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Full-Text Articles in Administrative Law

The Universality Of The Human Condition: Theorizing Transportation Inequality Claims By Persons With Disabilities In Canada, 1976-2016, Laverne A. Jacobs Jan 2018

The Universality Of The Human Condition: Theorizing Transportation Inequality Claims By Persons With Disabilities In Canada, 1976-2016, Laverne A. Jacobs

Laverne Jacobs

Transportation is the lifeline that connects persons with disabilities with the community, facilitating greater opportunities for work, social inclusion and overall independence. Adequate accessible transportation has long been a concern of persons with disabilities. Yet, there is a dearth of sustained research on the law and society implications of transportation inequality for persons with disabilities. This paper contributes to the research on both transportation inequality and equality theory by providing an empirical and theoretical analysis of all the human rights tribunal decisions on disability discrimination and transportation in Canada. The article studies all the statutory human rights decisions on disability ...


Auer Evasions, Jonathan Adler Jan 2018

Auer Evasions, Jonathan Adler

Faculty Publications

Auer v. Robbins requires federal courts to defer to federal agency interpretations of ambiguous regulations. Auer built upon, and arguably expanded, the Court’s long-standing practice of deferring to agency interpretations of their own regulations born in Bowles v. Seminole Rock. Although initially uncontroversial, the doctrine has come under fire from legal commentators and prominent jurists, including Auer’s author, the late Justice Antonin Scalia. As Justice Scalia came to recognize, Auer deference enables agencies to evade a wide range of legal constraints that are otherwise imposed upon agency behavior, the ability of agencies to take action with the force ...


Baking Common Sense Into The Ferpa Cake: How To Meaningfully Protect Student Rights And The Public Interest, Zach Greenberg, Adam Goldstein Dec 2017

Baking Common Sense Into The Ferpa Cake: How To Meaningfully Protect Student Rights And The Public Interest, Zach Greenberg, Adam Goldstein

Journal of Legislation

No abstract provided.


United States V. Osage Wind, Llc, Summer Carmack Dec 2017

United States V. Osage Wind, Llc, Summer Carmack

Public Land and Resources Law Review

The Osage Nation, as owner of the beneficial interest in its mineral estate, issues federally-approved leases to persons and entities who wish to conduct mineral development on its lands. After an energy-development company, Osage Wind, leased privately-owned surface lands within Tribal reservation boundaries and began to excavate minerals for purposes of constructing a wind farm, the United States brought suit on the Tribe’s behalf. In the ensuing litigation, the Osage Nation insisted that Osage Wind should have obtained a mineral lease from the Tribe before beginning its work. In its decision, the Tenth Circuit applied one of the Indian ...


Protecting Whistleblowing (And Not Just Whistleblowers), Evan J. Ballan Dec 2017

Protecting Whistleblowing (And Not Just Whistleblowers), Evan J. Ballan

Michigan Law Review

When the government contracts with private parties, the risk of fraud runs high. Fraud against the government hurts everyone: taxpayer money is wasted on inferior or nonexistent products and services, and the public bears the burdens attendant to those inadequate goods. To combat fraud, Congress has developed several statutory frameworks to encourage whistleblowers to come forward and report wrongdoing in exchange for a monetary reward. The federal False Claims Act allows whistleblowers to file an action in federal court on behalf of the United States, and to share in any recovery. Under the Dodd- Frank Act, the SEC Office of ...


Opening The Gates Of Cow Palace: Regulating Runoff Manure As A Hazardous Waste Under Rcra, Reed J. Mccalib Dec 2017

Opening The Gates Of Cow Palace: Regulating Runoff Manure As A Hazardous Waste Under Rcra, Reed J. Mccalib

Michigan Law Review

In 2015, a federal court held for the first time that the Environmental Protection Agency (“EPA”) may regulate runoff manure as a “solid waste” under the Resource Conservation and Recovery Act (“RCRA”). The holding of Community Ass’n for Restoration of the Environment, Inc. v. Cow Palace, LLC opened the gates to regulation of farms under the nation’s primary toxic waste statute. This Comment argues that, once classified as a “solid waste,” runoff manure fits RCRA’s definition of “hazardous waste” as well. This reclassification would expand EPA’s authority to monitor and respond to the nation’s tragically ...


