisheries Service reversed Congress’ policy choice by adopting a regulation that forbids the take of any threatened species. The regulation is not authorized by the Endangered Species Act, but …

Democratizing Startups, Seth C. Oranburg

Seth C Oranburg

The Jumpstart Our Business Startups Act of 2012 intends to “help entrepreneurs raise the capital they need to put Americans back to work and create an economy that’s built to last.” The goal is to “democratize startups” by making capital available to diverse entrepreneurs in new geographies. Yet the net effect of securities regulations and market conditions is the opposite. Startup companies are encouraged to stay private so capital is consolidating in large, mature firms instead of recycling into new startups. Evidence of consolidation is that once-rare “Unicorns” (billion-dollar startups) now number over 111. More money is going into huge …

La Garantía De La Audiencia Previa En El Procedimiento Administrativo, Jancarlos Jair Vega Lugo

Jancarlos Jair Vega Lugo

No abstract provided.

“El Principio De Causalidad Del Procedimiento Administrativo Sancionador Frente A Actos De Reorganización Societaria”, Jancarlos Jair Vega Lugo

Jancarlos Jair Vega Lugo

El autor precisa la aplicación del principio de causalidad en los procedimientos administrativos sancionadores en los que la persona jurídica infractora realiza actos de reorganización societaria. Sostiene que en cualquier escenario corresponde iniciar o continuar con la imputación de responsabilidad de una persona jurídica resultante de una transformación societaria, pero que en los casos de fusión y escisión corresponderá determinar la forma en la que se ha ejecutado la operación, para luego identificar contra quién ha de dirigirse en lo que será el inicio o la continuación de un procedimiento.

Desmantelando La “Criollada” Del Mercado Peruano… La Represión De Los Actos De Competencia Desleal Por Violación De Normas En El Perú, Javier André Murillo Chávez

Javier André Murillo Chávez

No abstract provided.

A Program In Legislation, Dakota S. Rudesill, Daniel P. Tokaji, Christopher J. Walker

Christopher J. Walker

This Essay urges that Legislation be conceived of not just as a single course, but as a set of curricular and extracurricular offerings that collectively constitute an integrated program of instruction. The three of us teach at The Ohio State University’s Moritz College of Law, which may serve as a model of such a program. Since 1995, Moritz has required Legislation as a part of the first-year curriculum. We also have a variety of upper-level offerings and extracurricular activities that help students develop a practical understanding of the legislative process. This Essay makes the case for an integrated program of …

The Investigation Procedures Of The United Nations Office Of Internal Oversight Services And The Rights Of The United Nations Staff Member: An Analysis Of The United Nations Judicial Tribunals’ Judgments On Disciplinary Cases In The United Nations, Tamara A. Shockley

Tamara A. Shockley

Abstract The Investigation Procedures of the United Nations Office of Internal Oversight Services and the Rights of the United Nations Staff Member: An Analysis of the United Nations Judicial Tribunals’ Judgments on Disciplinary Cases in the United Nations An employee of an international organization misappropriates over one million dollars from a United Nations Peace-Keeping Mission’s designated for procurement of supplies. As a staff member of an international organization, he or she has functional immunity and cannot be investigated by the local jurisdiction or by authorities in his home country. Is this the “perfect crime”? Taking into consideration that these misappropriated …

La Carta Dei Servizi Ferroviari — The Rail Passenger’S Charter In Italy, Valentina Gastaldo

Valentina Gastaldo

The essay examines the impact of the Charter of rail services on the general Consumer protection. This document is an immediately available tool that the primary train operator in Italy uses to inform its customers of the fundamental principles adopted in its operations, of the services offered and of the key objectives for 2014. The article in particular analyzes the founding principles of the Charter, the limits to the automatic and flat-rate compensation in case of failure of the service. Finally the paper explores the customer complaints management and the conciliation procedure.

Closing The Door To Lost Earnings Under The National Childhood Vaccine Injury Act Of 1986, Aaron M. Levin

Aaron M Levin

After a wave of lawsuits against vaccine manufacturers hindered the profitability and production of life-saving vaccines, Congress enacted The National Childhood Vaccine Injury Act of 1986. The Act offers an incentive for individuals to get vaccinated in order to mitigate the population’s exposure to disease, while encouraging the continued production of these serums by pharmaceutical companies. Although imperfect, the Vaccine Act fosters promise in filtering out frivolous claims and provides a central route for due process to the individuals who suffer from a vaccine-related injury. By removing a potential state tort issue to the Federal Circuit, Congress created a reasonably …

Proposed Implementing Procedures For Restore Act Awards Under Nepa, Sara Mammarella

Sara Mammarella

On April 20, 2010, what has been described as “the worst oil spill in U.S. history,” the BP Deepwater Horizon oil spill, occurred off the Louisiana coast, affecting a five-state area in the Gulf region (Florida, Alabama, Louisiana, Mississippi, and Texas), dumping an estimated 4.9 billion barrels of oil into the Gulf of Mexico. In response, Congress enacted the federal RESTORE Act to set up a mechanism for compensating the victims of the oils spill and to Repair the environmental harm caused by the oil spill.

