Administrative Law Commons^™

Too Plain To Be Misunderstood: Sovereign Immunity Under The Arkansas Constitution, Robert C. Dalby

Arkansas Law Review

The framers of the constitution certainly knew that instances of hardship would result from the prohibition of suits against the State, but they nevertheless elected to write that immunity into the constitution. The language is too plain to be misunderstood, and it is our duty to give effect to it. Given the fluid nature of the law, time is often the greatest enemy of clarity in court precedent. From law students to experienced judges, anyone who has tried to research the doctrine of sovereign immunity under the Arkansas Constitution has surely struggled with that enemy as they sift through the ...

Medical Marijuana In Arkansas: The Risks Of Rushed Drafting, Carol Goforth, Robyn Goforth

Arkansas Law Review

Arkansas voters passed the Arkansas Medical Marijuana Amendment to the state constitution in late 2016. Almost certainly, the vast majority of voters did so without reading or understanding the intricacies of the initiative, and instead voted simply to affirm their desire to permit the medical use of marijuana in the state. Among many other provisions, the amendment imposed a 120 day time limit (later extended by the Arkansas legislature to 180 days) within which the Arkansas Department of Health and other agencies were to adopt rules implementing the voter mandate. While six months might seem like plenty of time in ...

Making Consumer Finance Work, Natasha Sarin

Faculty Scholarship at Penn Law

The financial crisis exposed major faultlines in banking and financial markets more broadly. Policymakers responded with far-reaching regulation that created a new agency—the CFPB—and changed the structure and function of these markets.

Consumer advocates cheered reforms as welfare-enhancing, while the financial sector declared that consumers would be harmed by interventions. With a decade of data now available, this Article presents the first empirical examination of the successes and failures of the consumer finance reform agenda. Specifically, I marshal data from every zip code and bank in the United States to test the efficacy of three of the most ...

The Impact Of The Durbin Amendment On Banks, Merchants, And Consumers, Vladimir Mukharlyamov, Natasha Sarin

Faculty Scholarship at Penn Law

After the Great Recession, new regulatory interventions were introduced to protect consumers and reduce the costs of financial products. Some voiced concern that direct price regulation was unlikely to help consumers, because banks offset losses in one domain by increasing the prices that they charge consumers for other products. This paper studies this issue using the Durbin Amendment, which decreased the interchange fees that banks are allowed to charge merchants for processing debit transactions. Merchant interchange fees, previously averaging 2 percent of transaction value, were capped at $0.22, decreasing bank revenue by $6.5 billion annually. The objective of ...

Who’S Driving That Car?: An Analysis Of Regulatory And Potential Liability Frameworks For Driverless Cars, Madeline Roe

Boston College Law Review

Driverless, or autonomous, cars are being tested on public roadways across the United States. For example, California implemented a new regulation in 2018 that allows manufacturers to test driverless cars without a person inside the vehicle, so long as the manufacturers adhere to numerous requirements. The emergence of these vehicles raises questions about accident liability and the reach of state regulation regarding driverless cars. To address these questions, it is beneficial to look at the liability framework for another artificial intelligence system, such as surgical robots. This Note will explore possible frameworks of liability before arguing in support of further ...

A Dirty Waste—How Renewable Energy Policies Have Financed The Unsustainable Waste-To-Energy Industry, Hale Mcanulty

Boston College Law Review

The end of the 20th Century saw a major shift in the United States’ approach to energy policy. After decades focused on fossil fuel production, the country began to realize that renewable sources of energy were the way of the future. Motivated by environmental concerns and a realization that oil is a finite resource, the federal government and local governments began adopting economic policies that rewarded investment in and production of renewable, clean technology. Governments relied on both mandates and tax incentives to encourage the use of energy from sources like solar and wind power. Waste-to-Energy (“WTE”) power is another ...

