Law Commons^™

Utilizing Legal Expertise To Positively Impact Coastal Communities, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

23rd Annual Open Government Summit: Attorney General State Of Rhode Island : Access To Public Records Act & Open Meetings Act July 30, 2021, Office Of The Attorney General State Of Rhode Island

School of Law Conferences, Lectures & Events

No abstract provided.

Rwu Law News: The Newsletter Of Roger Williams University School Of Law 04-2021, Michael M. Bowden, Barry Bridges, Political Roundtable

Life of the Law School (1993- )

No abstract provided.

Law School News: Professor Gonzalez Is 2020 Rhode Island Lawyer Of The Year 01/11/21, Barry Bridges, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Structural Deregulation, Jody Freeman, Sharon Jacobs

Publications

Modern critics of the administrative state portray agencies as omnipotent behemoths, invested with vast delegated powers and largely unaccountable to the political branches of government. This picture, we argue, understates agency vulnerability to an increasingly powerful presidency. One source of presidential control over agencies in particular has been overlooked: the systematic undermining of an agency’s ability to execute its statutory mandate. This strategy, which we call “structural deregulation,” is a dangerous and underappreciated aspect of what then-Professor, now-Justice Elena Kagan termed “presidential administration.”

Structural deregulation attacks the core capacities of the bureaucracy. The phenomenon encompasses such practices as leaving agencies …

Disguised Patent Policymaking, Saurabh Vishnubhakat

Faculty Scholarship

Patent Office power has grown immensely in this decade, and the agency is wielding its power in predictably troubling ways. Like other agencies, it injects politics into its decisions while relying on technocratic justifications. It also reads grants of authority expansively to aggrandize its power, especially to the detriment of judicial checks on agency action. However, this story of Patent Office ascendancy differs from that of other agencies in two important respects. One is that the U.S. patent system still remains primarily a means for allocating property rights, not a comprehensive regime of industrial regulation. Thus, the Patent Office cannot …

The Porous Court-Agency Border In Patent Law, Saurabh Vishnubhakat

Faculty Scholarship

The progression toward reevaluating patent validity in the administrative, rather than judicial, setting became overtly substitutionary in the America Invents Act. No longer content to encourage court litigants to rely on Patent Office expertise for faster, cheaper, and more accurate validity decisions, Congress in the AIA took steps to force a choice. The result is an emergent border between court and agency power in the U.S. patent system. By design, the border is not absolute. Concurrent activity in both settings over the same dispute remains possible. What is troubling is the systematic weakening of this border by Patent Office encroachments …

The Limits Of Copyright Office Expertise, Aaron K. Perzanowski

Faculty Publications

The mismatch between the expanding administrative and regulatory obligations of the United States Copyright Office and its limited institutional expertise is an emerging problem for the copyright system. The Office’s chief responsibility—registration and recordation of copyright claims—has taken a back seat in recent years to a more ambitious set of substantive rulemakings and policy recommendations. As the triennial rulemaking under the Digital Millennium Copyright Act highlights, the Office is frequently called upon to answer technological questions far beyond its plausible claims of subject matter expertise. This Article traces the Office’s history, identifies its substantial but discrete areas of expertise, and …

Administering Patent Litigation, Jacob S. Sherkow

Articles & Chapters

Recent patent litigation reform efforts have focused on every branch of government — Congress, the President, and the federal courts — save the fourth: administrative agencies. Agencies, however, possess a variety of functions in patent litigation: they serve as “gatekeepers” to litigation in federal court; they provide scientific and technical expertise to patent disputes; they review patent litigation to fulfill their own mandates; and they serve, in several instances, as entirely alternative fora to federal litigation. Understanding administrative agencies’ functions in managing or directing, i.e., “administrating,” patent litigation sheds both descriptive and normative insight on several aspects of patent reform. …

Administrating Patent Litigation, Jacob S. Sherkow

Articles & Chapters

Recent patent litigation reform efforts have focused on every branch of govemment-Congress, the President, and the federal courts-save the fourth: administrative agencies. Agencies, however, possess a variety of functions in patent litigation: they serve as "gatekeepers" to litigation in federal court; they provide scientific and technical expertise to patent disputes; they review patent litigation to fulfill their own mandates; and they serve, in several instances, as entirely alternative fora to federal litigation.

