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Articles 1 - 30 of 497
Full-Text Articles in Law
The Securities And Environment Commission? The Sec Greenhouse Gas Disclosure Rule For Investment Advisers And Companies And The Fight Against Administrative Overreach, Isaiah P. Harlan
Northern Illinois University Law Review
This article discusses the 2022 Supreme Court case West Virginia v. EPA in which the Supreme Court utilized the Major Questions Doctrine to analyze the EPA’s Clean Power Plan. After detailing the litigation leading up to and the ultimate decision in West Virginia v. EPA, I describe the SEC’s proposed rule requiring enhanced environmental disclosures and analyze the cited statutory authority in the proposed rule. Based upon the statutory and case law analysis that I have done, I conclude that the SEC has acted outside of the scope of its congressionally delegated authority.
Job Incidence Numbers In Social Security Disability Claims: A Case Study And Analysis, Kevin Liebkemann
Job Incidence Numbers In Social Security Disability Claims: A Case Study And Analysis, Kevin Liebkemann
Journal of the National Association of Administrative Law Judiciary
The Social Security Administration (SSA) processes numerous disabled worker applications each year. In adult disability claims, SSA employs a strict five-step sequential disability evaluation to decide whether a person is disabled. Many adult Social Security Disability claimants either win or lose at the fifth and final step, where an SSA adjudicator decides whether there is “a significant number of jobs (in one or more occupations) having requirements which you are able to meet with your physical or mental abilities and vocational qualifications.” This article examines the vocational evidence that SSA uses to decide the significant number of jobs issue. It …
Diabetes Management Of Incarcerated Individuals: Is The Federal Bureau Of Prisons Contributing To Worsening Diabetic Conditions?, Mariam Antony
Diabetes Management Of Incarcerated Individuals: Is The Federal Bureau Of Prisons Contributing To Worsening Diabetic Conditions?, Mariam Antony
Journal of the National Association of Administrative Law Judiciary
There are many issues related to noncommunicable disease care in federal prisons, which fall under the management of the U.S. Bureau of Prisons, a federal agency. Although there are many noncommunicable diseases, this comment specifically focuses on diabetes because of its prevalence (how common it is in individuals), especially in incarcerated individuals. Prison and incarceration are not conducive to the management of diabetes because diabetes may not even show symptoms until an individual mismanages the disease for a long time. An individual could first appear normal and then suffer a diabetic emergency, which could lead to consequences like heart attack …
Legal Summaries Of Administrative Law Cases, Keyana Young
Legal Summaries Of Administrative Law Cases, Keyana Young
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Implied Consent In Administrative Adjudication, Grace Moore
Implied Consent In Administrative Adjudication, Grace Moore
Washington and Lee Law Review Online
Article III of the Constitution mandates that judges exercising the federal judicial power receive life tenure and that their pay not be diminished. Nonetheless, certain forms of adjudication have always taken place outside of Article III—in state courts, military tribunals, territorial courts, and administrative tribunals. Administrative law judges, employed by various federal administrative agencies, decide thousands of cases each year. A vast majority of the cases they decide deal with public rights, which generally include claims involving federal statutory rights or cases in which the federal government is a party. With litigant consent, however, the Supreme Court has upheld administrative …
Radical Administrative Law, Christopher S. Havasy Assistant Professor Of Law
Radical Administrative Law, Christopher S. Havasy Assistant Professor Of Law
Vanderbilt Law Review
The administrative state is under attack. Judges and scholars increasingly question why agencies should have such large powers to coerce citizens without adequate democratic accountability. Rather than refuting these critics, this Article accepts that in scrutinizing the massive powers that agencies hold over citizens, these critics have a point. However, their solution—to augment the powers of Congress or the President over agencies to instill indirect democratic accountability—is one step too quick. We should first examine whether direct democratic accountability of agencies by the citizenry is possible.
This Article excavates the nineteenth-century European intellectual history following the rise of the modern …
Agency Self-Funding In The Antinovelty Age, Zois Manaris
Agency Self-Funding In The Antinovelty Age, Zois Manaris
William & Mary Law Review Online
This Article demonstrates that CFSA's [Community Financial Services Association of American v. CFPB] introduction of antinovelty into the self-funding space, including its particular antinovelty approach, poses an existential threat to any and all agency self-funding. On its face, this may seem like something that will only worry the more functionalist or more liberal crowd—likely because so much of the recent discussion surrounding agency self-funding has revolved around the polarizing CFPB. But even those who might want the CFPB struck down and those who subscribe to the antinovelty rationale as a general matter (between those two camps there …
An Unfair Method Of Rulemaking: An Application Of Constitutional Doctrines That Oppose The Ftc Rule Banning Non-Competition Agreements, Jared Yaggie
University of Cincinnati Law Review
No abstract provided.
