The Universality Of The Human Condition: Theorizing Transportation Inequality Claims By Persons With Disabilities In Canada, 1976-2016, 2018 University of Windsor, Faculty of Law
The Universality Of The Human Condition: Theorizing Transportation Inequality Claims By Persons With Disabilities In Canada, 1976-2016, Laverne A. Jacobs
Auer Evasions, 2018 Case Western Reserve University School of Law
Auer Evasions, Jonathan Adler
Auer v. Robbins requires federal courts to defer to federal agency interpretations of ambiguous regulations. Auer built upon, and arguably expanded, the Court’s long-standing practice of deferring to agency interpretations of their own regulations born in Bowles v. Seminole Rock. Although initially uncontroversial, the doctrine has come under fire from legal commentators and prominent jurists, including Auer’s author, the late Justice Antonin Scalia. As Justice Scalia came to recognize, Auer deference enables agencies to evade a wide range of legal constraints that are otherwise imposed upon agency behavior, the ability of agencies to take action with the force ...
Why Michigan V. Epa Requires The Meaning Of The Cost/Rationality Nexus Be Clarified, 2017 University of Oklahoma Norman Campus
Why Michigan V. Epa Requires The Meaning Of The Cost/Rationality Nexus Be Clarified, Daniele Bertolini, Carolina Arlota
Strategic Rulemaking Disclosure, 2017 University of Chicago Law School
Strategic Rulemaking Disclosure, Jennifer Nou, Edward H. Stiglitz
Congressional enactments and executive orders instruct agencies to publish their anticipated rules in what is known as the Unified Agenda. The Agenda’s stated purpose is to ensure that political actors can monitor regulatory development. Agencies have come under fire in recent years, however, for conspicuous omissions and irregularities. Critics allege that agencies hide their regulations from the public strategically, that is, to thwart potential political opposition. Others contend that such behavior is benign, perhaps the inevitable result of changing internal priorities or unforeseen events.
To examine these competing hypotheses, this Article uses a new dataset spanning over thirty years ...
Forces Of Federalism, Safety Nets, And Waivers, 2017 Cornell Law School
Forces Of Federalism, Safety Nets, And Waivers, Edward H. Stiglitz
Inequality is the defining feature of our times. Many argue it calls for a policy response, yet the most obvious policy responses require legislative action. And if inequality is the defining feature of our times, partisan acrimony and gridlock are the defining features of the legislature. So being, it is worth considering what role administrative agencies, and administrative law, might play in ameliorating or exacerbating economic inequality. Here, I focus on American safety net programs, many of which are joint operations between federal administrative agencies and state governments. In this context, a central mode of bureaucratic policy innovation comes in ...
Collaborative Gatekeepers, 2017 University of California - Berkeley
Collaborative Gatekeepers, Stavros Gadinis, Colby Mangels University Of California - Berkeley
In their efforts to hold financial institutions accountable after the 2007 financial crisis, U.S. regulators have repeatedly turned to anti-money-laundering laws. Initially designed to fight drug cartels and terrorists, these laws have recently yielded billion-dollar fines for all types of bank engagement in fraud and have spurred an overhaul of financial institutions’ internal compliance. This increased reliance on anti-money-laundering laws, we argue, is due to distinct features that can better help regulators gain insights into financial fraud. Most other financial laws enlist private firms as gatekeepers and hold them liable if they knowingly or negligently engage in client fraud ...
Clean Air Council V. Pruitt, 2017 Alexander Blewett III School of Law at the University of Montana
Clean Air Council V. Pruitt, Oliver Wood
Public Land and Resources Law Review
The United States Court of Appeals for the District of Columbia granted a motion for summary vacatur against the Environmental Protection Agency after environmental groups challenged the agency’s reconsideration of the Obama-era methane rule under the Clean Air Act. The court held that the EPA unlawfully issued a stay after it reconsidered the rule without proper authorization. The court vacated the EPA’s stay, one example of the Trump Administration unsuccessfully repealing Obama-era rulemaking.
Blethen Maine Newspapers, Inc. V. State: Balancing The Public's Right To Know Against The Privacy Rights Of Victims Of Sexual Abuse, 2017 University of Maine School of Law
Blethen Maine Newspapers, Inc. V. State: Balancing The Public's Right To Know Against The Privacy Rights Of Victims Of Sexual Abuse, Kenleigh A. Nicoletta
Maine Law Review
In Blethen Maine Newspapers, Inc. v. State, a sharply divided Maine Supreme Judicial Court, sitting as the Law Court, held that release of records relating to Attorney General G. Steven Rowe's investigation of alleged sexual abuse by Catholic priests was warranted under Maine's Freedom of Access Act (FOAA). Although such investigative records are designated confidential by statute, the majority held that the public's interest in the contents of the records mandated their disclosure after all information identifying persons other than the deceased priests had been redacted. The concurrence asserted that the majority had reached the correct conclusion ...
