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Administrative Justice And Adjudicative Ethics In Canada, Lorne Sossin 2016 Osgoode Hall Law School of York University

Administrative Justice And Adjudicative Ethics In Canada, Lorne Sossin

Lorne Sossin

In this article, I explore both the idea and practice of adjudicative ethics in the context of administrative justice in Canada. This is a large topic and one which is particularly timely as accountability, transparency and conflict of interest are all renewed areas of interest for governments across Canada. Elsewhere, I have suggested it is time to approach administrative justice as a justice system rather than as a disparate set of tribunals and boards. One way in which this coordination can be expressed is through a shared process of accountability for the conduct of adjudicators. My hope in elaborating adjudicative ...


Unappealing: An Assessment Of The Limits On Appeal Rights In Canada's New Refugee Determination System, Angus Gavin Grant, Sean Rehaag 2016 Osgoode Hall Law School of York University

Unappealing: An Assessment Of The Limits On Appeal Rights In Canada's New Refugee Determination System, Angus Gavin Grant, Sean Rehaag

Sean Rehaag

Canada’s refugee determination system was revised in 2012. One key feature of the new process is a quasi-judicial administrative appeal, on matters of both fact and law, at the Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB). Under the new process, however, many claimants are denied access to the RAD.

This article assesses these limits on access to the RAD, drawing mostly on quantitative data obtained from the IRB and Citizenship and Immigration Canada through access to information requests. Our aim is to provide evidence-based analysis and recommendations for reform. Essentially, our conclusions are that the ...


Unappealing: An Assessment Of The Limits On Appeal Rights In Canada's New Refugee Determination System, Sean Rehaag, Angus Gavin Grant 2016 Osgoode Hall Law School of York University

Unappealing: An Assessment Of The Limits On Appeal Rights In Canada's New Refugee Determination System, Sean Rehaag, Angus Gavin Grant

Sean Rehaag

Canada’s refugee determination system was revised in 2012. One key feature of the new process is a quasi-judicial administrative appeal, on matters of both fact and law, at the Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB). Under the new process, however, many claimants are denied access to the RAD. This article assesses these limits on access to the RAD, drawing mostly on quantitative data obtained from the IRB and Citizenship and Immigration Canada through access to information requests. Our aim is to provide evidence-based analysis and recommendations for reform. Essentially, our conclusions are that the ...


Self-Regulation For Safety And Security: Final Minutes Or Finest Hour?, Douglas C. Michael 2016 University of Kentucky College of Law

Self-Regulation For Safety And Security: Final Minutes Or Finest Hour?, Douglas C. Michael

Douglas C. Michael

The terrorist attacks of September 11, 2001, and the accounting and auditing crisis later caused by the Enron and Worldcom scandals of that same year, created a great sense of insecurity in many Americans. In this Article, I analyze the federal government's response to crisis. I first define what a crisis is: a sudden, existential threat to which the entity has insufficient resources to respond. I then explain how regulation for safety and security is unique in two aspects: perceptions matter, and the assistance of the regulated entities is essential. I proceed by describing and analyzing the regulatory history ...


When Is Whenever? Epa’S Retroactive Withdrawal Authority In Mingo Logan, Hale Melnick 2016 Boston College Law School

When Is Whenever? Epa’S Retroactive Withdrawal Authority In Mingo Logan, Hale Melnick

Boston College Environmental Affairs Law Review

In 2007, the United States Army Corps of Engineers granted Mingo Logan Coal Co. a permit to discharge dredge and fill material into four West Virginia streams and their tributaries. The U.S. Environmental Protection Agency (EPA) did not file an objection despite concerns about the discharge’s environmental impacts. Two years later, EPA moved to withdraw the permit in light of new information and circumstances regarding the discharge’s impact on wildlife. EPA claimed that it was authorized to withdraw the permit under Section 404(c) of the Clean Water Act, which provides the Administrator of EPA with the ...


Cooperative Federalism And Visibility Protection Under The Clean Air Act, Nicholas Knoop 2016 Boston College Law School

Cooperative Federalism And Visibility Protection Under The Clean Air Act, Nicholas Knoop

Boston College Environmental Affairs Law Review

In 2005, the U.S. Environmental Protection Agency (EPA) issued regulations pursuant to the Clean Air Act requiring states to submit plans to address visibility impairment due to air pollution. The regulations directed states to consider installing emissions controls at certain stationary sources according to five factors, including the cost of compliance. In Oklahoma v. U.S. Environmental Protection Agency, the U.S. Court of Appeals for the Tenth Circuit held that EPA lawfully rejected Oklahoma’s plan because the state plan failed to follow EPA-promulgated guidelines when determining the cost of compliance factor. This Comment argues that the outcome ...


