Law Commons^™

Symmetry's Mandate: Constraining The Politicization Of American Administrative Law, Daniel E. Walters

Michigan Law Review

Recent years have seen the rise of pointed and influential critiques of deference doctrines in administrative law. What many of these critiques have in common is a view that judges, not agencies, should resolve interpretive disputes over the meaning of statutes—disputes the critics take to be purely legal and almost always resolvable using lawyerly tools of statutory construction. In this Article, I take these critiques, and the relatively formalist assumptions behind them, seriously and show that the critics have not acknowledged or advocated the full reform vision implied by their theoretical premises. Specifically, critics have extended their critique of judicial …

Restoring Congress's Role In The Modern Administrative State, Christopher J. Walker

Michigan Law Review

A review of Josh Chafetzm Congress's Constitution: Legislative Authority and Separation of Powers.

Opening The Gates Of Cow Palace: Regulating Runoff Manure As A Hazardous Waste Under Rcra, Reed J. Mccalib

Michigan Law Review

In 2015, a federal court held for the first time that the Environmental Protection Agency (“EPA”) may regulate runoff manure as a “solid waste” under the Resource Conservation and Recovery Act (“RCRA”). The holding of Community Ass’n for Restoration of the Environment, Inc. v. Cow Palace, LLC opened the gates to regulation of farms under the nation’s primary toxic waste statute. This Comment argues that, once classified as a “solid waste,” runoff manure fits RCRA’s definition of “hazardous waste” as well. This reclassification would expand EPA’s authority to monitor and respond to the nation’s tragically common groundwater-contamination emergencies.

Delegating Tax, James R. Hines Jr., Kyle D. Logue

Michigan Law Review

Congress delegates extensive and growing lawmaking authority to federal administrative agencies in areas other than taxation, but tightly limits the scope of Internal Revenue Service (IRS) and Treasury regulatory discretion in the tax area, specifically not permitting these agencies to select or adjust tax rates. This Article questions why tax policy does and should differ from other policy areas in this respect, noting some of the potential policy benefits of delegation. Greater delegation of tax lawmaking authority would allow administrative agencies to apply their expertise to fiscal policy and afford timely adjustment to changing economic circumstances. Furthermore, delegation of the …

Fighting Foreign-Corporate Political Access: Applying Corporate Veil-Piercing Doctrine To Domestic-Subsidiary Contributions, Ryan Rott

Michigan Law Review

Campaign finance regulations limit speech. The laws preclude foreign nationals, including foreign corporations, from participating in U.S. politics via campaign contributions. The unusual characteristics of corporations, however, may allow foreign corporations to exploit a loophole in the regulatory regime. A foreign corporation may contribute to political campaigns by acquiring a domestic subsidiary and dominating it. This Note addresses how these unusual corporate behaviors enable foreign corporations to illegally corrupt the political process. This Note concludes that to close the loophole without violating the free speech rights of domestic subsidiaries, Congress should enact legislation which would apply corporate veil-piercing theory to …

Proactive Legislation And The First Amendment, Stuart Minor Benjamin

Michigan Law Review

It is a commonplace that the world is changing rapidly, with whole sectors of the economy being transformed. New forms of communication, like the World Wide Web, e-mail, and satellite television, have risen from obscurity to ubiquity in less than a decade. The speed of these changes has led some to express concern about the ability of governments to respond. The fear is that governments cannot keep up with developments as they occur and thus get hopelessly behind. The solution, according to some, is for the government to act proactively - before a harm has arisen, so that the government …

Food Stamp Trafficking: Why Small Groceries Need Judicial Protection From The Department Of Agriculture (And From Their Own Employees), Elliot Regenstein

Michigan Law Review

A neon sign in the window of 7-Van Drugs reads "Food Stamps," but the contradictory truth is posted inside on a handwritten sign taped to a thick pane of bulletproof plastic. 7-Van Drugs sits at the intersection of Seven Mile Road and Van Dyke in northern Detroit, where it has "serv[ ed] the community since 1948 at the same corner." Inside 7-Van is an array of staple foods and basic household cleaning items, and there is a small pharmacy in the back. Customers must use a turnstile to pass their purchases through the bulletproof plastic to the cashier. There are …

