Administrative Law Commons^™

Lessons From The Nextwave Saga: The Federal Communications Commission, The Courts, And The Use Of Market Forms To Perform Public Functions, Rodger D. Citron, John A. Rogovin

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No abstract provided.

Special Needs And Special Deference: Suspicionless Civil Searches In The Modern Regulatory State, Fabio Arcila

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This Article examines the Supreme Court’s application of the "special needs" principle, which is part of its Fourth Amendment search and seizure jurisprudence, with an emphasis on suspicionless searches. It argues that both courts and commentators have insufficiently acknowledged the tension between the modern regulatory state, which is significantly dependent upon such searches, and adequately protecting liberty interests. The commentators who criticize the Court’s deference ignore that a deferential approach can be justified. Suspicionless civil searches, for example, are not necessarily incompatible with original intent. Moreover, the many proposals for reforming suspicionless civil search jurisprudence, such as reinvigorating the individualized …

Arbitration And The Administrative State, Rebecca H. White

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Two important doctrinal developments of the 1980s--judicial deference to agency interpretations of statutes and the enforceability of predispute agreements to arbitrate statutory claims--individually have received considerable attention from courts and commentators. However, the interplay between these two doctrinal strands has gone largely unnoticed. This Article recognizes that both strands have something important in common--each upholds statutory interpretation by entities which the Chevron doctrine, in which the Court held that statutory silence or ambiguity may serve as an implied delegation of interpretative authority to administrative agencies, applies in the context of arbitration of statutory claims. It considers whether an understanding of …

Judging Ethics For Administrative Law Judges: Adoption Of A Uniform Code Of Judicial Conduct For The Administrative Judiciary, Patricia E. Salkin

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No abstract provided.

Harmonizing Civil And Criminial Enforcement Of Federal Regulatory Statutes: The Case Of The Securities Exchange Act Of 1934, Margaret V. Sachs

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Many federal regulatory statutes (including those governing antitrust, securities, and the environment) are hybrid statutes: their prohibitions are enforceable in criminal actions as well as in private or governmental civil actions (or both). Courts have long divided over whether prohibitions in hybrid statutes can be construed differently in different enforcement contexts. Resolution of this uncertainty has become urgent now that criminal enforcement of federal regulatory statutes is relatively frequent.

In this article, Professor Sachs argues that prohibitions in hybrid statutes should be limited to a single interpretation. How to apply this principle (referred to in this article as “the core …

Municipal Ethics Remain A Hot Topic In Litigation: A 1999 Survey Of Issues In Ethics For Municipal Lawyers, Patricia E. Salkin

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No abstract provided.

1998 Survey Of Ethics In Land-Use Planning, Patricia E. Salkin

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No abstract provided.

The Politics Of Land Use Reform In New York: Challenges And Opportunities, Patricia E. Salkin

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No abstract provided.

Agency Expertise, Alj Independence, And Administrative Courts: The Recent Changes In Louisiana's Administrative Procedure Act, Jay S. Bybee

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In the past two years, the Louisiana Legislature has adopted several structural changes in Louisiana's Administrative Procedure Act (“LAPA”). Most notably, Louisiana adopted what is known as a central panel or unified corps of administrative law judges (“ALJs”). The central panel system, which has been adopted in nearly half of the states and has been proposed for the federal system, has a central agency or office that hires and assigns all ALJs; the central agency rotates ALJs among agencies to ensure the ALJs' independence. Louisiana created the Division of Administrative Law, effective October 1, 1996, within the Department of State …

Mend It Or End It? What To Do With The Independent Counsel Statute, Julian A. Cook

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The tenure of Independent Counsel Kenneth Starr has generated much debate among scholars, politicians, and the media in recent years regarding the efficacy of the independent counsel statute, which is scheduled to expire in June 1999. Enacted in response to the Watergate saga, and particularly the infamous “Saturday Night Massacre,” the independent counsel statute was designed to remove politics from the prosecution of executive branch officials and to foster public confidence in the prosecutorial process. Advocates claim that the statute, though flawed, is the best system available to address alleged criminal wrongdoing by high-ranking executive branch officials, as well as …

National Performance Review: A Renewed Commitment To Strengthening The Intergovernmental Partnership, Patricia E. Salkin

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No abstract provided.

Affordable Housing: Update On Federal And State Activities, Patricia E. Salkin

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No abstract provided.

New Paradigm, Normal Science, Or Crumbling Construct? Trends In Adjudicatory Procedure And Litigation Reform, Jeffrey W. Stempel

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One aspect of a possible new era is the increasing ad hoc activity of various interest groups, including the bench and the organized bar, primarily pursued through official organizations such as the Judicial Conference, the Federal Judicial Center, the American Bar Association (“ABA”), and the American Law Institute. Traditionally, of course, judges and lawyers have lobbied Congress and state legislatures for litigation change, as demonstrated by the saga of the Rules Enabling Act (“Enabling Act” or “Act”). But, the legal profession's more recent “political” activity regarding litigation reform differs from the traditional model in several ways. First, the participation of …

The Stare Decisis "Exception" To The Chevron Deference Rule, Rebecca White

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In this article, the author discusses how Chevron intersects with one important competing norm - stare decisis. Stare decisis counsels the Court to adhere to its own decisions, particularly statutory ones, absent substantial justification for departure. To what extent should stare decisis apply when an agency's interpretation of a statute, otherwise deserving of deference under Chevron, conflicts with a prior interpretation of the statute by the Supreme Court?