Protecting The Delta Smelt: Environmental Organizations Have Standing To Enforce The Endangered Species Act’S Consultation Requirement, Alexandra Shalom 2016 Boston College Law School

Protecting The Delta Smelt: Environmental Organizations Have Standing To Enforce The Endangered Species Act’S Consultation Requirement, Alexandra Shalom

Boston College Environmental Affairs Law Review

In January 1993, the U.S. Fish & Wild Life Service (“FWS”) added the delta smelt, a small, silvery blue fish, to the Endangered Species Act’s (“ESA”) list of threatened wildlife. Species on the list are entitled to the ESA’s protections. In Natural Resource Defense Council v. Jewell, the Natural Resource Defense Council (“NRDC”) brought an action against the Bureau of Reclamation (the “Bureau”) for violating Section 7(a)(2) of the ESA, the consultation requirement, to protect the delta smelt. The consultation provision required the Bureau to consult with the FWS before it renewed contracts that controlled water ...


Capturing Regulatory Reality: Stigler’S The Theory Of Economic Regulation, Christopher Carrigan, Cary Coglianese 2016 George Washington University

Capturing Regulatory Reality: Stigler’S The Theory Of Economic Regulation, Christopher Carrigan, Cary Coglianese

Faculty Scholarship

This paper offers a retrospective assessment of economist George Stigler’s classic article, The Theory of Economic Regulation. Stigler argued that regulation is a product that, just like any other product, is produced in a market, and that it can be acquired from the governmental “marketplace” by business firms to serve their private interests and create barriers to entry for potential competitors. He challenged the idea that regulation arises solely to serve the public interest and demonstrated that important political advantages held by businesses can contribute to industry capture of the regulatory process. Although his argument was largely based on ...


The Administrative State And The Common Law: Regulatory Substitutes Or Complements?, Catherine M. Sharkey 2016 NYU School of Law

The Administrative State And The Common Law: Regulatory Substitutes Or Complements?, Catherine M. Sharkey

New York University Public Law and Legal Theory Working Papers

The modern administrative state looms larger than ever, and grows at an ever-accelerating pace. Not everyone is pleased with these developments. Four such individuals — Chief Justice Roberts, Justices Thomas, Alito, and the late Justice Scalia — have expressed their displeasure, indeed their alarm, with consistency, clarity, and vigor. They warn that the rise of administrative agencies, and the attendant ascendance of doctrines of mandatory judicial deference to agency interpretations of federal law, signals no less than the end of our government’s separation-of-powers structure, and our right to live our lives without fear of bureaucratic encroachment at every turn. Their opinions ...


A Background Report: School Aid Goals, Parameters, Formulas And Impacts Under Declining Enrollment, Dr. Mark A. Edelman, James J. Knudsen 2016 Iowa State University

A Background Report: School Aid Goals, Parameters, Formulas And Impacts Under Declining Enrollment, Dr. Mark A. Edelman, James J. Knudsen

Mark Edelman

There is no such thing as a perfect state school aid formula. Different people define equal educational opportunity differently and school aid formulas include a variety of criteria and incentives that result from compromise and majority voting after being "hammered out" through the political process.


Sovereign Immunity - The State Department’S Decision To Recognize And Allow The Claim Of Sovereign Immunity Is Binding Upon The Courts And Is Not Subject To Review Under The Administrative Procedure Act, Robin B. Gray Jr., George P. Shingler 2016 University of Georgia School of Law

Sovereign Immunity - The State Department’S Decision To Recognize And Allow The Claim Of Sovereign Immunity Is Binding Upon The Courts And Is Not Subject To Review Under The Administrative Procedure Act, Robin B. Gray Jr., George P. Shingler

Georgia Journal of International & Comparative Law

No abstract provided.


Nader A. Muharam Vs. Safety, 2016 University of Tennessee, Knoxville

Nader A. Muharam Vs. Safety

Tennessee Department of State, Opinions from the Administrative Procedures Division

No abstract provided.


Nader A. Muharam Vs. Safety, 2016 University of Tennessee, Knoxville

Nader A. Muharam Vs. Safety

Tennessee Department of State, Opinions from the Administrative Procedures Division

No abstract provided.


Uncertainty, Complexity, And Regulatory Design, Adam I. Muchmore 2016 Penn State Law

Uncertainty, Complexity, And Regulatory Design, Adam I. Muchmore

Adam I. Muchmore

This Article develops an analytic framework for understanding the role of uncertainty in regulatory design. It begins by differentiating between three types of uncertainty: legal uncertainty, factual uncertainty, and uncertainty about the application of law to fact. This framework highlights the pervasiveness of factual uncertainty and law-fact uncertainty in daily affairs. Viewed through this framework, legal uncertainty is less problematic than it is typically thought to be.

