Law Commons^™

The Binding Guidance Principle: Using The Indian Trust Doctrine To Trump The Apa, John Robinson Jr., J.D.

American Indian Law Journal

No abstract provided.

Endangered Species, Endangered Treaties: Protecting Treaty Rights, Economic Development, And Tribal Consultation Under Secretarial Order 3206, Jeremy Wood

American Indian Law Journal

No abstract provided.

Filling The D.C. Circuit Vacancies, Carl W. Tobias

Indiana Law Journal

Partisanship undermines judicial nominations to the U.S. Court of Appeals for the District of Columbia Circuit. With three of eleven judgeships vacant during Barack Obama’s first term, he was the only President in a half century not to appoint a jurist to the nation’s second-most important court. Confirming accomplished nominees, thus, became imperative for the circuit’s prompt, economical, and fair case disposition. In 2013, Obama submitted excellent candidates. Patricia Millett had argued thirty-two Supreme Court appeals; Cornelia Pillard successfully litigated numerous path-breaking matters; and Robert Wilkins had served on the D.C. District bench for three years. The purportedly shrinking tribunal …

The Government’S Lies And The Constitution, Helen L. Norton

Indiana Law Journal

The government’s lies can be devastating. This is the case, for example, of its lies told to resist legal and political accountability for its misconduct; to inflict economic and reputational harm; or to enable the exercise of its powers to imprison, to deploy lethal force, and to commit precious national resources. On the other hand, the government’s lies can sometimes be helpful: consider lies told to thwart a military adversary or to identify wrongdoing through undercover police work. The substantial harms threatened by some government lies invite a search for ways to punish and prevent them. At the same time, …

Administrative Law Unbounded: Reflections On Government And Governance, Martin Shapiro

Martin Shapiro

No abstract provided.

Regulation And Regulatory Processes, Cary Coglianese, Robert Kagan

Robert Kagan

Regulation of business activity is nearly as old as law itself. In the last century, though, the use of regulation by modern governments has grown markedly in both volume and significance, to the point where nearly every facet of today’s economy is subject to some form of regulation. When successful, regulation can deliver important benefits to society; however, regulation can also impose undue costs on the economy and, when designed or implemented poorly, fail to meet public needs at all. Given the importance of sound regulation to society, its study by scholars of law and social science is also of …

The Giving Reasons Requirement, Martin Shapiro

Martin Shapiro

No abstract provided.

Agdaagux Tribe Of King Cove V. Jewell, Taylor R. Thompson

Public Land & Resources Law Review

In a lengthy opinion by the Alaska District Court, the battle for a proposed medical emergency road through the Izembek National Refuge stalled. The court held that the Department of the Interior’s No Action Alternative blocked the construction of the road was decided in accordance within the Department’s authority. It is not the end of the battle over the road, as the court alluded that Congress may be able to change this decision.

Books Received, Georgia Journal Of International And Comparative Law

Georgia Journal of International & Comparative Law

No abstract provided.

The Private Causes Of Action Under Cercla: Navigating The Intersection Of Sections 107(A) And 113(F), Jeffrey M. Gaba

Michigan Journal of Environmental & Administrative Law

The Comprehensive Environmental, Response, Compensation, and Liability Act (CERCLA) provides three distinct “private” causes of action that allow parties to recover all or part of their cleanup costs from “potentially responsible parties.” Section 107(a)(4)(B) provides a “direct” right of cost recovery. Sections 113(f)(1) and 113(f)(3)(B) provide a right of contribution following a CERCLA civil action or certain judicial or administrative settlements. The relationship among these causes of action has been the source of considerable confusion. Two Supreme Court cases, Cooper Industries, Inc. v. Aviall Services, Inc. and United States v. Atlantic Research Corp. have identified certain situations in which the …

