Law Commons^™

The Appellate Review Model Of Agency Adjudications, Linda Jellum

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No abstract provided.

Chevron'S Regrets: The Persistent Vitality Of The Nondelegation Doctrine, Michael C. Pollack

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Since the Chevron decision in 1984, courts have extended to administrative agencies a high level of deference when those agencies reasonably interpret ambiguous statutes, reasoning that agencies have more technical expertise and public accountability than courts. However, when the agency’s interpretation implicates a significant policy choice, courts do not always defer. At times, they rely on principles of nondelegation to rule against the agency interpretation and require that choices be made by Congress instead.

Chevron makes no explicit exception for significant policy choices, but in cases like MCI v. AT&T and FDA v. Brown & Williamson, the Supreme Court …

Foreword: Rulemaking, Democracy, And Torrents Of E-Mail, Nina A. Mendelson

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This Foreword is meant as an initial foray into the question of what agencies should do with mass public comments, particularly on broad questions of policy. Part I discusses the extent to which congressional control, presidential control, and agency procedures themselves can ensure that agency decisions are democratically responsive. In view of shortcomings in both congressional and presidential control, I underscore the need to focus closely on rulemaking procedures as a source of democratic responsiveness. The possibility that agencies may be systematically discounting certain public submissions raises difficulties, and I present some examples. Part II makes a preliminary case that …

Proving Natural Resource Damage Under Opa 90: Out With The Rebuttable Presumption, In With Apa-Style Judicial Review?, Craig H. Allen

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In the aftermath of the Deepwater Honrzon oil spill of 2010, Prsident Obama uged Congess to amend the natural resource damage provisions of the Oil Pollution Act of 1990 to replace the rebuttable presumption of validity the law presently accords to damage assessments by the designated natural resource trustees that were conducted in accordance with regulations promulgated by the National Oceanic and Atmosphenc Administration with the standard of judicial review prescrbed by the Administrative Procedures Act (APA). Although the House of Representatives passed such an amendment in 2010, the Senate failed to act on the amendment before the 111th congressional …

Disclosing The President’S Role In Rulemaking: A Critique Of The Reform Proposals, Stephen M. Johnson

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Whether for want of time, expertise, or political will, Congress frequently drafts laws that leave important questions unanswered. Ever since the New Deal era, administrative agencies have resolved these questions pursuant to broad delegations of authority from Congress. For decades, academics have debated the appropriate role for the President in the process of settling such questions. In practice, the President and the President's staff often exert strong influence over agencies in their resolution of the unanswered questions. Frequently, though, the President's hand is invisible in the records created by the agencies to justify their decisions. Rather than documenting political influences, …

The United States Court Of Appeals For Veterans Claims: Has It Mastered Chevron's Step Zero?, Linda Jellum

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No abstract provided.

Heads I Win, Tails You Lose: Reconciling Brown V. Gardner's Presumption That Interpretive Doubt Be Resolved In Veterans' Favor With Chevron, Linda Jellum

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In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., the United States Supreme Court held that agencies should determine the meaning of ambiguous statutes. But in the veterans law case Brown v. Gardner, the Supreme Court directed lower courts to resolve interpretive doubt in ambiguous statutes in favor of veterans. Which interpretation controls when a statute is ambiguous-the agency's reasonable interpretation or the veteran's interpretation? To date, none of the courts faced with this conflict have resolved this question clearly or definitively; indeed, the United States Court of Appeals for Veterans Claims recently asked the Supreme Court …

The Next Step: The Integration Of Energy Law And Environmental Law, Amy J. Wildermuth

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For many years, the law has largely ignored the obvious connection between energy production and consumption and nature. The laws that govern energy in this country-energy law-have very little to do with the laws that restrict what can be done with nature-environmental law. The primary focus of energy law is to ensure that energy is supplied without disruption at an affordable price. The primary focus of environmental laws is to be sure that the process of creating anything, including energy, does not create "too much" pollution, however we might define that phrase.
The question motivating this conference is what the …

Does The Compensation Clause Burden The Government Or Benefit The Owner? The Compensation Clause As Process, Joshua Galperin

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One of many ideas indelibly drawn in the legal vernacular is that “if a regulation goes too far it will be recognized as a taking.” This workhorse of a phrase has shouldered the bulk of the regulatory takings doctrine since the first half of the last century. So much ink has been spilled in an attempt to parse the meaning of “too far,” and yet the academic and judicial communities have made little progress towards a better understanding. This article, therefore, seeks to divert some attention away from the meaning of “taking”, and put a little more focus on the …

Shifting The Conversation: Disability, Disparities And Health Care Reform, Elizabeth Pendo

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In keeping with the theme of this symposium, I would like to invite you to consider health care reform as a political shift in our thinking about the barriers and inequalities experienced by people with disabilities in our health care system. Traditionally, when these issues have been addressed, the predominant approach has been through a civil rights framework, specifically the Rehabilitation Act of 1973' and the American with Disabilities Act of 1990 (ADA).2 Now, the Patient Protection and Affordable Care Act of 2010 (PPACA) offers a new approach. This essay will outline the barriers to health and health care experienced …

When Machines Are Watching: How Warrantless Use Of Gps Surveillance Technology Violates The Fourth Amendment Right Against Unreasonable Searches, David Thaw, Priscilla Smith, Nabiha Syed, Albert Wong

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Federal and state law enforcement officials throughout the nation are currently using Global Positioning System (GPS) technology for automated, prolonged surveillance without obtaining warrants. As a result, cases are proliferating in which criminal defendants are challenging law enforcement’s warrantless uses of GPS surveillance technology, and courts are looking for direction from the Supreme Court. Most recently, a split has emerged between the Ninth and D.C. Circuit Courts of Appeal on the issue. In United States v. Pineda-Moreno, the Ninth Circuit relied on United States v. Knotts — which approved the limited use of beeper technology without a warrant — to …

Another Word On The President's Statutory Authority Over Agency Action, Nina A. Mendelson

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In this short symposium contribution, I attempt first to add some further evidence on the interpretive question. That evidence weighs strongly, in my view, in favor of Kagan's conclusion that the terminology does not communicate any particular congressional intent regarding presidential directive authority. Assessed in context, the "whole code" textual analysis presented by Stack does not justify the conclusion that Congress, by delegating to an executive branch official, meant to limit presidential control. Independent agencies excluded, interpreting the terms of simple and presidential delegations to speak to directive authority fails, in general, to make sense of the various statutes. Absent …