A “Natural” Stand Off Between The Food And Drug Administration And The Courts: The Rise In Food-Labeling Litigation & The Need For Regulatory Reform, Amy-Lee Goodman

Boston College Law Review

Faced with the health and financial toll from escalating rates of chronic disease, consumers are demanding healthier food products and increased transparency regarding the ingredients in their food. Food labels provide the primary means for businesses to communicate with customers about their food products. In response to consumer demand, food companies are stocking grocery store shelves with products claiming to be wholesome, “natural” and healthy. Yet, many of these products are not as healthy or natural as purported. Although both consumers and food manufacturers place importance on the term “natural,” the Food and Drug Administration has refused to define the ...

The Icarus Syndrome: How Credit Rating Agencies Lost Their Quasi Immunity, Norbert Gaillard, Michael Waibel

SMU Law Review

Subsequent to the 2007–2008 subprime crisis, the SEC and the US Senate discovered that it was common practice for major credit rating agencies (CRAs) to produce inflated and inaccurate structured finance ratings. A host of explanations were posited on how this was able to happen from the “issuer pays” model of CRAs and conflicts of interest to underscoring the CRA’s regulatory license and their ensuing insulation from legal liability. Historically, credit ratings were akin to opinions. However, when courts started to consider structured finance ratings as commercial speech in the 2000s, CRAs became more vulnerable to litigation. This ...

Wildearth Guardians V. United States Bureau Of Land Management, Seth Sivinski

Public Land & Resources Law Review

In WildEarth Guardians v. U.S. BLM, the District Court of Colorado showed that economic and developmental uncertainty is an area where agencies are given broad discretion in deciding whether an impact is reasonably foreseeable and requires a further conformity analysis under the Clean Air Act. This case exemplifies the tactical limitation of using climate change and the science around it to force greater analysis of projects undertaken by federal agencies. However, the court presented a potential roadmap for successful future challenges.

Predictability For Privacy In Data Driven Government, Jordan Blanke, Janine Hiller

Minnesota Journal of Law, Science & Technology

No abstract provided.

Solenex Llc V. Jewell, F. Aaron Rains

Public Land & Resources Law Review

In Solenex LLC v. Jewell, the Secretary of the Interior cancelled a highly contentious oil and gas lease in Montana’s Badger-Two Medicine area, an environmentally sensitive and culturally significant area to the Blackfeet Tribe, nearly thirty years after the lease had been issued. Solenex, a Louisiana based oil and gas company and holder of the lease, brought this action to enjoin the cancellation. The District Court for the District of Columbia agreed with Solenex and found that the Secretary’s decision took an unreasonable amount of time and violated good-faith contractual obligations. On these grounds, the court found the ...

Sierra Club V. Virginia Electric & Power Company, Thomas C. Mooney-Myers

Public Land & Resources Law Review

The Sierra Club alleged Dominion violated the Clean Water Act by allowing arsenic to leak from coal ash storage pits into state waters. The Fourth Circuit Court of Appeals found for the polluter, using a narrow definition of point source. Additionally, the Fourth Circuit deferred to agency interpretation of the polluter’s permit to find no violation occurred.

Narrowing The Digital Divide: A Better Broadband Universal Service Program, Daniel Lyons

Boston College Law School Faculty Papers

Universal service has long been an integral component of American telecommunications policy. As more activities move online, it becomes increasingly important to narrow the digital divide by helping low-income Americans get online and by extending broadband networks into unserved areas.

Unfortunately, the Federal Communications Commission’s reforms are unlikely to help solve this problem. The Commission is repurposing an $8 billion telephone subsidy program to focus instead on broadband networks. But when pressed, the agency admits that it has no proof that the program meaningfully affected telephone adoption rates, and it offers little evidence that it will fare any better ...

The Depravity Of The 1930s And The Modern Administrative State, Steven G. Calabresi, Gary Lawson

Notre Dame Law Review

Gillian Metzger’s 2017 Harvard Law Review foreword, entitled 1930s Redux: The Administrative State Under Siege, is a paean to the modern administrative state, with its massive subdelegations of legislative and judicial power to so-called “expert” bureaucrats, who are layered well out of reach of electoral accountability yet do not have the constitutional status of Article III judges. We disagree with this celebration of technocratic government on just about every level, but this Article focuses on two relatively narrow points.

