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Deference To The Agency Is The Best Policy: The D.C. Circuit Applies Chevron In Denying Additional Medicare Reimbursements To Provider Hospitals In Washington Regional Medicorp, Brandon Curtin 2017 Boston College Law School

Deference To The Agency Is The Best Policy: The D.C. Circuit Applies Chevron In Denying Additional Medicare Reimbursements To Provider Hospitals In Washington Regional Medicorp, Brandon Curtin

Boston College Law Review

On December 29, 2015, in Washington Regional Medicorp v. Burwell, the U.S. Court of Appeals for the District of Columbia Circuit held that the Secretary of Health and Human Services (“HHS”) correctly interpreted the Tax Equity and Fiscal Responsibility Act of 1982 (“TEFRA”) in calculating Medicare reimbursements for a provider hospital based on the capped target amount from the previous year. In agreeing with the Secretary, the D.C. Circuit joined the U.S. Courts of Appeals for the Third and Sixth Circuits in holding that the statute and its implementing regulations supported the Secretary. The U.S. Court ...


“Safe Harbor” On The Rocks: Ttb Label Approval For Beer, Wine, And Spirits, And The Uncertain Status Of The “Safe Harbor” Defense, Michael Mercurio 2017 Notre Dame Law School

“Safe Harbor” On The Rocks: Ttb Label Approval For Beer, Wine, And Spirits, And The Uncertain Status Of The “Safe Harbor” Defense, Michael Mercurio

Notre Dame Journal of International & Comparative Law

This Note examines the U.S. Alcohol and Tobacco Tax and Trade Bureau (TTB)’s label review process and the judicial split regarding the “safe harbor” doctrine in the context of alcoholic beverage labels. This Note observes that the judicial split is a result of the tension between two conflicting priorities stemming from the TTB’s purpose and identity: on one hand, courts apply Chevron deference to the TTB as a federal agency enforcing federal law, but on the other hand, courts aim to uphold the central purpose of the Federal Alcohol Administration (FAA) Act—protecting consumers from misinformation. Ultimately ...


Paying Too Dearly For A Whistle: Properly Protecting Internal Whistleblowers, Leonardo Labriola 2017 Fordham University School of Law

Paying Too Dearly For A Whistle: Properly Protecting Internal Whistleblowers, Leonardo Labriola

Fordham Law Review

In light of substantial disagreement among the circuits on which types of whistleblowers Dodd-Frank intends to protect, and newly proposed legislation which suggests a solution, this Note inspects Dodd-Frank’s whistleblower protections in an effort to better explain which types of Business Organizations whistleblowers should and should not be protected. This Note briefly outlines the United States’s repeated history of increased regulation following financial crises, culminating in the Sarbanes-Oxley and Dodd-Frank Acts. It then describes the goals that motivated these acts and how whistleblowers play an outsized role in accomplishing those goals. It also examines the critical statute for ...


Barriers To Participatory Erulemaking Platform Adoption: Lessons Learned From Regulationroom, Mary J. Newhart, Joshua D. Brooks 2017 Cornell eRulemaking Initiative, Cornell Law School

Barriers To Participatory Erulemaking Platform Adoption: Lessons Learned From Regulationroom, Mary J. Newhart, Joshua D. Brooks

Cornell e-Rulemaking Initiative Publications

Rulemaking, the process through which United States (U.S.) federal government agencies develop major health, safety and economic regulations, was an early target of electronic government (e-government) efforts. Because it was an established decision-making process that had substantial formal requirements of transparency, public participation and responsiveness it seemed a perfect target for technology-supported participatory policymaking. It was believed that new technologies could transform rulemaking, increasing its democratic legitimacy and improving its policy outcomes by broadening the range of participating individuals and groups (Brandon and Carlitz, 2003; Coglianese, 2004; Noveck, 2004). Despite the promise of a more deliberative and democratic process ...


