Law Commons^™

Account Me In: Agencies In Quest Of Accountability, Dorit R. Reiss

Dorit R. Reiss

This articles adds to the literature about accountability by examining the little-studied phenomenon of agencies making efforts—sometimes substantial efforts - to be accountable. It briefly describes how three agencies—the EPA, the FDA and especially the IRS—worked to increase their accountability. It demonstrates that agencies are often not the enemy in the “accountability game”. In today’s world agencies, contrary to the stereotype, often buy into the language and practice of accountability. It addresses three arguments for this behavior: a rational choice argument based on comparison of the costs of non-accountability with the benefits of accountability; a power of ideas argument showing …

The Bounds Of Consent: Consent Decrees, Settlements And Federal Environmental Policy Making, Robert V. Percival

Robert Percival

No abstract provided.

The Role Of Attorney Fee Shifting In Public Interest Litigation, Robert V. Percival, Geoffrey P. Miller

Robert Percival

No abstract provided.

The Role Of The Council On Competitiveness In Regulatory Review, Robert V. Percival

Robert Percival

No abstract provided.

Restoring Regulatory Policy To Serve The Public Interest, Robert V. Percival

Robert Percival

No abstract provided.

Interim Report On The Administrative Law, Process And Procedure Project For The 21st Century, Rena I. Steinzor

Rena I. Steinzor

No abstract provided.

The People's Agent: Executive Branch Secrecy And Accountability In An Age Of Terrorism, Sidney A. Shapiro, Rena I. Steinzor

Rena I. Steinzor

The increase in government secrecy is an important and troubling policy trend. Although the trend predates the 2000 presidential election, the movement towards government secrecy has accelerated dramatically in the Bush Administration. The case for open government is usually based on political principles embraced by the Framers of the U.S. Constitution. This article seeks to bolster these arguments by applying “agency theory” to the question of how much secrecy is too much. While agency theory is most often used to analyze private sector economic relationships, commentators have also applied it to the analysis of methods for holding legislators and Executive …

Fulfilling Government 2.0'S Promise With Robust Privacy Protections, Danielle Citron

Danielle Keats Citron

The public can now “friend” the White House and scores of agencies on social networks, virtual worlds, and video-sharing sites. The Obama Administration sees this trend as crucial to enhancing governmental transparency, public participation, and collaboration. As the President has underscored, government needs to tap into the public’s expertise because it doesn’t have all of the answers. To be sure, Government 2.0 might improve civic engagement. But it also might produce privacy vulnerabilities because agencies often gain access to individuals’ social network profiles, photographs, videos, and contact lists when interacting with individuals online. Little would prevent agencies from using and …

A Theoretical Justification For Special Solicitude: States And The Administrative State, Matthew Melamed

Matthew S Melamed

In Massachusetts v. EPA, the Court declared that the state of Massachusetts, because it sought to protect a quasi-sovereign interest, was “entitled to special solicitude in our standing analysis.” The discussion of special solicitude consisted of little more than one page in the Court’s opinion. This paper addresses the question of whether a theoretical justification for special solicitude for state standing exists, and finds that it does.

The strongest argument for special solicitude is rooted in federalist concerns, though not the concerns that provide the foundation for originalist states’ rights theories. While traditional states’ rights arguments seek to restrict federal …

A "Pay Or Play" Experiment To Improve Children's Educational Television, Lili Levi

Lili Levi

This Article addresses both the constitutionality and the efficacy of the FCC’s current rules that require broadcasters to air children’s educational programming. It argues that, even though the rules would probably pass muster under the First Amendment, they should nevertheless be substantially revised. Empirical studies show mixed results, with substantial amounts of educationally insufficient programming. This is predictable – attributable to broadcaster incentives, limits on the FCC’s enforcement capacities, and audience factors. Instead, the Article advises a turn away from programming mandates. It proposes a “pay or play” approach that allows broadcasters to pay a fee to a fund for …

Science, Public Bioethics, And The Problem Of Integration, Orlando Carter Snead

O. Carter Snead

Public bioethics — the governance of science, medicine, and biotechnology in the name of ethical goods — is an emerging area of American law. The field uniquely combines scientific knowledge, moral reasoning, and prudential judgments about democratic decisionmaking. It has captured the attention of officials in every branch of government, as well as the American public. Public questions (such as those relating to the law of abortion, the federal funding of embryonic stem cell research, and the regulation of end-of-life decisionmaking) continue to roil the public square.

This article examines the question of how scientific methods and principles can and …

Science, Public Bioethics, And The Problem Of Integration, Orlando Carter Snead

O. Carter Snead

Public bioethics — the governance of science, medicine, and biotechnology in the name of ethical goods — is an emerging area of American law. The field uniquely combines scientific knowledge, moral reasoning, and prudential judgments about democratic decisionmaking. It has captured the attention of officials in every branch of government, as well as the American public. Public questions (such as those relating to the law of abortion, the federal funding of embryonic stem cell research, and the regulation of end-of-life decisionmaking) continue to roil the public square.

