Law Commons^™

Arbitrariness Review Made Reasonable: Structural And Conceptual Reform Of The "Hard Look", Sidney A. Shapiro, Richard W. Murphy

Notre Dame Law Review

As Representative John Dingell remarked in the best sentence ever said on the power of procedure over substance, “I’ll let you write the substance . . . you let me write the procedure, and I’ll screw you every time.”1 Accordingly, designing procedures for legislative rulemaking, a dominant feature of modern governance, has spawned one of the most contentious debates in all of administrative law. Compounding the stakes, over the last fifty years, the courts, with help from Congress and presidents, have relentlessly made rulemaking procedures more burdensome, impeding efforts to preserve the environment, protect workers, and forestall financial collapse, among …

Appeal No. 0934: Environmental Management Specialists, Inc., V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Preliminary Chief's Order 2016-334

Agenda: Flpma Turns 40, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

FLPMA Turns 40 (October 21)

The Bureau of Land Management (BLM) administers approximately 245 million acres of our public lands and yet, for most of our nation's history, these lands seemed largely destined to end up in private hands. Even when the Taylor Grazing Act of 1934 ushered in an important era of better managing public grazing districts and "promoting the highest use of the public lands," such use of our public lands still was plainly considered temporary, "pending its final disposal." It was not until 1976 with the passage of the Federal Land Policy and Management Act (FLPMA) that congress adopted a policy that …

Slides: Flpma In Its Historical Context, John D. Leshy

FLPMA Turns 40 (October 21)

Presenter: John D. Leshy, Sunderland Distinguished Professor of Law Emeritus, U.C. Hastings College of the Law

36 slides

This session traces the history of FLPMA including, among other things, its legislative, administrative, and historical antecedents, including for example, the Public Land Law Review Commission’s 1970 report, One Third of Our Nation’s Lands. It then considers FLPMA’s unique public lands policies and requirements and how they are reflected in the BLM’s management of public lands today.

See: https://www.nps.gov/parkhistory/online_books/blm/history/contents.htm

The Georgia Open Records Law Electronic Signature Exception: The Intersection Of Privacy, Technology, And Open Records, Michael L. Van Cise

Journal of Intellectual Property Law

No abstract provided.

There Is A Better Way: It's Time To Overhaul The Model For Participation In Private Standard-Setting, Robert M. Webb

Journal of Intellectual Property Law

No abstract provided.

Shifting The Burden Of Proving Patentability Vel Non In View Of Dickinson V. Zurko, Dawn-Marie Bey

Journal of Intellectual Property Law

This paper addresses the Patent Office's misinterpretation of the Supreme Court's ruling in Dickinson v. Zurko regarding the applicability of the factual review standards of the Administrative Procedure Act (APA) to Patent Office findings. More particularly, in accordance with this misinterpretation, recent guidelines promulgated by the Patent Office violate the APA and controlling precedent.

To date, the proper procedures for prosecuting a patent application have been carefully honed through a myriad of statutes, rules, and controlling legal opinions. The resulting procedures are set forth in exemplary prose in the Manual of Patent Examining Procedure (MPEP) issued and revised periodically by …

Defining Ambiguity In Broken Statutory Frameworks And Its Limits On Agency Action, Amanda Urban

Michigan Journal of Environmental & Administrative Law

“The Problem” occurs when a statute’s provisions become contradictory or unworkable in the context of new or unforeseen phenomena, yet the statute mandates agency action. The application of an unambiguous statutory provision may become problematic or unclear. Similarly, unambiguous provisions may become inconsistent given a particular application of the statute. During the same term, in Scialabba and UARG, the Supreme Court performed a Chevron review of agency interpretations of statutes facing three variations of the Problem, which this Note characterizes as direct conflict, internal inconsistency, and unworkability. In each case, the Court defined ambiguity in various, nontraditional ways and …

On Viewing The Courts As Junior Partners Of Congress In Statutory Interpretation Cases: An Essay Celebrating The Scholarship Of Daniel J. Meltzer, Richard H. Fallon Jr

Notre Dame Law Review

In this Essay, written in tribute to Dan Meltzer, I shall attempt to explicate his views regarding statutory interpretation in general, thematic terms. In doing so, I shall register my agreement with virtually all of Dan’s conclusions and frequently echo his practically minded arguments in support of them. But I shall also advance arguments—with which I cannot be entirely sure he would have agreed—that seek to show that his position reflected theoretical insights about how language works, not only in law, but also more generally in life. By seeking simultaneously to defend Dan’s views and to build on them, this …

