Administrative Law Commons^™

Improving Higher Education Regulation, Wendell Pritchett

The Regulatory Review in Depth

No abstract provided.

Human Survival, Risk, And Law: Considering Risk Filters To Replace Cost-Benefit Analysis, John William Draper

Librarian Scholarship at Penn Law

Selfish utilitarianism, neo-classical economics, the directive of short-term income maximization, and the decision tool of cost-benefit analysis fail to protect our species from the significant risks of too much consumption, pollution, or population. For a longer-term survival, humanity needs to employ more than cost-justified precaution.

This article argues that, at the global level, and by extension at all levels of government, we need to replace neo-classical economics with filters for safety and feasibility to regulate against significant risk. For significant risks, especially those that are irreversible, we need decision tools that will protect humanity at all scales. This article describes …

Inquiry Into The Implementation Of Bush’S Executive Order 13211 And The Impact On Environmental And Public Health Regulation, Elizabeth Ann Glass Geltman, Gunwant Gill, Miriam Jovanovic

Publications and Research

Executive Order 13211, promulgated in 2001, requires the federal government to consider the impact of federal action on energy independence as part of the George W. Bush’s National Energy Policy. This law review examines whether EO 13211 was used to curtail environmental protection and natural resource conservation. The article begins with a review of the procedure required of federal agencies under EO 13211 and its associated documents. The paper then examines case law and published federal rulemaking proceedings and examines how federal agencies apply tests to evaluate the potential energy effect. The study concludes that EO 13211 strikes a reasonable …

Congress, Tribal Recognition, And Legislative-Administrative Multiplicity, Kirsten Matoy Carlson

Indiana Law Journal

Most descriptions of federal recognition by political scientists, anthropologists, and legal scholars focus on an administrative process run by the Office of Federal Acknowledgment (OFA) within the Bureau of Indian Affairs (BIA). To the extent that scholars discuss the role of Congress in recognizing Indian nations, they suggest that it plays a diminishing one. In fact, this misconception pervades the field. Most scholars assume that Congress has largely ceded control over the recognition of Indian nations to the BIA.

This discrepancy begs the question: Who has it right? Hollywood screenwriters or the academic experts? The answer to this question matters …

Foreword: Lawyering In The Regulatory State, Nancy J. Moore

Fordham Law Review

The authors use a variety of methodologies, including traditional legal analysis, as well as empirical and historical research. Finally, they focus on such diverse issues as the role of agencies in facilitating access to justice, the lawyer’s role as gatekeeper in agency litigation and regulatory compliance, and the unique role of the in-house lawyer, both private and public. Taken together, they open a large window on the complex work of many lawyers who are often overlooked in the legal profession’s literature.

Recalling The Lawyers: The Nhtsa, Gm, And The Chevrolet Cobalt, Bernard W. Bell

Fordham Law Review

This Article summarizes product safety and vehicle safety law and recounts General Motors Company’s (GM) response to the Cobalt ignition switch defect, paying particular attention to the actions of GM’s in-house and outside counsel. This Article then considers the legality and prudence of a regulatory agency’s imposition of gatekeeping responsibilities on such counsel.

Lawyering Within The Domain Of Expertise, David Mcgowan

Fordham Law Review

This Article uses the history of patent prosecution to assess the relationship between the practice of law and the claim of an administrative agency to possess and to employ expertise.

Lawyers In The Shadow Of The Regulatory State: Transnational Governance On Business And Human Rights, Milton C. Regan Jr., Kath Hall

Fordham Law Review

Lawyers are beginning to play an important role in strengthening the system of transnational governance that regulates business and human rights. In setting the background to our discussion of lawyers’ role in this context, Part I of this Article provides a general overview of the emergence of the transnational governance regime. Part II then describes some of the governance instruments that attempt to prevent and rectify the adverse human rights impacts of business activities. Part III discusses the extent to which lawyers are advising their business clients on human rights issues, the factors that may inhibit or encourage the provision …

Nothing Could Be Finer?: The Role Of Agency General Counsel In North And South Carolina, Elizabeth Chambliss, Dana Remus

Fordham Law Review

This Article examines the role of agency general counsel in North and South Carolina. The two states offer a rich comparative context for research on agency general counsel. Though closely linked in both name and culture, they have different executive structures and recent political histories, and the agency counseling function has evolved and is currently organized in different ways. These structural and political differences at the state level illuminate commonalities and differences at the agency level and provide an accessible starting point for broader state-level research. Part I examines the structural evolution of the agency general counsel position and the …

