Administrative Law Commons^™

The Death Of Tax Court Exceptionalism, Stephanie Hoffer, Christopher J. Walker

Christopher J. Walker

Tax exceptionalism—the view that tax law does not have to play by the administrative law rules that govern the rest of the regulatory state—has come under attack in recent years. In 2011, the Supreme Court rejected such exceptionalism by holding that judicial review of the Treasury Department’s interpretations of the tax code is subject to the same Chevron deference regime that applies throughout the administrative state. The D.C. Circuit followed suit by rejecting the IRS’s position that its notices are not subject to judicial review under the Administrative Procedure Act (APA). This Article calls for ...

The Geography Of Racial Stereotyping: Evidence And Implications For Vra Preclearance After Shelby County, Christopher S. Elmendorf, Douglas M. Spencer

Douglas M. Spencer

The Supreme Court in Shelby County v. Holder (2013) effectively enjoined the preclearance regime of the Voting Rights Act. The Court deemed the coverage formula, which determines the jurisdictions subject to preclearance, insufficiently grounded in current conditions. This paper proposes a new, legally defensible approach to coverage based on between-state differences in the proportion of voting age citizens who subscribe to negative stereotypes about racial minorities and vote accordingly. The new coverage formula could also account for racially polarized voting and minority population size, but, for constitutional reasons, subjective discrimination by voters is the essential criterion. We demonstrate that the ...

Extract From Gary Lawson Et Al., The Fiduciary Foundations Of Federal Equal Protection (Forthcoming Circa June 2014), Citing The Teachout-Tillman Exchange, Seth Barrett Tillman

Seth Barrett Tillman

This is an extract from Gary Lawson et al., The Fiduciary Foundations of Federal Equal Protection, 94 B.U. L. Rev. (forthcoming circa June 2014) (manuscript at 9 n.26), citing the Teachout-Tillman exchange.

[August 28, 2013]

Federal Enforcement Of Police Reform, Stephen Rushin

Stephen Rushin

Congress passed 42 U.S.C. § 14141 in an effort to combat police misconduct and incentivize proactive reform in local law enforcement agencies. The statute gives the Attorney General the power to initiate structural reform litigation against local police departments engaged in a pattern or practice of unconstitutional behavior. While academics initially praised the law’s passage, many have since worried that the Department of Justice (DOJ) has not effectively administered the measure. No research has empirically analyzed how the DOJ has used its authority to initiate structural police reform. Using a combination of qualitative and quantitative methods, I fill ...

Private Rights Under The Housing Act: Preserving Rental Assistance For Section 8 Tenants, John M. Lerner

Boston College Journal of Law & Social Justice

The Housing Choice Voucher Program provides low-income families with federally funded rental assistance. In order to receive rental assistance, tenants and landlords must maintain units in compliance with the Housing Quality Standards promulgated by the United States Housing Act. A failure by either party to comply with the Housing Quality Standards results in a termination of the federal funding. Unfortunately for voucher recipients, this means that they can be stripped of their rental assistance through no fault of their own. To remedy this situation, many tenants have tried to bring an action against their landlord, alleging a violation of the ...

One-Step Forward: The D.C. Circuit Provides Clarity To The Incremental Approach To Rulemaking, Cory Lewis

Boston College Environmental Affairs Law Review

In 2011, EPA issued the Deferral Rule, excusing generators of biogenic b-CO2—emitted from the combustion of biological materials—from Clean Air Act (CAA) regulations for three years. Citing the need to study b-CO2, EPA invoked three legal doctrines to justify the rule: the de minimus, one-step-at-a-time, and administrative necessity doctrines. This Comment addresses Center for Biological Diversity v. Environmental Protection Agency, where the Center for Biological Diversity challenged the Deferral Rule in the U.S. Court of Appeals for the D.C. Circuit. The D.C. Circuit vacated the rule. Although the court did not decide the issue of ...