Inefficient Inequality, Shi-Ling Hsu

Scholarly Publications

For the past several decades, much American lawmaking has been animated by a concern for economic efficiency. At the same time, broad concerns over wealth and income inequality have roiled American politics, and still loom over lawmakers. It can be reasonably argued that a tension exists between efficiency and equality, but that argument has had too much purchase over the past few decades of lawmaking. What has been overlooked is that inequality itself can be allocatively inefficient when it gives rise to collectively inefficient behavior. Worse still, some lawmaking only masquerades as being efficiency-promoting; upon closer inspection, some of this …

Change In Regulation Is Necessary For Genetically Engineered Mosquitoes, Insung Hwang

Michigan Journal of Environmental & Administrative Law

Millions of genetically engineered (GE) mosquitoes could soon be released in Key West, Florida as an effort to eradicate wild mosquitoes that are transmitters of diseases such as malaria, dengue, and chikungunya. Both international and domestic regulations fail to provide effective regulatory schemes that can facilitate the application of this technology while ensuring all safety and environmental aspects are properly addressed. The Food and Drug Administration’s assertion of jurisdiction is based on its assessment that the GE mosquitoes are “animal drugs” under the Federal Food, Drug, and Cosmetic Act. This is especially troublesome because the end goal of using these …

Agencies Running From Agency Discretion, J. B. Ruhl, Kyle Robisch

William & Mary Law Review

Discretion is the root source of administrative agency power and influence, but exercising discretion often requires agencies to undergo costly and time-consuming predecision assessment programs, such as under the Endangered Species Act (ESA) and National Environmental Policy Act (NEPA). Many federal agencies thus have argued strenuously, and counter-intuitively, that they do not have discretion over particular actions so as to avoid such predecision requirements. Interest group litigation challenging such agency moves has led to a new wave of jurisprudence exploring the dimensions of agency discretion. The emerging body of case law provides one of the most robust, focused judicial examinations …

The Sec, Administrative Usurpation, And Insider Trading, Adam C. Pritchard

Articles

The history of insider trading law is a tale of administrative usurpation and legislative acquiescence. Congress has never enacted a prohibition against insider trading, much less defined it. Instead, the SEC has led in defining insider trading, albeit without the formality of rulemaking, and subject to varying degrees of oversight by the courts. The reason why lies in the deference that the Supreme Court gave to the SEC in its formative years. The roots of insider trading law are commonly traced to the SEC’s decision in Cady, Roberts & Co. Cady, Roberts was only made possible, however, by the …

Neoclassical Administrative Common Law, Jeffrey A. Pojanowski

Journal Articles

This essay reviews John Dickinson’s neglected classic, Administrative Justice and the Supremacy of Law in the United States. Writing on the cusp of the New Deal, Dickinson helped establish a mainstream, moderate stance about the shape and legitimacy of the administrative state. A closer reading of this work, which is rich in jurisprudential reflection and historical learning, offers a better idea about the structure, promise, and limits of the doctrinal world he helped create.

Ebola, Experimental Medicine, Economics, And Ethics: An Evaluation Of International Disease Outbreak Law, Sara L. Dominey

Georgia Journal of International & Comparative Law

No abstract provided.

New Judicial Review In Old Europe, Alyssa S. King

Georgia Journal of International & Comparative Law

No abstract provided.

Marshall J. Breger & Gary J. Edles, Independent Agencies In The United States—Law, Structure, And Politics, Roberta S. Karmel

Catholic University Law Review

Roberta S. Karmel, Centennial Professor of Law and Co-Director of the Dennis J. Block Center for the Study of International Business Law at Brooklyn Law School, reviews Marshall J. Breger & Gary J. Edles new book Independent Agencies in the United States: Law, Structure, and Politics.

Professor Karmel examines and evaluates each chapter of Independent Agencies in the United States: Law, Structure, and Politics from her own unique perspective based on her experience as a staff member and, later, commissioner of the Securities and Exchange Commission, director of the New York Stock Exchange, and member of the National Association of …

Misrepresentation And The Fcc, Brian C. Murchison

Brian C. Murchison

None available.