Moving Beyond “Reasonable”: Clarifying The Ftc’S Use Of Its Unfairness Authority In Data Security Enforcement Actions, Timothy E. Deal

Fordham Law Review

Data security breaches, which compromise private consumer information, seem to be an ever-increasing threat. To stem this tide, the Federal Trade Commission (FTC) has relied upon its authority to enforce the prohibition against unfair business practices under section 5 of the Federal Trade Commission Act (“section 5”) to hold companies accountable when they fail to employ data security measures that could prevent breaches. Specifically, the FTC brings enforcement actions when it finds that companies have failed to implement “reasonable” data security measures. However, companies and scholars argue that the FTC has not provided adequate notice of which data security practices …

Innovation Prizes In Practice And Theory, Michael J. Burstein, Fiona Murray

Articles

Innovation prizes in reality are significantly different from innovation prizes in theory. The former are familiar from popular accounts of historical prizes like the Longitude Prize: the government offers a set amount for a solution to a known problem, like £20,000 for a method of calculating longitude at sea. The latter are modeled as compensation to inventors in return for donating their inventions to the public domain. Neither the economic literature nor the policy literature that led to the 2010 America COMPETES Reauthorization Act — which made prizes a prominent tool of government innovation policy — provides a satisfying justification …

Collaborative Gatekeepers, Stavros Gadinis, Colby Mangels University Of California - Berkeley

Washington and Lee Law Review

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. Yet, …

The Laws Of Agency Lawyering, George M. Cohen

Fordham Law Review

The great variety of agency rules governing lawyers raises interesting questions that are worth exploring. This Article begins that exploration. Part I lays the groundwork by briefly examining how the ABA Model Rules treat regulatory lawyering to raise the question of what regulatory gaps the agency rules might be expected to fill. Part II sets forth several possible theories of agency rule variation. Part III compares agency rules along a number of dimensions, examines some similarities and differences across agencies as well as between the agency rules and the Model Rules, and offers speculations about what may be driving the …

The Aftermath Of Alt V. Epa: Unresolved Tensions In Poultry Farm Pollution Control, Alison Peck

West Virginia Law Review

No abstract provided.

Despite What You've Been Sold - Unwrapping The Falsities Surounding Food Labels, Camille Currey

West Virginia Law Review

No abstract provided.

Fixing The Fmla's Flaws: A Fight For Care, Adult Children, And Tax Incentives, Kelsey A. Jonas

West Virginia Law Review

No abstract provided.

Standing For (And Up To) Separation Of Powers, Kent H. Barnett

Scholarly Works

The U.S. Constitution requires federal agencies to comply with separation-of-powers (or structural) safeguards, such as by obtaining valid appointments, exercising certain limited powers, and being sufficiently subject to the President’s control. Who can best protect these safeguards? A growing number of scholars call for allowing only the political branches — Congress and the President — to defend them. These scholars would limit or end judicial review because private judicial challenges are aberrant to justiciability doctrine and lead courts to meddle in minor matters that rarely effect regulatory outcomes.

This Article defends the right of private parties to assert justiciable structural …

Ttab Decisions No Longer The “Red-Headed Stepchild” Of Precedential Authority, Rebecca Knight

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

Kebijakan Bailout Century: Diskresi Atau Kriminalisasi Kebijakan, Lily Evelina Sitorus

Jurnal Hukum & Pembangunan

Century bailout policy is the government's discretion. However, when there is resistance in the Parliament, this policy is a problem that until now has not as well satisfy the parties. On the other hand, the economic crisis is a reality that is happening in the community. Government as the policy makers feel they have the authority as stipulated in the legislation in force. Therefore, the decision to prosecute government policy is regarded as a form of criminalization policies. This study tried to find a middle ground on the issue. The standpoint of administrative law is used as an analysis in …

Agency Activism As A New Way Of Life: Administrative Modification Of The Internal Revenue Code Through Limited Issue Focused Examinations, W Edward Afield

W. Edward "Ted" Afield

In the name of increasing efficiency and better utilizing limited resources, the IRS has begun to adopt audit policies that overly favor taxpayers and greatly hinder the IRS’s ability to perform thorough audits. Highlighting this trend is a relatively new audit technique used by the Large to Mid-Size Business Division (LMSB), known as the Limited Issue Focused Examination (LIFE) Process. Under LIFE, the LMSB has attempted to involve taxpayers in the audit process by sharing responsibility for timely completion of the audit and has attempted to streamline the audit by reducing the scope of issues examined and applying materiality thresholds …