Minimization Criteria For Off-Road Vehicle Use, Louisa S. Eberle

Michigan Journal of Environmental & Administrative Law

President Nixon recognized the controversy surrounding off-road vehicle (ORV) use on public lands when he signed Executive Order 11,644 in 1972. The Executive Order set out minimization criteria that bound federal land management agencies’ ORV area and trail designations. Forty years later, agencies are still struggling to implement the minimization criteria. Recent court opinions have struck down implementation attempts by the National Park Service, Bureau of Land Management, and Forest Service. This note argues that agencies require additional guidance for ORV management, particularly in light of case law that sets a floor for achieving minimization. After examining how the mandate …

Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel

Nehal A. Patel

AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …

Administrative Law, Jennifer B. Alewine, Courtney E. Ferrell, Erin G. Watstein

Mercer Law Review

This Article surveys cases from the Georgia Supreme Court and the Georgia Court of Appeals from June 1, 2014 through May 31, 2015 in which principles of administrative law were a central focus of the case. The Article begins with a discussion of cases on exhaustion of administrative remedies, followed by a series of cases discussing standard of review for an agency decision, a review of sovereign immunity cases, and a brief review of enactments from the 2015 regular session of the Georgia General Assembly.

This Article is dedicated to the illustrious Martin M. Wilson, who authored this Article for …

Resurrecting Health Care Rate Regulation, Erin C. Fuse Brown

Faculty Publications By Year

Our excess health care spending in the United States is driven largely by our high health care prices. Our prices are so high because they are undisciplined by market forces, in a health care system rife with market failures, which include information asymmetries, noncompetitive levels of provider market concentration, moral hazard created by health insurance, multiple principal-agent relationships with misaligned incentives, and externalities from unwarranted price variation and discrimination. These health care market failures invite a regulatory solution. An array of legal and policy solutions are typically advanced to control our health care prices and spending, including: (1) market solutions …

Oversight And Dispersed Power, Margaret Lemos, Stavros Gadinis, Ronald Krotoszynski, Emily Meazell, Alex Constanza

Stavros Gadinis

Duke Law Journal's 42nd Annual Administrative Law Symposium will focus on several important topics in administrative law today. Selected from over 80 proposals, the seven panelists explore issues pressing upon legislators, agency and Executive Branch officials, and judges, such as the politicization of agencies, the judicial review challenges posed by shared regulatory authority, and the emphasis on reason-giving in rulemaking. The participants will use both historical and empirical analysis to describe the current administrative-law landscape and prescribe alternatives for its future. Appearing: Margaret H. Lemos, moderator ; Stavros Gadinis (Berkeley Law), Ronald J. Krotoszynski, Jr. (University of Alabama), Emily Hammond …

The Power Of Politics, Edward Balleisen, Stavros Gadinis, Jodi Short, Kathryn Watts

Stavros Gadinis

Duke Law Journal's 42nd Annual Administrative Law Symposium will focus on several important topics in administrative law today. Selected from over 80 proposals, the seven panelists explore issues pressing upon legislators, agency and Executive Branch officials, and judges, such as the politicization of agencies, the judicial review challenges posed by shared regulatory authority, and the emphasis on reason-giving in rulemaking. The participants will use both historical and empirical analysis to describe the current administrative-law landscape and prescribe alternatives for its future. Appearing: Edward J. Balleisen, moderator ; Stavros Gadinis (Berkeley Law), Jodi L. Short (Georgetown University), Kathryn A. Watts (University …

The Water Cycle Boogie: Clean Water Act Jurisdiction, Home Rule, And Water Law, Colin W. Maguire

Et Cetera

The EPA and US Army Corps of Engineers’ agency rule regarding the definition of “Waters of the United States” under the Clean Water Act increased jurisdictional assertions by as much as 5%. What’s the big deal? This violates the Home Rule of state and local governments. This violation also creates concerns where many property owners are not sure if they need federal permits to develop land under the Clean Water Act. With issues like this new Clean Water Act rule, the drought conditions in the Western U.S., and international concerns regarding fresh water, water law is a critical area which …