This article examines the question of how scientific methods and principles can and …

A "Pay Or Play" Experiment To Improve Children's Educational Television, Lili Levi

Lili Levi

This Article addresses both the constitutionality and the efficacy of the FCC’s current rules that require broadcasters to air children’s educational programming. It argues that, even though the rules would probably pass muster under the First Amendment, they should nevertheless be substantially revised. Empirical studies show mixed results, with substantial amounts of educationally insufficient programming. This is predictable – attributable to broadcaster incentives, limits on the FCC’s enforcement capacities, and audience factors. Instead, the Article advises a turn away from programming mandates. It proposes a “pay or play” approach that allows broadcasters to pay a fee to a fund for …

Close Enough For Government Work: The Committee Rulemaking Game, Paul J. Stancil

Paul J Stancil

Procedural rules in U.S. courts often have predictable and systemic substantive consequences. Yet the vast majority of procedural rules are drafted, debated, and ultimately enacted by a committee rulemaking process substantially removed from significant legislative or executive supervision. This Article explores the dynamics of the committee rulemaking process through a game-theoretical lens. The model reveals that inferior players in the committee rulemaking game—advisory committees, the Standing Committee on Rules of Practice and Procedure, the Judicial Conference and the Supreme Court—are sometimes able to arbitrage Congressional transaction costs to obtain results at odds with the results Congress would prefer in a …

A Healthy Diet Of Preemption: The Power Of The Fda And The Battle Over Restricting High Fructose Corn Syrup From Food And Beverages Labeled ‘Natural’, Adam C. Schlosser

Adam C. Schlosser

Americans today are facing a health crisis. These same Americans are increasingly trying to improve their well-being by purchasing healthy food and beverages and are flocking towards the supposed health benefits of those foods and beverages labeled ‘natural.’ Due to the FDA’s liberal requirements, consumer confusion currently exists regarding what ingredients may be used in products labeled ‘natural.’ In fact, many ‘natural’ food and beverages are actually less healthy than their counterparts not featuring any specific labeling claims. High fructose corn syrup (HFCS) is produced by a complex scientific manufacturing process and is used as an ingredient in millions of …

"Streamlining" The Rule Of Law: How The Department Of Justice Is Undermining Judicial Review Of Agency Action, Shruti Rana

Shruti Rana

Judicial review of administrative decision making is an essential institutional check on agency power. Recently, however, the Department of Justice dramatically revised its regulations in an attempt to insulate its decision making from public and federal court scrutiny. These “streamlining” rules, carried out in the name of national security and immigration reform, have led to a breakdown in the rule of law in our judicial system. While much attention has been focused on the Department of Justice’s recent attempts to shield executive power from the reach of Congress, its efforts to undermine judicial review have so far escaped such scrutiny. …

Should The Hvcc Settlement Be Treated As An Agency Rulemaking?, Ted C. Koshiol

Ted C. Koshiol

Abstract On March 3, 2008, the New York Attorney General’s reached an important settlement with Fannie Mae, Freddie Mac, and the Office of Federal Housing Enterprise Oversight. Under the terms of the agreement, Fannie and Freddie agreed to only purchase mortgages from banks that would abide by a new set of appraisal standards. Observers immediately recognized that the impact of the agreement would be widespread, effectively imposing new rules on every mortgage lender in America. The scenario raises a novel legal issue: is a settlement agreement always an adjudicatory action, or are there instances where it should be required to …

The New Regulation: From Command To Coordination In The Modern Administrative State, Robert B. Ahdieh

Robert B. Ahdieh

The New Regulation: From Command To Coordination In The Modern Administrative State, Robert B. Ahdieh

Robert B. Ahdieh

The New Regulation: From Command To Coordination In The Modern Administrative State, Robert B. Ahdieh

Robert B. Ahdieh

The New Regulation: From Command To Coordination In The Modern Administrative State, Robert B. Ahdieh

Robert B. Ahdieh

The New Regulation: From Command To Coordination In The Modern Administrative State, Robert B. Ahdieh

Robert B. Ahdieh

The Law And Economics Of Cybersecurity: An Introduction, Mark F. Grady, Francesco Parisi

Mark F. Grady

One of the most controversial theoretical issues of our time is the governance of cybersecurity. Computer security experts, national security experts, and policy analysts have all struggled to bring meaningful analysis to cybersecurity; however, the discipline of law & economics has yet to be fully applied to the issue. This introduction presents work by leading national scholars who examine this complex national security challenge from a law and economics perspective. The focus spans from a discussion of pure market solutions to public-private issue analysis, providing a valuable basis for policy considerations concerning the appropriate governmental role on the issue of …

Organophosphates, Friend And Foe: The Promise Of Medical Monitoring For Farm Workers And Their Families, Gabriel Eckstein, Adriane Busby

Gabriel Eckstein

Millions of farm workers nation-wide who load, mix and/or apply pesticides are exposed to incredible amounts of pesticides on a daily basis. Various inefficiencies and inconsistencies in the regulatory system – including insufficient illness reporting data systems, lack of regulatory compliance and enforcement, and inadequate data and information on the chronic effects of exposure and overexposure to various pesticides – increase the likelihood that these workers will continue to be exposed to dangerous amounts of pesticides.

This article assesses the existing mechanisms designed to protect farm workers from occupational exposure to pesticides and identifies and analyzes some of the shortcomings …

Stakeholder Reaction To Emissions Trading In The United States, The European Union, And The Netherlands, Bryant Walker Smith

Bryant Walker Smith

As a contribution to the debate over market-based environmental regulation, this article examines the reaction of stakeholders to cap-and-trade programs proposed and/or implemented in the United States, the European Union, and the Netherlands for industrial emissions of certain pollutants. Those pollutants include nitrogen oxides (NOX), sulfur dioxide (SO2), mercury (Hg), and greenhouse gases such as carbon dioxide (CO2). For the purpose of the article, stakeholders include environmental groups, regulators, and particularly industry.

The broad conclusion, to which the remainder of the article provides context, is straightforward: Industry dislikes regulation. It strongly dislikes redundancy. It loathes uncertainty. Even emitters that have …

The Stubborn Incoherence Of Regulatory Takings, Mark Fenster

Mark Fenster