Law Commons^™

Administrative Law, John R. Mohrmann

Law Student Publications

This article is a report of certain developments during the last two years relating to the Virginia Administrative Process Act ("the VAPA''), which governs rulemaking and adjudication of cases by state agencies as well as judicial review of both.

The Permit Power Revisited, J.B. Ruhl, Eric Biber

Vanderbilt Law School Faculty Publications

Two decades ago, Professor Richard Epstein fired a shot at the administrative state that has gone largely unanswered in legal scholarship. His target was the permit power, under which legislatures prohibit a specified activity by statute and delegate administrative agencies discretionary power to authorize the activity under terms the agency mandates in a regulatory permit. Describing the permit power, accurately, as an enormous power in the state, Epstein bemoaned that it had received scant attention in the academic literature. He sought to fill that gap. Centered on his premise that the permit power represents a complete inversion of the proper …

From Rawls To Habermas: Towards A Theory Of Grounded Impartiality In Canadian Administrative Law, Laverne Jacobs

Osgoode Hall Law Journal

At the same time that Canadian public law jurisprudence has grappled with some key cases on bias, a vibrant debate has also raged over the meaning and scope of the notion of impartiality within political and moral philosophy. Spurred by Rawls’ view of liberalism, and culminating in the theory of deliberative democracy, this debate evolved over a span of more than four decades. Yet this philosophical literature is rarely, if at all, referred to in the public law jurisprudence dealing with impartiality. This article asks whether the debates surrounding impartiality in political and moral philosophy and those in Canadian public …

Sue And Settle: Demonizing The Environmental Citizen Suit, Stephen M. Johnson

Articles

When federal agencies fail to issue regulations, respond to petitions, approve plans, review standards, or take any number of actions that are required by statute, the federal Administrative Procedure Act (APA) and federal environmental laws authorize citizens to sue the agencies to force them to carry out their legal obligations. Indeed, Congress anticipated that citizens would play an important role in the enforcement of federal environmental laws. When faced with lawsuits for failing to perform non-discretionary duties, agencies tend to settle because their liability is clear.

The Value Of Words: Narrative As Evidence In Policymaking, Dmitry Epstein, Josiah Heidt, Cynthia R. Farina

Cornell Law Faculty Publications

Policymakers today rely primarily on statistical, financial, and other forms of technical data as their basis for decision-making. Yet, there is a potentially underestimated value in substantive reflections of the members of the public who will be affected by a particular piece of regulation. We discuss the value of narratives as input in the policy making process, based on our experience with Regulation Room–a product of an interdisciplinary initiative using innovative web technologies in real-time online experimentation. We describe professional policymakers and professional commenters as a community of practice that has limited shared repertoire with the lay members of the …

Unaccountable Midnight Rulemaking? A Normatively Informative Assessment, Edward H. Stiglitz

Cornell Law Faculty Publications

Under a common view, the administrative state inherits democratic legitimacy from the President, an individual who is envisioned both to control administrative agencies and to be electorally accountable. Presidents' administrations continue issuing rules, however, even after Presidents lose elections. Conventional wisdom holds that Presidents use the "midnight" period of their administrations-the period between the election and the inauguration of the next President-to issue unpopular and controversial rules. Many regard this midnight regulatory activity as democratically illegitimate. Yet we have scant evidence that presidential administrations in fact issue controversial or unpopular rules during the midnight period. In this Article, I examine …

Pleading Patterns And The Role Of Litigation As A Driver Of Federal Climate Change Legislation, Juscelino F. Colares, Kosta Ristovski

Faculty Publications

Based on a variant of the Elliott-Ackerman-Millian theory that variable, potentially inconsistent and costly litigation outcomes induce industry to seek federal preemptive legislation to reign in such costs, we collect data on climate change-related litigation to determine whether litigation might motivate major greenhouse gas emitters to accept a preemptive, though possibly carbon-restricting, legislative compromise. We conduct a spectral cluster analysis on 178 initial federal and state judicial filings to reveal the most relevant groupings among climate change-related suits and their underlying pleading patterns. Besides exposing the general content and structure of climate change-related filings, this study identifies major specific pleading …

Cheating On Their Taxes: When Are Tax Limitations Effective At Limiting State Taxes, Expenditures, And Budgets?, Colin H. Mccubbins, Mathew D. Mccubbins

Faculty Scholarship

No abstract provided.

