Explaining Comparative Administrative Law: The Standing Of Positive Political Theory, Minhao Benjamin Chen, Zhiyu Li
Minhao Benjamin Chen
Courts may function as “fire alarms” within a principal-agent framework that sees bureaucrats as imperfectly supervised servants of their political masters. In this paper, we compare how the class of plaintiffs authorized to bring suit against governmental bodies has been defined in three countries in which we would expect to find significant barriers to administrative litigation – the People’s Republic of China, Japan, and Singapore. Although these three Asian countries have traditionally been one-party dominated states, we do observe substantial differences in how legislatures and courts have answered the question of standing over time. It is possible to explain these ...
How King V. Burwell Creates Tax Problems For Consumers And What The Treasury Can Do About It, 2015 University of Iowa College of Law
How King V. Burwell Creates Tax Problems For Consumers And What The Treasury Can Do About It, Andy Grewal
Commentators have expressed concern that a government loss in King v. Burwell, which addresses whether taxpayers can enjoy tax credits for policies purchased on federal health care exchanges, will lead to a "death spiral" during future enrollment seasons.
However, this discussion threatens to mask the potential tax problems facing persons who purchase policies this enrollment season. As this short article explains, purchasers may be faced with a surprising tax bill when they complete their 2015 tax returns. Additionally, the government has argued that it can protect customers from surprise tax bills, but it's authority to do so is far ...
Federal Clean Air Act Preemption Of Public Nuisance Claims: The Case For Supreme Court Resolution, 2015 George Mason Univeristy School of Law
Federal Clean Air Act Preemption Of Public Nuisance Claims: The Case For Supreme Court Resolution, Richard O. Faulk
The current circuit-by-circuit and state-by-state approach to the question of preemption precludes any uniform standards for environmental compliance and enforcement, and also vitiates any reliable basis for capital investment, expanded operations, and workforce stability. Because Congress enacted the CAA to promote those goals—as well as jobs and a healthy economy—delaying review prolongs the uncertainty and intensifies the dilemma facing not only the courts, but also the regulated community.
Comments On Public Lands: Title Transfer Proposals, 2015 University of Colorado Law School
Comments On Public Lands: Title Transfer Proposals, Chuck Howe
Challenging Federal Ownership and Management: Public Lands and Public Benefits (October 11-13)
Engines Of Environmental Innovation: Reflections On The Role Of States In The U.S. Regulatory System, 2015 Environmental Council of the States
Engines Of Environmental Innovation: Reflections On The Role Of States In The U.S. Regulatory System, Alexandra Dapolito Dunn, Chandos Culleen
Pace Environmental Law Review
This article focuses on the role that states play in environmental regulation. Specifically, this article offers examples of the central part in the evolution of United States environmental regulation states played in the past, continue to play today, and will play in the future. First, this article explores the history of state environmental regulation, demonstrating that despite a lack of resources, states were actively engaged in environmental regulation before the advent of the modern era of federal environmental regulation in the 1970s. This article relates not only the regulatory efforts of states, but also the practical benefits of state regulation ...
Procedural Triage, 2015 Harvard Law School
Procedural Triage, Matthew J.B. Lawrence
Fordham Law Review
Prior scholarship has assumed that the inherent value of a "day in court" is the same for all claimants, so that when procedural resources (like a jury trial or a hearing) are scarce, they should be rationed the same way for all claimants. That is incorrect. This Article shows that the inherent value of a "day in court" can be far greater for some claimants, such as first-time filers, than for others, such as corporate entities and that it can be both desirable and feasible to take this variation into account in doling out scarce procedural protections. In other words ...
"A Distinction Without A Difference"?: Bartlett Going Forward, 2015 Fordham University School of Law
"A Distinction Without A Difference"?: Bartlett Going Forward, Steven A. Schwartz
Fordham Law Review
This Note addresses the question of whether federal law preempts state design defect claims against generic drug manufacturers regardless of which test state law uses to determine whether a drug is defective. This issue, arising out of the U.S. Supreme Court's interpretation of preemption jurisprudence and fundamental tort law as stated in Mutual Pharmaceutical Co. v. Bartlett, is significant because it plays a large role in determining to what extent generic drug manufacturers are immune to civil liability arising out of injuries caused by their generic drugs. In an age of rising medical costs and jury awards, both ...
Zoning As Taxidermy: Neighborhood Conservation Districts And The Regulation Of Aesthetics, Anika S. Lemar
Indiana Law Journal
Over the last thirty years, municipalities across the country have embraced neighborhood conservation districts, regulations that impose design standards at the neighborhood level. Despite their adoption in thirty-five states, in municipalities from Boise to Cambridge, neighborhood conservation districts have evaded critical analysis by legal scholars. By regulating features such as architectural style, roof angle, and maximum eave overhang, conservation districts purport to protect “neighborhood character” or “cultural stability.” Implicit in these regulations is the unsupported assumption that the essential feature of a neighborhood’s character is its architectural design at a single point in time. The unfortunate result is zoning ...
