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Articles 31 - 60 of 259
Full-Text Articles in Law
Reconciling With The Past: John Willis And The Question Of Judicial Review In Interwar And Postwar England, Peter L. Lindseth
Reconciling With The Past: John Willis And The Question Of Judicial Review In Interwar And Postwar England, Peter L. Lindseth
Peter L. Lindseth
This contribution was prepared for a conference at the University of Toronto Faculty of Law in honor of John Willis, the late Anglo-Canadian administrative law theorist who died in 1997. It will appear in a forthcoming issue of the University of Toronto Law Journal. Throughout his career, John Willis puzzled over the way in which both popular and elite opinion in England (not to mention throughout the Commonwealth and in the United States) persistently, and in his view uncritically, equated the "Rule of Law" in important respects with judicial review in the administrative state. Willis believed this attachment to judicial …
Arkansas Mini-Rfra Is Bad Policy, Danielle Weatherby
Arkansas Mini-Rfra Is Bad Policy, Danielle Weatherby
Danielle Weatherby
A Public Interest Perspective On Local Number Portability: Consumers, Competition And Other Risks, J. Armand Musey Cfa, Michael Calabrese
A Public Interest Perspective On Local Number Portability: Consumers, Competition And Other Risks, J. Armand Musey Cfa, Michael Calabrese
J. Armand Musey, CFA
Before the Commission finalizes the selection of a vendor for the Local Number Portability Administrator (“LNPA”) contract, the Commission should take this opportunity to reconsider the future role of the number portability system and of the LNPA in relation to market competition, public safety and the IP technology transition. The functionality of today’s LNP platform extends well beyond providing routine number porting services between telecom carriers. It has evolved into a significant component in the greater ecosystem of telecommunications competition, public safety and technological evolution. As a result, any changes to the LNPA now will have broader and evolving public …
Agencies, Courts, And The Limits Of Balancing, Daniel A. Farber
Agencies, Courts, And The Limits Of Balancing, Daniel A. Farber
Daniel A Farber
Courts have struggled in several very different contexts to determine when a decision maker can consider costs that are not explicitly addressed in the governing statute. This issue arises when agencies decide whether to conduct a rulemaking or what rule to issue after a rulemaking. It also arises when courts decide whether to enjoin a violation of a statute or whether to vacate an administrative rule rather than simply remanding. Judicial opinions point in different directions and often ignore each other.
This Article contends that the same principles should govern judicial and agency discretion to consider costs across all these …
Dirty Debts Sold Dirt Cheap, Dalie Jimenez
Dirty Debts Sold Dirt Cheap, Dalie Jimenez
Dalie Jimenez
More than 77 million Americans have a debt in collections. Many of these debts will be sold to debt buyers for pennies, or fractions of pennies, on the dollar. This Article details the perilous path that debts travel as they move through the collection ecosystem. Using a unique dataset of 84 consumer debt purchase and sale agreement, it examines the manner in which debts are sold, oftentimes as simple data on a spreadsheet, devoid of any documentary evidence. It finds that in many contracts, sellers disclaim all warranties about the underlying debts sold or the information transferred. Sellers also sometimes …
Dapa And The Future Of Immigration Law As Administrative Law, Jill Family
Dapa And The Future Of Immigration Law As Administrative Law, Jill Family
Jill E. Family
The Procedural Fortress Of Us Immigration Law, Jill Family
The Procedural Fortress Of Us Immigration Law, Jill Family
Jill E. Family
Searching For Proportionality In U.S. Administrative Law, Jud Mathews
Searching For Proportionality In U.S. Administrative Law, Jud Mathews
Jud Mathews
Controles De Câmbio No Brasil: Teoria E Prática, Bruno Meyerhof Salama
Controles De Câmbio No Brasil: Teoria E Prática, Bruno Meyerhof Salama
Bruno Meyerhof Salama
Patent Conflicts, Tejas N. Narechania
Patent Conflicts, Tejas N. Narechania
Tejas N. Narechania
Law Abiding Drones, Henry H. Perritt Jr., Eliot O. Sprague
Law Abiding Drones, Henry H. Perritt Jr., Eliot O. Sprague
Henry H. Perritt, Jr.