The Diversity Rationale For Affirmative Action In Military Contracting, 2017 The Catholic University of America, Columbus School of Law
The Diversity Rationale For Affirmative Action In Military Contracting, Hugh B. Mcclean
Catholic University Law Review
Section 8(a) of the Small Business Act (the ‘‘8(a) program’’) is a federal contracting program that permits the government to award certain contracts to members of designated racial groups that own small businesses. Courts have denied facial challenges to the program, but have upheld challenges alleging the program is unconstitutional as applied to particular industries. As a result, the military is banned from using the program in at least one industry, and inherits significant risk when using the program in other industries. The government has never articulated a diversity rationale to justify the use of race-conscious measures in ...
Disputant Preferences For Mediated Or Adjudicated Processes In Administrative Agencies: The Occupational Safety And Health Review Commission Settlement Part Program, Deanna Malatesta, Lisa Blomgren Amsler, Susanna Foxworthy Scott
Conflict and its Resolution in the Changing World of Work: A Conference and Special Issue Honoring David B. Lipsky
Previous research examining disputants’ preferences for mediation over more formal adjudicative proceedings is limited and mostly experimental. Moreover, this work has not examined preferences in relation to repeated experience with various types of proceedings. We surveyed disputants who have experienced different types of proceedings in administrative adjudication and administrative law judge mediation in the Settlement Part Program at the Occupational Safety and Health Review Commission (OSHRC). We find that the higher the perceptions of procedural justice, the greater the preference for use of mediation. In addition, the more total experience disputants have in the OSHRC dispute system (including both adjudication ...
Sovereign Preemption State Standing, 2017 Emory University School of Law
Sovereign Preemption State Standing, Jonathan Remy Nash
Northwestern University Law Review
When does a state have standing to challenge the Executive Branch’s alleged underenforcement of federal law? The issue took on importance during the Obama Administration, with “red states” suing the Executive Branch over numerous issues, including immigration and health care. The question of state standing has already appeared in important litigation during the first months of the Trump Administration, only with the political orientation of the actors reversed.
This Article argues in favor of sovereign preemption state standing, under which a state would enjoy Article III standing to sue the federal government when (1) the federal government preempts state ...
“You Must Construct Additional Pylons”: Building A Better Framework For Esports Governance, 2017 Fordham University School of Law
“You Must Construct Additional Pylons”: Building A Better Framework For Esports Governance, Laura L. Chao
Fordham Law Review
The popularity of “esports,” also known as “electronic sports” or competitive video gaming, has exploded in recent years and captured the attention of cord-cutting millennials—often to the detriment of sports such as basketball, football, baseball, and hockey. In the United States, the commercial dominance of such traditional sports stems from decades of regulatory support. Consequently, while esports regulation is likely to emulate many aspects of traditional sports governance, the esports industry is fraught with challenges that inhibit sophisticated ownership and capital investment. Domestic regulation is complicated by underlying intellectual property ownership and ancillary considerations such as fluctuations in a ...
A "Delicate Balance": How Agency Nonacquiescence And The Epa's Water Transfer Rule Dilute The Clean Water Act After Catskill Mountains Chapter Of Trout Unlimited, Inc. V. City Of New York, 2017 University of Maine School of Law
A "Delicate Balance": How Agency Nonacquiescence And The Epa's Water Transfer Rule Dilute The Clean Water Act After Catskill Mountains Chapter Of Trout Unlimited, Inc. V. City Of New York, Kevin J. Haskins
Maine Law Review
Congress enacted the Clean Water Act (CWA) in 1972 with the express objective of restoring and maintaining the health of the nation’s waters. To achieve this objective, Congress declared that discharges of pollutants into the nation’s waters are prohibited unless they comply with permit requirements. The CWA’s primary vehicle for regulating discharge permits is the National Pollutant Discharge Elimination System, or NPDES. The CWA defines the phrase “discharge of a pollutant” as the “addition of any pollutant to navigable waters from any point source.” Although the CWA further defines the terms “pollutant,” “navigable waters,” and “point source ...
Uber, Lyft, And Regulating The Sharing Economy, 2017 Seattle University School of Law
Uber, Lyft, And Regulating The Sharing Economy, Brett Harris
Seattle University Law Review
The “sharing economy” goes by many names such as the “gig economy,” the “1099 economy,” and the “on-demand economy,” all of which describe the economic system that uses online platforms to connect workers and sellers with clients and consumers, primarily through smartphone applications. Many of the sharing economy companies are also called the “tech disruptors.” They earned this title because they have changed the way that people do business. But in changing the way that people do business, they have also created unique regulatory challenges for governments across the country. The news is rife with stories about when these regulations ...
