Administrative Law Commons^™

Designing Administrative Law For Adaptive Management, J.B. Ruhl, Robin Craig

Vanderbilt Law School Faculty Publications

Administrative law needs to adapt to adaptive management. Adaptive management is a structured decision-making method the core of which is a multi-step iterative process for adjusting management measures to changing circumstances or new information about the effectiveness of prior measures or the system being managed. It has been identified as a necessary or best practices component of regulation in a broad range of fields, including drug and medical device warnings, financial system regulation, social welfare programs, and natural resources management. Nevertheless, many of the agency decisions advancing these policies remain subject to the requirements of either the federal Administrative Procedure …

Some Guidance About Federal Agencies And Guidance, Mary Whisner

Librarians' Articles

The federal administrative system is complex and contains ambiguities about what counts as an “agency,” and there is an amorphous border between regulations and guidance. The body of guidance documents (or nonlegislative rules) is growing, both in volume and in importance, and legal researchers should be aware of this important source of authority, as well as its unclear status.

Between Seminole Rock And A Hard Place: A New Approach To Agency Deference, Kevin O. Leske

Faculty Scholarship

No abstract provided.

Preserving Fairness In Tax Administration In The Mayo Era, Steve R. Johnson

Scholarly Publications

One of the dominant themes in contemporary federal taxation is bringing tax administration within the fold of general administrative law. In 2011, the United States Supreme Court unambiguously embraced this movement in the landmark case Mayo Foundation for Medical Education & Research v. United States, in which the Court held that challenges to the validity of Treasury regulations generally are governed by the Chevron standard to the same extent as are regulations issued by other administrative agencies.

There was an immediate and strong hostile reaction to Mayo in tax circles. Many fear that Mayo dramatically tips the balance in favor …

A Concrete Shoe For Brand X?, David J. Shakow

All Faculty Scholarship

The Supreme Court’s decision in Home Concrete raises new questions about the deference to be given to administrative pronouncements that conflict with prior judicial decisions. Unfortunately, the opinions of a divided Court leave practitioners to puzzle over the boundaries of its decision.

Reconciling Chevron, Mead, And The Review Of Agency Discretion: Source Of Law And The Standards Of Judicial Review, Michael P. Healy

Law Faculty Scholarly Articles

Although the Supreme Court's watershed decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. has been understood by many as defining the framework for judicial review of agency legal determinations, there have been longstanding questions about the application of the standards for reviewing administrative action. These questions have become more troublesome following the Supreme Court's 2001 decision in United States v. Mead Corp. Mead established that Chevron review only applies when defined requirements are met and held that so-called Skidmore deference applies when Chevron deference does not apply. Surveying the aftermath of Mead and its effect on the …

Do Treasury And The Irs Have To Explain Their Choices?, Steve R. Johnson

Scholarly Publications

The validity of tax regulations has been challenged by taxpayers almost as long as there have been tax regulations. Now, however, we are in a period of unusually high activity on this front. The Supreme Court recently upheld the validity of a regulation under section 3121 in Mayo Foundation for Medical Ed. and Research v. United States, 131 S. Ct. 704 (2011); many cases are testing the validity of regulations extending the six-year statute of limitations under section 6501(e) to basis overstatements (or, as the Service would put it, clarifying the law in this regard); and many cases are …

Substance, Procedure, And The Divided Patent Power, Joseph S. Miller

Scholarly Works

The Patent Office has the power to issue rules that “shall govern the conduct of proceedings in the Office,” 35 U.S.C. § 2(b)(2), but not the power to issue substantive rules. It has been this way since 1870, when Congress first granted the Office this regulatory power, in nearly these same words. Just how broad is this grant? How should a reviewing court determine whether a challenged Patent Office rule is procedural (and thus valid) or substantive (and thus invalid)? It is remarkable that in 2010, 140 years after Congress gave the Patent Office this power, the proper sorting standard …

On The Difficulties Of Generalization – Pcaob In The Footsteps Of Myers, Humphrey’S Executor, Morrison And Freytag, Peter L. Strauss

Faculty Scholarship

In considering what to write for this welcome occasion, I was struck by a certain resonance among Paul's scholarship – at least that of which I was first aware, and which I have often used to impress on students the problems of due process analysis – the important post he now holds, and a story our joint mentor, Walter Gellhorn, liked to tell on himself. In the wake of the Supreme Court's paradigm-shifting opinion in Goldberg v. Kelly, with its confident pronouncement of eight procedural elements that, it reasoned, minimal due process must always require of administrative procedures, Paul made …

Tax Court Invalidates New Section 6501(E) Regulations, Steve R. Johnson

Scholarly Publications

The title of an article of mine in the Fall 2009 issue of the NewsQuarterly asked “What’s Next in the Section 6501(e) Overstated Basis Controversy?” The Tax Court answered that question on May 6, 2010, in its decision Intermountain Insurance Service of Vail, LLC v. Commissioner, 134 T.C. No. 11. In that decision, the court invalidated two temporary regulations that had been issued on September 24, 2009: sections 301.6229(c)(2)-IT and 301.6501(e)-IT.