Res Judicata And Multiple Disability Applications: Fulfilling The Praiseworthy Intentions Of The Fourth And Sixth Courts, Amber Mae Otto
Res Judicata And Multiple Disability Applications: Fulfilling The Praiseworthy Intentions Of The Fourth And Sixth Courts, Amber Mae Otto
Vanderbilt Law Review
In the United States, the application process to receive disability benefits through the Social Security Administration is often a tedious, multistep procedure. The process becomes even more complex if a claimant has filed multiple disability applications covering different time periods. In that circumstance, the question arises as to whether an administrative law judge hearing a claimant’s second application must make the same findings as the administrative law judge who heard the first application. In other words, how should res judicata function in the administrative law context when a claimant has filed for disability multiple times? Currently, circuits differ on this …
Barring Judicial Review, Laura E. Dolbow -- Sharswood Fellow
Barring Judicial Review, Laura E. Dolbow -- Sharswood Fellow
Vanderbilt Law Review
Whether judicial review is available is one of the most hotly contested issues in administrative law. Recently, laws that prohibit judicial review have sparked debate in the Medicare, immigration, and patent contexts. These debates are continuing in challenges to the recently created Medicare price negotiation program. Yet despite debates about the removal of judicial review, little is known about how often, and in what contexts, Congress has expressly precluded review. This Article provides new insights about express preclusion by conducting an empirical study of the U.S. Code. It creates an original dataset of laws that expressly preclude judicial review of …
Democratic Erosion And The United States Supreme Court, Jenny Breen
Democratic Erosion And The United States Supreme Court, Jenny Breen
Utah Law Review
For many decades, confidence in American institutions and political culture consistently led scholars to sideline questions about “regime change” in the United States. And for many years, that approach seemed justified. Democratic institutions were firmly rooted and stable, and American voters participated in free and fair elections that resulted in the peaceful transfer of power between parties and candidates. Then came the campaign of Donald Trump and all that has followed since, including open challenges to the most basic and fundamental democratic norms. These changes have led many voters, commentators, and scholars to ask: Is democracy eroding in the United …
Interlocal Power Roulette, Daniel B. Rosenbaum
Interlocal Power Roulette, Daniel B. Rosenbaum
Indiana Law Journal
Local governments inhabit a crowded ecosystem. Cities, counties, and school districts—and many more—share overlapping territorial jurisdictions. Overlapping jurisdiction goes hand-in-hand with redundant local power, defined as a scenario where multiple governments hold independent authority to take the exact same action in the exact same territorial space. In Maine, for example, state law empowers three local bodies to operate the same sewer infrastructure. In Detroit, two separate entities are equally tasked with managing the city’s streetlights. And in communities across the country, local governments are broadly authorized to own the same parcels of public land, including in Oakland, California, where public …
Banned Books & Banned Identities: Maintaining Secularism And The Ability To Read In Public Education For The Well-Being Of America's Youth, Megan M. Tylenda
Banned Books & Banned Identities: Maintaining Secularism And The Ability To Read In Public Education For The Well-Being Of America's Youth, Megan M. Tylenda
Indiana Journal of Law and Social Equality
Books containing LGBTQ+ themes and characters are being removed from public school libraries at a rapid rate across the United States. While a book challenge has made it to the Supreme Court once before, the resulting singular plurality opinion left courts without a clear test to apply, ultimately leaving students’ First Amendment rights in the air. Additionally, the increasingly relaxed view of courts towards religious influence in public schools indicates that if a modern case were to reach the Supreme Court, religious challenges may be accepted, which would leave LGBTQ+ students who seek to see themselves represented in literature without …
Reforming The Federal Regulatory Review Process, Joanne Spalding, Andres Restrepo
Reforming The Federal Regulatory Review Process, Joanne Spalding, Andres Restrepo
FIU Law Review
For decades, the Office of Information and Regulatory Affairs (OIRA) has overseen the development of federal regulatory policies with a strong emphasis on benefit-cost analysis. Despite its conceptual appeal, this analytic tool consistently shortchanges environmental and public health protection, with especially negative consequences for environmental justice communities. In this article, we address some of those shortcomings, focusing in particular on the standard agency practice of arithmetically discounting regulatory costs and benefits that accrue in the future. We propose that the OIRA abandon this practice as it relates to non-market goods, such as human lives saved, and instead work toward a …
Case Law On American Indians: October 2022 - August 2023, Thomas P. Schlosser
Case Law On American Indians: October 2022 - August 2023, Thomas P. Schlosser
American Indian Law Journal
No abstract provided.