Minding The Gaps: Fairness, Welfare, And The Constitutive Structure Of Distributive Assessment, Robert C. Hockett
Minding The Gaps: Fairness, Welfare, And The Constitutive Structure Of Distributive Assessment, Robert C. Hockett
Robert C. Hockett
Despite over a century’s disputation and attendant opportunity for clarification, the field of inquiry now loosely labeled “welfare economics” (WE) remains surprisingly prone to foundational confusions. The same holds of work done by many practitioners of WE’s influential offshoot, normative “law and economics” (LE). A conspicuous contemporary case of confusion turns up in recent discussion concerning “fairness versus welfare.” The very naming of this putative dispute signals a crude category error. “Welfare” denotes a proposed object of distribution. “Fairness” describes and appropriate pattern of distribution. Welfare itself is distributed fairly or unfairly. “Fairness versus welfare” is analytically on all fours …
Regulatory Improvement Legislation: Judicial Review Of Provisions Regarding Risk Assessment And Cost-Benefit Analysis, Mary Ann Chirba, Frederick Anderson, E. Donald Elliott, Cynthia Farina, Ernest Gelhorn, John Graham, C. Boyden Gray, Jeffrey Holmstead, Ronald Levin, Lars Noah, Katherine Rhyne, Jonathan Weiner
Regulatory Improvement Legislation: Judicial Review Of Provisions Regarding Risk Assessment And Cost-Benefit Analysis, Mary Ann Chirba, Frederick Anderson, E. Donald Elliott, Cynthia Farina, Ernest Gelhorn, John Graham, C. Boyden Gray, Jeffrey Holmstead, Ronald Levin, Lars Noah, Katherine Rhyne, Jonathan Weiner
Cynthia R. Farina
No abstract provided.
Enhancing The Use Of Negotiated Rulemaking By The U.S. Department Of Education, Jeffrey Lubbers
Enhancing The Use Of Negotiated Rulemaking By The U.S. Department Of Education, Jeffrey Lubbers
Jeffrey Lubbers
Federalism And The Rise Of Renewable Energy: Preserving State And Local Voices In The Green Energy Revolution, Daniel Lyons
Federalism And The Rise Of Renewable Energy: Preserving State And Local Voices In The Green Energy Revolution, Daniel Lyons
Daniel Lyons
The rise of renewable energy has disrupted the traditional regulatory structure governing electricity. Unlike traditional fossil fuel power plants, wind and solar facilities are geographically constrained: they exist where the wind blows and the sun shines. Large-scale renewable energy is more likely to flow interstate, from resource-rich prairie and Southwestern states to energy-hungry population centers elsewhere. The difficulties of coordinating interstate electricity policies have led some to call for greater preemption of the states’ traditional duties as chief regulators of the electricity industry. But while preemption would eliminate some state-level roadblocks to interstate cooperation, it would sacrifice many of the …
Applying Administrative Law Principles To Hydraulic Fracturing, Joel M. Pratt
Applying Administrative Law Principles To Hydraulic Fracturing, Joel M. Pratt
Joel M Pratt
Because fracking regulators and industry need both legal clarity and the ability to react to new information, courts should apply principles of administrative deference to resolve conflicts between state and local fracking regulations.Under these principles, courts weigh expert agency decision making more heavily when the agency has acted reasonably. When faced with a conflict between state and local fracking laws, courts should adopt administrative principles and privilege expert agency regulations rather than engage in an independent judicial inquiry. Part I provides background on fracking and argues that states are in the best position to regulate the practice. Part II then …
Foreword — Chevron At 30: Looking Back And Looking Forward, Peter M. Shane, Christopher J. Walker
Foreword — Chevron At 30: Looking Back And Looking Forward, Peter M. Shane, Christopher J. Walker
Christopher J. Walker
This Foreword introduces a Fordham Law Review symposium held in March 2014 to mark the thirtieth anniversary of Chevron U.S.A. v. Natural Resources Defense Council. The most-cited administrative-law decision of all time, Chevron has sparked thirty years of scholarly discussion concerning what Chevron deference means, when (or even if) it should apply, and what impact it has had on the administrative state. Part I of the Foreword discusses the symposium contributions that address Chevron’s scope and application, especially in light of City of Arlington v. FCC. Part II introduces the contributions that explore empirically and theoretically Chevron’s impact outside of …
Signing Statements And Statutory Interpretation In The Bush Administration, Neil Kinkopf
Signing Statements And Statutory Interpretation In The Bush Administration, Neil Kinkopf
Neil J. Kinkopf
No abstract provided.