The Article then focuses on legal uncertainty, examining it from two perspectives: the relationship between rules and standards, and the relationship between simplicity and complexity. It suggests that there are fundamental limits on ...


Alj Central Panels: How Is It Going Out There?, W. Michael Gillette 2016 Pepperdine University

Alj Central Panels: How Is It Going Out There?, W. Michael Gillette

Journal of the National Association of Administrative Law Judiciary

For over 40 years, administrative law mavens have touted the desirability of “central panels,” i.e., panels of administrative law judges who, instead of being attached to a single administrative agency, are assigned to a “central,” “independent” panel that supplies administrative law judges to conduct contested case hearings for a variety of agencies. More than half the states have listened to the siren call and have created such panels — the earliest (California’s) as far back as 1946. As one who at first opposed, but later supported the creation of such a panel in his home state, Oregon, the author ...


Report To The California Public Utilities Commission Regarding Ex Parte Communications And Related Practices, Michael J. Strumwasser, Beverly Grossman Palmer, Dale K. Larson 2016 Pepperdine University

Report To The California Public Utilities Commission Regarding Ex Parte Communications And Related Practices, Michael J. Strumwasser, Beverly Grossman Palmer, Dale K. Larson

Journal of the National Association of Administrative Law Judiciary

Part I contains the analysis of existing law. We review the statutes and regulations governing ex parte communications before the CPUC, examine corresponding laws of other jurisdictions, and compare the CPUC statutes and regulations with those of the other jurisdictions. In Part II we examine actual ex parte practices before the CPUC. Based on data obtained from notices filed on the Commission’s website by parties to rate-setting cases, we provide a quantitative characterization of the extent and nature of noticed ex parte communications over the past roughly 22 years. We then place ex parte communications within the context of ...


Save The Social Security Disability Trust Fund! And Reduce Ssi Exposure To The General Fund, Daniel F. Solomon 2016 Pepperdine University

Save The Social Security Disability Trust Fund! And Reduce Ssi Exposure To The General Fund, Daniel F. Solomon

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


De-Scribing Administrative Law Case Data: From Sparklines To Dashboards To Analytics, Steven Placek 2016 Pepperdine University

De-Scribing Administrative Law Case Data: From Sparklines To Dashboards To Analytics, Steven Placek

Journal of the National Association of Administrative Law Judiciary

In this article, I present some examples of opportunities for agencies to depart from the inscribed method. These examples of display “de-scribe” administrative law data, making the data more visually active, multi-variate—with additional context and greater density. In Part II of this article, I review examples of the current state of data display for administrative law agencies and show how the inscribed method limits complex displays of data. In Part III, I introduce the concept of the sparkline, which is the fundamental unit of visual data display in the big data era that appears in organizational dashboards and analytics ...


To Waive Or Not To Waive? Filing Deadlines And Hearing Requests In Administrative Adjudications, Alice Booher Johnson 2016 Pepperdine University

To Waive Or Not To Waive? Filing Deadlines And Hearing Requests In Administrative Adjudications, Alice Booher Johnson

Journal of the National Association of Administrative Law Judiciary

In Part II of this Article, I provide an overview of subject matter jurisdiction in relation to filing timeframes. I review the distinction between original and appellate jurisdiction using Maryland case law and a sample survey of other state case law to provide background to the question of filing deadlines and hearing requests in administrative adjudications. In Part III of this Article, I elaborate upon Supreme Court precedent on administrative filing deadlines. In Part IV of this Article, I analyze the nature of filing deadlines for hearing requests before various state agencies, with an emphasis on Maryland’s scheme. The ...


Adjudicasaurus Rex, Jeffrey S. Wolfe 2016 Pepperdine University

Adjudicasaurus Rex, Jeffrey S. Wolfe

Journal of the National Association of Administrative Law Judiciary

This article proposes a simple theme. While many issues plague the Social Security Disability Insurance and Supplemental Security Income programs, only reform of the hearings and appeals process can solve the decades-long (and growing) hearings backlog. Only then, can the remaining questions regarding the solvency of the DI trust fund be meaningfully addressed. As it now stands, the ongoing backlog of pending hearings and appeals feeds the twin plagues of rising costs and increasing delay. These are the very issues that drove the federal courts in the passage of the Civil Justice Reform Act of 1990 (CJRA). This article provides ...


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