Comment: Prison For You. Profit For Me. Systemic Racism Effectively Bars Blacks From Participation In Newly-Legal Marijuana Industry, Elizabeth Danquah-Brobby 2017 University of Baltimore Law

Comment: Prison For You. Profit For Me. Systemic Racism Effectively Bars Blacks From Participation In Newly-Legal Marijuana Industry, Elizabeth Danquah-Brobby

University of Baltimore Law Review

Historically, blacks have been prosecuted and convicted across the United States at significantly higher rates when compared to whites for marijuana-related crimes, despite the fact that studies indicate marijuana use by whites and blacks is relatively equal. Further, individuals with lower economic means were dually susceptible to conviction as a result of less vigorous legal representation.

Now, laws have legalized marijuana for medicinal purposes in twenty-six states, along with a small portion of states (seven) legalizing marijuana for recreational use. Yet retroactive ameliorative relief is not widely available to those who were convicted under circumstances that are now legal, and ...


Wetlands Jurisdictional Determinations Reviewable Under The Administrative Procedure Act In U.S. Army Corps Of Engineers V. Hawkes, Emily R. Paulus 2017 Villanova University Charles Widger School of Law

Wetlands Jurisdictional Determinations Reviewable Under The Administrative Procedure Act In U.S. Army Corps Of Engineers V. Hawkes, Emily R. Paulus

Villanova Environmental Law Journal

No abstract provided.


Bureaucracy As The Border: Administrative Law And The Citizen Family, Kristin Collins 2017 Boston University

Bureaucracy As The Border: Administrative Law And The Citizen Family, Kristin Collins

Faculty Scholarship

This contribution to the symposium on administrative law and practices of inclusion and exclusion examines the complex role of administrators in the development of family-based citizenship and immigration laws. Official decisions regarding the entry of noncitizens into the United States are often char acterized as occurring outside of the normal constitutional and administrative rules that regulate government action. There is some truth to that description. But the historical sources examined in this Article demonstrate that in at least one important respect, citizenship and immigration have long been similar to other fields of law that are primarily implemented by agencies: officials ...


Remedial Restraint In Administrative Law, Nicholas Bagley 2017 University of Michigan Law School

Remedial Restraint In Administrative Law, Nicholas Bagley

Articles

When a court determines that an agency action violates the Administrative Procedure Act, the conventional remedy is to invalidate the action and remand to the agency. Only rarely do the courts entertain the possibility of holding agency errors harmless. The courts’ strict approach to error holds some appeal: Better a hard rule that encourages procedural fastidiousness than a remedial standard that might tempt agencies to cut corners. But the benefits of this rule-bound approach are more elusive, and the costs much larger, than is commonly assumed. Across a wide range of cases, the reflexive invalidation of agency action appears wildly ...


Catskill Mountains Chapter Of Trout Unlimited, Inc. V. United States Environmental Protection Agency, Benjamin W. Almy 2017 Alexander Blewitt III School of Law at the University of Montana

Catskill Mountains Chapter Of Trout Unlimited, Inc. V. United States Environmental Protection Agency, Benjamin W. Almy

Public Land and Resources Law Review

Trout Unlimited’s effort to overturn the EPA’s Water Transfers Rule was stifled by the Second Circuit. The court’s comprehensive Chevron analysis determined that while the NPDES Water Transfers Rule may be at odds with the Clean Water Act’s mission, it was based on a reasonable interpretation of the statute’s ambiguous language, and therefore it did not violate the Administrative Procedures Act.


Integrating Indigenous Rights Into Multilateral Environmental Agreements: The International Whaling Commission And Aboriginal Subsistence Whaling, Chris Wold 2017 Lewis & Clark Law School

Integrating Indigenous Rights Into Multilateral Environmental Agreements: The International Whaling Commission And Aboriginal Subsistence Whaling, Chris Wold

Boston College International and Comparative Law Review

Although the international community has addressed whether environmental harm violates human rights norms, only recently has it asked whether international organizations must implement those norms. That changed when Greenland posited that the International Whaling Commission (IWC) has a duty to implement aboriginal subsistence whaling (ASW) in light of customary international human rights norms, including the rights to cultural identity and resources. This article explains why international organizations have an obligation to implement customary international human rights law. Implementation, however, may be challenging because the content of some rights is not clear. In addition, these rights are not absolute. Actions may ...


