Ps V Ontario: Rethinking The Role Of The Charter In Civil Commitment, 2016 Allard School of Law at the University of British Columbia
Ps V Ontario: Rethinking The Role Of The Charter In Civil Commitment, Isabel Grant, Peter J. Carver
All Faculty Publications
In PS v Ontario, the Ontario Court of Appeal held that section 7 of the Charter requires that persons who are civilly committed for six months or more must have access to a meaningful review process that has jurisdiction over the conditions of their detention. In this paper, the authors argue that this decision has broad implications for provincial civil commitment regimes across the country. In particular, the fact that the court analogized to the Criminal Code Review Board jurisprudence opens the door to a fuller recognition of the profound deprivation of liberty that is involved in all civil commitments. …
Environmental Regulation Going Retro: Learning Foresight From Hindsight, 2016 Duke Law School
Environmental Regulation Going Retro: Learning Foresight From Hindsight, Jonathan B. Wiener, Daniel L. Ribeiro
Faculty Scholarship
No abstract provided.
Complying With The Hipaa Privacy Rule: Problems And Perspectives, 2016 University of Nevada, Las Vegas -- William S. Boyd School of Law
Complying With The Hipaa Privacy Rule: Problems And Perspectives, Stacey A. Tovino
Scholarly Works
Twenty years ago, President Clinton signed the Health Insurance Portability and Accountability Act of 1996 (HIPAA) into law. Over the past two decades, the federal Department of Health and Human Services (HHS) has published several sets of rules implementing the Administrative Simplification provisions within HIPAA as well as the Health Information Technology for Economic and Clinical (HITECH) Act within the American Recovery and Reinvestment Act (ARRA). These rules include a final rule governing the use and disclosure of protected health information by covered entities and their business associates (Privacy Rule).
This Article addresses the question of what it means for …
Crafting Comment Letters: Teach Policy, Develop Skills, And Shape Pending Regulation, 2016 University of Nevada, Las Vegas -- William S. Boyd School of Law
Crafting Comment Letters: Teach Policy, Develop Skills, And Shape Pending Regulation, Benjamin P. Edwards, Nicole G. Iannarone
Scholarly Works
Professor Benjamin Edwards joins his colleague, Professor Nicole Iannarone, in this essay, unpacking the regulatory comment letter process and how to incorporate it into the law school curriculum. Participating in live rulemaking offers unique opportunities for students including mastering the substantive area of law, developing critical thinking skills, and developing their professional identities. The authors describe their own experiences in incorporating students into the regulatory rulemaking process. Because of the focus on securities law, their students review and comment on proposed actions by securities regulators - the Financial Industry Regulatory Authority (FINRA) and Securities and Exchange Commission (SEC). After providing …
Filling The Regulatory Void In The Fx Spot Market: How Traders Rigged The Biggest Market In The World, 2016 Fordham Law School
Filling The Regulatory Void In The Fx Spot Market: How Traders Rigged The Biggest Market In The World, Colleen Powers
Fordham Urban Law Journal
No abstract provided.
The Illusion Of Recovery In New Orleans: Displaced, Misplaced, And Replaced, 2016 Bard College
The Illusion Of Recovery In New Orleans: Displaced, Misplaced, And Replaced, Troy Lee Robertson
Senior Projects Spring 2016
Senior Project submitted to The Division of Social Studies of Bard College.