Understanding administrative agencies' functions in managing or directing, i.e., "administrating," patent litigation sheds both descriptive and normative insight on several aspects of patent reform. These include several problems …

Introduction: The Place Of Agencies In Polarized Government, Cynthia R. Farina, Gillian E. Metzger

Faculty Scholarship

Peter Strauss's The Place of Agencies in Government: Separation of Powers. and the Fourth Branch reshaped contemporary thinking about the constitutionality of federal administrative government. When the article appeared in 1984, the Reagan Revolution was in full swing. Reagan's overtly antiregulatory policy stance and his Administration's advocacy of a highly formalist and originalist style of constitutional interpretation fundamentally challenged the post-New Deal administrative state. Aggressive interpretation of Article II led to controversial strategies of White House control: centralized rulemaking review, appointment of agency heads loyal to the President's (anti)regulatory agenda, and attacks on institutions of administrative independence such as the …

The Challenge Of Seeing Justice Done In Removal Proceedings, Jason A. Cade

Scholarly Works

Prosecutorial discretion is a critical part of the administration of immigration law. This Article considers the work and responsibilities of the Immigration and Customs Enforcement (ICE) trial attorneys, who thus far have not attracted significant scholarly attention, despite playing a large role in the ground-level implementation of immigration law and policy. The Article makes three main contributions. First, I consider whether ICE attorneys have a duty to help ensure that the removal system achieves justice, rather than indiscriminately seek removal in every case and by any means necessary. As I demonstrate, trial attorneys have concrete obligations derived from statutory provisions, …

Administrative Justice And Adjudicative Ethics In Canada, Lorne Sossin

Articles & Book Chapters

In this article, I explore both the idea and practice of adjudicative ethics in the context of administrative justice in Canada. This is a large topic and one which is particularly timely as accountability, transparency and conflict of interest are all renewed areas of interest for governments across Canada. Elsewhere, I have suggested it is time to approach administrative justice as a justice system rather than as a disparate set of tribunals and boards. One way in which this coordination can be expressed is through a shared process of accountability for the conduct of adjudicators. My hope in elaborating adjudicative …

Acting Like An Administrative Agency: The Federal Circuit En Banc, Ryan G. Vacca

Law Faculty Scholarship

When Congress created the Federal Circuit in 1982, it thought it was creating a court of appeals. Little did it know that it was also creating a quasi-administrative agency that would engage in substantive rulemaking and set policy in a manner substantially similar to administrative agencies. In this Article, I examine the Federal Circuit's practices when it orders a case to be heard en banc and illustrate how these practices cause the Federal Circuit to look very much like an administrative agency engaging in substantive rulemaking. The number and breadth of questions the Federal Circuit agrees to hear en banc …

Reconciling Tort And Administrative Law Concepts Of Justice: The Case Of Historical Wrongs, Laverne Jacobs

Law Publications

The first part of this article provides an overview of the most dominant private and public law approaches that have been attempted in the courts by plaintiffs seeking redress for historical wrongs and outlines why these approaches have been unsuccessful. It also defines the notion of historical wrongs and provides background on the two historical wrongs used as a case study in this paper – Aboriginal residential schools and sexual sterilization in Alberta. In the second part, I turn to discuss the phenomenon of creating compensation schemes as an alternative to traditional court action. Two illustrative examples are the outcry …

The Food And Drug Administration's Evolving Regulation Of Press Releases: Limits And Challenges, William W. Vodra, Nathan Cortez, David E. Korn

Faculty Journal Articles and Book Chapters

The Food and Drug Administration (FDA) has developed an informal framework for regulating press releases by drug and medical device companies. FDA asserted jurisdiction over press releases based on its authority over labeling and advertising, and over the past 20 years, the agency has both broadened and scaled back its claims to authority over press statements.

