Law Commons^™

Personalizing Prices To Redistribute Wealth In Antitrust And Public Utility Rate Regulation, Ramsi A. Woodcock

Law Faculty Scholarly Articles

The information age is enabling firms with even small amounts of market power to personalize the prices they charge to each consumer in the market. Left to their own devices, firms will use this new power to increase profits by charging prices personalized to the maximum that each consumer is willing to pay. But government can also use the new power to personalize prices to equalize wealth—by insisting that firms personalize high prices to the rich and low prices to the poor—and most of the legal rules needed to do so are already in place. Both the antitrust laws and …

The Multi-Level Marketing Pandemic, Christopher G. Bradley, Hannah E. Oates

Law Faculty Scholarly Articles

Among the societal effects of the COVID-19 pandemic has been a sharp rise in the activities of multi-level marketing companies (MLMs). MLMs are business enterprises in which participants seek not only to sell products to friends, family, and social media contacts, but also to recruit them as MLM participants, with the promise of "building their own business from home."

False promises often pervade MLM sales pitches. Evidence shows that few participants see even a dollar of profit from their MLM work; the vast majority of recruits quickly abandon their MLM dreams and lose their investments. Yet the pitch has become …

Means And Ends In City Of Arlington V. Fcc: Ignoring The Lawyer's Craft To Reshape The Scope Of Chevron Deference, Michael P. Healy

Law Faculty Scholarly Articles

In last year's term, the United States Supreme Court considered the question of the scope of Chevron deference in City of Arlington v. FCC. This article discusses how the decision is an example of the work of an activist Court. The case should have been resolved by a straightforward determination under the analysis of United States v. Mead that Chevron deference simply did not apply to the Federal Communications Commission's (FCC) legal determination. The Court ignored this restrained approach to the case and instead addressed the question the Justices desired to decide: the reach of Chevron deference. The article …

The Past, Present And Future Of Auer Deference: Mead, Form And Function In Judicial Review Of Agency Interpretations Of Regulations, Michael P. Healy

Law Faculty Scholarly Articles

The law of judicial review of agency legal interpretations has undergone an important reshaping as a consequence of the Supreme Court decision in United States v. Mead Corp. That decision and the important follow-on decision in National Cable & Telecommunications Ass 'n v. Brand X Internet Services have changed the understanding of the Court's landmark 1984 decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. Chevron defined a new era of judicial deference to an agency's interpretation of an ambiguous statute, but the Chevron era has itself been transformed.

These legal developments had seemed to have little consequential …

A Framework For Judicial Review And Remand In Immigration Law, Collin D. Schueler

Law Faculty Scholarly Articles

This Article breaks new ground at the intersection of administrative law and immigration law. One of the more important questions in both fields is whether a reviewing court should resolve a legal issue in the first instance or remand that issue to the agency. This Article advances the novel claim that courts should use the modem framework for judicial review of agency statutory interpretations to inform their resolution of this remand question. Then, using this framework, the Article identifies when remand is and is not appropriate in immigration cases. This critical analysis, which urges a departure from conventional academic wisdom, …

Reconciling Chevron, Mead, And The Review Of Agency Discretion: Source Of Law And The Standards Of Judicial Review, Michael P. Healy

Law Faculty Scholarly Articles

Although the Supreme Court's watershed decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. has been understood by many as defining the framework for judicial review of agency legal determinations, there have been longstanding questions about the application of the standards for reviewing administrative action. These questions have become more troublesome following the Supreme Court's 2001 decision in United States v. Mead Corp. Mead established that Chevron review only applies when defined requirements are met and held that so-called Skidmore deference applies when Chevron deference does not apply. Surveying the aftermath of Mead and its effect on the …

Partner Capture In Public International Organizations, Christopher G. Bradley

Law Faculty Scholarly Articles

A sharp rise of public-private partnerships is changing the way the United Nations and other public international organizations work. Organizations eagerly embrace wealthy, experienced partners, such as major foundations and corporations, in order to fund ambitious projects. But safeguards against potential problems have not kept pace with partnership activities. Looking to fundamental principles of public choice and political economy well-known in the U.S. administrative law context, this Article develops a multifaceted notion of “partner capture” to describe the dangers of this expansion in partnership activities for the U.N. and similar organizations. The dangers include agenda distortion, intra-organizational rivalries, reputational damage, …

"Prejudgment" Rejudgment: The True Story Of Antoniu V. Sec, Douglas C. Michael

Law Faculty Scholarly Articles

In Antoniu v. SEC, the Eighth Circuit found that Charles C. Cox, then a member of the Securities and Exchange Commission (SEC or Commission), had "impermissibly tainted" an SEC administrative proceeding against Antoniu by a speech Cox gave while the proceeding was pending. In this way, Commissioner Cox is now joined with former Federal Trade Commission (FTC) Chairman Paul Rand Dixon of Texaco, Inc. v. FTC and Cinderella Career & Finishing Schools, Inc. v. FTC fame as an administrative law casebook poster child for "prejudgment" by an administrative agency.

