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Articles 1 - 20 of 20
Full-Text Articles in Administrative Law
An Unfair Method Of Rulemaking: An Application Of Constitutional Doctrines That Oppose The Ftc Rule Banning Non-Competition Agreements, Jared Yaggie
University of Cincinnati Law Review
No abstract provided.
Illusory Conflicts: Post-Employment Clearance Procedures And The Ftc’S Technological Expertise, Lindsey Barrett, Laura M. Moy, Paul Ohm, Ashkan Soltani
Illusory Conflicts: Post-Employment Clearance Procedures And The Ftc’S Technological Expertise, Lindsey Barrett, Laura M. Moy, Paul Ohm, Ashkan Soltani
Georgetown Law Faculty Publications and Other Works
The federal government restricts what former employees can work on after they leave the government, and for good reason. These post-employment conflict restrictions attempt to address the “revolving door” problem, where employees take information learned from their position in government to unfairly advantage industry. But an unintended consequence of overbroad conflict rules is that they impede well-meaning, former federal employees from providing their knowledge and general expertise to other enforcement agencies with similar missions, such as those at the state level. This is playing out right now with FTC technologists, at a time when the agency—and, indeed, consumer protection agencies …
Private Standards And The Benzene Case: A Teaching Guide, Cary Coglianese, Gabriel Scheffler
Private Standards And The Benzene Case: A Teaching Guide, Cary Coglianese, Gabriel Scheffler
All Faculty Scholarship
Private standards play a central role in the governance of economic activity. They also figure significantly in many public regulations, with more than 17,000 references to private standards contained in the federal regulatory code. Nevertheless, private standards remain largely overlooked in law school curricula. One clear example is Industrial Union Department, AFL-CIO v. American Petroleum Institute (often referred to as the “Benzene Case”), a 1980 Supreme Court decision that is widely excerpted and discussed in major casebooks on administrative law, regulation, environmental law, and statutory interpretation. The Benzene Case raises several important legal issues, including the nondelegation doctrine, the use …
Occupational Safety And Health Act, Industrial Union V. American Petroleum Institute, Patrick M. Vitone
Occupational Safety And Health Act, Industrial Union V. American Petroleum Institute, Patrick M. Vitone
Akron Law Review
The Occupational Safety and Health Administration [hereinafter cited as OSHA] was created pursuant to Title 29 of the United States Code, to define the terms of this battle. In Industrial Union v. American Petroleum Institute, the federal judiciary has taken a hand at making these terms somewhat more clear. It is the object of this casenote to analyze the impact of the Industrial Union decision on the regulatory processes of OSHA, a task which involves a synthesis of the plurality, concurring and dissenting opinions.
A Signal Or A Silo? Title Vii's Unexpected Hegemony, Sophia Z. Lee
A Signal Or A Silo? Title Vii's Unexpected Hegemony, Sophia Z. Lee
All Faculty Scholarship
Title VII’s domination of employment discrimination law today was not inevitable. Indeed, when Title VII was initially enacted, its supporters viewed it as weak and flawed. They first sought to strengthen and improve the law by disseminating equal employment enforcement throughout the federal government. Only in the late 1970s did they instead favor consolidating enforcement under Title VII. Yet to labor historians and legal scholars, Title VII’s triumphs came at a steep cost to unions. They write wistfully of an alternative regime that would have better harmonized antidiscrimination with labor law’s recognition of workers’ right to organize and bargain collectively …
Stuck Between A Lump Of Coal And A Hard Place: The Mine Safety And Health Administration's Struggle With Due Process And America's Coal Industry, Patrick R. Baker
Stuck Between A Lump Of Coal And A Hard Place: The Mine Safety And Health Administration's Struggle With Due Process And America's Coal Industry, Patrick R. Baker
West Virginia Law Review
No abstract provided.
Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee
Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee
All Faculty Scholarship
Today, most American workers do not have constitutional rights on the job. As The Workplace Constitution shows, this outcome was far from inevitable. Instead, American workers have a long history of fighting for such rights. Beginning in the 1930s, civil rights advocates sought constitutional protections against racial discrimination by employers and unions. At the same time, a conservative right-to-work movement argued that the Constitution protected workers from having to join or support unions. Those two movements, with their shared aim of extending constitutional protections to American workers, were a potentially powerful combination. But they sought to use those protections to …
Book Reviews, David J. Agatstein
Book Reviews, David J. Agatstein
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
The Supreme Court’S Regulation Of Civil Procedure: Lessons From Administrative Law, Lumen N. Mulligan, Glen Staszewski
The Supreme Court’S Regulation Of Civil Procedure: Lessons From Administrative Law, Lumen N. Mulligan, Glen Staszewski
Faculty Works
In this Article, we argue that the Supreme Court should route most Federal Rules of Civil Procedure issues through the notice-and-comment rulemaking process of the Civil Rules Advisory Committee instead of issuing judgments in adjudications, unless the case can be resolved solely through the deployment of traditional tools of statutory construction. While we are not the first to express a preference for rulemaking on civil procedure issues, we advance the position in four significant ways. First, we argue that the Supreme Court in the civil procedure arena is vested with powers analogous to most administrative agencies. Second, building upon this …
Where You Stand Depends On Where You Sit: Bureaucratic Politics In Federal Workplace Agencies Serving Undocumented Workers, Ming H. Chen
Where You Stand Depends On Where You Sit: Bureaucratic Politics In Federal Workplace Agencies Serving Undocumented Workers, Ming H. Chen
Publications
This Article integrates social science theory about immigrant incorporation and administrative agencies with empirical data about immigrant-serving federal workplace agencies to illuminate the role of bureaucracies in the construction of rights. More specifically, it contends that immigrants' rights can be protected when workplace agencies incorporate immigrants into labor law enforcement in accordance with the agencies' professional ethos and organizational mandates. Building on Miles' Law that "where you stand depends on where you sit," this Article argues that agencies exercise discretion in the face of contested law and in contravention to a political climate hostile to undocumented immigrants for the purpose …
A Cost-Benefit Interpretation Of The "Substantially Similar" Hurdle In The Congressional Review Act: Can Osha Ever Utter The E-Word (Ergonomics) Again?, Adam M. Finkel, Jason W. Sullivan
A Cost-Benefit Interpretation Of The "Substantially Similar" Hurdle In The Congressional Review Act: Can Osha Ever Utter The E-Word (Ergonomics) Again?, Adam M. Finkel, Jason W. Sullivan
All Faculty Scholarship
The Congressional Review Act permits Congress to veto proposed regulations via a joint resolution, and prohibits an agency from reissuing a rule “in substantially the same form” as the vetoed rule. Some scholars—and officials within the agencies themselves—have understood the “substantially the same” standard to bar an agency from regulating in the same substantive area covered by a vetoed rule. Courts have not yet provided an authoritative interpretation of the standard.
This Article examines a spectrum of possible understandings of the standard, and relates them to the legislative history (of both the Congressional Review Act itself and the congressional veto …
Agency-Specific Precedents, Robert L. Glicksman, Richard E. Levy
Agency-Specific Precedents, Robert L. Glicksman, Richard E. Levy
Robert L. Glicksman
As a field of legal study and practice, administrative law rests on the premise that legal principles concerning agency structure, administrative process, and judicial review cut across multiple agencies. In practice, however, judicial precedents addressing the application of administrative law doctrines to a given agency tend to rely most heavily on other cases involving the same agency, and use verbal formulations or doctrinal approaches reflected in those cases. Over time, the doctrine often begins to develop its own unique characteristics when applied to that particular agency. These “agency-specific precedents” deviate from the conventional understanding of the relevant principles as a …
Embracing Paradox: Three Problems The Nlrb Must Confront To Resist Further Erosion Of Labor Rights In The Expanding Immigrant Workplace, Michael C. Duff
Embracing Paradox: Three Problems The Nlrb Must Confront To Resist Further Erosion Of Labor Rights In The Expanding Immigrant Workplace, Michael C. Duff
All Faculty Scholarship
