Administrative Law Commons^™

Developments In Administrative Law: The 2007-2008 Term - The Impact Of Dunsmuir, Laverne Jacobs

Law Publications

The 2007-2008 term was a landmark year in Canadian administrative law. The Supreme Court of Canada decision in Dunsmuir v. New Brunswick (2008 SCC 9) affected dramatically the approach to determining the applicable standard of review in administrative law. The Dunsmuir decision caused a fervour of discussion among practitioners, judges, academics and all those involved in the administrative justice community. It essentially eclipsed all other administrative law cases decided in the 2007-2008 Supreme Court term. This article discusses findings from an examination of cases that have been decided by lower courts, between the decision date and the end of 2007-2008 …

Preemption And Institutional Choice, Thomas W. Merrill

Faculty Scholarship

Public law scholarship is increasingly turning from questions about the content of law to questions about which institution should determine the content of the law – that is, to "deciding who decides." Implicit in this turn is the understanding that public law – including broadly not just constitutional law, but also administrative law and statutory interpretation – consists of norms that are contestable and changing. In a world of normative flux, the question naturally occurs: Who should be responsible for "say[ing] what the law is?" The answer traditionally given by American legal academics – the federal courts, and especially the …

Overseers Or "The Deciders" – The Courts In Administrative Law, Peter L. Strauss

Faculty Scholarship

For the second time in a short period, Professors Miles and Sunstein have brought powerful tools of statistical analysis and diligent coding of circuit court of appeals opinions together to demonstrate what the Realists long ago taught us to suspect, that significant elements of judging can be explained in terms of the jurist's political world view – that the tension between law and politics is alive in judicial work as elsewhere and that it is only an aspiration to seek a world of laws and not of men. Elements of their work, though, appear as if in criticism of contemporary …

Administrative Law As The New Federalism, Gillian E. Metzger

Faculty Scholarship

Despite the recognized impact that the national administrative state has had on the federal system, the relationship between federalism and administrative law remains strangely inchoate and unanalyzed. Recent Supreme Court case law suggests that the Court is increasingly focused on this relationship and is using administrative law to address federalism concerns even as it refuses to curb Congress's regulatory authority on constitutional grounds. This Article explores how administrative law may be becoming the new federalism and assesses how well-adapted administrative law is to performing this role. It argues that administrative law has important federalism-reinforcing features and represents a critical approach …

The California Greenhouse Gas Waiver Decision And Agency Interpretation: A Response To Galle And Seidenfeld, Nina A. Mendelson

Articles

Professors Brian Galle and Mark Seidenfeld add some important strands to the debate on agency preemption, particularly in their detailed documentation of the potential advantages agencies may possess in deliberating on preemption compared with Congress and the courts. As they note, the quality of agency deliberation matters to two different debates. First, should an agency interpretation of statutory language to preempt state law receive Chevron deference in the courts, as other agency interpretations may, or should some lesser form of deference be given? Second, should a general statutory authorization to an agency to administer a program and to issue rules …

Strange Bedfellows, David M. Uhlmann

Articles

Environmental protection has not been a priority for the Bush administration, but, contrary to popular perception, criminal prosecution of companies and officials accused of breaking environmental laws has flourished.

Achieving The Potential: The Future Of Federal E-Rulemaking: A Report To Congress And The President, Committee On The Status And Future Of Federal E-Rulemaking (U.S.), Cynthia R. Farina

Cornell Law Faculty Publications

Federal regulations are among the most important and widely used tools for implementing the laws of the land – affecting the food we eat, the air we breathe, the safety of consumer products, the quality of the workplace, the soundness of our financial institutions, the smooth operation of our businesses, and much more. Despite the central role of rulemaking in executing public policy, both regulated entities (especially small businesses) and the general public find it extremely difficult to follow the regulatory process; actively participating in it is even harder.