After a brief discussion of the factual background of the …

Nihilism With A Happy Ending? The Interstate Commerce Commission And The Emergence Of The Post-Enlightenment Paradigm, Mark F. Kightlinger

Law Faculty Scholarly Articles

This Article examines early Supreme Court opinions about the Interstate Commerce Commission (ICC)—the first federal administrative agency—in an effort to identify the intellectual roots of the modern administrative state. The Article argues that the Court's effort to explain and justify the function of the newborn ICC shows the traces of a post-Enlightenment crisis in the field of moral philosophy—i.e., the growing conviction that it is no longer possible for reasonable people to agree on what constitutes a true, objective, universally valid standard of reasonable or just conduct. From this essentially nihilistic starting point, the Court helped to fashion a new …

Florida East Coast Railway And The Structure Of Administrative Law, Michael P. Healy

Law Faculty Scholarly Articles

A typical Administrative Law course presents the Supreme Court's decision in United States v. Florida East Coast Railway Co. as establishing the rule that statutory text quite close to the magic words, "on the record after opportunity for an agency hearing," is needed to trigger the Administrative Procedure Act's (APA) formal hearing requirements for a rulemaking. Florida East Coast Railway is a prime example of an underrated case because, even though the case is well known, its renown is a consequence only of its black letter rule about rulemaking procedures. Many scholars and practitioners do not appreciate the case for …

Self-Regulation For Safety And Security: Final Minutes Or Finest Hour?, Douglas C. Michael

Law Faculty Scholarly Articles

The terrorist attacks of September 11, 2001, and the accounting and auditing crisis later caused by the Enron and Worldcom scandals of that same year, created a great sense of insecurity in many Americans. In this Article, I analyze the federal government's response to crisis. I first define what a crisis is: a sudden, existential threat to which the entity has insufficient resources to respond. I then explain how regulation for safety and security is unique in two aspects: perceptions matter, and the assistance of the regulated entities is essential. I proceed by describing and analyzing the regulatory history and …

Law, Policy, And The Clean Water Act: The Courts, The Bush Administration, And The Statute's Uncertain Reach, Michael P. Healy

Law Faculty Scholarly Articles

The development of the jurisdictional reach of the Clean Water Act ("CWA") reflects a hybrid of the judicial determination of the clear legal requirements of the CWA and the exercise of discretionary agency policymaking in the form of legal requirements that are binding on both agency and regulated party. This distinction in the content of administrative law was not altogether clear prior to the Supreme Court's 1984 decision in Chevron U.S.A. v. Natural Resources Defense Council. Today, the distinction is fundamental to administrative law and important to assessing the evolution of the scope of CWA jurisdictional waters because the …

Spurious Interpretation Redux: Mead And The Shrinking Domain Of Statutory Ambiguity, Michael P. Healy

Law Faculty Scholarly Articles

In skewering the Supreme Court's recent decision in United States v. Mead Corp., Justice Scalia's rhetoric is exceptional. He derides the decision as "one of the most significant opinions ever rendered by the Court dealing with the judicial review of administrative action. Its consequences will be enormous, and almost uniformly bad." Although Justice Scalia objects to Mead's new and uncertain limits on the applicability of the Chevron doctrine, this Article will focus instead on how Mead employs a method of interpretation imputing a clear intent to Congress, and authorizes courts to discern statutory meaning without strong deference to …

Administrative Adjudication In Kentucky: Ethics And Unauthorized Practice Considerations, Richard H. Underwood

Law Faculty Scholarly Articles

This article is an extended version of a presentation I made at a training course for hearing officers sponsored by the Office of the Attorney General, Division of Administrative Hearings. In my original presentation, I was asked to focus on the ethics of the administrative adjudicator. I was asked to answer some specific questions, which I will include here for the reader's benefit. In this more complete treatment, I would also like to discuss the ethics of lawyers and other representatives appearing before administrative agencies.

The Kentucky Courts had begun to "judicialize" the administrative hearing process in the early 1970's, …

Textualism’S Limits On The Administrative State: Of Isolated Waters, Barking Dogs, And Chevron, Michael P. Healy

Law Faculty Scholarly Articles

In Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, the U.S. Supreme Court recently held that the U.S. Army Corps of Engineers (the Corps) does not have authority under the Clean Water Act (the Act or the CWA) to regulate the filling of “other waters.” This decision demonstrates a major shift in the Court's approach to statutory interpretation, particularly in the context of reviewing an agency’s understanding of a statute. The significance of the case is best gauged by contrasting it with United States v. Riverside Bayview Homes, Inc. There, the Court, acting …

Raising The Social Security Retirement Ages: Weighing The Costs And Benefits, Kathryn L. Moore

Law Faculty Scholarly Articles

The Social Security program faces a long-term funding deficit. The Board of Trustees of the Federal Old-Age and Survivors and Disability Insurance ("OASDI") Trust Funds predicts that unless corrective action is taken, Social Security benefit payments will exceed dedicated tax revenues by the year 2015, and the Social Security program will become insolvent—unable to pay promised benefits in full-by the year 2037. As a result of this projected deficit, Social Security has become "a lightning rod for far reaching reform proposals."