Regulating Black-Box Medicine, W. Nicholson Price Ii Dec 2017

Regulating Black-Box Medicine, W. Nicholson Price Ii

Michigan Law Review

Data drive modern medicine. And our tools to analyze those data are growing ever more powerful. As health data are collected in greater and greater amounts, sophisticated algorithms based on those data can drive medical innovation, improve the process of care, and increase efficiency. Those algorithms, however, vary widely in quality. Some are accurate and powerful, while others may be riddled with errors or based on faulty science. When an opaque algorithm recommends an insulin dose to a diabetic patient, how do we know that dose is correct? Patients, providers, and insurers face substantial difficulties in identifying high-quality algorithms; they ...


‘Airbnb’ In Western Australia: New Issues For Policy Makers Arising From A ‘Disruptive Innovatation', Bertus De Villiers Dec 2017

‘Airbnb’ In Western Australia: New Issues For Policy Makers Arising From A ‘Disruptive Innovatation', Bertus De Villiers

The University of Notre Dame Australia Law Review

The short terms rental market, colloquially referred to as ‘Airbnb’ accommodation, has proliferated the Australian (and international) accommodation market. The number of rooms being made available per nights in Australia via sort term rental websites runs into the hundreds of thousands. Policy makers have generally been slow to respond to this ‘disruptive innovation’. It is particularly in strata title schemes where the legality of short term rentals is being tested. In this article consideration is given to a recent judgement of the Supreme Court of Appeal in Western Australia to uphold a decision of the State Administrative Tribunal whereby a ...


Rus V Comcare: The Rules Of Evidence In The Aat, Nicolas Cardaci Dec 2017

Rus V Comcare: The Rules Of Evidence In The Aat, Nicolas Cardaci

The University of Notre Dame Australia Law Review

The Rus v Comcare cases arise from a claim for compensation by the widowed Ms Rus. The cases saw a highly contentious piece of evidence tendered. This evidence was hearsay of a lay opinion that answered the ultimate issue. The evidence was considered by the Administrative Appeals Tribunal (‘AAT’) and the Federal Court of Australia (‘Court’). These considerations demonstrate the uncertainty of how the rules of evidence are applicable in tribunals. Specifically, the cases raise applicability of the rules against opinion and hearsay evidence. Further, the relevance of delay and the parol evidence rule to these cases is raised. The ...


Ocr's Bind: Administrative Rulemaking And Campus Sexual Assault Protections, Sheridan Caldwell Dec 2017

Ocr's Bind: Administrative Rulemaking And Campus Sexual Assault Protections, Sheridan Caldwell

Northwestern University Law Review

During President Barack Obama’s Administration, significant light was shed on the depth of the United States’ campus sexual assault problem. As a result, the Department of Education’s Office for Civil Rights increased enforcement of Title IX provisions by way of its 2011 “Dear Colleague Letter.” This Note argues that the Dear Colleague Letter was improperly enforced as if it were a formal legislative rule and was therefore illegitimate. Nevertheless, this Note contends that the preponderance of the evidence standard initially enshrined within the Dear Colleague Letter should be adopted through the notice-and-comment procedures President Donald Trump’s Administration ...


Why Michigan V. Epa Requires The Meaning Of The Cost/Rationality Nexus Be Clarified, Daniele Bertolini, Carolina Arlota Nov 2017

Why Michigan V. Epa Requires The Meaning Of The Cost/Rationality Nexus Be Clarified, Daniele Bertolini, Carolina Arlota

daniele bertolini


This article examines the recent decision in Michigan v. EPA, in which the US Supreme Court held that the EPA acted unreasonably in not considering costs at the listing phase of the regulation of power plants’ emissions under a specific provision of the Clear Air Act (CAA). In Michigan the Court interpreted the applicable statutory provision based on the principles of rational administrative decision-making, thereby establishing a connection between cost consideration by administrative agencies and the principles of reasonable exercise of administrative discretion. We contend that Michigan failed to properly appreciate the logical and axiological connection between cost consideration and ...


Strategic Rulemaking Disclosure, Jennifer Nou, Edward H. Stiglitz Nov 2017

Strategic Rulemaking Disclosure, Jennifer Nou, Edward H. Stiglitz

Jed Stiglitz

Congressional enactments and executive orders instruct agencies to publish their anticipated rules in what is known as the Unified Agenda. The Agenda’s stated purpose is to ensure that political actors can monitor regulatory development. Agencies have come under fire in recent years, however, for conspicuous omissions and irregularities. Critics allege that agencies hide their regulations from the public strategically, that is, to thwart potential political opposition. Others contend that such behavior is benign, perhaps the inevitable result of changing internal priorities or unforeseen events.

To examine these competing hypotheses, this Article uses a new dataset spanning over thirty years ...