E-rulemaking is the use of technology (particularly, computers and the World …

In Re Annandale And The Disconnections Between Minnesota And Federal Agency Deference Doctrine, Mehmet K. Konar-Steenberg

Faculty Scholarship

This article explores each of these differences between Annandale’s view of deference and comparable federal authority. Part II begins the discussion with an explanation of the somewhat complicated legal and factual background that gave rise to Annandale’s unusually thorny agency deference issues. This section includes an extended discussion of the Annandale administrative record and the reasoning of the Minnesota Court of Appeals and Minnesota Supreme Court. Part III then critically analyzes the Annandale court’s claims to have acted consistently with federal agency deference case law in each of the three areas discussed above. Part IV concludes with some post-Annandale developments …

Reexamining The Legacy Of Dual Regulation: Reforming Dual Merger Review By The Doj And The Fcc, Philip J. Weiser

Publications

Most debates over the structure of merger review in the telecommunications industry focus on the criticism that the role of the Federal Communications Commission (FCC) is entirely redundant in light of the review conducted by the antitrust agencies. The FCC's lack of a consistently applied standard only reinforces such criticisms. There are, however, cases where the FCC's review of a merger - and imposition of conditions that complement the existing regulatory regime - enable the antitrust agencies to clear mergers that would otherwise pose potential objections.

The central challenge for competition policy merger review is to structure the analysis of …

Book Review, Susan Nevelow Mart

Publications

No abstract provided.

The Managerial Turn In Environmental Policy, Cary Coglianese

All Faculty Scholarship

No abstract provided.

Policymaking Under Pressure: The Perils Of Incremental Responses To Climate Change, Cary Coglianese, Jocelyn D’Ambrosio

All Faculty Scholarship

Federal policymakers’ reluctance to enact a comprehensive climate change policy during the past decade has coincided with increased awareness of the inevitability and severity of the problems from global climate change. Thus, it is no surprise that piecemeal, sub-federal policies have garnered considerable support. Bolstered by the political science literature on the promise of incrementalism and democratic experimentalism, many proponents of climate change action favor incremental steps in the hope that they will improve the environment or at least serve as a basis for more comprehensive policies. Against this hopeful view, we explain why ad hoc responses to climate change …

Risk Equity: A New Proposal, Matthew D. Adler

All Faculty Scholarship

What does distributive justice require of risk regulators? Various executive orders enjoin health and safety regulators to take account of “distributive impacts,” “equity,” or “environmental justice,” and many scholars endorse these requirements. But concrete methodologies for evaluating the equity effects of risk regulation policies remain undeveloped. The contrast with cost-benefit analysis--now a very well developed set of techniques --is stark. Equity analysis by governmental agencies that regulate health and safety risks, at least in the United States, lacks rigor and structure. This Article proposes a rigorous framework for risk-equity analysis, which I term “probabilistic population profile analysis” (PPPA). PPPA is …

Temporary Accidents?, Elizabeth Magill

All Faculty Scholarship

Review of Steven P. Croley, Regulation and Public Interests: The Possibility of Good Regulatory Government (Princeton: Princeton University Press, 2007).

Diverse Conceptions Of Emotions In Risk Regulation, Peter H. Huang

Publications

No abstract provided.

A Presumption Against Agency Preemption, Nina A. Mendelson

Articles

Federal agencies are increasingly taking aim at state law, even though state law is not expressly targeted by the statutes the agencies administer. Starting in 2001, the Office of the Comptroller of the Currency (OCC) issued several notices saying that state laws would apply to national bank operating subsidiaries (incorporated under state law) to the same extent as those laws applied to the parent national bank. In 2003, the OCC specifically mentioned state consumer protection laws and took the position that the state laws were preempted and did not apply to mortgage lenders owned by national banks. In December 2006, …

Un Regard Extérieur: Back Impact Of European Union Legislation On American Environmental Regulations, David Wirth

David A. Wirth

No abstract provided.

