Law Commons^™

17th Annual Open Government Summit: Access To Public Records Act & Open Meetings Act, 2015, Department Of Attorney General, State Of Rhode Island

School of Law Conferences, Lectures & Events

No abstract provided.

The Dangerous Right To Food Choice, Samuel R. Wiseman

Seattle University Law Review

Scholars, advocates, and interest groups have grown increasingly concerned with the ways in which government regulations—from agricultural subsidies to food safety regulations to licensing restrictions on food trucks—affect access to local food. One argument emerging from the interest in recent years is that choosing what foods to eat, what I have previously called “liberty of palate,” is a fundamental right. The attraction is obvious: infringements of fundamental rights trigger strict scrutiny, which few statutes survive. As argued elsewhere, the doctrinal case for the existence of such a right is very weak. This Essay does not revisit those arguments, but instead …

Public School Funding And Mccleary V. State Of Washington—A Violation Of The Separation Of Powers Doctrine Or A Legitimate Exercise Of Judicial Autonomy?, Jessica R. Burns

Seattle University Law Review

Public school funding has been contentiously litigated throughout the United States, and the Washington Supreme Court has addressed the inadequacy of public school funding in two pivotal cases: Seattle School District No. 1 v. State and McCleary v. State. In both decisions, the Washington Supreme Court held that the State failed to provide an adequate basic education for its public school students; however, in its attempt to remedy the situation, the court took drastically different approaches.

The 2014 Farm Bill: Farm Subsidies And Food Oppression, Andrea Freeman

Seattle University Law Review

The 2014 Farm Bill ushered in some significant and surprising changes. One of these was that it rendered the identity of all the recipients of farm subsidies secret. Representative Larry Combest, who is now a lobbyist for agribusiness, first introduced a secrecy provision into the bill in 2000. The provision, however, only applied to subsidies made in the form of crop insurance. Until 2014, the majority of subsidies were direct payments and the identity of the people who received them was public information. In fact, the Environmental Working Group’s release of the list of recipients led to a series of …

Public Actors In Private Markets: Toward A Developmental Finance State, Robert Hockett, Saule Omarova

Saule T. Omarova

The recent financial crisis brought into sharp relief fundamental questions about the social function and purpose of the financial system, including its relation to the “real” economy. This Article argues that, to answer these questions, we must recapture a distinctively American view of the proper relations among state, financial market, and development. This programmatic vision – captured in what we call a “developmental finance state” – is based on three key propositions: (1) that economic and social development is not an “end-state” but a continuing national policy priority; (2) that the modalities of finance are the most potent means of …

Recovering The Promise Of Public Truth: Juridification And The Loss Of Purpose In Public Inquiries, Jessica Mckeachie

LLM Theses

My intention in this work is to investigate the apparent disconnect between the intended social purposes of inquiries and the impact pressures of juridification have had on them, and consider what steps inquiries may take to resist these pressures. Public inquiries, formerly relied on as an alternative to criminal and civil proceedings and as a means to engage the public on issues of policy, now seem to exhibit more intense procedures akin to those found in the alternative processes they were designed to resist. Under increasing juridification pressures, what function should public inquiries fulfil? In short, my aim is to …

Soft Whistleblowing, Amanda Leiter

Articles in Law Reviews & Other Academic Journals

This Article explores the underappreciated role that agency insiders play in directing outside oversight of their employer agencies and, in turn, manipulating agency policy development. Specifically, the Article defines, documents, and evaluates the phenomenon of "soft whistleblowing"-an agency employee's deliberate, unsanctioned, substantive, and instrumental disclosure of nonpublic information about issues of policy. This phenomenon is ubiquitous but has received no systematic attention in the academic literature. As the Article demonstrates, agency employees regularly engage in soft whistleblowing to congressional staff, journalists, and agency watchdog groups, in an effort to bring outside pressure to bear on their employer agencies to shift …

Hollow Spaces, Charles H. Brower Ii

Law Faculty Research Publications

No abstract provided.

Avoiding Independent Agency Armageddon, Kent H. Barnett

Scholarly Works

In Free Enterprise Fund v. Public Company Accounting Oversight Board, the U.S. Supreme Court invalidated Congress’ use of two layers of tenure protection to shield Public Company Accounting Oversight Board (PCAOB) members from the President’s removal. The SEC could appoint and remove PCAOB members. An implied tenure-protection provision protected the SEC from the President’s at-will removal. And a statutory tenure-protection provision protected PCAOB members from the SEC’s at-will removal. The Court held that these “tiered” tenure protections unconstitutionally impinged upon the President’s removal power because they prevented the President from holding the SEC responsible for PCAOB’s actions in the same …

Arbitration And Antitrust: Navigating The Contours Of Mandatory Law, Charles H. Brower Ii

Law Faculty Research Publications

No abstract provided.

