Law Commons^™

After Privacy: The Rise Of Facebook, The Fall Of Wikileaks, And Singapore’S Personal Data Protection Act 2012, Simon Chesterman

Simon Chesterman

This article discusses the changing ways in which information is produced, stored, and shared — exemplified by the rise of social-networking sites like Facebook and controversies over the activities of WikiLeaks — and the implications for privacy and data protection. Legal protections of privacy have always been reactive, but the coherence of any legal regime has also been undermined by the lack of a strong theory of what privacy is. There is more promise in the narrower field of data protection. Singapore, which does not recognise a right to privacy, has positioned itself as an e-commerce hub but had no …

Administrative Procedure For The Twenty-First Century: An Introduction To The 2010 Model State Administrative Procedure Act, John L. Gedid

John L. Gedid

No abstract provided.

Chevron Without The Courts? The Supreme Court's Recent Chevron Jurisprudence Through An Immigration Lens, Shruti Rana

Shruti Rana

The limits of administrative law are undergoing a seismic shift in the immigration arena. Chevron divides interpretive and decision-making authority between the federal courts and agencies in each of two steps. The Supreme Court may now be transforming this division in largely unrecognized ways. These shifts, currently playing out in the immigration context, may threaten to reshape deference jurisprudence by handing more power to the immigration agency just when the agency may be least able to handle that power effectively. An unprecedented surge in immigration cases—now approximately 90% of the federal administrative docket—has arrived just as the Court is whittling …

Can He Legally Do That? Does The President Have Directive Authority Over Agency Regulatory Decisions?, Robert V. Percival

Robert Percival

No abstract provided.

No Two-Stepping In The Laboratories: State Deference Standards And Their Implications For Improving Chevron Doctrine, Michael Pappas

Michael Pappas

This article examines the deference standards that the various states apply to agency statutory interpretation and analyzes the implications for the federal Chevron doctrine. First, the article surveys state standards for reviewing agencies' statutory interpretation, finding that none of the state standards exactly follows the federal Chevron test but that state standards fall into one of four categories ranging from "strong deference" to "de novo with deference discouraged." The article then examines four particular state standards in depth, discovering that states tend to use the same methods, tools, and processes for statutory interpretation despite the different announced degrees of deference. …

Caremark's Irrelevance, Mercer E. Bullard

Mercer E Bullard

In re Caremark Int’l Inc. Derivative Litig. is commonly held out as the iconic corporate law case on liability for a failure of legal compliance, but the true source of corporate law as to legal compliance is the higher standard established by other sources of law. The expected cost of liability, both criminal and civil, for violations of federal healthcare regulations, for example, is a far stronger determinant of corporate compliance systems than potential liability under Caremark. Other areas of industry-specific regulation, such as for financial services, telecommunications and energy, similarly play a greater role than state corporate law in …

Acceso Garantizado: El Procedimiento Administrativo Y El Acto Administrativo En El Acceso A La Información Pública, Javier André Murillo Chávez

Javier André Murillo Chávez

No abstract provided.

Foreign Administrative Law And International Taxation: A Case Study Of Tax Treaty Implementation In China, Wei Cui

Wei Cui

U.S. taxpayers and the IRS increasingly have to take into account the interactions between U.S. and foreign laws, but they have paid little attention to the administrative law backgrounds of foreign tax laws. In a growing range of cases, the need for such attention has become urgent. This Article describes a novel class of cases encountered by U.S. taxpayers that emanate from tax treaty implementation in China. In these cases, U.S. (and other foreign) investors face certain rules that conflict with common treaty interpretations, and that, at the same time, are not legally binding under Chinese domestic law. The question …

Disclosure's Effects: Wikileaks And Transparency, Mark Fenster

Mark Fenster

The Case For Abolishing Centralized White House Regulatory Review, Rena I. Steinzor

Rena I. Steinzor

A series of catastrophic regulatory failures have focused attention on theweakened condition of regulatory agencies assigned to protect public health, worker and consumer safety, and the environment. The destructive convergence of funding shortfalls, political attacks, and outmoded legal authority have set the stage for ineffective enforcement, unsupervised industry self-regulation, and a slew of devastating and preventable catastrophes. From the Deepwater Horizon spill in the Gulf of Mexico to the worst mining disaster in forty years at the Big Branch mine in West Virginia, the signs of regulatory dysfunction abound. Many stakeholders expected that President Barack Obama would recognize and ameliorate …

An Increased Role For The Department Of Education In Addressing Federalism Concerns, Benton C. Martin

Benton C. Martin

The No Child Left Behind Act of 2001 (NCLB), one of the most important pieces of education legislation in our nation’s history, is overdue for reauthorization. Prior attempts at reauthorization have failed because of political controversy surrounding the Act, including controversy surrounding the extent of the federal role in education. NCLB does not fit squarely into traditional models of federalism and new theories of federalism have emerged to address the unique new dynamics raised by its expansive use of the federal spending power. This Article argues these theories point to practical changes that Congress can make to improve NCLB.