This article suggests the following answer: If the Court's prior opinion upheld the agency's interpretation as one reasonable reading of the statute, but not the only one possible, and the agency thereafter …

Deference To Agency Interpretations Of Regulations: A Post-Chevron Assessment, Thomas A. Schweitzer, Russell L. Weaver

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No abstract provided.

The Constitutional Case Against Intracircuit Nonacquiescence, Dan T. Coenen

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A cornerstone of the United States Constitution is its separation of powers among the legislative, executive, and judicial branches of the national government. The Framers of the Constitution reasoned that separated powers would guard against tyranny by blocking the undue concentration of authority in any single governmental department. In crafting the Constitution, however, the Framers could not anticipate every dispute their scheme of separated powers might engender. One modern separation-of-powers conflict not specifically anticipated by the constitutional text involves so-called "intracircuit nonacquiescence.”

Intracircuit nonacquiescence occurs when executive-branch decision makers refuse to follow a circuit court's precedents even when acting subject …

Administrative Procedure And The Internal Revenue Service: Delimiting The Substantial Understatement Penalty, Peter A. Appel

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In the early 1980's, Congress faced the mounting problems of tax shelters and other forms of tax avoidance. It responded by passing a series of laws.1 One of these provisions, section 6661 of the Internal Revenue Code, penalizes "substantial understatement" of tax liability.2 While section 6661 may appear to be a typical, innocuous tax code provision, close examination reveals that the substantial understatement penalty threatens to expand quietly the power of the Internal Revenue Service (IRS) over taxpayers, violating the spirit of the Administrative Procedure Act (APA) in the process.

Section I of this Note explores the background of section …

Federal Oil Price Controls In Bankruptcy Cases: Government Claims For Repayment Of Illegal Overcharges Should Not Be Subordinated And “Penalties” Under 11 Usc §726(A)(4), Thomas A. Schweitzer

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No abstract provided.

Regulating The Regulators In New York State: Part I, Harold I. Abramson

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No abstract provided.

Regulating The Regulators In New York State, Part Ii: The Office Of Business Permits And Regulatory Assistance, Harold I. Abramson

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No abstract provided.

Administrative Procedures For Resolving Complex Policy Questions: A Proposal For Proof Dissection, Harold I. Abramson

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Many commentaries have charged that the use of conventional trial procedures in the administrative process fails to provide an effective means for resolving complex policy questions. In particular, the excessive use of cross-examination has been cited as needlessly impairing the economy and efficiency of administrative proceedings. Excessive and redundant use of such procedures has also been criticized as undermining the accuracy of results by allowing unfettered attack on adversaries’ witnesses. Clearly, current opinion of the adversary system is that it “rates truth too low among values that institutions of justice are meant to serve.”

The problems surrounding the use of …

Warrantless Administrative Inspections After Marshall V. Barlow's, Inc., David Shipley

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Administrative inspections are indispensable: without them there is no practical way to determine whether there is compliance with the plethora of health, sanitary, safety, and building regulations that ensure that living and working conditions remain tolerable. The need for administrative agencies to have this power does not, however, immunize inspections from the requirements of the fourth amendment. Administrative inspections "are subject to the governing principle that a search of private property, in the absence of consent, is 'unreasonable' unless authorized by a valid search warrant. This article discusses the continuing vitality of the Colonnade-Bisiwell exception to the warrant requirement after …

Reasoning By Riddle: The Power To Prohibit In Georgia Local Government Law, R. Perry Sentell Jr.

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One of the most significant and potentially objectionable powers exercised by any level of government is the power to regulate or prohibit the trades and occupations of its citizens. Of course, the only avenue for contesting the validity of such regulations is through the courts, at which time the basic tension of the individual’s right to earn a living vs. the government’s power to control his business comes quickly to the forefront. In his Article, Professor Sentell, dealing strictly with the power of Georgia local governments, points out that the Georgia courts have confounded the area by inconsistent consideration of …

Whither The Nixon Board?, J. Ralph Beaird, Mack A. Player

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The Nixon administration has now appointed a majority of members to the National Labor Relations Board. With this change in Board composition have come significant shifts in labor policy. The authors of this Article examine these shifts in policy in light of the approaches of past Boards.

Comparative Broadcast Licensing Procedures And The Rule Of Law: A Fuller Investigation, Michael Botein

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Professor Botein examines the validity of Professor Fuller's widely read but seldom criticized theory that traditional administrative adjudication is unsuited to resolve certain kinds of social tasks, which Fuller had labeled "polycentric problems." Professor Botein focuses upon Professor Fuller's example of the FCC's comparative licensing procedure as a problem unsuited to adjudication. Taking as his starting point Professor Fuller's criticism of the FCC -- a criticism Fuller never tested against the Commission's actual operations -- Professor Botein examines Fuller's theory of polycentricity by analyzing its contents, applying it to concrete situations, and exploring whether there exists any alternatives better than …

Racial Discrimination In Employment: Rights And Remedies, J. Ralph Beaird

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Professor Beaird believes that the current multiplicity of forums available to an employee who alleges discrimination against him should be merged into one. Ideally he would like to see an administrative agency given primary jurisdiction with authority similar to that possessed by the NLRB. Until an agency is given such power, Professor Beaird suggests that the forums themselves apply collateral estoppel principles to alleviate the inequities inherent in repetitious litigation.