This article discusses the Supreme Court's 2002 Hoffman Plastic Compounds opinion, normally considered in terms of its social justice ramifications, from the different perspective of NLRB attorneys tasked with pursuing enforcement of the National Labor Relations Act (NLRA) under the conceptually (and practically) odd rubric that some NLRA employees (unauthorized workers) have no remedy under the NLRA. The article focuses on three problems evincing paradox. First, NLRB attorneys prosecuting cases involving these workers will probably gain knowledge of unlawful background immigration conduct. To what extent must the attorneys disclose it, and to whom? Second, NLRB attorneys are extraordinarily reliant on …
The Truth Is Out There: Revamping Federal Antidiscrimination Enforcement For The Twenty-First Century, Marcia L. Mccormick
The Truth Is Out There: Revamping Federal Antidiscrimination Enforcement For The Twenty-First Century, Marcia L. Mccormick
All Faculty Scholarship
Employment discrimination laws in the United States have not created full equality in the workplace, although that was their goal. Real change requires greater accountability for those who make employment decisions and greater transparency to bolster that accountability. To provide that transparency and accountability, we need greater federal involvement in enforcement and a mechanism to publicize the state of the nation's workplaces. To accomplish this, I propose taking private sector employment discrimination disputes away from the Equal Employment Opportunity Commission entirely, and starting with a new agency. The current model, with the EEOC writing compliance guidelines, encouraging mediation, and acting …
Skepticism And Expertise: The Supreme Court And The Eeoc, Melissa Hart
Skepticism And Expertise: The Supreme Court And The Eeoc, Melissa Hart
Publications
The Supreme Court regularly denies deference to the Equal Employment Opportunity Commission's interpretations of the federal antidiscrimination laws which that agency is charged with enforcing and interpreting. The Court's lack of deference for EEOC interpretation is in part a function of the analytical framework that the Court has created for assessing the deference due to different types of administrative interpretation. But this essay argues that the Court's lack of deference cannot be entirely explained with reference to these neutral analytical criteria. The Court's attitude toward the EEOC may also be explained as a consequence both of judicial reluctance to view …
Solving The Puzzle Of Mead And Christensen: What Would Justice Stevens Do?, Amy J. Wildermuth
Solving The Puzzle Of Mead And Christensen: What Would Justice Stevens Do?, Amy J. Wildermuth
Articles
One area in which I teach and have become increasingly interested over the last few years is administrative law. Although one might expect at a symposium honoring the jurisprudence of Justice Stevens that I might focus solely on his most famous administrative law opinion, Chevron v. Natural Resources Defense Council, Inc., and its two-step test that requires a court to defer to a reasonable agency interpretation if the statute is ambiguous, I have instead decided to take on the United States Supreme Court's more recent consideration of what to do with those actions agencies take that, unlike the bubble rule …
After "Hiding The Ball" Is Over: How The Nlrb Must Change Its Approach To Decision-Making, Michael Hayes
After "Hiding The Ball" Is Over: How The Nlrb Must Change Its Approach To Decision-Making, Michael Hayes
All Faculty Scholarship
Is the National Labor Relations Board (the NLRB or the Board), the agency that oversees federal labor law, still relevant? When this question is considered, as it frequently is by scholars, lawyers and officials of the NLRB itself, the focus typically is on whether changes in the workplace, the economy and society are diminishing the relevance of the Board. But there is a new and more immediate threat to the relevance of the Board that so far has been mostly ignored - that the Board is in danger of being rendered a superfluous legal institution in the scheme of American …
Moderator's Remarks, Institutional Due Process In The Twenty-First Century: The Future Of The Hearing Requirement, Harold H. Bruff
Moderator's Remarks, Institutional Due Process In The Twenty-First Century: The Future Of The Hearing Requirement, Harold H. Bruff
Publications
No abstract provided.
Presidential Exemption From Mandatory Retirement Of Members Of The Independent Regulatory Commissions, Harold H. Bruff
Presidential Exemption From Mandatory Retirement Of Members Of The Independent Regulatory Commissions, Harold H. Bruff
Publications
No abstract provided.
Administrative Law Problems In The Unemployment Insurance Program, Reginald Parker
Administrative Law Problems In The Unemployment Insurance Program, Reginald Parker
Vanderbilt Law Review
"A good government," Albert Einstein said recently, "not only gives its citizens a maximum amount of liberty and political rights but also provides for a certain amount of economic security."' Our Constitution provides for political rights and liberties but not for economic security. Unlike foreign federal constitutions it neither provides for it directly nor delegates social legislation to the states; nor does the Constitution expressly prohibit this type of law. As, however, the Constitution authorizes the states to exercise powers not reserved to the central government, it may be deduced that unemployment relief legislation is within the competence of the …