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Articles 1 - 30 of 34
Full-Text Articles in Law
Crow Indian Tribe V. United States, Hallee Kansman
Crow Indian Tribe V. United States, Hallee Kansman
Public Land & Resources Law Review
The protection status of the Greater Yellowstone grizzly bear continues to elicit debate and find its way into the courtroom. In Crow Indian Tribe v. United States, for the second time in the last decade, a court held the Service’s attempt to delist the Yellowstone Grizzly arbitrary and capricious. Specifically, the court found the Service’s evaluation of remnant populations, recalibration, and genetic health deficient. This case demonstrates the importance in and the resilient motivation behind preserving grizzly bear populations and genetics. As the practice of delisting a species under the Endangered Species Act continues, this case will provide important …
Auer Deference: Doubling Down On Delegation's Defects, Ronald A. Cass
Auer Deference: Doubling Down On Delegation's Defects, Ronald A. Cass
Fordham Law Review
Together with the better-known Chevron deference rule, the doctrine articulated in Auer v. Robbins two decades ago—which makes reasonable administrative constructions of ambiguous administrative rules binding on courts in most circumstances—has become a focal point for concerns about the expanding administrative state. Auer deference, even more than Chevron deference, enlarges administrative authority in ways that are at odds with basic constitutional structures and due process requirements. Objections to Auer have provided cogent reasons for why courts should not grant deference to administrative interpretations merely because an agency’s rule is unclear. The most commonly voiced objections, however, do not explain why …
Home Rules: The Case For Local Administrative Procedure, Casey Adams
Home Rules: The Case For Local Administrative Procedure, Casey Adams
Fordham Law Review
Administrative law is critical to the modern practice of governance. Administrative rules fill the gaps in statutes left open by lawmakers, allow agencies to exercise legislative grants of authority and discretion, and give agencies with subject-matter expertise and frontline experience the opportunity to promulgate detailed standards and requirements in their designated issue areas. Adjudication allows an agency to dispose of matters and disputes formally before it, whether under its rules or another source of law. While agencies at every level of government—federal, state, and local— engage in administrative action, legal scholarship on administrative law is almost exclusively focused on the …
The Market For Corporate Control In The Zone Of Insolvency: Symposium Introduction, Edward J. Janger
The Market For Corporate Control In The Zone Of Insolvency: Symposium Introduction, Edward J. Janger
Brooklyn Journal of Corporate, Financial & Commercial Law
No abstract provided.
Corporate Distress, Credit Default Swaps, And Defaults: Information And Traditional, Contingent, And Empty Creditors, Henry T. C. Hu
Corporate Distress, Credit Default Swaps, And Defaults: Information And Traditional, Contingent, And Empty Creditors, Henry T. C. Hu
Brooklyn Journal of Corporate, Financial & Commercial Law
Federal securities law seeks to ensure the quality and quantity of information that corporations make publicly available. Informational asymmetries associated with companies in financial distress, but not in bankruptcy, have received little attention. This Article explores some important asymmetries in this context that are curious in their origin, nature, and impact. The asymmetries are especially curious because of the impact of a world with credit default swaps (CDS) and CDS-driven debt “decoupling.” The Article explores two categories of asymmetries. The first relates to information on the company itself. Here, the Article suggests there is fresh evidence for the belief that …
Bankruptcy Fiduciary Duties In The World Of Claims Trading, John A. E. Pottow
Bankruptcy Fiduciary Duties In The World Of Claims Trading, John A. E. Pottow
Brooklyn Journal of Corporate, Financial & Commercial Law