Hastening Harmonization In European Union Patent Law Through A Preliminary Reference Power, Joseph Kenneth Yarsky 2017 Boston College Law School

Hastening Harmonization In European Union Patent Law Through A Preliminary Reference Power, Joseph Kenneth Yarsky

Boston College International and Comparative Law Review

The European Union has struggled for decades to establish a streamlined method of uniform patent protection. Its current solution involves both a European Patent of Unitary Effect and the implementation of the Unified Patent Court to adjudicate patent claims. The current proposal, however, does not eliminate the two other routes to patent protection that currently exist: national patent grants and classical European patents. The existence of three possible routes to patent protection could lead to increased fragmentation in the way patents are interpreted across the European Union. Creating a more unified system entails both ensuring that the substantive patent law ...


Food Date Labels And Hunger In America, Gwen B. Thomson 2017 Concordia University School of Law

Food Date Labels And Hunger In America, Gwen B. Thomson

Concordia Law Review

Millions of Americans go hungry, while 40% of the food in the United States is wasted. Research has shown that 43% of the waste occurs in homes and that consumers are making decisions about purchasing and throwing away food without understanding the meaning of the food date labels. One of the most cost-effective ways to begin to effect a change is to eliminate the myriad of confusing food date labels so that individuals do not throw away good food. In May 2016, the Food Date Labeling Act of 2016 was proposed in both houses of Congress. This bicameral bill was ...


Choosing Your Ground On The Endangered Species Act: How Do The Ninth, Tenth, And District Of Columbia Circuit Courts Of Appeal Evaluate Water Management Decisions Made By Federal Water Agencies?, Michael Kinsey 2017 Pace University

Choosing Your Ground On The Endangered Species Act: How Do The Ninth, Tenth, And District Of Columbia Circuit Courts Of Appeal Evaluate Water Management Decisions Made By Federal Water Agencies?, Michael Kinsey

Pace Environmental Law Review

The purpose of this article is twofold. First, federal agencies are responsible for the development and implementation of ESA documents, and knowing what a court will look for and at when that document is challenged can help the agencies to develop a document that can better survive court review. Second, a plaintiff who challenges such a document can benefit from that same knowledge, by knowing which elements of the document to best challenge. The intent of this article is to provide practitioners, both agency and non-, with an introduction to that knowledge, to identify some of those difficulties, dangers, and ...


“Hurdling” Gender Identity Discrimination: The Implications Of State Participation Policies On Transgender Youth Athletes’ Ability To Thrive, Kayla L. Acklin 2017 Boston College Law School

“Hurdling” Gender Identity Discrimination: The Implications Of State Participation Policies On Transgender Youth Athletes’ Ability To Thrive, Kayla L. Acklin

Boston College Journal of Law & Social Justice

The number of students, in grades kindergarten through high school, who identify as transgender has steadily increased during the last decade. These students seek the same opportunities as their cisgender peers, but are often denied participation in athletic activities because of their non-conforming gender-behavior. Currently, there is no federal law governing transgender participation in sports, which has resulted in an inconsistency among state athletic associations’ participation policies; the vast majority of states restricts participation. These states are limiting transgender students’ ability to receive the benefits that sports provide. To solve this inconsistency and provide equal opportunity for transgender students, this ...