Mending Holes In The Rule Of (Administrative) Law, Evan J. Criddle

Faculty Publications

No abstract provided.

Slides: The Promise And Peril Of Oil Shale: Federal Law And Policy, David Bernhardt

The Promise and Peril of Oil Shale Development (February 5)

Presenter: David Bernhardt, Brownstein Hyatt Farber Schreck, Denver, CO

13 slides

Fiduciary Administration: Rethinking Popular Representation In Agency Rulemaking, Evan J. Criddle

Faculty Publications

Do administrative agencies undermine popular sovereignty when they make federal law? Over the last several decades, some scholars have argued that rulemaking by unelected agency officials imperils popular sovereignty and that federal law should resolve the apparent tension between regulatory practice and democratic principle by allowing the President to serve as a proxy for the "will of the people" in the administrative state. According to this view, placing federal rulemaking power firmly within the President's managerial control would advance popular preferences throughout the federal system.

This conventional wisdom is misguided. As political scientists have long recognized, the electorate's relative disengagement …

Slides: The Future Public Law Of Private Ecosystems, J. B. Ruhl

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: J.B. Ruhl, Florida State University Law School

18 slides

Slides: Meaningful Engagement: The Public's Role In Resource Decisions, Mark Squillace

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: Mark Squillace, Director, Natural Resources Law Center, University of Colorado Law School

22 slides

Some Preliminary Thoughts On Contrasts And Convergence In Environmental And Natural Resources Law, Karin P. Sheldon

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

16 pages.

Includes bibliographical references

Historical Evolution And Future Of Natural Resources Law And Policy: The Beginning Of An Argument And Some Modest Predictions, Sally K. Fairfax, Helen Ingram, Leigh Raymond

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

8 pages.

Includes bibliographical references

"Sally Fairfax, UC-Berkeley, Helen Ingram, UC-Irvine, and Leigh Raymond, Purdue University" -- Agenda

Florida East Coast Railway And The Structure Of Administrative Law, Michael P. Healy

Law Faculty Scholarly Articles

A typical Administrative Law course presents the Supreme Court's decision in United States v. Florida East Coast Railway Co. as establishing the rule that statutory text quite close to the magic words, "on the record after opportunity for an agency hearing," is needed to trigger the Administrative Procedure Act's (APA) formal hearing requirements for a rulemaking. Florida East Coast Railway is a prime example of an underrated case because, even though the case is well known, its renown is a consequence only of its black letter rule about rulemaking procedures. Many scholars and practitioners do not appreciate the case for …

Statutes That Are Not Static – The Case Of The Apa, Peter L. Strauss

Faculty Scholarship

...[T]he lesson of the past two hundred years is that we will do well to be on our guard against all-purpose theoretical solutions to our problems. As lawyers we will do well to be on our guard against any suggestion that, through law, our society can be reformed, purified, or saved. The function of law, in a society like our own, is altogether more modest and less apocalyptic. It is to provide a mechanism for the settlement of disputes in the light of broadly conceived principles on whose soundness, it must be assumed, there is a general consensus among us. …

Slides: Nepa And Adaptive Management, Denise A. Dragoo

Best Management Practices and Adaptive Management in Oil and Gas Development (May 12-13)

Presenter: Denise A. Dragoo, Partner, Snell & Wilmer L.L.P., Salt Lake City, UT

22 slides

Prescribing The Right Dose Of Peer Review For The Endangered Species Act, J.B. Ruhl

Vanderbilt Law School Faculty Publications

....what I examine here is whether scientific-style peer review, depending on how it is dosed out, could be counterproductive for environmental law.The use of peer review as a component of regulatory procedure has not received much discrete attention in environmental law literature, but it is truly the sleeping dog of the "sound science" movement. Understanding this concept requires some background on science and administrative law. The "sound science" movement, as its name suggests, advocates that environmental law decisions be based principally on scientific information and conclusions that have been derived through the rigorous, unbiased practice of science. Science is generally …

Judicial Review Of Copyright Examination, Thomas G. Field Jr

Law Faculty Scholarship

Copyright in qualifying United States works has always arisen upon creation. For many years, however, rights could be lost by failing to, e.g., provide notice, register and deposit copies when works were first published. In 1909 formal requirements were reduced, and the Supreme Court, in 1939, concluded that registration with the U.S Copyright Office was unnecessary to retain rights. Despite that, owners could not sue infringers without having registered.

Regarding registration as helpful if not obligatory, this paper compares the burden on moving parties in circumstances in which registration decisions may be challenged in courts.