In earlier work, I explored the role of fiduciary duties in the bankruptcy trustee’s administration of a debtor’s estate, noting the absence of any explicit demarcation of those duties in the Bankruptcy Code. In this piece, I report the highlights of that analysis and see to what extent (if any) fiduciary duties can inform policy prescriptions for the issue of bankruptcy claims trading, colorfully referred to by some as the world of “bankruptcy M&A.” My initial take is pessimistic. Fiduciary duties, at least as traditionally conceived in bankruptcy, are unlikely to provide much help. But there is still a source …
Corporate Governance And Bankruptcy, Daniel J.H. Greenwood
Corporate Governance And Bankruptcy, Daniel J.H. Greenwood
Brooklyn Journal of Corporate, Financial & Commercial Law
Ordinary corporate law invests enormous authority in corporate leaders, largely without accountability either to those they govern or to the judiciary, in defiance of much of what we know about effective governance procedure. Instead, we rely on the markets in which the corporation participates as the primary check on incumbent officials. Regardless of whether relying on markets is sufficient in the ordinary course, corporate insolvency is the markets’ verdict that incumbent management has failed. Accordingly, in bankruptcy and insolvency more generally, the law ought to abandon its ordinary deference to the corporate powers that be and instead impose standard good …
Private Benefits Without Control? Modern Chapter 11 And The Market For Corporate Control, Oscar Couwenberg, Stephen J. Lubben
Private Benefits Without Control? Modern Chapter 11 And The Market For Corporate Control, Oscar Couwenberg, Stephen J. Lubben
Brooklyn Journal of Corporate, Financial & Commercial Law
Outside of bankruptcy, a board of directors’ decision to take control rights away from existing shareholders and grant them to another is subject to heightened fiduciary duties. As the sale of control represents a kind of end game, shareholders have one last chance to realize the full value for their investment. In such a context, their interests warrant special protection. A similar sale of control can happen in a chapter 11 procedure when a bankruptcy plan revamps the capital structure of the firm. In such a restructuring of the firm, control rights can be newly created, redefined and redistributed to …
Badges Of Opportunism: Principles For Policing Restructuring Support Agreements, Edward J. Janger, Adam J. Levitin
Badges Of Opportunism: Principles For Policing Restructuring Support Agreements, Edward J. Janger, Adam J. Levitin
Brooklyn Journal of Corporate, Financial & Commercial Law
Bankruptcy is a market for corporate control. Current bankruptcy practice offers two alternative mechanisms for effectuating changes in control of a firm: (1) a pre-plan all-asset sale under section 363(b) of the Bankruptcy Code; or (2) an asset sale or recapitalization pursuant to a plan of reorganization under section 1129 of the Code. Pre-plan sales under section 363(b) are fast, but lack the procedural protections associated with a restructuring or sale pursuant to a plan. Plan confirmation can be costly and uncertain, however. Restructuring support agreements (“RSAs”)—contractual agreements to support a future restructuring that has certain agreed-upon characteristics—appear to offer …
California Sea Urchin Commission V. Bean, Thomas C. Mooney-Myers
California Sea Urchin Commission V. Bean, Thomas C. Mooney-Myers
Public Land & Resources Law Review
In California Sea Urchin Commission v. Bean, the Ninth Circuit upheld the Fish and Wildlife Service’s decision to end an experimental sea otter colony and translocation program. Commercial fishing groups sought reversal of the decision due to their interest in maintaining the translocation program which reduced otter predation on commercially valuable shellfish. While the Ninth Circuit held the group had standing, it then applied the Chevron test and determined the agency’s actions were reasonable.
Buffalo Field Campaign V. Zinke, Hallee C. Kansman
Buffalo Field Campaign V. Zinke, Hallee C. Kansman
Public Land & Resources Law Review
Despite years of litigation and legislation, the protection status of bison in and around Yellowstone National Park remains unsettled. Buffalo Field Campaign, a non-profit group, has spent decades spearheading the fight to list the species as either endangered or threatened under the Endangered Species Act. Buffalo Field Campaign v. Zinke tests the scope of agency directives and the strictness of the statutory language which guides agency actions.