Although …

Bridging The Divide: Finding Common Ground On The Modern Chevron Debate, Nicholas C. Stewart

Nicholas C Stewart

Traditionally, when reviewing an administrative agency’s adjudication or rulemaking under National Labor Relations Board v. Hearst Publications, Inc., 322 U.S. 111 (1944), courts would ask whether the question before them was one of law or a mixed question of law and fact. While the former was accorded no deference, the latter received a great deal. Despite this seemingly simple construct, courts persistently confused questions of law with mixed questions, and vice versa, resulting in the inconsistent application of standards of review. In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the U.S. Supreme Court drastically …

Prescription For Change: Third Circuit Diagnoses Pharmaceutical Sales Representatives As Exempt From Overtime Pay In Smith V. Johnson & Johnson, Brooke Burns

Brooke Burns

This Casebrief recognizes the current division developing among courts concerning whether PSRs have been wrongly misclassified as exempt from overtime pay since the World War II era. Despite the Second Circuit’s more recent decision in In re Novartis Wage and Hour Litigation, this Casebrief identifies the Third Circuit’s jurisprudence in Smith v. Johnson & Johnson as providing controlling guidance for practitioners navigating the current legal landscape.

" 'How's My Doctoring? Patient Feedback's Role In Physician Assessment", Ann Marie Marciarille

Ann Marie Marciarille

A society-wide consumer revolution is underway with the rise of online user-generated review websites such as Yelp, Angie’s List, and Zagat. Service provider reviews are now available with an intensity and scope that attracts increasing numbers of reviewers and readers. Health care providers are not exempt from this new consumer generated scrutiny though they have arrived relatively late to the party and as somewhat unwilling guests.

The thesis of this article is that online patient feedback on physicians is relevant and valuable even though it is also uncomfortable for health care providers. This is because the modern physician-patient relationship is …

Bending The Health Cost Curve: The Promise And Peril Of The Independent Payment Advisory Board, Ann Marie Marciarille, James Bradford Delong

Ann Marie Marciarille

Underlying today’s and the future’s health-care reform debate is a consensus that America’s health-care financing system is in a slow-moving but deep crisis: care appears substandard in comparison with other advanced industrial countries, and relative costs are exploding beyond all reasonable measures. The Obama Administration’s Patient Protection and Affordable Care Act (“ACA”) attempts to grapple with both of these problems. One of ACA’s key instrumentalities is the Independent Payment Advisory Board—the IPAB, designed to discover and authorize ways to reduce the rate of growth of Medicare and other categories of health spending. The IPAB is a peril. Expert boards to …

Mind Reading And The Art Of Drafting Medical Opinions In Veterans Benefits Claims, James Ridgway

James D. Ridgway

Once upon a time, deciding veterans benefits claims was simple and logical, although not perfect. Prior to the institution of judicial review, when a veteran filed a disability claim, the relevant records would be gathered and given to a panel of medical and legal experts. The experts would each bring their own specialized knowledge to the discussion and issue a decision that applied medical science and applicable law to the facts of the case. Such decisions may well have been correct as to the science and the law, but they were impossible to verify in the absence of any stated …

A Constitutional And Empirical Analysis Of Iowa's Administrative Rules Review Committee Procedure, Jerry L. Anderson

Jerry L. Anderson

Iowa gives a joint legislative committee, called the Administrative Rules Review Committee, significant power over agency rulemaking. The ARRC can delay a rule, either for a 70-day period, or until the end of the next legislative session. It can also object to a rule, which switches the burden of proof to the agency in any future judicial challenge and makes the agency liable for the litigation costs of successful challengers. In this article, the authors study fifteen years of ARRC activity to determine how the committee has used its authority, in order to assess the degree to which this mechanism …

Changing Voices In A Familiar Conversation About Rules Vs. Standards: Veterans Law At The Federal Circuit In 2011, James Ridgway

James D. Ridgway

This review of the Federal Circuit's veterans benefits case law in 2011 suggests that a familiar struggle between rules and standards lurks under the surface of some of the more familiar debates in veterans law. In particular, it suggests that the struggle between Chevron deference and Gardner’s rule of resolving ambiguity in favor of the veteran can be framed this way. It also suggests that the rules-versus-standards framing can be used to better understand the debate about what it means for the benefits system to be veteran friendly. In addition, this article addresses the changing dynamics surrounding veterans law and …

Fda Accelerated Approval Program: Why Brake When You Can Get A Mandate?, Keren Frumkin

Keren F. Bisnauth

The FDA approval process is designed to ensure that the drugs released for public consumption are safe and effective. In 1992, the FDA implemented the Accelerated Approval process in order to expedite the approval of drugs to aid patients with life-threatening illnesses, who have little to gain from lengthy approval processes, and who cannot risk worsening health conditions. However, the questionable post-approval practices of drug manufacturers, coupled with the lax FDA enforcement of its required follow-up protocols have raised doubts as to the true value of expedited approval procedures, as well as an influx of drug recalls and lawsuits. In …