Despite a somewhat predictable framework for anticipating how FDA regulates press materials, the agency's approach appears to be in flux. FDA will not tolerate false or misleading statements in press materials, but there are legal and practical limits to its regulation in this area. …

Shifting Science, Considered Costs, And Static Statutes: The Interpretation Of Expansive Environmental Legislation, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

Congress often passes expansive legislation, frequently environmental and public health regulatory statutes, where both the definition of those items being regulated and the mandate have significant breadth. How should these provisions be construed? While it is difficult to establish a model which determines whether to broadly or narrowly construe an expansive statutory provision, factors that impact this choice include the existence of express limitations on the mandate, understandings of congressional intent, the need to avoid regulation that might do more harm than good, the nature of the regulated item, and intervening circumstances such as new understandings in law, policy, or …

The History Of The Judicial Review Of Administrative Power And The Future Of Regulatory Governance, John J. Coughlin

Journal Articles

Traditionally, judicial review has afforded an important check on the exercise of administrative power. First, judicial review functions to protect the legislative intent behind the statutory authorization of the exercise of administrative power. Pursuant to the conventional model, an administrative agency exercises restricted legislative and judicial functions under judicial scrutiny to insure compliance with congressional intent. Judicial review insures that "a congressional delegation of power . . . must be accompanied by discernible standards, so that the delegatee's action can be measured for its fidelity to the legislative will." Additionally, the opportunity for judicial review of administrative action corrects and …

Agency Expertise, Alj Independence, And Administrative Courts: The Recent Changes In Louisiana's Administrative Procedure Act, Jay S. Bybee

Scholarly Works

In the past two years, the Louisiana Legislature has adopted several structural changes in Louisiana's Administrative Procedure Act (“LAPA”). Most notably, Louisiana adopted what is known as a central panel or unified corps of administrative law judges (“ALJs”). The central panel system, which has been adopted in nearly half of the states and has been proposed for the federal system, has a central agency or office that hires and assigns all ALJs; the central agency rotates ALJs among agencies to ensure the ALJs' independence. Louisiana created the Division of Administrative Law, effective October 1, 1996, within the Department of State …

Constitutional And Congressional Requirements Directing Public Lands Decisionmaking, Joseph M. Feller

Who Governs the Public Lands: Washington? The West? The Community? (September 28-30)

15 pages.

Contains references.

Legislative Veto Of Administrative Rules In Missouri: A Constitutional Virus, Kenneth D. Dean

Faculty Publications

The purpose of this Article is to examine the constitutionality of the legislative veto as it exists in Missouri, specifically the powers of the JCAR. Part II of the Article traces the history of the JCAR and the various types of powers given to it. Part III of the Article examines the experiences of the United States government and other states to determine their applicability to Missouri. Part IV examines the various grants of power to determine whether they comply with the Missouri constitution.

Water Planning: The Oregon Approach, William H. Young

Innovation in Western Water Law and Management (Summer Conference, June 5-7)

64 pages.

Kentucky Law Survey: Administrative Law, John M. Rogers, Michael H. Sims

Law Faculty Scholarly Articles

This article provides a survey of administrative law in the Commonwealth of Kentucky, including discussions of de novo review and the delegation doctrine.

Fiduciary Power To Compromise Claims, Thomas L. Shaffer

Journal Articles

The sorry state of fiduciary administrative powers in American trust law is an old but healing wound. Our English brothers, who began repair on a similar lesion in the nineteenth century, are still well ahead of us. A few state legislatures poured on balm of varying degrees of efficacy years ago, but they were not many. The Commissioners on Uniform State Laws seemed to promise a cure in the early 1930's, then abandoned the effort for a generation. They have lately returned to their patient, and the Uniform Trustees' Powers Act shows promise of increasing adoption. The incorporation-by-reference treatment is …