Don't Be Cruel (Anymore): A Look At The Animal Cruelty Regimes Of The United States And Brazil With A Call For A New Animal Welfare Agency, 2016 Elisabeth Haub School of Law at Pace University
Don't Be Cruel (Anymore): A Look At The Animal Cruelty Regimes Of The United States And Brazil With A Call For A New Animal Welfare Agency, David N. Cassuto
Elisabeth Haub School of Law Faculty Publications
In the United States and around the world, animals exploited for human use suffer cruel and needless harm. The group bearing the brunt of this exploitation--agricultural animals--is routinely exempted from the largely ineffective and rarely enforced animal welfare and anti-cruelty regulations that exist today. This Article offers a comparative analysis of the agricultural animal welfare regimes of two countries with globally significant presence in the agriculture industry: the United States and Brazil. Even though the two countries approach agricultural animal welfare differently, they arrive at the same outcome: institutionalized indifference to animal suffering. To remedy the current regulatory structure, this …
The Neo-Liberal Turn In Environmental Regulation, 2016 Elisabeth Haub School of Law at Pace University
The Neo-Liberal Turn In Environmental Regulation, Jason J. Czarnezki
Elisabeth Haub School of Law Faculty Publications
Regulation has taken a neoliberal turn, using market-based mechanisms to achieve social benefits, especially in the context of environmental protection, and promoting information dissemination, labeling, and advertising to influence consumer preferences. Although this turn to neoliberal environmental regulation is well under way, there have been few attempts to manage this new reality. Instead, most commentators simply applaud or criticize the turn. If relying on neoliberal environmental reform (i.e., facing this reality regardless of one’s view of this turn), regulation and checks on these reforms are required. This Article argues that in light of the shift from traditional to neoliberal “substantive” …
Teaching Substantive Environmental Law And Practice Skills Through Interest Group Role-Playing, 2016 Pace Law School
Teaching Substantive Environmental Law And Practice Skills Through Interest Group Role-Playing, Karl S. Coplan
Elisabeth Haub School of Law Faculty Publications
Most law students take their first introductory course in environmental law during their second year of law school. The traditional first-year curriculum does little to prepare students for the complex statutory and regulatory models for most environmental regulation. Law students at the end of their first year often have had little exposure to statutory interpretation. Further, they often have no exposure to administrative law and regulatory implementation. These students may expect statutes to provide clear statements of rules rather than guidelines for administrative rulemaking. They also tend to view the lawmaking and interpretive process through the traditional lens of congressional …
Unappealing: An Assessment Of The Limits On Appeal Rights In Canada's New Refugee Determination System, 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
Articles & Book Chapters
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 bars …
Just A Miner Threat? The Fourth Circuit Refuses To Review Temporary Reinstatement Orders Through The Collateral Order Doctrine, 2016 University of Oklahoma College of Law
Just A Miner Threat? The Fourth Circuit Refuses To Review Temporary Reinstatement Orders Through The Collateral Order Doctrine, Lindsay N. Kistler
Oklahoma Law Review
No abstract provided.
The Freedom To Pursue A Common Calling: Applying Intermediate Scrutiny To Occupational Licensing Statutes (Note), 2016 St. Mary’s University School of Law
The Freedom To Pursue A Common Calling: Applying Intermediate Scrutiny To Occupational Licensing Statutes (Note), Alexandra L. Klein
Faculty Articles
After the devastation of Hurricane Katrina, the monks at St. Joseph Abbey in Louisiana sought a new source of income. They began producing simple wooden coffins priced at much lower rates than caskets sold in funeral homes. After the Abbey had made a large investment in its business, St. Joseph Woodworks, the Louisiana State Board of Embalmers and Funeral Directors ordered it to close. Although the monks did not provide funeral or embalming services, a Louisiana statute regulating the funeral industry prohibited the monks from selling coffins.
Under the statute, "funeral directing" included "any service whatsoever connected with... the purchase …
Without Deference, 2016 Notre Dame Law School
Without Deference, Jeffrey Pojanowski
Journal Articles
This essay explores what judicial review of agency interpretations of law would look like if the Supreme Court abandoned Chevron deference in favor de novo review. It concludes that such an alternative regime has appealing features, but may not bring as much immediate, practical change as many critiques or defenses of Chevron presume. The largest change would come from how we think about law and policy in the administrative state. The theoretical scaffolding that would uphold a regime of non-deferential review is far more classical in cast than the moderate legal realism underwriting Chevron. The more traditional character of this …
Legal Pathways To Reducing Greenhouse Gas Emissions Under Section 115 Of The Clean Air Act, 2016 Columbia Law School, Sabin Center for Climate Change Law
Legal Pathways To Reducing Greenhouse Gas Emissions Under Section 115 Of The Clean Air Act, Michael Burger, Ann E. Carlson, Michael B. Gerrard, Jayni Foley Hein, Jason A. Schwartz, Keith J. Benes
Faculty Scholarship
Under President Barack Obama the U.S. Environmental Protection Agency has promulgated a series of greenhouse gas emissions regulations, initiating the necessary national response to climate change. However, the United States will need to find other ways to reduce GHG emissions if it is to live up to its international emissions reduction pledges, and to ultimately lead the way to a zero-carbon energy future. This paper argues that the success of the recent climate negotiations in Paris provides a strong basis for invoking a powerful tool available to help achieve the country’s climate change goals: Section 115 of the Clean Air …
Public Participation In Risk Regulation: The Flaws Of Formality, 2016 SJ Quinney College of Law, University of Utah
Public Participation In Risk Regulation: The Flaws Of Formality, Emily Hammond
Utah Law Review
Dread risks draw significant public attention in both the administrative process and the courts. Yet there are a number of dysfunctions at the intersection of procedures, participation, and agency decision-making regarding such risks. This Article elaborates the participatory dysfunctions for dread risk regulation, considering formal APA procedures as well as casting complexity as a variety of formality. Inspired by recent executive actions for improving participation and incorporating social science insights into the regulatory process, this Article sets a research agenda that spans the fields of risk perception, procedural justice, and administrative law.