First, responding more to implicit assumptions that pervade modern discourse than specifically to Professor Metzger’s analysis, we challenge the ...

Blank Checks: An Analysis Of Emergency Actions Warranting Unilateral Executive Action, Megan E. Ball

Notre Dame Law Review

This Note discusses the separation of powers issues raised in the D.C. Circuit by then-Judge, now Justice Kavanaugh in Mexichem Fluor’s suit. Specifically, this Note analyzes the federal government’s approach to climate change, overreach of the EPA to act beyond its statutorily granted authority, and the EPA’s reliance upon President Obama’s executive directives as the justification for its overreach. Part I of this Note provides a broad introduction of the CAA and the importance of the policy motivations for the later addition of Title VI to the Act. Part II discusses in more depth the ...

The Self-Delegation False Alarm: Analyzing Auer Deference's Effect On Agency Rules, Daniel E. Walters

Faculty Scholarship at Penn Law

Auer deference holds that reviewing courts should defer to agencies when the latter interpret their own preexisting regulations. This doctrine relieves pressure on agencies to undergo costly notice-and-comment rulemaking each time interpretation of existing regulations is necessary. But according to some leading scholars and jurists, the doctrine actually encourages agencies to promulgate vague rules in the first instance, augmenting agency power and violating core separation of powers norms in the process. The claim that Auer perversely encourages agencies to “self-delegate”—that is, to create vague rules that can later be informally interpreted by agencies with latitude due to judicial deference ...

Agency Statutory Abnegation In The Deregulatory Playbook, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

If an agency newly declares that it lacks statutory power previously claimed, how should such a move—what this article calls agency statutory abnegation—be reviewed? Given the array of strategies an agency might use to make a policy change or move the law in a deregulatory direction, why might statutory abnegation be chosen? After all, it is always a perilous and likely doctrinally disadvantageous strategy for agencies. Nonetheless, agencies from time to time have utilized statutory abnegation claims as part of their justification for deregulatory shifts. Actions by agencies during 2017 and 2018, under the administration of President Donald ...

Procedural Fairness In Antitrust Enforcement: The U.S. Perspective, Christopher S. Yoo, Hendrik M. Wendland

Faculty Scholarship at Penn Law

Due process and fairness in enforcement procedures represent a critical aspect of the rule of law. Allowing greater participation by the parties and making enforcement procedures more transparent serve several functions, including better decisionmaking, greater respect for government, stronger economic growth, promotion of investment, limits corruption and politically motivated actions, regulation of bureaucratic ambition, and greater control of agency staff whose vision do not align with agency leadership or who are using an enforcement matter to advance their careers. That is why such distinguished actors as the International Competition Network (ICN), the Organization for Economic Cooperation and Development (OECD), the ...

Massachusetts Lobstermen’S Association V. Ross, Daniel Brister

Public Land & Resources Law Review

President Obama established the first––and only––national monument in the Atlantic Ocean on September 15, 2016. Located 130 miles southeast of Cape Cod, Massachusetts, and comprised of 4,913 square miles of marine ecosystems rich in biodiversity, the protected area includes four underwater mountains and three submarine canyons. Plaintiff commercial lobster and fishing associations, seeking to overturn the designation, asserted that the Antiquities Act does not permit a president to establish marine national monuments. The U.S. District Court for the District of Columbia disagreed, upholding a president’s authority to protect offshore areas and vast ecosystems as objects ...

Book (Oup) - Proportionality Balancing And Constitutional Governance - Chapter 2.Pdf, Alec Stone Sweet

Alec Stone Sweet

No abstract provided.

“Bullets Of Truth”: Julian Assange And The Politics Of Transparency, Mark Fenster

Mark Fenster

Feed: State Transparency Amidst Informational Surplus, Mark Fenster

Mark Fenster

Crow Indian Tribe V. United States, Hallee Kansman

Public Land & Resources Law Review

The protection status of the Greater Yellowstone grizzly bear continues to elicit debate and find its way into the courtroom. In Crow Indian Tribe v. United States, for the second time in the last decade, a court held the Service’s attempt to delist the Yellowstone Grizzly arbitrary and capricious. Specifically, the court found the Service’s evaluation of remnant populations, recalibration, and genetic health deficient. This case demonstrates the importance in and the resilient motivation behind preserving grizzly bear populations and genetics. As the practice of delisting a species under the Endangered Species Act continues, this case will provide ...