Forces Of Federalism, Safety Nets, And Waivers, Edward H. Stiglitz Nov 2017

Forces Of Federalism, Safety Nets, And Waivers, Edward H. Stiglitz

Jed Stiglitz

Inequality is the defining feature of our times. Many argue it calls for a policy response, yet the most obvious policy responses require legislative action. And if inequality is the defining feature of our times, partisan acrimony and gridlock are the defining features of the legislature. So being, it is worth considering what role administrative agencies, and administrative law, might play in ameliorating or exacerbating economic inequality. Here, I focus on American safety net programs, many of which are joint operations between federal administrative agencies and state governments. In this context, a central mode of bureaucratic policy innovation comes in ...


Collaborative Gatekeepers, Stavros Gadinis, Colby Mangels University Of California - Berkeley Nov 2017

Collaborative Gatekeepers, Stavros Gadinis, Colby Mangels University Of California - Berkeley

Stavros Gadinis

In their efforts to hold financial institutions accountable after the 2007 financial crisis, U.S. regulators have repeatedly turned to anti-money-laundering laws. Initially designed to fight drug cartels and terrorists, these laws have recently yielded billion-dollar fines for all types of bank engagement in fraud and have spurred an overhaul of financial institutions’ internal compliance. This increased reliance on anti-money-laundering laws, we argue, is due to distinct features that can better help regulators gain insights into financial fraud. Most other financial laws enlist private firms as gatekeepers and hold them liable if they knowingly or negligently engage in client fraud ...


Clean Air Council V. Pruitt, Oliver Wood Nov 2017

Clean Air Council V. Pruitt, Oliver Wood

Public Land and Resources Law Review

The United States Court of Appeals for the District of Columbia granted a motion for summary vacatur against the Environmental Protection Agency after environmental groups challenged the agency’s reconsideration of the Obama-era methane rule under the Clean Air Act. The court held that the EPA unlawfully issued a stay after it reconsidered the rule without proper authorization. The court vacated the EPA’s stay, one example of the Trump Administration unsuccessfully repealing Obama-era rulemaking.


Blethen Maine Newspapers, Inc. V. State: Balancing The Public's Right To Know Against The Privacy Rights Of Victims Of Sexual Abuse, Kenleigh A. Nicoletta Nov 2017

Blethen Maine Newspapers, Inc. V. State: Balancing The Public's Right To Know Against The Privacy Rights Of Victims Of Sexual Abuse, Kenleigh A. Nicoletta

Maine Law Review

In Blethen Maine Newspapers, Inc. v. State, a sharply divided Maine Supreme Judicial Court, sitting as the Law Court, held that release of records relating to Attorney General G. Steven Rowe's investigation of alleged sexual abuse by Catholic priests was warranted under Maine's Freedom of Access Act (FOAA). Although such investigative records are designated confidential by statute, the majority held that the public's interest in the contents of the records mandated their disclosure after all information identifying persons other than the deceased priests had been redacted. The concurrence asserted that the majority had reached the correct conclusion ...


The Diversity Rationale For Affirmative Action In Military Contracting, Hugh B. Mcclean Nov 2017

The Diversity Rationale For Affirmative Action In Military Contracting, Hugh B. Mcclean

Catholic University Law Review

Section 8(a) of the Small Business Act (the ‘‘8(a) program’’) is a federal contracting program that permits the government to award certain contracts to members of designated racial groups that own small businesses. Courts have denied facial challenges to the program, but have upheld challenges alleging the program is unconstitutional as applied to particular industries. As a result, the military is banned from using the program in at least one industry, and inherits significant risk when using the program in other industries. The government has never articulated a diversity rationale to justify the use of race-conscious measures in ...


Disputant Preferences For Mediated Or Adjudicated Processes In Administrative Agencies: The Occupational Safety And Health Review Commission Settlement Part Program, Deanna Malatesta, Lisa Blomgren Amsler, Susanna Foxworthy Scott Nov 2017

Disputant Preferences For Mediated Or Adjudicated Processes In Administrative Agencies: The Occupational Safety And Health Review Commission Settlement Part Program, Deanna Malatesta, Lisa Blomgren Amsler, Susanna Foxworthy Scott

Conflict and its Resolution in the Changing World of Work: A Conference and Special Issue Honoring David B. Lipsky

Previous research examining disputants’ preferences for mediation over more formal adjudicative proceedings is limited and mostly experimental. Moreover, this work has not examined preferences in relation to repeated experience with various types of proceedings. We surveyed disputants who have experienced different types of proceedings in administrative adjudication and administrative law judge mediation in the Settlement Part Program at the Occupational Safety and Health Review Commission (OSHRC). We find that the higher the perceptions of procedural justice, the greater the preference for use of mediation. In addition, the more total experience disputants have in the OSHRC dispute system (including both adjudication ...