Unclear Guidelines From The Sentencing Commission And A Prejudiced Warden Result In (Un)Compassionate Release, Mary Trotter
Unclear Guidelines From The Sentencing Commission And A Prejudiced Warden Result In (Un)Compassionate Release, Mary Trotter
Journal of the National Association of Administrative Law Judiciary
Congress first developed compassionate release in 1984, granting federal courts the authority to reduce sentences for “extraordinary and compelling” reasons. Compassionate release allows the Federal Bureau of Prisons (BOP) and inmates to apply for immediate early release on grounds of “particularly extraordinary or compelling circumstances which could not reasonably have been foreseen by the court at the time of sentencing.” Questions remain about how the BOP and the courts grant compassionate release and whether the courts apply the compassionate release guidelines consistently. The uncertainty is due to the lack of clarity from the USSC to define “extraordinary or compelling circumstances,” …
Broadcast In The Past?: The Dangers Of Deregulating Children’S Broadcast Television, Lauren Bashir
Broadcast In The Past?: The Dangers Of Deregulating Children’S Broadcast Television, Lauren Bashir
Journal of the National Association of Administrative Law Judiciary
This article will begin by providing an overview of the Federal Communications Commission’s role in regulating broadcast television. In Section II, this article will explain in depth how the FCC has placed limitations on the type of content and circumstances under which television stations can broadcast content. This discussion will lead into the Children’s Television Act (CTA) of 1990 and the regulation of children’s television—also known as the KidVid Rules. After providing some background on the creation of the CTA and its effectiveness up to recent times, Section III will dive deeper into the 2019 CTA modifications. Then this article …
Silent Sentences: The Procedural Tragedy Of The Bureau Of Prisons' Sentence Computation Policy, Max Abramson
Silent Sentences: The Procedural Tragedy Of The Bureau Of Prisons' Sentence Computation Policy, Max Abramson
Georgia Law Review
The Bureau of Prisons has systematically lengthened sentences—at times doubling them—for prisoners subject to federal and state sentences for the same conduct. This phenomenon does not stem from any expressed intent on the part of federal or state judges, defense attorneys, the prosecution, or a plea deal. Instead, it arises through silence at a prisoner’s federal sentencing on a key issue: whether the federal sentence is consecutive to or concurrent with a yet-to-beimposed state sentence.
For those facing both a federal sentence and a yet-to-beimposed state sentence for the same conduct, perhaps no other aspect of sentencing has a greater …
The Doj Olc Transparency Act: Is Transparency Enough To Combat Problematic Norms In The Office Of Legal Counsel?, Sarah Patrick
The Doj Olc Transparency Act: Is Transparency Enough To Combat Problematic Norms In The Office Of Legal Counsel?, Sarah Patrick
Northwestern Journal of Law & Social Policy
Over the last two decades, the Office of Legal Counsel has come under scrutiny for controversial opinions that have advised the President on the constitutionality of his actions, from interrogation and detention of military detainees to presidential immunity from congressional investigation and subpoenas to testify. Its opinions tend to conform with the unitary executive theory and defer to the executive’s position—and that’s only the opinions the public knows about. The Office of Legal Counsel is not required to disclose its opinions, and often does not, citing concerns about national security and the need for confidentiality.
A recent legislative effort, the …
Ctr. For Biological Diversity V. United States Fish & Wildlife Serv., Ali Stapleton
Ctr. For Biological Diversity V. United States Fish & Wildlife Serv., Ali Stapleton
Public Land & Resources Law Review
The Ninth Circuit Court of Appeals affirmed the District Court of Arizona’s decision to deny a proposed mining plan becuase the operations exceeded the boundaries of a valid mining claim. The issue the court addressed is whether a permanent occupancy of waste rock and tailings on land, absent the discovery of valuable minerals, is a reasonable use related to mining activities. The Ninth Circuit decision effectively prevented mining companies from amending the 1872 Mining Law on the administrative record. Motions for a rehearing and a rehearing en banc were denied.
Offshore Wind Energy Or Domestic Seafood? How The Department Of The Interior Can Facilitate Both Through Self-Binding Procedures, Adele Irwin
St. John's Law Review
(Excerpt)
The United States has many identities, including that of a coastal nation. With the largest Exclusive Economic Zone (“EEZ”) in the world, the United States has jurisdiction over more human activity in the ocean than any other country. Like people in most coastal nations, Americans are drawn to the ocean. Almost forty percent of the population lives in coastal counties that constitute less than ten percent of the nation’s land mass, and 58.3 million jobs and more than $9.5 trillion of gross domestic product are attributable to ocean resources annually. These figures have increased over time.
The diverse industries …
Grabbing The Bull By The Horns: Jurisprudential, Ethical, And Other Lessons For Lawyers And Law Students In The Immigration Labyrinth And Beyond, Mark L. Jones
University of Arkansas at Little Rock Law Review
No abstract provided.