Shedding Light On The "Going Dark" Problem And The Encryption Debate, John Mylan Traylor

University of Michigan Journal of Law Reform

In an effort to protect the enormous volume of sensitive and valuable data that travels across the Internet and is stored on personal devices, private companies have created encryption software to secure data from criminals, hackers, and terrorists who wish to steal it. The greatest benefit of encryption also creates the biggest problem: Encryption software has become so secure that often not even the government can bypass it. The “Going Dark” problem—a scenario in which the government has obtained the legal authority to search a suspected criminal’s encrypted device but lacks the technical ability to do so—is becoming increasingly common. …

Front Matter

Michigan Journal of Environmental & Administrative Law

No abstract provided.

Preambles As Guidance, Kevin M. Stack

Vanderbilt Law School Faculty Publications

Debates over administrative agencies’ reliance on guidance documents have largely neglected the most authoritative source of guidance about the meaning of agency regulations: their preambles. This Article examines and defends the guidance function of preambles. Preambles were designed not only to provide the agency’s official justification for the regulations they introduce, but also to offer guidance about the regulation’s meaning and application. Today, preambles include extensive guidance ranging from interpretive commentary to application examples. Based on the place of preamble guidance as part of the agency’s formal explanation of the regulation and the rigorous internal agency vetting which accompanies that …

Testing For Regulatory Penalties: Insuring The Health Of Fedrealism In The Age Of Obamacare, Steven Z. Hodaszy

West Virginia Law Review

No abstract provided.

Need A Ride? Uber: The Trendy Choice That Could Turn Threatening, Emily L. Dyer

Nevada Law Journal

No abstract provided.

Pursuing A Reconciliatory Administrative Law: Aboriginal Consultation And The National Energy Board, Matthew J. Hodgson

Osgoode Hall Law Journal

Environmental assessment within the process of regulatory review is recognized as the preferred means for carrying out the duty to consult and accommodate Aboriginal rights in administrative decisions over proposed resource development. Recent evidence suggests that integrating the duty to consult into National Energy Board (NEB) proceedings and subsuming the law of Aboriginal consultation under principles of administrative justice have not advanced the goal of reconciliation. This article considers whether the statutory mandate of the National Energy Board requires it to have sufficient regard to Aboriginal rights in a manner consistent with the adjudication of constitutional issues in administrative law. …

Re-Thinking Executive Control Of And Accountability For The Agency, Benedict Sheehy, Don Feaver

Osgoode Hall Law Journal

The organization of many Western governments has undergone dramatic structural and procedural changes over the past century. A large portion of public administration previously done by departments within a more centralized structure of government has been shifted to administrative units, often referred to as “agencies” that fall outside the constitutional core—an “agencified” model. This article investigates the historical contexts and legal developments associated with these changes and illuminates how “agencification” has altered the balance between executive control powers and executive accountability obligations. It examines how the organizational changes have been addressed in both the responsible government models of the United …

Protecting States’ Interests In The Brave New World Of Energy Federalism, Daniel Lyons

Daniel Lyons

No abstract provided.

Appeal No. 0906: Cgo, Inc., V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Order 2015-344; Ackerman #8 Well

Private Enforcement, Stephen B. Burbank, Sean Farhang, Herbert Kritzer

Sean Farhang

Our aim in this Article is to advance understanding of private enforcement of statutory and administrative law in the United States and to raise questions that will be useful to those who are concerned with regulatory design in other countries. To that end, we briefly discuss aspects of American culture, history, and political institutions that reasonably can be thought to have contributed to the growth and subsequent development of private enforcement. We also set forth key elements of the general legal landscape in which decisions about private enforcement are made, aspects of which should be central to the choice of …

I Can See Clearly Now: Videoconference Hearings And The Legal Limit On How Tribunals Allocate Resources, Lorne Sossin, Zimra Yetnikoff

Lorne Sossin

Videoconferencing has generated ambivalence in the legal community. Some have heralded its promise of unprecedented access to justice, expecialy for geographicaly remote communities. Others, however, have questioned whether videoconferencing undermines fairness. The authors explore the impl'cations of videoconferencing through the case study of the Ontario Landlord and Tenant Tribunal, which is one of the busiest adjudicative bodies in Canada. This anaysis hig hghts concerns both with videoconferendng in princp4 and in practice. While such concerns traditionally have been the province of public administration, the authors argue that a tribunals allocation of resources and the suffidengy of its budget are also …

Nobel Prizes Would Have Flunked Benzene: Judicial Review Of Administrative Evidence Overlooks Science's Linguistic Tradition, Jimmy J. Zhuang

Seton Hall Circuit Review

No abstract provided.