Proposals range from "traditional" proposals that would maintain the basics of the program's revenue and benefit structure but would …

Standing In Environmental Citizen Suits: Laidlaw’S Clarification Of The Injury-In-Fact And Redressability Requirements, Michael P. Healy

Law Faculty Scholarly Articles

In its first week of business during the new millennium, the U.S. Supreme Court decided Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., and provided important clarifications about the law of standing in environmental citizen suits. Specifically, the Court rejected the narrow view of environmental injury-in-fact advocated by Justice Scalia and instead adhered to the broader view of injury-in-fact established in a nonenvironmental context by the Court's decision in Federal Elections Commission v. Akins. As importantly, the Court also addressed the redressability requirement of Article III standing in Laidlaw. Here too, the Court did …

Cooperative Implementation Of Federal Regulations, Douglas C. Michael

Law Faculty Scholarly Articles

Professor Michael examines regulatory programs in which the federal government leaves many compliance decisions up to the regulated entities themselves. Drawing on prior research and theory in the area, he concludes that such "cooperative implementation" is feasible if three principles are observed: (1) regulatory standards are written to leave discretion in methods of compliance and that discretion is within the competence of the regulated entities; (2) there are economic incentives to offset the additional costs to these entities; and (3) the entities self-report their own compliance, the agency closely monitors the program, and the agency maintains a residual program of …

The Use Of Audited Self-Regulation As A Regulatory Technique, Douglas C. Michael

Law Faculty Scholarly Articles

At first blush, "self-regulation" seems to be self-contradicting. If government regulation of an industry or problem is considered necessary, how can that responsibility then be returned to those from whom it was taken? Notwithstanding this apparent contradiction, audited self-regulation is used successfully by federal regulatory agencies. It is apparently adopted, however, on an ad hoc basis: in one industry or application but not in another that possesses similar characteristics. This article reviews these previously uncollected efforts at audited self-regulation to evaluate the general usefulness of this regulatory technique across industries and applications. These insights would be relevant not only to …

Direct Liability For Hazardous Substance Cleanups Under Cercla: A Comprehensive Approach, Michael P. Healy

Law Faculty Scholarly Articles

In enacting the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA), Congress intended to impose liability for hazardous substance cleanups on all parties responsible for a site's use and contamination. However, in implementing the CERCLA liability scheme, courts have issued opinions offering unclear and misguided explanations of their decisions. The author suggests that, to properly assure CERCLA's proper operation, the basis for the imposition of liability must be clarified. To this end, the author examines the prescribed liability for individuals, parent corporations and secured creditors and explains the appropriate grounds for the responsibility of each.

A Fresh Look At Agency "Discretion", John M. Rogers

Law Faculty Scholarly Articles

Lawyers who represent or litigate against government agencies must wrestle so frequently with the concept of agency "discretion" that they may be forgiven for believing that the term is devoid of intrinsic meaning—a chameleon deriving substance only from its particular context. For instance, mandamus will lie only for ministerial acts, as opposed to "discretionary" ones. Agency acts that are "by law committed to agency discretion" are not reviewable in court under the federal Administrative Procedure Act (APA). However, agency actions are reviewed for "abuse of discretion." On the other hand, tort suits against the government will not be allowed for …

Kentucky Law Survey: Administrative Law, John M. Rogers, Michael H. Sims

Law Faculty Scholarly Articles

This article provides a survey of administrative law in the Commonwealth of Kentucky, including discussions of de novo review and the delegation doctrine.

A Way Out Of The Social Security Jurisdiction Tangle, John M. Rogers

Law Faculty Scholarly Articles

When Congress recently eliminated the $10,000 amount-in-controversy requirement for federal question jurisdiction in suits against the United States, its agencies, and its officers, Congress effectively resolved, for most cases, the problem of finding subject matter jurisdiction for federal judicial review of federal administrative agency action. Whatever the resolution of such distinct issues as whether there is a cause of action, whether sovereign immunity is waived, and whether administrative remedies have been exhausted, subject matter jurisdiction, at least, will be provided, if nowhere else, by the amended federal question jurisdiction statute, 28 U.S.C. § 1331. The applicability of section 1331, however, …