The Public Right-To-Know On A Need-To-Know Basis: Striking The Balance Between National Security And Environmental Protection, Brian Reilly

Boston College Environmental Affairs Law Review

Enforcing environmental laws does not immediately appear to be fundamentally inconsistent with maintaining national security. Many people have criticized the Emergency Planning and Community Right to Know Act, however, as potentially placing American citizens at risk of a terrorist attack. This Note discusses the difficulties associated with striking the balance between giving citizens access to important environmental information while limiting terrorists’ ability to misuse that same information. Although this issue is a difficult one on its own, it is compounded by recent developments affecting standing in environmental citizen suits. This Note argues that even if the proper balance is struck ...

Nuclear Facility Licensing, Terrorist Threats, And Nepa Section 102(2)(C) Compliance, Michael Deiulis

Boston College Environmental Affairs Law Review

The conflicting decisions for the Courts of Appeals for the Third and Ninth Circuits in New Jersey Department of Environmental Protection v. Nuclear Regulatory Commission and San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission, respectively, leave it an open question outside those jurisdictions whether the Nuclear Regulatory Commission (NRC) must account for the environmental impacts of terrorism under the National Environmental Policy Act (NEPA) § 102(2)(C). Courts should follow the Ninth Circuit’s approach of requiring such an analysis because the impacts of terrorism are not too far removed from the underlying agency action. Although programmatic treatment ...

An American Icon In Limbo: How Clarifying The Standing Doctrine Could Free Wild Horses And Empower Advocates, Nadia Aksentijevich

Boston College Environmental Affairs Law Review

The American wild horse has long been considered a cultural icon and an integral part of the ecosystem. In recognition of the need for wild horse protection, Congress enacted the Wild Free-Roaming Horses and Burros Act in 1971. Although the Act instructs Congress to manage the wild horse population by removing “excess” wild horses from public lands, it does not explicitly provide for the use of short- or long-term holding facilities as a means for removal. In considering the legality of the use of holding facilities in the service of wild horse removal programs that the plaintiffs deplore, two district ...

The Presentment Clause Meets The Suspension Power: The Affordable Care Act’S Long And Winding Road To Implementation, Mitchell Widener

Mitchell Widener

The presentment clause MEETs the Suspension Power: The Affordable Care Act’s Long and Winding Road to Implementation

Mitchell J. Widener

Abstract

To enact a law, the Presentment Clause of the Constitution mandates that both Houses of Congress present a bill to the President who either signs it into law or vetoes it. The Founders included this provision to prevent presidents from emulating King James II, who would routinely suspend Parliament’s laws to favor political constituents. Additionally, the Presentment Clause served to enhance the separation-of-powers principle implied in the Constitution.

Within the past year, President Obama has suspended multiple ...

Drones, Henry H. Perritt Jr., Eliot O. Sprague

Henry H. Perritt, Jr.

Abstract

Drone technology is evolving rapidly. Microdrones—what the FAA calls “sUAS”—already on the market at the $1,000 level, have the capability to supplement manned helicopters in support of public safety operations, news reporting, and powerline and pipeline patrol, when manned helicopter support is infeasible, untimely, or unsafe.

Larger drones–"machodrones”–are not yet available outside battlefield and counterterrorism spaces. Approximating the size of manned helicopters, but without pilots, or with human pilots being optional, their design is still in its infancy as designers await greater clarity in the regulatory requirements that will drive airworthiness certification.

This article ...

Preventative Legislation Ensures Intended Parents Of Gestational Surrogacy Benefits Under The California Family Rights Act, Jennifer Jackson

Jennifer Jackson

We live in a rapidly evolving technological age, which now allows parents to enter surrogacy contracts. In such a world, the law often lags in catching up to technology and the ramifications that may ensue. This paper focuses on the California Family Rights Act (CFRA) and the consequences it has on surrogacy agreements and the rights intended parents. While the CFRA includes broad language as to the definition of a “child,” case law shows that surrogate born children may be unintentionally excluded. As a result, this paper analyzes the arguments both for and against revision to the CFRA and concludes ...

The Technological And Business Evolution Of Machine Based Gambling In America, Darren Prum, Carlin Mccrory

Darren A. Prum

Machine Based Gambling has become a major source of revenue to many states across the country that need the money but face obstacles to raising taxes within their jurisdiction. The figures are startling with the Commonwealth of Pennsylvania’s cut at over $1.456 Billion in 2011, which exceed the next closest state by $500 million. In addition, there are more than twice as many slot machines available to the public than ATMs. The benefits of machine based gaming has allowed many governments to revitalized tourism locations, make some Native Americans economically self-sufficient, and save horse and dog race tracks ...