Western Organization Of Resource Councils V. Zinke, Daniel Brister
Western Organization Of Resource Councils V. Zinke, Daniel Brister
Public Land & Resources Law Review
Due to advances in climate science and an increased understanding of coal’s role as a greenhouse gas, Appellant conservation organizations sued the Secretary of Interior for failing to supplement the 1979 Programmatic EIS for the Federal Coal Management Program. The D.C. Circuit Court held neither NEPA nor the APA required a supplemental EIS and that the court lacked jurisdiction to compel the Secretary to prepare one. Expressing sympathy for the Appellants’ position, the D.C. Circuit took the unusual step of offering advice to future plaintiffs on how they might succeed on similar claims.
Of Wild Beasts And Digital Analogues: The Legal Status Of Autonomous Systems, Matthew U. Scherer
Of Wild Beasts And Digital Analogues: The Legal Status Of Autonomous Systems, Matthew U. Scherer
Nevada Law Journal
No abstract provided.
Department Of Managed Health Care, Jennifer Pardue, J. D. Fellmeth
Department Of Managed Health Care, Jennifer Pardue, J. D. Fellmeth
California Regulatory Law Reporter
No abstract provided.
Bureau For Private Postsecondary Education, Daniel Ballinger, R. C. Fellmeth, J. D. Fellmeth
Bureau For Private Postsecondary Education, Daniel Ballinger, R. C. Fellmeth, J. D. Fellmeth
California Regulatory Law Reporter
No abstract provided.
Medical Board Of California, Kayla Watson, J. D. Fellmeth
Medical Board Of California, Kayla Watson, J. D. Fellmeth
California Regulatory Law Reporter
No abstract provided.
Board Of Pharmacy, Mariam J. Saleh, Bridget Fogarty Gramme
Board Of Pharmacy, Mariam J. Saleh, Bridget Fogarty Gramme
California Regulatory Law Reporter
No abstract provided.
Board Of Registered Nursing, Ashkan Hayatdavoudi, Bridget Fogarty Gramme
Board Of Registered Nursing, Ashkan Hayatdavoudi, Bridget Fogarty Gramme
California Regulatory Law Reporter
No abstract provided.
Veterinary Medical Board, Bryan Yerger, Bridget Fogarty Gramme
Veterinary Medical Board, Bryan Yerger, Bridget Fogarty Gramme
California Regulatory Law Reporter
No abstract provided.
California Board Of Accountancy, Anna V. Randall, J. D. Fellmeth
California Board Of Accountancy, Anna V. Randall, J. D. Fellmeth
California Regulatory Law Reporter
No abstract provided.
State Bar Of California, Edith Jimenez, Andrew J. Van Arsdale, Bridget Fogarty Gramme
State Bar Of California, Edith Jimenez, Andrew J. Van Arsdale, Bridget Fogarty Gramme
California Regulatory Law Reporter
No abstract provided.
Contractors’ State License Board, Mayra Castro, J. D. Fellmeth
Contractors’ State License Board, Mayra Castro, J. D. Fellmeth
California Regulatory Law Reporter
No abstract provided.
Public Utilities Commission, Jessica Kirshner, Faye Winkler, R. C. Fellmeth, Bridget Fogarty Gramme
Public Utilities Commission, Jessica Kirshner, Faye Winkler, R. C. Fellmeth, Bridget Fogarty Gramme
California Regulatory Law Reporter
No abstract provided.
Department Of Insurance, J. D. Fellmeth
Department Of Insurance, J. D. Fellmeth
California Regulatory Law Reporter
No abstract provided.
In Defense Of A Little Judiciary: A Textual And Constitutional Foundation For Chevron, Terence J. Mccarrick Jr.
In Defense Of A Little Judiciary: A Textual And Constitutional Foundation For Chevron, Terence J. Mccarrick Jr.