Rule-Making And The American Constitution, Peter L. Strauss

Faculty Scholarship

This chapter leaves behind the standard accounts of federal agencies to examine the role of the presidency in fashioning regulatory outputs. It recounts — and with reference to American ‘checks and balances’ ideas — a steady accretion of power at the centre, the result of which has been to render rulemaking increasingly a political rather than ‘expert’ activity. Whether the process is reversible, or whether ongoing crises in finance and security will serve to concretize this profound constitutional development, remains to be seen.

Rethinking Immigration Detention, Anil Kalhan

Anil Kalhan

In recent years, scholars have drawn attention to the myriad ways in which the lines between criminal enforcement and immigration control have blurred in law and public discourse. This essay analyzes this convergence in the context of immigration detention. For decades, courts and observers have documented and analyzed a wide range of detention-related concerns, including mandatory and presumed custody, coercion and other due process violations, inadequate access to counsel, prolonged and indefinite custody, inadequate conditions of confinement, and violations of international law obligations. With the number of detainees skyrocketing since the 1990s, these concerns have rapidly proliferated - to the …

Representation Reinforcement: A Legislative Solution To A Legislative Process Problem, Anita S. Krishnakumar

Faculty Publications

One of the most valuable—and disturbing—insights offered by public choice theory has been the recognition that wealthy, well-organized interests with narrow, intense preferences often dominate the legislative process while diffuse, unorganized interests go under-represented. Responding to this insight, legal scholars in the fields of statutory interpretation and administrative law have suggested that the solution to the problem of representational inequality lies with the courts. Indeed, over the past two decades, scholars in these fields have offered up a host of John Hart Ely-inspired representation reinforcing "canons of construction," designed to encourage judges to use their role as statutory interpreters to …

Reincarnating The 'Major Questions' Exception To Chevron Deference As A Doctrine Of Non-Interference (Or Why Massachusetts V. Epa Got It Wrong), Abigail Moncrieff

Faculty Scholarship

In a pair of cases declaring a major questions exception to Chevron deference, the Supreme Court held that executive agencies may not implement major policy changes without explicit authorization from Congress. But in Massachusetts v. EPA, the Court unceremoniously killed its major questions rule, requiring the EPA to implement one such major policy change. Because the scholarly literature to date has failed to discern a worthy justification for the major questions rule, the academy might be tempted to celebrate the rule's death. This Article, how-ever, argues that the rule ought to be mourned and, indeed, reincarnated. It offers a non-interference …

Why Care About The Polar Bear?: Economic Analysis Of Natural Resources Law And Policy [Outline], Lisa Heinzerling

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

1 page.

"Lisa Heinzerling, Georgetown Law School" -- Agenda

Antiquities Act Monuments: The Elgin Marbles Of Our Public Lands?, James R. Rasband

Celebrating the Centennial of the Antiquities Act (October 9)

13 pages.

Includes bibliographical references

Slides: The Monumental Legacy Of The Antiquities Act Of 1906: The Rainbow Bridge National Monument In Context, Mark Squillace

Celebrating the Centennial of the Antiquities Act (October 9)

Presenter: Professor Mark Squillace, Director, Natural Resources Law Center, University of Colorado School of Law

35 slides

Slides: The Centennial Of The Antiquities Act: A Cause For Celebration?, James R. Rasband

Celebrating the Centennial of the Antiquities Act (October 9)

Presenter: Professor James R. Rasband, Brigham Young University School of Law

20 slides

What Do Snowmobiles, Mercury Emissions, Greenhouse Gases, And Runoff Have In Common?: The Controversy Over "Junk Science", Linda A. Malone

Faculty Publications

No abstract provided.

Sec Enforcement Of Attorney Up-The-Ladder Reporting Rules: An Analysis Of Institutional Contraints, Norms, And Biases, Michael A. Perino

Faculty Publications

In their paper and in their earlier comments to the SEC on the proposed attorney reporting rules, Professors Cramton, Cohen and Koniak do an excellent job recounting the genesis of the attorney reporting requirements in the Sarbanes-Oxley Act, describing the SEC's proposed and final rules and critiquing the rule's triggering mechanism and now apparently shelved noisy withdrawal requirement. Their case study of the recent Spiegel, Inc. independent examiner's report is a particularly useful vehicle for examining the practical implications of the SEC's policy and drafting choices. Although I was a member of a committee that submitted comments opposed to noisy …

The Problem Of Federal-Private Split Mineral Estates: Who Has Control?, David B. Shaver, Andrew C. Mergen, Scott W. Hardt, University Of Colorado Boulder. Natural Resources Law Center

The Problem of Federal-Private Split Mineral Estates: Who Has Control? (April 23)

19 pages.

Includes footnotes.