Reglering Av Överlåtna Förvaltningsuppgifter [Rules On Public Matters That Are Assigned To Non Government Subjects], Vilhelm Persson

Vilhelm Persson

Swedish law allows that public matters are assigned to private parties as well as international or foreign bodies. When matters are assigned, general administrative rules are often not applicable. However, constitutional provisions still have to be respected by private parties. In contrast, transferring matters to international or foreign bodies has the effect to completely distance the matters from the Swedish legal order, including the constitution. But of course Sweden could make it a condition for the transfer that Swedish rules are applied.

Children’S Rights To Representation: A Comparison Between Sweden And England, Titti Mattsson, Eva Ryrstedt

Titti Mattsson

In both England and in Sweden, the approach to a child's right to representation differs between public law cases and private law cases regarding legal custody/parental responsibility, residence or contact. This article discusses the basis for this distinction, and how far it accords with the best interests of the child.

Toward A True Elements Test: Taylor And The Categorical Analysis Of Crimes In Immigration Law, Rebecca Sharpless

Rebecca Sharpless

When determining the legal effect of a conviction under immigration law, adjudicators claim to apply a uniform, federal standard that prohibits fact finding regarding the underlying circumstances that gave rise to the conviction. This categorical analysis of crimes is firmly rooted in all levels of administrative and federal court case law. Yet fundamental confusion exists concerning what it means to apply a categorical approach to evaluating when a criminal conviction is of a type that triggers deportation. This article demonstrates that a source of this confusion is a misunderstanding of the nature of a conviction and the difference between a …

Regulation Short-Cut: Re-Route Pa. Code Searches To The Internet For Quicker, More Efficient Legal Research, Matthew Mcgovern

Matthew McGovern

No abstract provided.

The Legal Infrastructure Of Subprime And Nontraditional Mortgage Lending

Patricia A. McCoy

This paper provides a critical analysis of the legal landscape of residential mortgage lending and explains how federal law abdicated regulation of the subprime market. First, the paper presents the historical backdrop to government oversight of mortgage lending and identifies the changes to and innovations in the lending process that contributed to the recent transformation of the residential mortgage market. We then describe recent attempts at the state and federal level to re-regulate and the backlash initiated by the federal banking agencies to thwart regulation of their constituent banks through preemption, resulting in parallel universes of regulation. Next, the article …

The Unjust Exclusion Of Gay Sperm Donors: Litigation Strategies To End Discrimination In The Gene Pool, Luke A. Boso

Luke A. Boso

In May 2004, the Food and Drug Administration (FDA) announced a final rule to be published in the Federal Register that would establish eligibility criteria for persons seeking to donate sperm and other human cells and tissues. Concurrently, the FDA issued a draft guidance document that provides recommendations for complying with the requirements, listing men who have had sex with another man in the preceding 5 years (MSMs) as the number one risk factor. The FDA does not, however, make a distinction between MSMs who practice safe sex and those who have unprotected sex, nor does it identify men who …

Acerca Del Dominio Público Y Dominio Privado Del Estado., Walter Vásquez Rebaza

Walter Vásquez Rebaza

No abstract provided.

El Sistema De Solución De Controversias Entre Estados, Pierino Stucchi, Luis García-Corrochano

Pierino Stucchi

No abstract provided.

The Importance Of Professionalism, John L. Gedid

John L. Gedid

No abstract provided.

Achieving Policymaking Consensus: The (Unfortunate) Waning Of Negotiated Rulemaking, Jeffrey Lubbers

Jeffrey Lubbers

Much Ado About Pluralities: Pride And Precedent Amidst The Cacophy Of Concurrences, And Re-Percolation After Rapanos, Donald J. Kochan, Melissa M. Berry, Matthew J. Parlow

Donald J. Kochan

Conflicts created by concurrences and pluralities in court decisions create confusion in law and lower court interpretation. Rule of law values require that individuals be able to identify controlling legal principles. That task is complicated when pluralities and concurrences contribute to the vagueness or uncertainty that leaves us wondering what the controlling rule is or attempting to predict what it will evolve to become. The rule of law is at least handicapped when continuity or confidence or confusion infuse our understanding of the applicable rules. This Article uses the recent U.S. Supreme Court decision in Rapanos v. United States to …