“You Must Construct Additional Pylons”: Building A Better Framework For Esports Governance, Laura L. Chao Nov 2017

“You Must Construct Additional Pylons”: Building A Better Framework For Esports Governance, Laura L. Chao

Fordham Law Review

The popularity of “esports,” also known as “electronic sports” or competitive video gaming, has exploded in recent years and captured the attention of cord-cutting millennials—often to the detriment of sports such as basketball, football, baseball, and hockey. In the United States, the commercial dominance of such traditional sports stems from decades of regulatory support. Consequently, while esports regulation is likely to emulate many aspects of traditional sports governance, the esports industry is fraught with challenges that inhibit sophisticated ownership and capital investment. Domestic regulation is complicated by underlying intellectual property ownership and ancillary considerations such as fluctuations in a ...


Sovereign Preemption State Standing, Jonathan Remy Nash Nov 2017

Sovereign Preemption State Standing, Jonathan Remy Nash

Northwestern University Law Review

When does a state have standing to challenge the Executive Branch’s alleged underenforcement of federal law? The issue took on importance during the Obama Administration, with “red states” suing the Executive Branch over numerous issues, including immigration and health care. The question of state standing has already appeared in important litigation during the first months of the Trump Administration, only with the political orientation of the actors reversed.

This Article argues in favor of sovereign preemption state standing, under which a state would enjoy Article III standing to sue the federal government when (1) the federal government preempts state ...


A "Delicate Balance": How Agency Nonacquiescence And The Epa's Water Transfer Rule Dilute The Clean Water Act After Catskill Mountains Chapter Of Trout Unlimited, Inc. V. City Of New York, Kevin J. Haskins Oct 2017

A "Delicate Balance": How Agency Nonacquiescence And The Epa's Water Transfer Rule Dilute The Clean Water Act After Catskill Mountains Chapter Of Trout Unlimited, Inc. V. City Of New York, Kevin J. Haskins

Maine Law Review

Congress enacted the Clean Water Act (CWA) in 1972 with the express objective of restoring and maintaining the health of the nation’s waters. To achieve this objective, Congress declared that discharges of pollutants into the nation’s waters are prohibited unless they comply with permit requirements. The CWA’s primary vehicle for regulating discharge permits is the National Pollutant Discharge Elimination System, or NPDES. The CWA defines the phrase “discharge of a pollutant” as the “addition of any pollutant to navigable waters from any point source.” Although the CWA further defines the terms “pollutant,” “navigable waters,” and “point source ...


Uber, Lyft, And Regulating The Sharing Economy, Brett Harris Oct 2017

Uber, Lyft, And Regulating The Sharing Economy, Brett Harris

Seattle University Law Review

The “sharing economy” goes by many names such as the “gig economy,” the “1099 economy,” and the “on-demand economy,” all of which describe the economic system that uses online platforms to connect workers and sellers with clients and consumers, primarily through smartphone applications. Many of the sharing economy companies are also called the “tech disruptors.” They earned this title because they have changed the way that people do business. But in changing the way that people do business, they have also created unique regulatory challenges for governments across the country. The news is rife with stories about when these regulations ...


Taking Notes In School (Committee): Cyr V. Madawaska, Blethen V. Portland School Committee, And The Public's Right To Know, Benjamin J. Tucker Oct 2017

Taking Notes In School (Committee): Cyr V. Madawaska, Blethen V. Portland School Committee, And The Public's Right To Know, Benjamin J. Tucker

Maine Law Review

In 2007, the Maine Supreme Judicial Court, sitting as the Law Court, decided Cyr v. Madawaska School Department, and recently decided Blethen Maine Newspapers Inc. v. Portland School Committee. These decisions will guide the actions and behavior of municipal, school department, and elected officials in Maine, and will also affect public access to information under Maine’s broad “right to know” law, the Freedom of Access Act (FOAA). In Cyr, a split court held that an investigative report commissioned by the Madawaska School Department must be redacted to maintain the confidentiality of information relating to the personal history, general character ...