Vw And Gm Scandals Show Why Regulation Matters, 2015 Loyola University New Orleans
Vw And Gm Scandals Show Why Regulation Matters, Robert R.M. Verchick, Rena Steinzor
Robert R.M. Verchick
Conservatives love to belittle federal regulations — especially the ones designed to keep our air clean, our water drinkable, our workplaces safe, and our financial markets stable. Conservatives, of course, don’t oppose any of those things. They just think unregulated markets, left on their own, will keep bad things from happening. Customers will see when a dishonest company is putting Americans at risk; and when they do, they will unleash their fury and incinerate it. Unbridled capitalism is the world’s largest self-cleaning oven. Last week’s news from the automotive industry should lay that argument to rest.
Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, 2015 University of Michigan - Dearborn
Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel
Nehal A. Patel
Over thirty years have passed since the Bhopal chemical disaster began, and in that time scholars of corporate social responsibility (CSR) have discussed and debated several frameworks for improving corporate response to social and environmental problems. However, CSR discourse rarely delves into the fundamental architecture of legal thought that often buttresses corporate dominance in the global economy. Moreover, CSR discourse does little to challenge the ontological and epistemological assumptions that form the foundation for modern economics and the role of corporations in the world.
I explore methods of transforming CSR by employing the thought of Mohandas Gandhi. I pay ...
The Minty Taste Of Death: State And Local Options To Regulate Menthol In Tobacco Products, 2015 The Catholic University of America, Columbus School of Law
The Minty Taste Of Death: State And Local Options To Regulate Menthol In Tobacco Products, Michael Freiberg
Catholic University Law Review
Explaining why the additive menthol in tobacco products creates major public health risks, this article advocates for restricting the addition of menthol in cigarettes as a way to reduce smoking-related disease and death. Author Michael Freiberg describes how the decision to regulate menthol in tobacco products, on a federal level, was historically delegated by Congress to the discretion of the U.S. FDA, outlines the U.S. FDA’s subsequent failure to regulate menthol, and surveys state and local government efforts to regulate menthol in response to the FDA’s inaction. The article proposes additional actions that these state and ...
Enhancing Accountability At The Department Of Veterans Affairs: The Legality Of The Veterans Access, Choice, And Accountability Act Of 2014 Under The Due Process Clause, 2015 The Catholic University of America, Columbus School of Law
Enhancing Accountability At The Department Of Veterans Affairs: The Legality Of The Veterans Access, Choice, And Accountability Act Of 2014 Under The Due Process Clause, Ashton Habighurst
Catholic University Law Review
In April 2014, news of long delays at the Phoenix VA Medical Center and the subsequent deaths of forty Veterans awaiting medical appointments shocked the nation. Based on this perceived failure among VA’s senior medical staff, legislation swept through the House and the Senate in an attempt to enhance accountability at the VA. By August 2014, President Obama signed the Veterans Access, Choice and Accountability Act of 2014 into law. This Act revises the termination procedures concerning the VA’s senior executives, by eliminating the notice requirement, significantly reducing the appellate procedures for adverse employment decision to the Merit ...
Chevron Deference Conflicts With The Administrative Procedure Act, 2015 George Mason University School of Law
Chevron Deference Conflicts With The Administrative Procedure Act, Richard O. Faulk
Although Chevron’s reasoning stresses the expertise of agencies as a basis for deference, the APA plainly delegates final interpretive authority to the courts. Since there is no statutory basis for superseding or diminishing the judicial role in the interpretive process, there is no justification for using deferential review to bypass the judiciary’s primary responsibility.
It is time—indeed past time—for the Supreme Court to exercise its singular constitutional authority to declare “what the law is”—and to curb the increasingly intrusive and overreaching authority seized by the Executive Branch. The American people, from whom all authority is ...
Se Prendere Un Taxi A Londra Configura Un Aiuto Di Stato. Sulla Legittimità Di Escludere Dalle Corsie Preferenziali I Veicoli A Noleggio Con Conducente (Note A Margine Della Sentenza Corte Di Giustizia Europea, Eventech Ltd C. The Parking Adjudicator, 14 Gennaio 2015), 2015 Università di Parma
Se Prendere Un Taxi A Londra Configura Un Aiuto Di Stato. Sulla Legittimità Di Escludere Dalle Corsie Preferenziali I Veicoli A Noleggio Con Conducente (Note A Margine Della Sentenza Corte Di Giustizia Europea, Eventech Ltd C. The Parking Adjudicator, 14 Gennaio 2015), Valentina Gastaldo
SOMMARIO: 1. Il caso. – 2. Il servizio taxi nella città di Londra. – 3. Il procedimento dinanzi alla High Court of Justice e alla Court of Appeal. – 4. Sulle questioni pregiudiziali. – 5. I principi di diritto. – 6. La nozione di aiuti di Stato nell’ordinamento comunitario. – 7. Il servizio di noleggio di veicoli con conducente all’interno dei paesi dell’Unione Europea. – 8. Alcune brevi considerazioni conclusive per una rilettura critica della sentenza.