Zurko, Gartside, And Lee: How Might They Affect Patent Prosecution?, Thomas G. Field Jr

Law Faculty Scholarship

Interactions between the PTO and the courts are more complex than for most agencies. PTO decisions may be challenged not only directly but also collaterally. In the latter context, the Supreme Court has sometimes been critical of the lax standards applied when issuing patents.

While being upheld in collateral review is the ultimate issue of concern to patentees, patents must first be obtained. Thus, this paper focuses on direct challenges to PTO actions--and more specifically, on the review arising under 35 U.S.C. §§ 141-44 as addressed in Zurko, Gartside, and Lee.

Since the Supreme Court reversed the …

Blackletter Statement Of Federal Administrative Law: Standing, Cynthia R. Farina

Cornell Law Faculty Publications

No abstract provided.

Regulatory Improvement Legislation: Risk Assessment, Cost-Benefit Analysis, And Judicial Review, Fred Anderson, Mary Ann Chirba-Martin, E. Donald Elliott, Cynthia R. Farina, Ernest Gellhorn, John D. Graham, C. Boyden Gray, Jeffrey Holmstead, Ronald M. Levin, Lars Noah, Katherine Rhyne, Jonathan Baert Weiner

Cornell Law Faculty Publications

As the number, cost, and complexity of federal regulations have grown over the past twenty years, there has been growing interest in the use of analytic tools such as risk assessment and cost-benefit analysis to improve the regulatory process. The application of these tools to public health, safety, and environmental problems has become commonplace in the peer-reviewed scientific and medical literatures. Recent studies prepared by Resources for the Future, the American Enterprise Institute, the Brookings Institution, and the Harvard Center for Risk Analysis have demonstrated how formal analyses can and often do help government agencies achieve more protection against hazards …

Zurko Raises Issue Of Patentability Standards, Thomas G. Field Jr.

Law Faculty Scholarship

In re Zurko isolated one of the oldest U.S. agencies from mainstream administrative law because the Federal Circuit has chosen to review the U.S. Patent and Trademark Office more as it would a federal district court. The case is important, if only because the Supreme Court rarely treats the PTO as an agency. Also, regardless of whether the issue or the Federal Circuit itself is the primary target, the decision could have a major effect on the type of case most commonly encountered by that court.

Multicultural Participation In The Public Hearing Process: Some Theoretical, Pragmatical, And Analeptical Considerations, John C. Duncan, Jr.

Journal Publications

Ideally, public participation in rule-making leads to better rules. Failure to involve the public obviously dilutes or vitiates democracy in crucial ways. This Article will discuss the hearing process of administrative rule-making, and ways that agencies can accommodate multi-cultural differences so as to improve both access to participation and the efficacy of that participation. Specifically, this paper will discuss the environmental justice movement. Part II of this Article places participation problems in context by looking at specific issues of environmental equity in the rule-making process. Part III examines the need to expand public participation as a desirable goal, discusses obstacles …

Brief Amici Curiae Of Intellectual Property Professors In Support Of Petitoner, Thomas G. Field Jr., John F. Duffy, Craig Allen Nard

Law Faculty Scholarship

Congress enacted the Administrative Procedure Act (APA) in 1946 as a comprehensive statute to regulate the field of federal administrative law. In holding that the PTO Board of Patent Appeals and Interferences is not subject to the standards of judicial review set forth in the APA, the [Zurko] decision isolates patent law from the rest of administrative law and undermines the APA’s goal of achieving consistency and uniformity in federal administrative law.

Amicus Brief Of Thomas G. Field, Jr., Pro Se Supporting In Principle, On Rehearing The Commissioner Of Patents And Trademarks, Thomas G. Field Jr.

Law Faculty Scholarship

To those unfamiliar with the long, often bitter, struggle over equally compelling needs to provide, on the one hand, innovators with an adequate opportunity to recoup risk capital and to avoid, on the other, erecting unwarranted barriers to competition, a dispute over the proper scope of review for Patent and Trademark Office (PTO) patent appeals will seem both trivial and arcane. This case involves more than semantics -- its resolution turns on the allocation of power among three, and arguably four, branches of government. This Court, itself, has a stake.

Promulgating Requirements For Admission To Prosecute Patent Applications, Michelle J. Burke, Thomas G. Field Jr

Law Faculty Scholarship

Among federal agencies, the U. S. Patent and Trademark Office is unique in its ability to require attorneys to submit to special requirements, such as passing a six hour examination, before being permitted to practice before it in patent cases. Indeed, the Supreme Court has held that an individual so admitted to practice before the PTO need not comply with state requirements otherwise applicable to those practicing law.

The first part of this article discusses how this requirement came to be. It then discusses how the PTO determines whether an individual is fit to sit for the patent examination, focusing …