Law Commons^™

A Comment On Metzger And Zaring: The Quicksilver Problem, Thomas W. Merrill

Faculty Scholarship

It is a pleasure to comment on the fine institutional studies in this issue by Gillian Metzger and David Zaring. Professor Metzger explores the many ways in which financial regulation, as reflected in the regulatory functions of the Federal Reserve (the Fed), differs from mainstream administrative law, as represented by the Environmental Protection Agency (EPA). She describes the historical roots of the divergence, explains how it has persisted over time, and offers some intriguing thoughts about the possibilities for convergence in the future. Professor Zaring paints a fascinating portrait of the Federal Open Market Committee (FOMC), the entity within the …

The Uncertain Effects Of Senate Confirmation Delays In The Agencies, Nina A. Mendelson

Articles

As Professor Anne O’Connell has effectively documented, the delay in Senate confirmations has resulted in many vacant offices in the most senior levels of agencies, with potentially harmful consequences to agency implementation of statutory programs. This symposium contribution considers some of those consequences, as well as whether confirmation delays could conceivably have benefits for agencies. I note that confirmation delays are focused in the middle layer of political appointments—at the assistant secretary level, rather than at the cabinet head—so that formal functions and political oversight are unlikely to be halted altogether. Further, regulatory policy making and even agenda setting can …

Appointments, Innovation, And The Judicial-Political Divide, Gillian E. Metzger

Faculty Scholarship

The federal appointments process is having its proverbial day in the sun. The appointment and removal of federal officers figured centrally in the Supreme Court's two major recent separation-of-powers decisions, Free Enterprise Fund v. Public Company Accounting Oversight Board and National Labor Relations Board v. Noel Canning. The appointments process has featured even more prominently in the political sphere, figuring in a number of congressional-presidential confrontations. Such simultaneous top billing in the judicial and political spheres is hardly coincidental. After all, it was President Obama's use of the Recess Appointments Clause in response to pro forma sessions that triggered …

The Struggle For Administrative Legitimacy, Jeremy K. Kessler

Faculty Scholarship

Nearly forty years ago, Professor James 0. Freedman described the American administrative state as haunted by a "recurrent sense of crisis." "Each generation has tended to define the crisis in its own terms," and "each generation has fashioned solutions responsive to the problems it has perceived." Yet "a strong and persisting challenge to the basic legitimacy of the administrative process" always returns, in a new guise, to trouble the next generation. On this account, the American people remain perennially unconvinced that administrative decisionmaking is "appropriate, proper, and just," entitled to respect and obedience "by virtue of who made the decision" …

Market Intermediation, Publicness, And Securities Class Actions, Hillary A. Sale, Robert B. Thompson

Georgetown Law Faculty Publications and Other Works

Securities class actions play a crucial, if contested, role in the policing of securities fraud and the protection of securities markets. The theoretical understanding of these private enforcement claims needs to evolve to encompass the broader set of goals that underlie the securities regulatory impulse and the publicness of those goals. Further, a clear grasp of the modern securities class action also requires an updated understanding of how the role of market intermediation in securities transactions has reshaped the realities of securities litigation in public companies and the evolution of the fraud cause of action in the context of open-market …

Administrative Law, Public Administration, And The Administrative Conference Of The United States, Gillian E. Metzger

Faculty Scholarship

From its birth, administrative law has claimed a close connection to governmental practice. Yet as administrative law has grown and matured it has moved further away from how agencies actually function. The causes of administrative law’s disconnect from actual administration are complex and the divide is now longstanding, but it is also a source of concern given the increasing importance of internal administration for ensuring accountable government. This Article analyzes the contemporary manifestations and historical origins of administrative law’s divide from public administration, as well as the growing costs of this disconnect. It also describes the Administrative Conference of the …

The Administrative Conference And The Political Thumb, Peter L. Strauss

Faculty Scholarship

In his valuable contribution to this special issue, Richard Pierce underscores the role the Administrative Conference of the United States (“ACUS”) has played over the years in encouraging on the ground fact-finding by its consultants, who have usually been academics consulted at the beginning of careers that ever after would be marked by this encounter with the realities of the administrative process. As the mentee of Walter Gellhorn, who directed the remarkable empirical studies of federal agency procedures that underlay the eventual Administrative Procedure Act (“APA”) and who was a member of the ACUS Council from its initiation in 1964 …