The Importance Of Social Activism To A Fuller Concept Of Law, 2015 University of Saskatchewan
The Importance Of Social Activism To A Fuller Concept Of Law, Joseph Asomah
Western Journal of Legal Studies
Legal positivists like H.L.A. Hart assert that law does not require morality to exist; in fact it insists on the separation of law and morality. Relying on Lon Fuller, this article argues against that proposition by suggesting that morality is necessarily part of law. Using Pierre Bourdieu’s theory of field and capital, which suggests that social values are inherently a part of law, this article argues that the positivist view of law has a deficient theory of justice that can be used to secure injustice against disadvantaged groups in society. In this way, I conceptualize law as ...
Patent Laws: Advancing Innovation For The Public Or Inflating Private Profits?, 2015 Western University
Patent Laws: Advancing Innovation For The Public Or Inflating Private Profits?, Raymond Bai
Western Journal of Legal Studies
Patent holders in the United States are currently provided with protection over their intellectual property for up to twenty years. This paper examines how entities known as “patent trolls” abuse this protection to force settlements with small to medium-sized companies, who are either unable to afford the associated legal costs or find that the risk is too large to litigate. The effect of patent trolling is that corporations seeking to invest in research and development are drained of financial resources, which ultimately threatens technological innovation. Patent litigation cases of this nature are growing exponentially, which has resulted in increasingly strong ...
Should Elephants Have Standing?, 2015 Carleton University
Should Elephants Have Standing?, Tyler Totten
Western Journal of Legal Studies
In the 2011, Chief Justice Fraser of the Alberta Court of Appeal raised an interesting question in her dissenting judgment in Reece v Edmonton (City): Should elephants have standing? Drawing on the ideas in her dissent and the Alberta’s Animal Protection Act on which the decision is based, I argue that granting animals standing is a pragmatic solution to overcoming the limitations and obstacles behind enforcing animal protection laws. This is demonstrated by exploring both the practicality and feasibility of granting standing to animals. On the point of practicality, I explain why this solution is preferable over other possibilities ...
The Systematic Risk Of Private Funds After The Dodd-Frank Act, 2015 University of Saint Thomas School of Law
The Systematic Risk Of Private Funds After The Dodd-Frank Act, Wulf A. Kaal
Michigan Business & Entrepreneurial Law Review
The Financial Stability Oversight Council (FSOC) was created under the Dodd-Frank Act with the primary mandate of guarding against systemic risk and correcting perceived regulatory weaknesses that may have contributed to the financial crisis of 2008-2009. The Securities and Exchange Commission (SEC) collects data pertaining to private fund advisers in order to facilitate FSOC’s assessment of non-bank financial institutions’ potential systemic risks. Evidence that the SEC’s data collection encounters accuracy and consistency problems might hamper FSOC’s ability to evaluate the systemic risk of private fund advisers. The author shows that while the SEC’s data plays a ...
Why Does A Powerful Regulatory Regime Fail? An Examination Of The Regulation Of Prepaid Cards In China, Pan Su
Based on in-depth interviews and news materials, this article examines why there is a regulatory failure in China’s regulation of prepaid cards: the regulation has not served for public interests and the compliance level is low. In Western scholarship, several theories have been raised to explain regulatory failure. The most influential theory is regulatory capture, which means that regulatory agencies have been captured by the industries and serve primarily for the industries’ benefit rather than public interests. Compared to Western countries, China, as a non-democratic state, has a different regulatory regime and provides a new perspective for regulatory failure ...
“Not Reasonably Debatable”: The Problems With Single-Judge Decisions By The Court Of Appeals For Veterans Claims, 2015 George Washington University
“Not Reasonably Debatable”: The Problems With Single-Judge Decisions By The Court Of Appeals For Veterans Claims, James Ridgway
James D. Ridgway
The U.S. Court of Appeals for Veterans Claims (CAVC) has statutory authority—unique among the federal appellate courts—to allow individual judges to decide appeals. As the CAVC completes the first quarter century of operations since its creation, this article examines the court’s use of this authority. Based upon two years of data developed and analyzed by the authors, this article concludes that outcome variance in single-judge decisions is a serious problem at the CAVC. Not only is there a substantial difference in the outcomes of appeals assigned to the different judges, but there are clear examples of ...