Language Rights As A Legacy Of The Civil Rights Act Of 1964, Ming Hsu Chen

Publications

The fiftieth anniversary of the Civil Rights Act of 1964 offers an important opportunity to reflect on an earlier moment when civil rights evolved to accommodate new waves of immigration. This essay seeks to explain how civil rights laws evolved to include rights for immigrants and non-English speakers. More specifically, it seeks to explain how policy entrepreneurs in agencies read an affirmative right to language access.

The Administrative State's Passive Virtues, Sharon B. Jacobs

Publications

Fifty years ago, Alexander Bickel famousy suggested that courts use tools like standing, ripeness, and the political question doctrine to avoid reaching the merits of difficult cases. Yet despite the increasingly central role of administrative agencies in government, there have been no efforts to date to apply Bickel's insights to the bureaucracy. This Article remedies that deficit. The Article provides a three-part taxonomy of administrative restraint and offers case studies from federal agencies such as the Federal Energy Regulatory Commission, the Environmental Protection Agency, and the Fish and Wildlife Service. It argues that agencies sometimes use restraint strategically for reasons …

Trans-Substantivity Beyond Procedure, Suzette M. Malveaux

Publications

No abstract provided.

Governing By Guidance: Civil Rights Agencies And The Emergence Of Language Rights, Ming Hsu Chen

Publications

On the fiftieth anniversary of the Civil Rights Act of 1964, this Article asks how federal civil rights laws evolved to incorporate the needs of non-English speakers following landmark immigration reform (the 1965 Hart-Cellar Act) that led to unprecedented migration from Asia and Latin America. Based on a comparative study of the emergence of language rights in schools and workplaces from 1965 to 1980, the Article demonstrates that regulatory agencies used nonbinding guidances to interpret the undefined statutory term "national origin discrimination" during their implementation of the Civil Rights Act of 1964. Their efforts facilitated the creation of language rights, …

Performance Track’S Postmortem: Lessons From The Rise And Fall Of Epa’S “Flagship” Voluntary Program, Cary Coglianese, Jennifer Nash

All Faculty Scholarship

For nearly a decade, the United States Environmental Protection Agency (“EPA”) considered its National Environmental Performance Track to be its “flagship” voluntary program — even a model for transforming the conventional system of environmental regulation. Since Performance Track’s founding during the Clinton Administration, EPA officials repeatedly claimed that the program’s rewards attracted hundreds of the nation’s “top” environmental performers and induced these businesses to make significant environmental gains beyond legal requirements. Although EPA eventually disbanded Performance Track early in the Obama Administration, the program has been subsequently emulated by a variety of state and federal regulatory authorities. To discern lessons …

Advocates, Federal Agencies, And The Education Of Children With Disabilities, Eloise Pasachoff

Georgetown Law Faculty Publications and Other Works

The aim of this essay, prepared for a symposium on dispute resolution in special education held at The Ohio State University Moritz College of Law in February 2014, is to highlight ways that advocates for children with disabilities can use federal agencies to improve the implementation and enforcement of federal laws protecting children with disabilities in schools—that is, the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act as it relates to schools.

One can spend a lot of time engaging with the contemporary public conversation about the law surrounding …

Incorporating By Reference: Knowing Law In The Electronic Age, Peter L. Strauss

Faculty Scholarship

Last October, the Office of the Federal Register published a Notice of Proposed Rulemaking (78 Fed. Reg. 60,784 (Oct. 2, 2013)) to revise its regulations governing the practice of "incorporation by Reference," which permits federal agencies to create binding regulatory obligations just by referring to standards that have been developed by private nongovernmental organizations, standards development organizations (SDOs) such as the American National Standards Institute (ANSI) or the American Society of Mechanical Engineers (ASME). This rulemaking should be of substantial interest to the occupational safety community. While its comment period has closed, comments remain open until May 12, 2014, on …

Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee

All Faculty Scholarship

Today, most American workers do not have constitutional rights on the job. As The Workplace Constitution shows, this outcome was far from inevitable. Instead, American workers have a long history of fighting for such rights. Beginning in the 1930s, civil rights advocates sought constitutional protections against racial discrimination by employers and unions. At the same time, a conservative right-to-work movement argued that the Constitution protected workers from having to join or support unions. Those two movements, with their shared aim of extending constitutional protections to American workers, were a potentially powerful combination. But they sought to use those protections to …

Merger Review By The Federal Communications Commission: Comcast-Nbc Universal, Christopher S. Yoo

All Faculty Scholarship

The Communications Act of 1934 created a dual review process in which mergers in the communications industry are reviewed by the Federal Communications Commission (FCC) as well as the antitrust authorities. Commentators have criticized dual review not only as costly and redundant, but also as subject to substantive and procedural abuse. The process of clearing the 2011 Comcast-NBC Universal merger provides a useful case study to examine whether such concerns are justified. A review of the empirical context reveals that the FCC intervened even though the relevant markets were not structured in a way that would ordinarily raise anticompetitive concerns. …

Layers Of Law: The Case Of E-Cigarettes, Eric A. Feldman

All Faculty Scholarship

This paper, written for a symposium on "Layers of Law and Social Order," connects the current debate over the regulation of electronic cigarettes with socio-legal scholarship on law, norms, and social control. Although almost every aspect of modern life that is subject to regulation can be seen through the framework ‘layers of law,’ e-cigarettes are distinguished by the rapid emergence of an unusually dense legal and regulatory web. In part, the dense fabric of e-cigarette law and regulation, both within and beyond the US, results from the lack of robust scientific and epidemiological data on the behavioral and health consequences …

The Capture Of International Intellectual Property Law Through The U.S. Trade Regime, Margot E. Kaminski

Publications

For years, the United States has included intellectual property ("IP") law in its free trade agreements. This Article finds that the IP law in recent U.S. free trade agreements differs subtly but significantly from U.S. IP law. These differences are not the result of deliberate government choices, but of the capture of the U.S. trade regime.

A growing number of voices has publicly criticized the lack of transparency and democratic accountability in the trade agreement negotiating process. But legal scholarship largely praises the 'fast track" trade negotiating system. This Article reorients the debate over the trade negotiating process away from …

From Sovereignty And Process To Administration And Politics: The Afterlife Of American Federalism, Jessica Bulman-Pozen

Faculty Scholarship

Announcing the death of dual federalism, Edward Corwin asked whether the states could be “saved as the vital cells that they have been heretofore of democratic sentiment, impulse, and action.” The federalism literature has largely answered in the affirmative. Unwilling to abandon dual federalism’s commitment to state autonomy and distinctive interests, scholars have proposed new channels for protecting these forms of state-federal separation. Yet today state and federal governance are more integrated than separate. States act as co-administrators and co-legislatures in federal statutory schemes; they carry out federal law alongside the executive branch and draft the law together with Congress. …

In Search Of Skidmore, Peter L. Strauss

Faculty Scholarship

Ever since 1827, the U.S. Supreme Court has repeatedly observed that when a court is interpreting a statute that falls within the authority of an administrative agency, the court in reaching its own judgment about the statute's meaning should give substantial weight to the agency's view. Repeated again and again over the years in varying formulations, this proposition found its apotheosis in Skidmore v. Swift & Co., a unanimous opinion authored by Justice Jackson in 1944. His opinion took the proposition to be so obvious that no citation was required. Justice Jackson's typically incisive and memorable formulation stuck. It …

A System Of Men And Not Of Laws: What Due Process Tells Us About The Deficiencies In Institutional Review Boards, Greer Donley

Articles

Governmental regulation of human subjects research involves unique agency action. It delegates power to non-expert committees, Institutional Review Boards, to decide whether research protocols are "ethical" according to vague federal regulations. Without IRB approval, the protocol cannot be investigated. The empirical evidence regarding this system demonstrates that IRBs render deeply inconsistent and inaccurate outcomes. This Article argues that the lack of due process in the IRB system is to blame for such arbitrary agency action. By juxtaposing the levels of process required for IRB approval or research with FDA new drug approval--agency action involving similar interests--this Article highlights that IRBs …

A Response To Professor Leff’S Tax Planning 'Olive Branch' For Marijuana Dealers, Philip Hackney