The Continuing Relevance Of Section 8(A)(2) To The Contemporary Workplace, Michael C. Harper

Michigan Law Review

After embarking on his illustrious career as a legal academic, Theodore St. Antoine, through a multitude of roles, including those of scholar, teacher, administrator, pragmatic law reformer, and arbitrator, made innumerable contributions to the practice and development of many parts of American law. For most of us, however, as a scholar he will be associated primarily with the system of collective bargaining established and encouraged by the National Labor Relations Act (NLRA) and its progeny. During the first part of Professor St. Antoine's years as an academic, this system continued to flourish in America, as he, along with other legal …

White House Electronic Mail And Federal Recordkeeping Law: Press "D" To Delect History, James D. Lewis

Michigan Law Review

This Note argues that federal recordkeeping law should promote the preservation of history above all other concerns. First, courts should construe and apply the recordkeeping statutes with this goal in mind. Second, Congress should amend the recordkeeping statutes to correct enforcement deficiencies that leave irresponsible recordkeeping practices unchecked and risk the loss of a historical record of White House decisionmaking. Finally, executive officials should adopt guidelines that identify and preserve historically significant materials regardless of the medium in which they are captured.

Part I of this Note examines the statutes that currently regulate the management and public disclosure of White …

Enforcement Of Tsca And The Federal Five-Year Statute Of Limitations For Penalty Actions, Teresa A. Holderer

Michigan Law Review

Many years prior to TSCA, Congress enacted a general five-year statute of limitations for actions for the enforcement of civil penalties, fines, and forfeitures, which, if applicable, would alleviate these problems. Although the Agency claims that no statute of limitations applies, this Note argues that the general five-year statute of limitations, found in section 2462 of title 28, should apply to EPA's administrative proceedings to assess penalties as well as to later collection actions in federal courts. Part I details TSCA's enforcement procedures, which create special difficulties when applying section 2462's statute of limitations. Part I also examines how EPA, …

Nondeposit Deposits And The Future Of Bank Regulation, Jonathan R. Macey, Geoffrey P. Miller

Michigan Law Review

We argue in this paper that the nation has already entered with a vengeance into the era of nondeposit deposit banking. The traditional bank deposit against which reserves must be held and deposit insurance paid is suffering encroachment from a wide variety of competitive instruments and arrangements, all of which, to one degree or another - often to a substantial degree - serve a function economically similar to that of the checking account at a depository institution.

The legal system may respond to these developments by attempting to bring nondeposit deposits under regulation, as it has done with other banking …

Cumulative Trauma Disorders: Osha's General Duty Clause And The Need For An Ergonomics Standard, David J. Kolesar

Michigan Law Review

This Note argues that neither the Act nor its underlying policies supports OSHA's current use of the general duty clause to prosecute alleged ergonomics violations and that the only way to protect workers from CTDs fairly and effectively is through the promulgation of an ergonomics standard. Part I examines the purposes of the Act, as well as the function of the Act's general duty clause. Part II analyzes the four requirements of the general duty clause in the context of CTDs and finds that the clause does not apply to CTDs. Part III argues that the Act's intended policies support …

An Economic And Political Look At Federalism In Taxation, Daniel Shaviro

Michigan Law Review

Part I of this article examines the reasons for preferring locationally neutral taxes and explains the basic tension between locational neutrality and state and local autonomy in taxation. Part II examines the federal judicial check on state and local taxation, which often relies on a principle barring discrimination against outsiders or interstate commerce. Part III explores the need for a broad federal judicial check by examining state and local governments' reasons for imposing (or avoiding) locationally distortive taxes, the countervailing benefits of allowing such governments broad autonomy in taxation, and Congress' willingness to strike down locationally distortive taxes under its …