Comrades Or Foes: Did The Chinese Break The Law Or New Ground Ground For The First Amendment, Artem M. Joukov
Comrades Or Foes: Did The Chinese Break The Law Or New Ground Ground For The First Amendment, Artem M. Joukov
West Virginia Law Review
Prior to exiting the White House, President Trump placed a variety of restrictions on Chinese-owned social media applications, TikTok and WeChat, threatening to greatly curtail their influence in the United States. While couching his actions in the context of national security, the former president engaged in viewpoint discrimination in plain violation of the First Amendment to the United States Constitution. The court rulings in favor of TikTok and WeChat were encouraging and should stem the tide of future government regulations of social media platforms. This article discusses how the decisions fit into the greater context of First Amendment jurisprudence and …
Major Questions Impede Major Progress--Rebuking The Major Questions Doctrine & West Virginia V. Epa In Minnesota, Michael Warkel
Major Questions Impede Major Progress--Rebuking The Major Questions Doctrine & West Virginia V. Epa In Minnesota, Michael Warkel
Mitchell Hamline Law Review
No abstract provided.
Situating Structural Challenges To Agency Authority Within The Framework Of The Finality Principle, Harold J. Krent
Situating Structural Challenges To Agency Authority Within The Framework Of The Finality Principle, Harold J. Krent
Indiana Law Journal
No abstract provided.
An Analysis Of Federal Aviation Administration Enforcement Actions Against Suas Operators, Trevor Simoneau, Ryan J. Wallace, Tyler B. Spence, Jonathan Rupprecht
An Analysis Of Federal Aviation Administration Enforcement Actions Against Suas Operators, Trevor Simoneau, Ryan J. Wallace, Tyler B. Spence, Jonathan Rupprecht
International Journal of Aviation, Aeronautics, and Aerospace
The Federal Aviation Administration (FAA) has promulgated regulations to govern the commercial operation of small uncrewed aircraft systems (sUAS). Compliance with these regulations is essential for maintaining safety in the National Airspace System. And if sUAS operators fail to comply with applicable federal aviation regulations, the FAA has been granted the authority to enforce these regulations. This study explores how the FAA has been exercising its enforcement power in the context of sUAS operator regulatory noncompliance. Using data obtained from a Freedom of Information Act request, this study examines 62 FAA enforcement actions levied against sUAS operators from 2012 until …
Mutually Intelligible Principles?, Andrew J. Ziaja
Mutually Intelligible Principles?, Andrew J. Ziaja
Pace Law Review
Are the nondelegation, major questions, and political question doctrines mutually intelligible? This article asks whether there is more than superficial resemblance between the nondelegation, major questions, and political question concepts in Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825), an early nondelegation case that has become focal in recent nondelegation and major questions scholarship and jurisprudence. I argue that the nondelegation and political question doctrines do interact conceptually in Wayman, though not as current proponents of the nondelegation doctrine on the Supreme Court seem to understand it. The major questions doctrine by contrast conscripts the nondelegation …
Executive Capture Of Agency Decisionmaking, Allison M. Whelan
Executive Capture Of Agency Decisionmaking, Allison M. Whelan
Vanderbilt Law Review
The scientific credibility of the administrative state is under siege in the United States, risking distressful public health harms and even deaths. This Article addresses one component of this attack-—executive interference in agency scientific decisionmaking. It offers a new conceptual framework, “internalagency capture,” and policy prescription for addressing excessive overreach and interference by the executive branch in the scientific decisionmaking of federal agencies. The Article’s critiques and analysis toggle a timeline that reflects recent history and that urges forward-thinking approaches to respond to executive overreach in agency scientific decisionmaking. Taking the Trump Administration and other presidencies as test cases, it …
Bring On The Chicken And Hot Oil: Reviving The Nondelegation Doctrine For Congressional Delegations To The President, Loren Jacobson
Bring On The Chicken And Hot Oil: Reviving The Nondelegation Doctrine For Congressional Delegations To The President, Loren Jacobson
St. John's Law Review
(Excerpt)
The so-called “nondelegation doctrine” posits that Congress may not transfer its legislative power to another branch of government, and yet Congress delegates its authority routinely not only to the President, but to a whole host of other entities it has created and that are located in the executive branch, including executive branch agencies, independent agencies, commissions, and sometimes even private parties. Recognizing that “in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives,” the Supreme Court of the United States …
Grand Unified (Separation Of Powers) Theory: Examining The United States Marshals, Emile Katz
Grand Unified (Separation Of Powers) Theory: Examining The United States Marshals, Emile Katz
Pace Law Review
This Article examines a novel separation of powers issue that the Supreme Court has never directly addressed: the existence and practices of the United States Marshals. The United States Marshals serve an executive branch function—law enforcement—yet are often directly overseen and commanded by the judicial branch. In the United States federal government system—in which the executive and judicial branches are designed to act independently—the control the federal courts exercise over the marshals raises separation of powers concerns. Since no court has decided what test should apply when federal courts vicariously exercise executive power, this Article applies several separation of powers …