Articles

Professor Benjamin Leff argues in a forthcoming article entitled Tax Planning for Marijuana Dealers that a tax-exempt social welfare organization described in Internal Revenue Code section 501(c)(4) may sell medical marijuana without putting its exempt status in jeopardy. He argues that (1) the “public policy” doctrine applicable to charitable organizations under section 501(c)(3) does not apply to social welfare organizations, and (2) a social welfare organization may consider “community” law and ignore federal law in considering whether its activity meets the idea of social welfare. I argue that Leff is wrong and that the public policy doctrine applicable to charitable …

Big (Gay) Love: Has The Irs Legalized Polygamy?, Anthony C. Infanti

Articles

Within days in December, a federal judge in Utah made news by loosening that state’s criminal prohibition against polygamy and the Attorney General of North Dakota made news by opining that a party to a same-sex marriage could enter into a different-sex marriage in that state without first obtaining a divorce or annulment. Both of these opinions raised the specter of legalized plural marriage. What discussions of these opinions missed, however, is the possibility that the IRS might already have legalized plural marriage in the wake of the U.S. Supreme Court’s decision last June in United States v. Windsor, which …

The Efficacy Of Cybersecurity Regulation, David Thaw

Articles

Cybersecurity regulation presents an interesting quandary where, because private entities possess the best information about threats and defenses, legislatures do – and should – deliberately encode regulatory capture into the rulemaking process. This relatively uncommon approach to administrative law, which I describe as Management-Based Regulatory Delegation, involves the combination of two legislative approaches to engaging private entities' expertise. This Article explores the wisdom of those choices by comparing the efficacy of such private sector engaged regulation with that of a more traditional, directive mode of regulating cybersecurity adopted by the state legislatures. My analysis suggests that a blend of these …

Enlightened Regulatory Capture, David Thaw

Articles

Regulatory capture generally evokes negative images of private interests exerting excessive influence on government action to advance their own agendas at the expense of the public interest. There are some cases, however, where this conventional wisdom is exactly backwards. This Article explores the first verifiable case, taken from healthcare cybersecurity, where regulatory capture enabled regulators to harness private expertise to advance exclusively public goals. Comparing this example to other attempts at harnessing industry expertise reveals a set of characteristics under which regulatory capture can be used in the public interest. These include: 1) legislatively-mandated adoption of recommendations by an advisory …

Where Schools Close In Chicago, Randall K. Johnson

Faculty Works

It is often assumed that schools close, disproportionately, in disadvantaged parts of Chicago. The assumption, however, has yet to be substantiated by research. As a result, this article tests the assumption in order to explain where schools close in Chicago. It does so by introducing a new Chicago Public School (CPS) closings dataset. The dataset sheds some light on the phenomenon by identifying 130 schools that closed, twenty-seven ZIP codes that experienced CPS closings and three demographic characteristics of these ZIP codes. In the process, this dataset helps to explain how CPS closings relate to race, income and location.

The Corporate Finance Case For Deliberation-Oriented Stress Testing Regulation, Robert F. Weber

Robert F. Weber

No abstract provided.

Taking Administrative Law To Tax, Amandeep S. Grewal

Andy Grewal

Not too long ago, an academic symposium on Taking Administrative Law to Tax would have been just that -- academic. For decades, the tax law sat comfortably isolated from administrative law doctrines that governed other areas of law. Courts frequently applied tax-specific deference standards to IRS guidance, and the tax bar was largely indifferent to the Treasury's many violations of the Administrative Procedure Act. But all that changed when the Supreme Court rejected tax exceptionalism in Mayo v. United States. As the articles in this Symposium show, the Court’s decision has brought great attention to the intersection between tax and …

The Technological And Business Evolution Of Machine Based Gambling In America, Darren Prum, Carlin Mccrory

Darren A. Prum

Machine Based Gambling has become a major source of revenue to many states across the country that need the money but face obstacles to raising taxes within their jurisdiction. The figures are startling with the Commonwealth of Pennsylvania’s cut at over $1.456 Billion in 2011, which exceed the next closest state by $500 million. In addition, there are more than twice as many slot machines available to the public than ATMs. The benefits of machine based gaming has allowed many governments to revitalized tourism locations, make some Native Americans economically self-sufficient, and save horse and dog race tracks from closing …