Judicial Performance And Policy Implications In Moore V. Abbott, Andrew C. Helman Oct 2017

Judicial Performance And Policy Implications In Moore V. Abbott, Andrew C. Helman

Maine Law Review

In Moore v. Abbott, a divided Maine Supreme Judicial Court, sitting as the Law Court, held that a three-member panel organized by the Attorney General to investigate alleged misconduct by prosecutors and law enforcement officers did not constitute an "agency" or "public official" under Maine's Freedom of Access Act (FOAA). Therefore, the panel did not have to release records compiled during its review of the investigation and prosecution of Dennis Dechaine, who was convicted for the 1988 murder of Sarah Cherry. Justice Alexander, writing for the majority, applied a four-part test looking to whether the panel was the functional ...


Ideological Plaintiffs, Administrative Lawmaking, Standing, And The Petition Clause, Karl S. Coplan Oct 2017

Ideological Plaintiffs, Administrative Lawmaking, Standing, And The Petition Clause, Karl S. Coplan

Maine Law Review

Although Article I of the Constitution vests legislative power in the Congress, the lawmaking process in this country has evolved to involve all three branches. Congress enacts regulatory programs, but delegates to the executive branch the task of formulating and legislating the details of implementation through regulations. Once the executive branch agencies have acted, Article III courts routinely step in to review the consistency of these regulations with congressional mandates. In many cases, especially in the case of controversial regulations, the lawmaking process is not complete until judicial review. Entities burdened by such regulations-so-called "regulatory objects"-enjoy presumed standing to ...


Regulating A “Pariah” Industry: The Need For A Responsive Approach In Gambling Markets, Melissa Rorie Oct 2017

Regulating A “Pariah” Industry: The Need For A Responsive Approach In Gambling Markets, Melissa Rorie

UNLV Gaming Research & Review Journal

Gaming regulators are uniquely positioned state agents, who must consider contradictory goals in their day-to-day actions. They must protect the public (and maintain the legitimacy of government) but are also responsible for ensuring that the gaming industry provides needed revenue to the state. To that end, regulators are not only responsible for promoting the legitimacy of the government but also, to some extent, must consider how they can encourage the legitimization of a previously illegal behavior. Prior research has examined regulators’ attempts to balance such “structural contradictions” through their licensing process, but little research has been done on regulatory responses ...


The Crime Of Conviction Of John Choon Yoo: The Actual Criminality In The Olc During The Bush Administration, Joseph Lavitt Oct 2017

The Crime Of Conviction Of John Choon Yoo: The Actual Criminality In The Olc During The Bush Administration, Joseph Lavitt

Maine Law Review

At the outset of the administration of President Barack Obama, there is intense debate about whether to prosecute members of the former administration of President George W. Bush. This Article first considers whether officers who were in command and control of the Executive Branch of the government of the United States during the Bush administration can be excused from criminal responsibility on charges of illegal torture, based on their claim to have acted in good faith reliance upon the advice of attorneys employed by the Department of Justice. Focus then turns to the accountability, if any, of those attorneys in ...


Anthem Health Plans Of Maine, Inc. V. Superintendent Of Insurance: Judicial Restraint Or Judicial Abdication?, David E. Sorensen Oct 2017

Anthem Health Plans Of Maine, Inc. V. Superintendent Of Insurance: Judicial Restraint Or Judicial Abdication?, David E. Sorensen

Maine Law Review

When Maine’s Superintendent of Insurance told the state’s largest health insurer that it could not profit in 2009, her decision ended up on appeal before the Maine Supreme Judicial Court, sitting as the Law Court, in Anthem Health Plans of Maine, Inc. v. Superintendent of Insurance. As part of its annual rate approval process, Anthem had requested a 3% profit and risk margin on its individual lines of health insurance in Maine. Superintendent Mila Kofman denied this request under her statutory authority to deny any rate increase proposals that are “excessive, inadequate or unfairly discriminatory.” The Superintendent held ...


Textualism And The Problem Of Scrivener's Error, John David Ohlendorf Oct 2017

Textualism And The Problem Of Scrivener's Error, John David Ohlendorf

Maine Law Review

Scrivener’s errors make easy prey for the gentle comedy of the bench and bar, much in the way that typographical errors in billboards, newspaper headlines, and church bulletins form an endless source of humor for late night talk show hosts. But theorists of legal interpretation have long seen that scrivener’s errors pose a more serious problem. The doctrine surrounding scrivener’s error stands considered as something of a cousin to the absurdity doctrine, which has roots extending to the earliest days of the American Republic. More recently, the post-legal-process revival of formalist approaches to statutory interpretation on the ...


Peru's Regulation Of Foreign Funding Of Ngos, Jose Luis Sardon Oct 2017

Peru's Regulation Of Foreign Funding Of Ngos, Jose Luis Sardon

Jose Luis Sardon

Report delivered at the Roundtable "Foreign Funding of Associations".