Taking Notes In School (Committee): Cyr V. Madawaska, Blethen V. Portland School Committee, And The Public's Right To Know, 2017 University of Maine School of Law
Taking Notes In School (Committee): Cyr V. Madawaska, Blethen V. Portland School Committee, And The Public's Right To Know, Benjamin J. Tucker
Maine Law Review
In 2007, the Maine Supreme Judicial Court, sitting as the Law Court, decided Cyr v. Madawaska School Department, and recently decided Blethen Maine Newspapers Inc. v. Portland School Committee. These decisions will guide the actions and behavior of municipal, school department, and elected officials in Maine, and will also affect public access to information under Maine’s broad “right to know” law, the Freedom of Access Act (FOAA). In Cyr, a split court held that an investigative report commissioned by the Madawaska School Department must be redacted to maintain the confidentiality of information relating to the personal history, general character ...
Judicial Performance And Policy Implications In Moore V. Abbott, 2017 University of Maine School of Law
Judicial Performance And Policy Implications In Moore V. Abbott, Andrew C. Helman
Maine Law Review
In Moore v. Abbott, a divided Maine Supreme Judicial Court, sitting as the Law Court, held that a three-member panel organized by the Attorney General to investigate alleged misconduct by prosecutors and law enforcement officers did not constitute an "agency" or "public official" under Maine's Freedom of Access Act (FOAA). Therefore, the panel did not have to release records compiled during its review of the investigation and prosecution of Dennis Dechaine, who was convicted for the 1988 murder of Sarah Cherry. Justice Alexander, writing for the majority, applied a four-part test looking to whether the panel was the functional ...
Ideological Plaintiffs, Administrative Lawmaking, Standing, And The Petition Clause, 2017 University of Maine School of Law
Ideological Plaintiffs, Administrative Lawmaking, Standing, And The Petition Clause, Karl S. Coplan
Maine Law Review
Although Article I of the Constitution vests legislative power in the Congress, the lawmaking process in this country has evolved to involve all three branches. Congress enacts regulatory programs, but delegates to the executive branch the task of formulating and legislating the details of implementation through regulations. Once the executive branch agencies have acted, Article III courts routinely step in to review the consistency of these regulations with congressional mandates. In many cases, especially in the case of controversial regulations, the lawmaking process is not complete until judicial review. Entities burdened by such regulations-so-called "regulatory objects"-enjoy presumed standing to ...
Regulating A “Pariah” Industry: The Need For A Responsive Approach In Gambling Markets, 2017 University of Nevada, Las Vegas
Regulating A “Pariah” Industry: The Need For A Responsive Approach In Gambling Markets, Melissa Rorie
UNLV Gaming Research & Review Journal
Gaming regulators are uniquely positioned state agents, who must consider contradictory goals in their day-to-day actions. They must protect the public (and maintain the legitimacy of government) but are also responsible for ensuring that the gaming industry provides needed revenue to the state. To that end, regulators are not only responsible for promoting the legitimacy of the government but also, to some extent, must consider how they can encourage the legitimization of a previously illegal behavior. Prior research has examined regulators’ attempts to balance such “structural contradictions” through their licensing process, but little research has been done on regulatory responses ...
The Crime Of Conviction Of John Choon Yoo: The Actual Criminality In The Olc During The Bush Administration, 2017 University of Maine School of Law
The Crime Of Conviction Of John Choon Yoo: The Actual Criminality In The Olc During The Bush Administration, Joseph Lavitt
Maine Law Review
At the outset of the administration of President Barack Obama, there is intense debate about whether to prosecute members of the former administration of President George W. Bush. This Article first considers whether officers who were in command and control of the Executive Branch of the government of the United States during the Bush administration can be excused from criminal responsibility on charges of illegal torture, based on their claim to have acted in good faith reliance upon the advice of attorneys employed by the Department of Justice. Focus then turns to the accountability, if any, of those attorneys in ...
Anthem Health Plans Of Maine, Inc. V. Superintendent Of Insurance: Judicial Restraint Or Judicial Abdication?, 2017 University of Maine School of Law
Anthem Health Plans Of Maine, Inc. V. Superintendent Of Insurance: Judicial Restraint Or Judicial Abdication?, David E. Sorensen
Maine Law Review
When Maine’s Superintendent of Insurance told the state’s largest health insurer that it could not profit in 2009, her decision ended up on appeal before the Maine Supreme Judicial Court, sitting as the Law Court, in Anthem Health Plans of Maine, Inc. v. Superintendent of Insurance. As part of its annual rate approval process, Anthem had requested a 3% profit and risk margin on its individual lines of health insurance in Maine. Superintendent Mila Kofman denied this request under her statutory authority to deny any rate increase proposals that are “excessive, inadequate or unfairly discriminatory.” The Superintendent held ...