Pit River Tribe V. Bureau Of Land Management, 793 F.3d 1147 (9th Cir. 2015), Kathryn S. Ore

Public Land & Resources Law Review

In Pit River Tribe v. Bureau of Land Management, the United States Court of Appeals for the Ninth Circuit explained the correct application of the zone of interests test and further solidified the importance of proper NEPA and NHPA analysis in geothermal leasing. The court reaffirmed that the BLM and the Forest Service must conduct additional cultural and environmental analysis when granting lease extensions under the Geothermal Steam Act. Furthermore, it rejected the BLM’s decision to grant forty-year lease continuations to unproven geothermal leases by treating them as a unit rather than individually.

How King V. Burwell Creates Tax Problems For Consumers And What The Treasury Can Do About It, Andy Grewal

Andy Grewal

Commentators have expressed concern that a government loss in King v. Burwell, which addresses whether taxpayers can enjoy tax credits for policies purchased on federal health care exchanges, will lead to a "death spiral" during future enrollment seasons.

However, this discussion threatens to mask the potential tax problems facing persons who purchase policies this enrollment season. As this short article explains, purchasers may be faced with a surprising tax bill when they complete their 2015 tax returns. Additionally, the government has argued that it can protect customers from surprise tax bills, but it's authority to do so is far from …

False Universalism Of Global Governance Theories: Global Constitutionalism, Global Administrative Law, International Criminal Institutions And The Global South, Sujith Xavier

PhD Dissertations

Why are theories of global governance unsatisfactory? Why are theories of global governance unable to integrate the lived realities of the people of the global South? International law and its institutions are growing at an unprecedented speed and this expansion has captured the curiosity of international lawyers and international law scholars. As international law and its institutions continue to grow, there are concurrent concerns regarding their democratic foundations. A large body of scholarship encapsulates these anxieties through the prism of global governance. In particular, two specific theories of global governance, global constitutionalism, and global administrative law, seek to introduce ideas …

Sierra Club V. United States Army Corps Of Engineers, 803 F.3d 31 (D.C. Cir. 2015), Ariel E. Overstreet-Adkins

Public Land & Resources Law Review

Despite the majority’s “needlessly circuitous” route, as described by concurring Judge Brown, Sierra Club v. U.S. Army Corps of Engineers stands as a limit of the application of NEPA to a private pipeline constructed largely on private land. While the main issue identified by the District of Columbia Circuit Court was the scope of environmental review required under NEPA, the court also addressed issues dealing with the ESA and the CWA relating to the construction and operation of a pipeline in the Midwest. The court held that under these circumstances, NEPA review was mandated only for those small stretches where …

Due Process Vs. Administrative Law, Kent H. Barnett

Popular Media

This article by Professor Kent Barnett was published in the Wall Street Journal on November 16, 2015. It discusses the Securities and Exchange Commission recently coming under fire for pressuring its in-house administrative-law judges to rule in its favor during agency enforcement proceedings.

Appeal No. 0900: City Of Wooster, V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Order 2015-68 (Enviro Clean Facility)

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.

Pepperdine University School Of Law; Legal Summaries, Nicole Banister

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Foreign Corrupt Practices Act: Pleading Parent­Subsidiary Liability, Alexander Avery

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

A Look Back: Developing Indiana Law; Post-Bench Reflections Of An Indiana Supreme Court Justice; Selected Developments In Indiana Administrative Law (1989-2012), Frank Sullivan Jr.

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Striving For Efficiency In Administrative Litigation: North Carolina's Office Of Administrative Hearings, Julian Mann Iii

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Transparency In Administrative Courts: From The Outside Looking In, Elizabeth Figueroa

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Appeal No. 0896: Stephen J. Svetlak, Llc, V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Order 2014-498 (Geitgey Donald #3 Well)