Something Old, Something New: Reflections On The Sex Bureaucracy, 2016 New York University Law School
Something Old, Something New: Reflections On The Sex Bureaucracy, Melissa Murray, Karen M. Tani
All Faculty Scholarship
This essay responds to “The Sex Bureaucracy,” in which Jacob Gersen and Jeannie Suk identify a “bureaucratic turn in sex regulation” — one that has expanded the reach of sexual regulation to include “nonviolent, non-harassing, voluntary sexual conduct” (or in their words, “ordinary sex”). In their view, the Department of Education’s campaign against sexual assault on college campuses epitomizes this bureaucratic shift. While applauding the authors’ attention to the intersection of sexuality and governance, we challenge their account of the “bureaucratic turn” as an unprecedented event. Drawing on examples from across U.S. history, we show how administrative agencies and unelected …
Category Errors And Executive Power, 2016 Case Western University School of Law
Category Errors And Executive Power, Jonathan Adler
Faculty Publications
In the context of implementing the Affordable Care Act and the Clean Air Act, the Obama Administration has asserted not only the authority to determine when, and how stringently, to enforce relevant provisions, but also the authority to waive or delay legal obligations enacted by Congress. These actions have prompted accusations that the Administration is exceeding the proper bounds of executive authority. The ensuing debate – and litigation – over these actions has generated a good deal of confusion about the nature and scope of executive power. Commentators have often misunderstood or mischaracterized the nature of the acts taken and …
Debunking Humphrey's Executor, 2016 University of Michigan Law School
Debunking Humphrey's Executor, Daniel A. Crane
Articles
The Supreme Court’s 1935 Humphrey’s Executor decision paved the way for the modern administrative state by holding that Congress could constitutionally limit the President’s powers to remove heads of regulatory agencies. The Court articulated a quartet of features of the Federal Trade Commission’s (“FTC”) statutory design that ostensibly justified the Commission’s constitutional independence. It was to be nonpartisan and apolitical, uniquely expert, and performing quasi-legislative and quasi-judicial, rather than executive, functions. In recent years, the staying power of Humphrey’s Executor has been called into question as a matter of constitutional design. This Essay reconsiders Humphrey’s Executor from a different angle. …
Transubstantiation In Canadian Public Law: Processing Substance And Instantiating Process, 2016 Allard School of Law at the University of British Columbia
Transubstantiation In Canadian Public Law: Processing Substance And Instantiating Process, Mary Liston
All Faculty Publications
Canadian public law blurs process and substance, a result confirming the prevailing view that this dichotomy ought never to be conceived as a simplistic bright-line distinction. Recent developments have created more than just a blurring but, rather, a strong linking or even fusion of the two. This paper probes the implications of these developments in public law. Section two briefly presents the historic and jurisprudential distinctions between process and substance and assesses its current legal import. Here I argue that judicially created analytic frameworks could assist by bringing a process-substance problem to the surface and constraining its potentially pernicious effects. …
Traditional Ecological Rulemaking, 2016 University of Maine School of Law
Traditional Ecological Rulemaking, Anthony Moffa
Faculty Publications
This Article examines the implications of an increased role for Traditional Ecological Knowledge (TEK) in United States agency decisionmaking. Specifically, it contemplates where TEK might substantively and procedurally fit and, most importantly, whether a final agency action based on TEK would survive judicial scrutiny. In the midst of a growing body of scholarship questioning the wisdom of deference to agency expertise9 and the legitimacy of the administrative state writ large,10 this Article argues that there remains an important space in administrative rulemaking for the consideration of ways of understanding that differ from traditional Western norms. TEK can and should fill …