Sustaining An Unsustainable Fuel Source: How Lifecycle Greenhouse Gas Limitations Can Improve The Sustainability Of The Tar Oil Industry, Brittany Debord
Sustaining An Unsustainable Fuel Source: How Lifecycle Greenhouse Gas Limitations Can Improve The Sustainability Of The Tar Oil Industry, Brittany Debord
Brittany DeBord
The United States seeks to achieve energy security and self-sufficiency by acquiring energy from Canadian tar sands and promoting a domestic tar sands industry. However, support for this industry is inconsistent with the greenhouse gas reduction policies of the Energy Independence and Security Act and the North American Agreement on Environmental Cooperation, since tar oil extraction creates three times more carbon emissions than conventional oil extraction. Legislation limiting lifecycle greenhouse gas emissions has already been implemented through the Renewable Fuel Standard Program in response to concerns that plant-based fuel production leads to greater carbon emissions than intended. Since the lifecycle …
A Response To Professor Camp: The Importance Of Oversight, Leslie Book
A Response To Professor Camp: The Importance Of Oversight, Leslie Book
Leslie Book
In past writings and in an upcoming article by Professor Bryan Camp, The Problem of Adversarial Process in the Administrative State, 83 IND. L. J. ### (2008), Professor Camp criticizes the procedural protections Congress added in the tax collection process, noting the limitations of adversary proceedings in the IRS’s tax collection process. In particular, Professor Camp strongly criticizes the collection due process (CDP) rights that were part of the landmark IRS Restructuring and Reform Act of 1998. Given the size of the tax gap, and likely increasing calls for the IRS to do a better job in reducing that tax …
One Hundred Nos: An Empirical Analysis Of The First 100 Denials Of Institution For Inter Partes And Covered Business Method Patent Reviews, Jonathan R. K. Stroud, Jarrad Wood
One Hundred Nos: An Empirical Analysis Of The First 100 Denials Of Institution For Inter Partes And Covered Business Method Patent Reviews, Jonathan R. K. Stroud, Jarrad Wood
Jonathan R. K. Stroud
Tasked in 2011 with creating three powerful new patent review trial regimes, the U.S. Patent and Trademark Office—through the efforts of their freshly empowered quasi-judicial body, the Patent Trial and Appeals Board—set to creating a fast-paced trial with minimal discovery and maximum efficiency. In the first two years of existence, the proceedings have proved potent, holding unpatentable many of the claims that reach decisions on the merits. Yet a small subsection of petitions never make it past the starting gate, resulting in wasted time and effort on the parts of petitioners—and likely sighs of relief from the rights-holders. Parties on …
Sewer Syndicalism: Worker Self-Management In Public Services, Eric M. Fink
Sewer Syndicalism: Worker Self-Management In Public Services, Eric M. Fink
Eric M Fink
In the late nineteenth and early twentieth centuries, municipal governments in various US cities assumed responsibility for utilities and other services that previously had been privately operated. In the late twentieth century, prompted by fiscal crisis and encouraged by neo-liberal ideology, governments embraced the concept of “privatization,” shifting management and control over public services to private entities.
Despite disagreements over the merits of privatization, both proponents and opponents accept the premise of a fundamental distinction between the “public” and “private” sectors, and between “state” and “market” institutions. A more skeptical view questions the analytical soundness and practical significance of these …
Drones, Henry H. Perritt Jr., Eliot O. Sprague
Drones, Henry H. Perritt Jr., Eliot O. Sprague
Henry H. Perritt, Jr.