Collection of 3 papers presented at the Hot Topics in Natural Resources Law program held on April 23, 1996.

Contents: National Park Service regulation of private mineral estates / David B. Shaver -- Recent litigation regarding federal split estates : who has control? what are the limits? / Andrew C. Mergen -- The problem of federal-private split mineral estates / Scott W. Hardt

Many federally owned lands overlie privately owned oil and gas and mineral rights. Increasingly, the competition between agency multiple use directives and private interests in resource development has resulted in legal battles between …

Drafting Mediation Privileges: Lessons From The Civil Justice Reform Act, Michael A. Perino

Faculty Publications

Mediation confidentiality provisions or privileges are now prevalent throughout the United States. Forty-one states have enacted some form of mediation privilege. As part of the Administrative Dispute Resolution Act of 1990, Congress enacted legislation to protect confidentiality in mediations involving federal agencies. An additional source for such provisions is the Civil Justice Reform Act of 1990 (CJRA), which required each federal district court to implement a civil justice expense and delay reduction plan (Plan(s)) by the end of 1993. Those Plans seek to implement mechanisms designed to address causes of excessive expense and delay in the federal courts.

A number …

Not Just A Private Club: Self Regulatory Organizations As State Actors When Enforcing Federal Law, Richard L. Stone, Michael A. Perino

Faculty Publications

In the Securities Exchange Act of 1934, Congress enacted a comprehensive scheme for regulating the national securities markets. Pursuant to that scheme, the Securities and Exchange Commission was given ultimate authority to enforce the newly enacted securities laws against market participants. The Exchange Act also created a prominent enforcement role for national securities exchanges, like the New York Stock Exchange. Congress required these self-regulatory organizations as a condition for their continued operation to enforce, among other things, compliance by their members with the provisions of the Exchange Act and the rules and regulations promulgated thereunder. The SROs were also given …

Sanctions And Rewards In The Legal System: A Multidisciplinary Approach, A Wr Carrothers

Dalhousie Law Journal

This book consists of ten essays on the general theme of effective techniques for controlling and regulating social behaviour. The authors draw on the disciplines of management studies, history and criminology, public policy studies and economics, psychology, anthropology, law, sociology, and political science. They are, collectively, a modern manifestation of Roscoe Pound's concept of law in action as "social engineering".

Agenda: The Public Lands During The Remainder Of The 20th Century: Planning, Law, And Policy In The Federal Land Agencies, University Of Colorado Boulder. Natural Resources Law Center

The Public Lands During the Remainder of the 20th Century: Planning, Law, and Policy in the Federal Land Agencies (Summer Conference, June 8-10)

Conference organizers and/or speakers included University of Colorado School of Law professors Lawrence J. MacDonnell and Charles F. Wilkinson.

Public land management has undergone major changes in recent years in response to the greatly increased planning responsibilities mandated by Congress.

Public Lands During the Remainder of the 20th Century: Planning Law and Policy in the Federal Land Agencies looked at management and planning issues related to seven major resources in the public lands: timber, rangeland, minerals, wildlife, water, recreation, and preservation values. Charles F. Wilkinson, Professor of Law, University of Colorado, gave a luncheon talk on "Public Land Planning: Will …

Justice Scalia: Standing, Environmental Law And The Supreme Court, Michael A. Perino

Faculty Publications

President Reagan's appointment of Antonin Scalia to the United States Supreme Court raises concern among liberals that Justice Scalia will help lead the Court away from a number of liberal positions toward a new conservatism. The Reagan Administration's requirement that judicial appointments advance the Administration's preference for judicial restraint and strict constructionism enhances this concern. These new executive requirements mean that federal courts should accord greater authority to the democratically elected branches of the government. Justice Scalia's primary areas of study, administrative law and separation of powers, reflect his adherence to judicial self-restraint.

One aspect of administrative law and separation …

An Attorney General Of Nova Scotia, J.S.D. Thompson, 1878-1882: Disparate Aspects Of Law And Society In Provincial Canada, P. B. Waite

Dalhousie Law Journal

Historians are apt to be omnivorous animals, and they can be nourished by all kinds of research. This cheerful eclecticism has the disadvantage of being dangerously subject to naivet6, a disposition which greets as discovery what to others is obvious. Lack of legal training might further lead to some crashing legal solecism; certainly the temerity of this adventure resembles that of a celebrated premier of Alberta who, in 1937, took on the portfolio of attorney general-not only without being a lawyer, but without one iota of legal education whatever. Perhaps, since he had once been head of the Calgary Prophetic …

“Don’T Go Near The Water” (Coal Leasing On Public Lands), Harrison Loesch

Federal Lands, Laws and Policies and the Development of Natural Resources: A Short Course (Summer Conference, July 28-August 1)

5 pages.