Regulatory Exit, J.B. Ruhl, James Salzman

Vanderbilt Law School Faculty Publications

Exit is a ubiquitous feature of life, whether breaking up in a marriage, dropping a college course, or pulling out of a venture capital investment. In fact, our exit options often determine whether and how we enter in the first place. While legal scholarship is replete with studies of exit strategies for businesses and individuals, the topic of exit has barely been touched in administrative law scholarship. Yet exit plays just as central a role in the regulatory state as elsewhere welfare support ends; government steps out of rate-setting. In this article, we argue that exit is a fundamental feature …

Sprung From Night Into The Sun: An Examination Of Colorado's Marijuana Regulatory Framework Since Legalization, Robert T. Hoban, Raushanah A. Patterson

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

The Increasing Weight Of Regulation: Countries Combat The Global Obesity Epidemic, Allyn L. Taylor, Emily Whelan Parento, Laura A. Schmidt

Indiana Law Journal

Obesity is a global epidemic, exacting an enormous human and economic toll. In the absence of a comprehensive global governance strategy, states have increasingly employed a wide array of legal strategies targeting the drivers of obesity. This Article identifies recent global trends in obesity-related legislation and makes the normative case for an updated global governance strategy.

National governments have responded to the epidemic both by strengthening traditional interventions and by developing novel legislative strategies. This response consists of nine important trends: (1) strengthened and tailored tax measures; (2) broadened use of counter-advertising and health campaigns; (3) expanded food labeling; (4) …

Funding Discipline For U.S. Public Pension Plans: An Empirical Analysis Of Institutional Design, Natalya Shnitser

Natalya Shnitser

Systemic Risk Oversight And The Shifting Balance Of State And Federal Authority Over Insurance

Patricia A. McCoy

Foia Response On Orders Of Supervision, Shoba Sivaprasad Wadhia

Shoba Sivaprasad Wadhia

No abstract provided.

Standard Operating Procedure For Deferred Action (Non-Daca), Shoba Sivaprasad Wadhia

Shoba Sivaprasad Wadhia

In January 2015, I filed a FOIA request seeking updated internal policies and correspondence regarding deferred action (non-DACA) with USCIS. In August 2015, I received a response containing the Standard Operating Procedure (SOP) (version date 3/7/2012) and some e-mails regarding the jurisdiction that applies when a person's case has been administratively closed. Attached is the Cover Letter and Response. Notably, the SOP provided is identical to the one I received through FOIA in 2013, leading to the conclusion that 1) the SOP has not been updated in three years; or 2) the updated version was not provided.

King V. Burwell And The Rise Of The Administrative State, Ronald D. Rotunda

Ronald D. Rotunda

The Patient Protection and Affordable Care Act (ACA) is a complex law totaling nearly a thousand pages in length. The litigation now before the Supreme Court in King v. Burwell presents, on the surface, a simple issue of statutory interpretation. However, that surface has a very thin veneer. If the Court allows administrators carte blanche to change the very words of a statute, we will have come a long way towards governance by bureaucrats. Over the years, Congress has delegated many of its powers, but it has never delegated the power to raise taxes or spend tax subsidies in ways …

Embracing Administrative Constitutionalism, Bertrall L. Ross

Bertrall L Ross

Administrative agencies engage in constitutionalism. They resolve questions of statutory meaning and scope that implicate constitutional questions. Even when agencies do not consciously set out to weigh in on constitutional

questions, by interpreting and applying statutes that rest on constitutional values, agencies elaborate constitutional meaning.

Should courts and theorists embrace or resist administrative

constitutionalism? For those who believe that the courts are the exclusive and final interpreters of the Constitution, it seems natural to oppose it. Thus, over the past forty years, the Supreme Court has resisted administrative constitutionalism. When agencies elaborate constitutional meaning in their interpretation of statutes, the …

Foia Response From Ice On Parole, Shoba Sivaprasad Wadhia

Shoba Sivaprasad Wadhia

In Fall 2014 I filed a Freedom of Information Act (FOIA) Request with ICE seeking policy documents and communications relating to parole. ICE provided me with a formal response dated May 22, 2015, 2013. I received 198 pages, many of which have been redacted. Below are some of the items contained in the FOIA Response: • ICE Lesson Plan: Alien Encounters- Detention and Removal Operations Training Division (January 2009) • ICE Lesson Plan: Alternate Orders of Removal- Detention and Removal Operations Training Division (December 2008) • ICE Powerpoint: Parole Policy Training –including o Parole Procedures o Worksheets o Denial Letters …

Adr In Construction – Perú, Jonnathan Bravo

Jonnathan Bravo Venegas

No abstract provided.