Limitations Of Sovereign Immunity Under The Clean Water Act: Empowering States To Confront Federal Polluters, Corinne Beckwith Yates

Michigan Law Review

This Note considers whether civil penalties that states impose on federal agencies for violations of NPDES permits arise under federal law and thus are covered by the Clean Water Act's waiver of sovereign immunity - an issue the Supreme Court is scheduled to address during the 1991 term. Part I outlines the history of the Clean Water Act, discussing Supreme Court decisions and statutory amendments that affect the sovereign immunity provision. Part II explains the mechanics of the NPDES state permit process and examines, through analysis of statutory provisions, the degree of control retained by the EPA over individual states …

Review Essay: Sunstein, Statutes, And The Common Law--Reconciling Markets, The Communal Impulse, And The Mammoth State, Peter L. Strauss

Michigan Law Review

The following pages principally address Professor Sunstein's basic argument for building on, rather than defending against, legislative judgments, and so virtually ignore the details of his proposals for statutory interpretation. Part I outlines Sunstein's case for some regulation - the necessary failures of market ordering and the consequent need for a mixed economy in which government regulation intervenes in important ways. Part II addresses Sunstein's decision to tie his analysis to the public law innovations of the New Deal, and suggests ways in which the analysis might be strengthened by attention to earlier struggles and changes - changes in common …

Federal Agency Treatment Of Uncertainty In Environmental Impact Statements Under The Ceq's Amended Nepa Regulation § 1502.22: Worst Case Analysis Or Risk Threshold, Charles F. Weiss

Michigan Law Review

This Note traces the judicial and administrative treatment of uncertainty under NEPA and supports the CEQ's replacement of worst case analysis with a qualitative probability threshold. Part I discusses the development of reasonableness standards in NEPA common law to define agency obligations prior to promulgation of the worst case analysis regulation. Part II reviews the worst case analysis regulation and its judicial construction. Finally, Part III outlines the amended regulation, which replaces worst case analysis with a probability threshold employing the rule of reason to limit EIS discussion to environmental effects shown through credible scientific evidence to be reasonably foreseeable. …

Regulation Through The Looking Glass: Hospitals, Blue Cross, And Certificate-Of-Need, Sallyanne Payton, Rhoda M. Powsner

Michigan Law Review

A clear focus on the commitment of the public health and hospital establishments to the large teaching hospital and their belief in rationalizing the health care system through community-based planning allows us to understand the ideas and institutions that have produced our present system of hospital regulation. It can also help us to understand the structure and behavior of the hospital industry and can illuminate current controversies over health care policy.

What follows is a narrative account of the development of regional planning and certificate-of-need legislation. As part of that story, we trace the evolution of the Blue Cross, explain …

The Propriety Of Benefit-Spreading Regulations Under The 10% Lending Limit Of The National Bank Act, Michigan Law Review

Michigan Law Review

This Note examines whether the ten percent lending limit of the National Bank Act should be used to promote benefit-spreading. Section I evaluates the legislative and judicial history of the lending limit and concludes that Congress never intended the Comptroller to issue regulations to foster benefit-spreading. Section II examines the practical ramifications of the benefit-spreading regulations. It concludes that the lending limit cannot effectively foster benefit-spreading without undermining the risk-reducing function of the statute; that compliance with the benefit-spreading regulations is costly while the penalties for noncompliance are inappropriate and unfair; and that existing statutes better promote benefit-spreading while avoiding …

Regulating Carcinogens In Food: A Legislator's Guide To The Food Safety Provisions Of The Federal Food, Drug, And Cosmetic Act, Richard A. Merrill

Michigan Law Review

On March 9, 1977, the Food and Drug Administration (FDA) announced that a study in laboratory rats conducted by the Canadian government confirmed that saccharin is an animal carcinogen. For this reason, the agency stated, the sweetener must be banned from human food.

