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Auer Deference: Doubling Down On Delegation's Defects, Ronald A. Cass 2018 Boston University School of Law

Auer Deference: Doubling Down On Delegation's Defects, Ronald A. Cass

Fordham Law Review

Together with the better-known Chevron deference rule, the doctrine articulated in Auer v. Robbins two decades ago—which makes reasonable administrative constructions of ambiguous administrative rules binding on courts in most circumstances—has become a focal point for concerns about the expanding administrative state. Auer deference, even more than Chevron deference, enlarges administrative authority in ways that are at odds with basic constitutional structures and due process requirements. Objections to Auer have provided cogent reasons for why courts should not grant deference to administrative interpretations merely because an agency’s rule is unclear. The most commonly voiced objections, however, do ...


Home Rules: The Case For Local Administrative Procedure, Casey Adams 2018 Fordham University School of Law

Home Rules: The Case For Local Administrative Procedure, Casey Adams

Fordham Law Review

Administrative law is critical to the modern practice of governance. Administrative rules fill the gaps in statutes left open by lawmakers, allow agencies to exercise legislative grants of authority and discretion, and give agencies with subject-matter expertise and frontline experience the opportunity to promulgate detailed standards and requirements in their designated issue areas. Adjudication allows an agency to dispose of matters and disputes formally before it, whether under its rules or another source of law. While agencies at every level of government—federal, state, and local— engage in administrative action, legal scholarship on administrative law is almost exclusively focused on ...


California Sea Urchin Commission V. Bean, Thomas C. Mooney-Myers 2018 Alexander Blewett III School of Law at the University of Montana

California Sea Urchin Commission V. Bean, Thomas C. Mooney-Myers

Public Land & Resources Law Review

In California Sea Urchin Commission v. Bean, the Ninth Circuit upheld the Fish and Wildlife Service’s decision to end an experimental sea otter colony and translocation program. Commercial fishing groups sought reversal of the decision due to their interest in maintaining the translocation program which reduced otter predation on commercially valuable shellfish. While the Ninth Circuit held the group had standing, it then applied the Chevron test and determined the agency’s actions were reasonable.


Buffalo Field Campaign V. Zinke, Hallee C. Kansman 2018 Alexander Blewett III School of Law at the University of Montana

Buffalo Field Campaign V. Zinke, Hallee C. Kansman

Public Land & Resources Law Review

Despite years of litigation and legislation, the protection status of bison in and around Yellowstone National Park remains unsettled. Buffalo Field Campaign, a non-profit group, has spent decades spearheading the fight to list the species as either endangered or threatened under the Endangered Species Act. Buffalo Field Campaign v. Zinke tests the scope of agency directives and the strictness of the statutory language which guides agency actions.


Western Organization Of Resource Councils V. Zinke, Daniel Brister 2018 Alexander Blewett III School of Law at the University of Montana

Western Organization Of Resource Councils V. Zinke, Daniel Brister

Public Land & Resources Law Review

Due to advances in climate science and an increased understanding of coal’s role as a greenhouse gas, Appellant conservation organizations sued the Secretary of Interior for failing to supplement the 1979 Programmatic EIS for the Federal Coal Management Program. The D.C. Circuit Court held neither NEPA nor the APA required a supplemental EIS and that the court lacked jurisdiction to compel the Secretary to prepare one. Expressing sympathy for the Appellants’ position, the D.C. Circuit took the unusual step of offering advice to future plaintiffs on how they might succeed on similar claims.


Department Of Managed Health Care, Jennifer Pardue, J. D. Fellmeth 2018 University of San Diego

Department Of Managed Health Care, Jennifer Pardue, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.


Medical Board Of California, Kayla Watson, J. D. Fellmeth 2018 University of San Diego

Medical Board Of California, Kayla Watson, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.


Board Of Pharmacy, Mariam J. Saleh, Bridget Fogarty Gramme 2018 University of San Diego

Board Of Pharmacy, Mariam J. Saleh, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.


Veterinary Medical Board, Bryan Yerger, Bridget Fogarty Gramme 2018 University of San Diego

Veterinary Medical Board, Bryan Yerger, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.


Contractors’ State License Board, Mayra Castro, J. D. Fellmeth 2018 University of San Diego

Contractors’ State License Board, Mayra Castro, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.


California Board Of Accountancy, Anna V. Randall, J. D. Fellmeth 2018 University of San Diego

California Board Of Accountancy, Anna V. Randall, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.