Att Beforska Barn Och Unga I Hem, Skola, Samhällsvård Och Kriminalvård, Titti Mattsson

Titti Mattsson

The article describes and analyses the legal framework concerning children’s participation in research in Sweden. Research on children is one way to improve children’s living conditions. For example, there is a need for knowledge about children’s and young people’s situation at home, at school, in community care and in correctional facilities. It is inevitable that there arise both ethical and legal issues concerning this research. A law has been in force since 2004, which deals with vetting the ethics of research that involves humans, i.e. the Act (2003:460) concerning the Ethical Review of Research Involving Humans. The article aims to …

Shared Spatial Regulating In Sharing Economy Districts, Michael N. Widener

Michael N. Widener

This paper deals with how local governments should address the impact on neighborhood dwellers and zoning district regulatory schemes of an influx of myriad varieties of new sharing-economy entrepreneurs.

Renewed Energy: Sustainable Historic Assets As Keystones In Urban Center Revitalization, Michael N. Widener

Michael N. Widener

Conservation of the “built heritage” optimally manages historic values of property in light of current community imperatives of sustainability and urban center revitalization. Sensible historic preservation reveals the values of the past for present and future generations while delivering high-quality built environments that incorporate community sustainability. Adaptive reuse of historic structures preserves without ruining place-making. This paper argues that greater emphasis must be placed upon adaptive reuse in historic preservation initiatives. Acknowledging the larger significance of community cohesion and livability for all citizens, community planning processes within state and local governments must impose certain constraints upon historic property designation and …

Bubbles (Or, Some Reflections On The Basic Laws Of Human Relations), Donald J. Kochan

Donald J. Kochan

Procedural Triage, Matthew Lawrence

Matthew B. Lawrence

Searching For Proportionality In U.S. Administrative Law, Jud Mathews

Jud Mathews

Economics-Based Environmentalism In The Fourth Generation Of Environmental Law, Donald J. Kochan

Donald J. Kochan

Environmental protection and economic concerns are not mutually exclusive. This article explores some of the issues of economic analysis that might arise as we approach the fourth generation of environmental law. It explains ways that economic analysis can be employed to generate the best environmental rules, including measures under what this article terms as "economics-based environmentalism." Economics-based environmentalism contends that the advantages of using economic principles within a “polycentric toolbox” of environmental law come from the benefits available in private ordering, markets, property rights, liability regimes and incentives structures that will better protect the environment than alternatives like state-based interventionist, …

A Framework For Understanding Property Regulation And Land Use Control From A Dynamic Perspective, Donald J. Kochan

Donald J. Kochan

Constituencies And Contemporaneousness In Reason-Giving: Thoughts And Direction After T-Mobile, Donald J. Kochan

Donald J. Kochan

Le Gaspillage Alimentaire Dans L’Union Européenne : Un Nouveau Défi Pour Le Droit De L’Agro-Alimentaire ?, Luis González Vaqué

Luis González Vaqué

La littérature sur la nécessité urgente de réduire les pertes et le gaspillage alimentaires est vaste, bien que dans la réalité, peu ait été entrepris à ce sujet… Dans ce contexte, et tenant compte du fait qu’il s’agit d’un sujet très complexe qu’il est impossible d’analyser de façon exhaustive dans un article tel que celui-ci, nous avons choisi de nous consacrer particulièrement aux initiatives et activités entreprises, en cours ou en projet au sein de l’Union européenne (UE). Et malgré ces limites, nous devrons nous préoccuper de ces initiatives de façon résumée, après avoir exposé l’ampleur du problème posé. Notre …

Directive 2005/29/Ec On Unfair Commercial Practices And Its Application To Food-Related Consumer Protection, Luis González Vaqué

Luis González Vaqué

Directive 2005/29/EC on Unfair Commercial Practices was adopted on 11 May 2005 to help consumers benefit from the Internal Market by removing regulatory barriers, deriving from divergent national rules, which discouraged firms from selling and undermined consumers' trust in buying across the EU. It provides for a high level of consumer protection in all sectors and works as a safety net that fills the gaps, which are not regulated by other EU sector- specific rules (i.e. Foodstuffs).

Secrets D'Affaires: L'Urgente Nécessité D'Adopter Une Directive Face A L'Inefficacité De L'Application De L'Accord Sur Les Adpic, Luis González Vaqué

Luis González Vaqué

In November 2013, the Commission proposed a draft directive that will align existing laws against the misappropriation of trade secrets across the EU.

The relevant laws of some Member States do not provide for a legal definition of what a trade secret is. The existing remedies available are also inconsistent, and at times ineffective.

The proposal harmonises the definition of trade secrets in accordance with existing internationally binding standards. It also defines the relevant forms of misappropriation and clarifies that reverse engineering and parallel innovation must be guaranteed, given that trade secrets are not a form of exclusive intellectual property …