Is A Delayed Result A Just Result? The Use Of Laches As An Equitable Defense To Remedial Back Pay Under The Eeoc's Sovereignty, Ruth Ann Mueller

Catholic University Law Review

The equitable defense of laches generally cannot be used against the sovereign. This broad proposition, adopted from English Courts of Equity, cements itself in United States federal case law. It is a longstanding principle that the federal government protects the public good and must be exempt from the defenses that could be brought up in a private suit. Administrative agencies bear a similar role, and exemption, when litigating as the United States on behalf of the public.

However, courts do not affirmatively restrict the use of laches against administrative agencies who may be acting on behalf of a private litigant ...

Standing To Appeal At The Federal Circuit: Appellants, Appellees, And Intervenors, Matthew J. Dowd, Jonathan Stroud

Catholic University Law Review

The America Invents Act of 2011 created three administrative patent review regimes that have flooded the rechristened Patent Trial and Appeal Board with almost 7,000 new matters in just under five years. The flood of matters—primarily, inter partes reviews (IPRs)—has led to more than 1,000 appeals to the U.S. Court of Appeals for Federal Circuit from administrative proceedings, eclipsing any other forum of origin. With the flood of administrative appeals, questions of first instance on appellate standing have arisen, resulting in a handful of important panel decisions.

While the other regional Courts of Appeals have ...

Brackeen V. Zinke, Bradley E. Tinker

Public Land & Resources Law Review

In 1978, Congress enacted the Indian Child Welfare Act to counter practices of removing Indian children from their homes, and to ensure the continued existence of Indian tribes through their children. The law created a framework establishing how Indian children are adopted as a way to protect those children and their relationship with their tribe. ICWA also established federal standards for Indian children being placed into non-Indian adoptive homes. Brackeen v. Zinke made an important distinction for the placement preferences of the Indian children adopted by non-Indian plaintiffs; rather than viewing the placement preferences in ICWA as based upon Indians ...

Martin V. United States, Mitch L. Werbell V

Public Land & Resources Law Review

In Martin v. United States, the Federal Circuit Court dismissed a Fifth Amendment regulatory takings and exaction claim for want of ripeness when the claimant failed to apply for a permit, which would have allowed for an assessment of the cost of compliance with governmentally imposed requirements. By finding the claim unripe, the court stood firm on the historical view that federal courts may only adjudicate land-use regulatory takings and inverse condemnation claims on the merits after a regulating entity has made a final decision. However, jurisprudential evolution of the ripeness doctrine and judicial review of takings claims may be ...

Planning For Excellence: Insights From An International Review Of Regulators’ Strategic Plans, Adam M. Finkel, Daniel E. Walters, Angus Corbett

Pace Environmental Law Review

What constitutes regulatory excellence? Answering this question is an indispensable first step for any public regulatory agency that is measuring, striving towards, and, ultimately, achieving excellence. One useful way to answer this question would be to draw on the broader literature on regulatory design, enforcement, and management. But, perhaps a more authentic way would be to look at how regulators themselves define excellence. However, we actually know remarkably little about how the regulatory officials who are immersed in the task of regulation conceive of their own success.

In this Article, we investigate regulators’ definitions of regulatory excellence by drawing on ...

Standing Up For A Cleaner Town: How The Ehb's Broad Definition Of Standing In Friends Of Lackawanna V. Department Of Environmental Protection Expands Citizens' Appellate Rights, Zoey H. Lee

Villanova Environmental Law Journal

No abstract provided.

Surrogate Science And Judicial Deference To Agency Findings: How The Ninth Circuit Keeps Exemptions For Bioenergy On Track In Helping Hand Tools V. Epa, Joshua Schmid

Villanova Environmental Law Journal

No abstract provided.