The studies which Congress mandated, to be accompanied by the recommendations of the Secretary of HEW, are likely to generate a fundamental reexamination of the nation's current food safety policies. This Article attempts to aid this inquiry by explaining the requirements of the present law. The Article describes the several statutory provisions that govern the regulation of …

The Role Of The Commodity Futures Trading Commission Under The Commodity Futures, Michigan Law Review

Michigan Law Review

After a brief look at the functions of futures markets, the conditions that led to the enactment of the Commodity Futures Trading Commission Act, and the major provisions of the Act, this note will critically examine the information now available on the major issues left to the Commission to decide, point to additional information that would be useful in making judgments on these issues, and recommend solutions. It will then discuss two problems not considered in the 1974 legislation--export controls and margin oversight--suggesting areas for action by the Commission.

Billboard Control Under The Highway Beautification Act Of 1965, Roger A. Cunningham

Michigan Law Review

Although the advertising control provisions of the Highway Beautification Act of 1965 have been the subject of unremitting controversy from the date of enactment until the present time, only three substantive amendments to title I have been adopted in the intervening years. These are the amendments to subsections ( d) and (j) and the addition of a new subsection (n) all of which were adopted in 1968.

Federal Trade Commission Regulation Of Advertising, Earl W. Kintner

Michigan Law Review

The success of an economic democracy, no less than that of a political democracy, depends upon informed, intelligent choice. Thus, the widespread dissemination of information with respect to alternatives is imperative; otherwise, choices would be made in a vacuum and would become meaningless, if not plainly capricious. However, there is no paucity of information in our contemporary society; the so-called "mass media" ensure that. Indeed, modern man can hardly escape, even if he should so desire, the constant bombardment of information from television, radio, newspapers, billboards, and other sources.

The Expanding Jurisdiction Of The Securities And Exchange Commission: Variable Annuities And Bank Collective Investment Funds, John W. Erickson

Michigan Law Review

The Securities and Exchange Commission is presently attempting to assert jurisdiction over certain aspects of two industries traditionally exempt from federal securities regulation-insurance and banking. The SEC claims that two recently developed investment vehicles-variable annuities in the insurance field and pooled funds of managing agency accounts in the banking field-are virtually the same as mutual funds, which are subject to SEC regulation under the Investment Company Act of 1940. (A mutual fund is essentially a fund (usually in corporate form), the participants' contributions to which are collectively invested in a portfolio of securities, each participation representing a pro rata interest …

State Control Of Radiation Hazards: An Intergovernmental Relations Problem, Samuel D. Estep, Martin Adelman

Michigan Law Review

The purpose of this article is to set forth the nature of the intergovernmental problem. This involves an analysis of the extent and limitations of federal power, a determination of congressional intent on the issue of federal pre-emption, and an appraisal of the steps now being taken by the Atomic Energy Commission to turn over part of the radiation safety regulatory program to the states.

Labor Law-Jurisdiction Of Nlrb Under Self-Imposed Limitations, Bernard L. Goodman S.Ed., Robert S. Griggs S.Ed.

Michigan Law Review

Under the original National Labor Relations Act of 1935 and that act as it stands amended by Title I of the Labor-Management Relations Act of 1947, Congress has conferred upon the National Labor Relations Board regulatory authority in certain areas of industrial relations, the jurisdictional extent of which is conterminous with the power of the federal government under the commerce clause of the Constitution. At an early date, however, the Board determined that ''budgetary limitations as well as the need to avoid diffusion of its time and energy ... [justified] it in not exerting its jurisdictional authority to the legal …

Growth And Development Of The Police Power Of The State, Collins Denny Jr

Michigan Law Review

The police power of the state is one of the most difficult phases of our law to understand, and it is even more difficult to define it and to place it within any bounds. In speaking of this power the court has recently said: "It extends not only to regulations which promote the public health, morals, and safety, but to those which promote the public convenience or the general prosperity. * * * It is the most essential of powers, at times the most insistent, and always one of the least limitable of the powers of government."' The term is …