San Diego Law Review
This Article hopes to help fill that “important gap in the administrative law literature.” And it proceeds in three parts. Part II offers a brief history of the Chevron doctrine and its discontents. It traces the doctrine’s origin and scope and ends by articulating the textualist and originalist critique of Chevron described above. Part III grapples with that criticism and offers a textualist and originalist defense of Chevron. Section III.A describes the textual footing for Chevron in the APA and argues that Chevron—if not commanded by the APA—does not upset the role it envisions for courts. Section III.B describes the …
Freelance Isn’T Free: The High Cost Of New York City’S Freelance Isn’T Free Act On Hiring Parties, Caitlin M. Baranowski
Freelance Isn’T Free: The High Cost Of New York City’S Freelance Isn’T Free Act On Hiring Parties, Caitlin M. Baranowski
Brooklyn Journal of Corporate, Financial & Commercial Law
Recently, the New York City Council enacted the Freelance Isn’t Free Act (FIFA) to protect freelancers from non-payment. Among FIFA’s protections is the requirement that hiring parties provide a written contract to freelancers for any work exceeding $800 over a 120-day period. As the nation’s first legislation ensuring freelancers’ rights, FIFA marks a major turning point in the development of protections for the gig economy’s growing independent workforce. While its purpose is laudable and necessary, this Note argues that FIFA is currently too ambiguous. To resolve FIFA’s ambiguity, this Note recommends, at the very least, amending FIFA to include: 1) …
A Fork In The Road: Issues Surrounding The Legality Of Mandatory Class Action Waivers In Arbitration Agreements, Brielle Oshinsky
A Fork In The Road: Issues Surrounding The Legality Of Mandatory Class Action Waivers In Arbitration Agreements, Brielle Oshinsky
Brooklyn Journal of Corporate, Financial & Commercial Law
Recently, federal circuit courts have presented contrasting outcomes regarding the legality of mandatory class action waivers in arbitration agreements. More specifically, these outcomes vary on whether such waivers violate the Fair Labor Standards Act (FLSA) and the National Labor Relations Act (NLRA), and importantly, whether it is possible for these statutes to coexist with the Federal Arbitration Act (FAA). The Second, Fifth, and Eighth Circuits have previously held that the act of an employer requiring employees to sign class action waivers in arbitration agreements posed no violation to either the FLSA or the NLRA. However, in May 2016, the Seventh …
Atlantic Richfield Company V. Montana Second Judicial District Court, Molly Kelly
Atlantic Richfield Company V. Montana Second Judicial District Court, Molly Kelly
Public Land & Resources Law Review
Landowners in Opportunity, Montana sought restoration damages from ARCO, Anaconda Copper Mining Company’s successor, to their property from over a century of processing ore at the Anaconda Smelter. ARCO argued that CERCLA preempted and barred any claim for restoration damages. The Montana Supreme Court held: landowners could bring their state common law claims seeking restoration damages; the state district court had subject matter jurisdiction; and landowners’ proposed restoration fund did not challenge EPA’s selected remedy under CERCLA.
National Association Of Manufacturers V. Department Of Defense, Summer L. Carmack
National Association Of Manufacturers V. Department Of Defense, Summer L. Carmack
Public Land & Resources Law Review
In an attempt to provide consistency to the interpretation and application of the statutory phrase “waters of the United States,” as used in the Clean Water Act, the EPA and Army Corps of Engineers together passed the WOTUS Rule. Unfortunately, the Rule has created more confusion than clarity, resulting in a number of lawsuits challenging substantive portions of the Rule’s language. National Association of Manufacturers v. Department of Defense did not address those substantive challenges, but instead determined whether those claims challenging the Rule must be filed in federal district courts or federal courts of appeals. In its decision, the …
Taking Note Of Notary Employees: Employer Liability For Notary Employee Misconduct, Nancy Perkins Spyke
Taking Note Of Notary Employees: Employer Liability For Notary Employee Misconduct, Nancy Perkins Spyke
Maine Law Review
The law of agency governs the relations between principals, agents, and third persons. A portion of that body of law deals with the liabilities that arise when an agent causes harm to a third party. Situations in which negligent employees cause harm to their employers' customers are ripe for the application of standard agency principles. Those principles dictate that the employer will be liable for the tort of an employee if the tort is committed in the scope of employment. The Restatement (Second) of Agency and case law provide many illustrations. If an employer directs an employee to perform a …