Unsafe Harbor: The European Union's Demand For Heightened Data Privacy Standards In Schrems V. Irish Data Protection Commissioner, Christina Lam 2017 Boston College Law School

Unsafe Harbor: The European Union's Demand For Heightened Data Privacy Standards In Schrems V. Irish Data Protection Commissioner, Christina Lam

Boston College International and Comparative Law Review

In 1995, the European Union adopted the Data Protection Directive to govern the processing, use, and exchange of personal data. The United States refused to enact similar legislation, consequently jeopardizing ongoing and future data transfers with the European Union. To prevent economic catastrophe, the United States negotiated with the European Union to reach the Safe Harbor Agreement and, on July 26, 2000, the European Commission formally recognized the agreement as compliant with the Data Protection Directive in its Safe Harbor Decision. In 2013, U.S. data protection standards were once again placed under the microscope when Edward Snowden leaked information ...


Advancing Auer In An Era Of Retreat, Stephen M. Johnson 2017 College of William & Mary Law School

Advancing Auer In An Era Of Retreat, Stephen M. Johnson

William & Mary Environmental Law and Policy Review

No abstract provided.


Obesity Prevention Policies At The Local Level: Tobacco's Lessons, Paul A. Diller 2017 University of Maine School of Law

Obesity Prevention Policies At The Local Level: Tobacco's Lessons, Paul A. Diller

Maine Law Review

For at least a decade, commentators have speculated that obesity is the next tobacco, a public health scourge that might nonetheless offer a gold mine to ambitious plaintiffs’ lawyers. Successful lawsuits, as in the tobacco context, might spur the food industry to reform its practices so as to help reduce the alarmingly high national obesity rate. The obesity narrative, however, has not played out accordingly to the same script as tobacco. Relatively quick action by most state legislatures immunized the food industry to tort lawsuits seeking obesity-related damages, and the scant judicial opinions on the issue have skeptically assessed plaintiffs ...


Fuhrmann V. Staples Office Superstore East, Inc.: A Split In The Law Court As To The Definition Of "Employer" Demonstrates The Need For Legislative Action To Amend The Maine Human Rights Act In Order To Protect Maine Employees, Stephen B. Segal 2017 University of Maine School of Law

Fuhrmann V. Staples Office Superstore East, Inc.: A Split In The Law Court As To The Definition Of "Employer" Demonstrates The Need For Legislative Action To Amend The Maine Human Rights Act In Order To Protect Maine Employees, Stephen B. Segal

Maine Law Review

In Fuhrmann v. Staples Office Superstore East, Inc., Jamie Fuhrmann submitted a complaint to the Maine Human Rights Commission (Commission) against her former employer, Staples Office Superstore East, Inc. (Staples), and four of her individual supervisors. After the Commission granted her right to sue, she filed a complaint in court alleging whistleblower retaliation under the Whistleblowers’ Protection Act (WPA) and the Maine Human Rights Act (MHRA), as well as sex discrimination under the MHRA. The Superior Court granted Staples’ motion for summary judgment on all counts, and granted the four supervisors’ motions to dismiss on the grounds that individual supervisor ...


Ohio Valley Environmental Coalition V. Fola Coal Company, Llc, Emily A. Slike 2017 Alexander Blewett III School of Law at the University of Montana

Ohio Valley Environmental Coalition V. Fola Coal Company, Llc, Emily A. Slike

Public Land and Resources Law Review

Disregarding CWA regulations, WVDEP allowed for a state coal mining company, Fola, to discharge pollutants into the Stillhouse Branch without regard for water quality violations. Fola claimed that because it held a WV/NPDES permit, it was shielded from any liability so long as the company followed the permit’s provisions, even if its discharge violated CWA water quality standards.


Hawkes Co. V. United States Army Corps Of Engineers, Sarah M. Danno 2017 University of Montana School of Law

Hawkes Co. V. United States Army Corps Of Engineers, Sarah M. Danno

Public Land and Resources Law Review

A peat mining company will not be required to obtain a permit under the Clean Water Act to discharge dredged and fill material into wetlands. The United States District Court for the District of Minnesota held that the United States Army Corps of Engineers fell short in its attempts to establish jurisdiction over the wetlands by twice failing to show a significant nexus existed between the wetlands and navigable waters. Further, the district court enjoined the Corps from asserting jurisdiction a third time because it would force the mining company through a “never ending loop” of administrative law.


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