State Bar Of California, Edith Jimenez, Andrew J. Van Arsdale, Bridget Fogarty Gramme 2018 University of San Diego

State Bar Of California, Edith Jimenez, Andrew J. Van Arsdale, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.


Bureau For Private Postsecondary Education, Daniel Ballinger, R. C. Fellmeth, J. D. Fellmeth 2018 University of San Diego

Bureau For Private Postsecondary Education, Daniel Ballinger, R. C. Fellmeth, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.


Public Utilities Commission, Jessica Kirshner, Faye Winkler, R. C. Fellmeth, Bridget Fogarty Gramme 2018 University of San Diego

Public Utilities Commission, Jessica Kirshner, Faye Winkler, R. C. Fellmeth, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.


Department Of Insurance, J. D. Fellmeth 2018 University of San Diego

Department Of Insurance, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.


Board Of Registered Nursing, Ashkan Hayatdavoudi, Bridget Fogarty Gramme 2018 University of San Diego

Board Of Registered Nursing, Ashkan Hayatdavoudi, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.


In Defense Of A Little Judiciary: A Textual And Constitutional Foundation For Chevron, Terence J. McCarrick Jr. 2018 University of San Diego

In Defense Of A Little Judiciary: A Textual And Constitutional Foundation For Chevron, Terence J. Mccarrick Jr.

San Diego Law Review

This Article hopes to help fill that “important gap in the administrative law literature.” And it proceeds in three parts. Part II offers a brief history of the Chevron doctrine and its discontents. It traces the doctrine’s origin and scope and ends by articulating the textualist and originalist critique of Chevron described above. Part III grapples with that criticism and offers a textualist and originalist defense of Chevron. Section III.A describes the textual footing for Chevron in the APA and argues that Chevron—if not commanded by the APA—does not upset the role it envisions for courts ...


The Rise Of Fiduciary Law, Tamar Frankel 2018 Boston University School of Law

The Rise Of Fiduciary Law, Tamar Frankel

Faculty Scholarship

The law that defines and regulates fiduciary relationships appears in many legal areas, such as family law, surrogate decision-making, international law, agency law, employment law, pension law, remedies rules, banking law, financial institutions' regulation, corporate law, charities law not for profit organizations law, and the law concerning medical services.

Fiduciary relationships, and the concepts on which they are grounded, appear not only in the law. They appear in other areas of knowledge: economics, psychology; moral norms and pluralism. Fiduciary law has a very long history. It was recognized in Roman law and the British common law and appeared decades ago ...


Freelance Isn’T Free: The High Cost Of New York City’S Freelance Isn’T Free Act On Hiring Parties, Caitlin M. Baranowski 2018 Brooklyn Law School

Freelance Isn’T Free: The High Cost Of New York City’S Freelance Isn’T Free Act On Hiring Parties, Caitlin M. Baranowski

Brooklyn Journal of Corporate, Financial & Commercial Law

Recently, the New York City Council enacted the Freelance Isn’t Free Act (FIFA) to protect freelancers from non-payment. Among FIFA’s protections is the requirement that hiring parties provide a written contract to freelancers for any work exceeding $800 over a 120-day period. As the nation’s first legislation ensuring freelancers’ rights, FIFA marks a major turning point in the development of protections for the gig economy’s growing independent workforce. While its purpose is laudable and necessary, this Note argues that FIFA is currently too ambiguous. To resolve FIFA’s ambiguity, this Note recommends, at the very least ...


A Fork In The Road: Issues Surrounding The Legality Of Mandatory Class Action Waivers In Arbitration Agreements, Brielle Oshinsky 2018 Brooklyn Law School

A Fork In The Road: Issues Surrounding The Legality Of Mandatory Class Action Waivers In Arbitration Agreements, Brielle Oshinsky

Brooklyn Journal of Corporate, Financial & Commercial Law

Recently, federal circuit courts have presented contrasting outcomes regarding the legality of mandatory class action waivers in arbitration agreements. More specifically, these outcomes vary on whether such waivers violate the Fair Labor Standards Act (FLSA) and the National Labor Relations Act (NLRA), and importantly, whether it is possible for these statutes to coexist with the Federal Arbitration Act (FAA). The Second, Fifth, and Eighth Circuits have previously held that the act of an employer requiring employees to sign class action waivers in arbitration agreements posed no violation to either the FLSA or the NLRA. However, in May 2016, the Seventh ...


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