Should Chevron Have Two Steps?, Richard M. Re

Indiana Law Journal

Prominent judges and scholars have criticized the familiar Chevron deference scheme on the ground that its two steps are redundant. But each step of traditional two-step Chevron actually does unique interpretive work. In short, step one asks whether agency interpretations are mandatory, whereas step two asks whether they are reasonable. Other judges and scholars defend two-step Chevron on the ground that the second step should be equated with arbitrary-and-capricious review. But that approach makes Chevron partially redundant with the Administrative Procedure Act and compresses the distinct mandatoriness and reasonableness questions into an artificially singular first step. This Article identifies a ...

The Two Faces Of Janus: The Jurisprudential Past And New Beginning Of Rule 10b-5, John Patrick Clayton

University of Michigan Journal of Law Reform

Section 10(b) of the Securities Exchange Act and its implementing Rule 10b-5 are the primary antifraud provisions for both private and public enforcement of the federal securities laws. Neither the statute nor the rule expressly provides for a private right of action, but federal courts have long recognized such an implied right, and the Securities and Exchange Commission has supported the implied private right of action as a “necessary supplement” to its own efforts. However, after a decade of applying an expansive interpretation to Section 10(b), in the early 1970s the U.S. Supreme Court began to narrowly ...

Making Do In Making Drugs: Innovation Policy And Pharmaceutical Manufacturing, W. Nicholson Price Ii

Boston College Law Review

Despite increasing recalls, contamination events, and shortages, drug companies continue to rely on outdated manufacturing plants and processes. Drug manufacturing’s inefficiency and lack of innovation stand in stark contrast to drug discovery, which is the focus of a calibrated innovation policy that combines patents and FDA regulation. Pharmaceutical manufacturing lags far behind the innovative techniques found in other industries due to high regulatory barriers and ineffective intellectual property incentives. Among other challenges, although manufacturers tend to rely on trade secrecy because of the difficulty in enforcing patents on manufacturing processes, trade secrecy provides limited incentives for innovation. To increase ...

Let Educators Educate, Let Builders Build: Making A Case For School Facility Privatization, John Pizzo

John Pizzo

No abstract provided.

Protecting The Innocent With A Premium For Child Safety Regulations, Jacob P. Byl

University of Massachusetts Law Review

Federal agencies regulate many products and activities that impact the safety of children. Agencies should put a premium on saving the lives of children when analyzing the costs and benefits of proposed regulations. This note uses original evidence from the infant car seat market to determine that a child-specific benefit measure should be one and a half to two times that of an adult. A child premium will encourage more regulations that protect the safety of our society's most precious and innocent members.

The Long Journey Home: Ceuellar De Osorio V. Mayorkas And The Importance Of Meaningful Judicial Review In Protecting Immigrant Rights, Kaitlin J. Brown

Boston College Journal of Law & Social Justice

In Cuellar de Osorio v. Mayorkas, the U.S. Court of Appeals for the Ninth Circuit extended the Child Status Protection Act’s (“CSPA”) protections to all children who age out during the extended process of obtaining a visa as a child derivative beneficiary. In so holding, the court overturned a precedential decision by the Board of Immigration Appeals (“BIA”). In its review of the BIA’s decision, the Ninth Circuit applied the two-step test from Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., the seminal case in administrative law for review of executive agency action. The ...

Bostwick Properties Inc. V. Montana Department Natural Resources And Conservation, Carolyn A. Sime

Public Land and Resources Law Review

The Montana Supreme Court upheld the law requiring that applicants for new ground water permits in closed basins show no net surface depletion and that the new appropriation will not adversely affect senior water appropriators. Where the relationship between surface and ground water is uncertain or attenuated, applicants still bear the burden of proof, even if the proposed use constitutes only a de minimis quantity. Once again, the Court acknowledged the hydrologic connection between surface and ground water and the underlying legal framework which seeks to make water available for new appropriation and simultaneously protect the water rights of senior ...