Preventative Legislation Ensures Intended Parents Of Gestational Surrogacy Benefits Under The California Family Rights Act, Jennifer Jackson
Preventative Legislation Ensures Intended Parents Of Gestational Surrogacy Benefits Under The California Family Rights Act, Jennifer Jackson
Jennifer Jackson
We live in a rapidly evolving technological age, which now allows parents to enter surrogacy contracts. In such a world, the law often lags in catching up to technology and the ramifications that may ensue. This paper focuses on the California Family Rights Act (CFRA) and the consequences it has on surrogacy agreements and the rights intended parents. While the CFRA includes broad language as to the definition of a “child,” case law shows that surrogate born children may be unintentionally excluded. As a result, this paper analyzes the arguments both for and against revision to the CFRA and concludes …
The Cra Implications Of Predatory Lending, Kathleen Engel, Patricia Mccoy
The Cra Implications Of Predatory Lending, Kathleen Engel, Patricia Mccoy
Patricia A. McCoy
Traditionally, policymakers, communities, and industry have regarded the Community Reinvestment Act ("CRA") as a positive mandate for banks and thrifts to do good by increasing investment in low- and moderate-income ("LMI") neighborhoods. When Congress enacted CRA, it was inconceivable that LMI neighborhoods might eventually receive too much credit in the form of abusive mortgages. However, by the late 1990s, predatory mortgages- exploitative high-cost loans to gullible borrowers-were ravaging the inner cities. We address the question: given the surge in predatory lending, how should CRA respond? CRA and federal subsidies to regulated lenders can create perverse incentives for lenders to engage …
Building A Framework For Governance: Retrospective Review And Rulemaking Petitions, Reeve T. Bull
Building A Framework For Governance: Retrospective Review And Rulemaking Petitions, Reeve T. Bull
Reeve T Bull
Of the various regulatory reform efforts advocated by legal scholars and politicians in recent years, perhaps none holds greater promise than retrospective review of agency regulations, whereby agencies revisit existing rules to determine whether they remain appropriate in light of changed circumstances. The Obama Administration has embraced the principles of retrospective review, issuing three executive orders on the subject, and it has trumpeted billions of dollars in economic savings resulting from those efforts. Nevertheless, numerous scholars have criticized these initiatives, contending that agencies reviewing their own regulations are unlikely to repeal or fundamentally overhaul existing rules. This article addresses the …
The Eye Of The Beholder: Participation And Impact In Telecommunications (De)Regulation, Dorit Reiss
The Eye Of The Beholder: Participation And Impact In Telecommunications (De)Regulation, Dorit Reiss
Dorit R. Reiss
The California Public Utilities Commission addressed both pricing deregulation and universal service in telecommunications during the last decade. Both decisions had a similar cast of characters, and similarly elaborate processes. In relation to price deregulation, the utilities positions were accepted on every issue addressed; in relation to universal service, consumer organizations’ positions were accepted in about 60% of the issues. This article tells the story of how those decisions were made, and examines the reasons for the difference in impact. The article examines and reject an explanation of capture; accepts in part a focus on the influence of the commissioner …
Relying On Government In Comparison: What Should The United States Learn From Abroad In Relation To Administrative Estoppel?, Dorit R. Reiss
Relying On Government In Comparison: What Should The United States Learn From Abroad In Relation To Administrative Estoppel?, Dorit R. Reiss
Dorit R. Reiss
The United States’ Supreme Court had never upheld a claim of estoppel against the government. A citizen relying on government’s advice does that at her peril: if the government was wrong, if it misrepresented the statute or interpreted it wrongly, it can (by some interpretations, must) go back on its word and the citizen has no recourse. The Supreme Court provided many arguments for that position, but the core of them involves protection of what the Europeans refer to as “the principle of legality”: the executive does not have the ability to waive requirements from primary legislation or deviate from …
The Scored Society: Due Process For Automated Predictions, Danielle Keats Citron, Frank A. Pasquale
The Scored Society: Due Process For Automated Predictions, Danielle Keats Citron, Frank A. Pasquale
Danielle Keats Citron
Big Data is increasingly mined to rank and rate individuals. Predictive algorithms assess whether we are good credit risks, desirable employees, reliable tenants, valuable customers—or deadbeats, shirkers, menaces, and “wastes of time.” Crucial opportunities are on the line, including the ability to obtain loans, work, housing, and insurance. Though automated scoring is pervasive and consequential, it is also opaque and lacking oversight. In one area where regulation does prevail—credit—the law focuses on credit history, not the derivation of scores from data.
Procedural regularity is essential for those stigmatized by “artificially intelligent” scoring systems. The American due process tradition should inform …
Oklahoma Administrative Procedures: Cases And Materials, Michael Mitchelson
Oklahoma Administrative Procedures: Cases And Materials, Michael Mitchelson
Michael Mitchelson
No abstract provided.