This article will examine the effectiveness of the regulatory scheme in place that was …

La Adopción En El Perú. Entre La Realidad Y La Ficción., Silvia Roxana Sotomarino, Nancy Juvisa Huamán

Silvia Roxana Sotomarino

This article is a normative, dogmatic and jurisprudential analysis of the adoption of children and adolescents in the area of Peruvian law and the comparative. While it has set up this system of adoption of greater specialization, in practice, and especially from the year 2011, lush, complex and uncomprehending rules that benefits some children and adolescents from the Peru has been entered. Even much dictated regulations does not meet what orders the Constitution, with the principle of legality or fairness. Revealing statistic is that we are going towards lower child protection by adopting in Perú.

Inside Agency Statutory Interpretation, Christopher J. Walker

Christopher J. Walker

The Constitution vests all legislative powers in Congress, yet Congress grants expansive lawmaking authority to federal agencies. As positive political theorists have long explored, Congress intends for federal agencies to faithfully exercise their delegated authority, but ensuring fidelity to congressional wishes is difficult due to asymmetries in information, expertise, and preferences that complicate congressional control and oversight. Indeed, this principal-agent problem has a democratic and constitutional dimension, as the legitimacy of administrative governance may well depend on whether the unelected bureaucracy is a faithful agent of Congress. Despite the predominance of lawmaking by regulation and the decades-long application of principal-agent …

A Federal Information Quality Act Challenge To The White House “Patent Troll” Report, Ron D. Katznelson

Ron D. Katznelson

Government-disseminated information is unlike that of private parties or non-government entities’ information on the internet or in academic journals, with varying degrees of accuracy and reliability. Because the public disproportionately relies on information disseminated by the government, the government holds itself to substantially higher quality standards. Congress enacted the Information Quality Act (“IQA”) in order to ensure that information disseminated by government agencies meet the standards of “quality, objectivity, utility, and integrity.” 44 U.S.C. § 3516, note. Information disseminated by the government upon which the government and the public rely must be “presented in an accurate, clear, complete, and unbiased …

One Small Problem With Administrative Driver’S License Suspension Laws: They Don’T Reduce Drunken Driving, Steve R. Darnell

Steve R Darnell

Only eight states continue to rely on the judicial system to suspend a drunken driver’s license instead of an administrative process. Federal agencies and special interest groups such as Mothers Against Drunk Driving (MADD) and the Insurance Institute for Highway Safety press for Administrative License Suspension (ALS) laws arguing these laws reduce drunken driving. While some research supports this view, there is an equally and more compelling literature indicating ALS laws are not effective in reducing drunken driving. This study analyzed data from eight states that have adopted ALS laws to determine if the ALS laws reduced drunken driving. A …

Affidavit Defending Personal Law Marriages In Kenya, Nyagudi M. Nyagudi

Nyagudi M Nyagudi

The Law that is the Marriage Act ( No. 4 of 2014) of the Republic of Kenya, attempts to impose overall control of Marriages in the Republic of Kenya, under the Government's State Law Office. This affidavit explains using Constitutional reasons, why the personal law marriages are still valid in Kenya notwithstanding any other written law including the Marriage Act (No. 4 of 2014)

Uber Y El Consumo Colaborativo, Alejandro Faya Rodriguez

Alejandro Faya Rodriguez

No abstract provided.

Información De Recursos Y Reservas Mineras Y Mercados De Valores Mineros, Marcelo Mardones

Marcelo Mardones

No abstract provided.

La Csjn Y El "Cepo Cambiario", Martin Paolantonio

Martin Paolantonio

Nuevo análisis de la jurisprudencia de la Corte Suprema sobre las restricciones cambiarias

Global Administrative Law And Deliberative Democracy, Benedict Kingsbury, Megan A. Donaldson, Rodrigo Vallejo

Megan A Donaldson

An early framing of ‘global administrative law’ (GAL) provisionally ‘bracket[ed] the question of democracy’ as too ambitious an ideal for global administration. To many, the bracketing of democracy has appeared analytically unpersuasive and normatively dubious. This essay is an initial attempt to open the brackets and bring GAL and democracy into conversation. It addresses two separate observations: first, that democracy currently lacks tools to respond to the globalization and diffusion of political authority; and secondly, that GAL is not presently democratic — it has no room for democratic concerns in its emerging norms. The juxtaposition of democracy and GAL yields …

Promoting The Sustainability Of Biofuels In America: Looking To Brazil, Julia Johnson

Julia Johnson

This article explores the reasons why previous attempts at biofuels legislation in the United States have not been successful and focuses upon market-level incentives that drive consumer willingness to purchase biofuels. For the U.S.’s biofuels policies to be more effective, the nation must better employ consumer-side factors and devise policies around promoting biofuels’ ability to compete with conventional fuels. Consumer-side factors include biofuels’ accessibility and pricing, as well as the ease and attractiveness of purchasing alternative energy-powered vehicles. The U.S.’s initiatives have also neither been aggressive enough, nor sufficiently comprehensive, to enable the U.S. to mirror Brazil’s success.

This article …