Law Commons^™

Teaching Administrative Law: The Wonder Of The Unknown, Peter L. Strauss

Faculty Scholarship

Sunday, March 7, 1982

Dear Roger:

You would have enjoyed being among the hundred-odd administrative law teachers and hangers-on who met this past weekend for the AALS Workshop on Administrative Law, organized by Ernest Gellhorn of Virginia, [now dean at Case Western]. Perhaps it was the plane ride home, when I had a chance to read Frank Easterbrook's short but very elegant use of Arrow's Theorem in a recent Harvard Law Review; or perhaps it is just a goodnight's sleep, home away from the sybaritic pleasures of New Orleans, and knowing my dean will want a justification in terms …

The Use Of Discovery Sanctions In Administrative Agency Adjudication, Richard T. Frije

Indiana Law Journal

No abstract provided.

Section 14(E) Of The Williams Act And The Rule 10b-5 Comparisons, Mark J. Loewenstein

Publications

The passage of the Williams Act in 1968 added a set of provisions to the Securities Exchange Act of 1934 to govern tender offers. In this article, Professor Loewenstein examines the antifraud provision of the Williams Act, codified as section 14(e) of the Securities Exchange Act of 1934, and the development of decisional law under it. After discussing the propriety of inferring a private cause of action from section 14(e), Professor Loewenstein argues that the judiciary's reliance on rule 10b-5 precedents to set the bounds of the 14(e) cause of action is unwarranted. He concludes: 1) that scienter should not …

Executive Privilege: Historic Scope And Use In The Watergate And Environmental Protection Agency Hearings, Jean M. D'Ovidio

University of Richmond Law Review

Executive privilege is "a concept invoked by members of the executive branch of the government to justify withholding evidence and other communicative materials from the legislative and judicial branches." Since the presidency of George Washington, the executive has attempted to withhold information from the other two branches.

Agency "Capture": The "Revolving Door" Between Regulated Industries And Their Regulating Agencies, Edna Earle Vass Johnson

University of Richmond Law Review

Public confidence in the integrity of our public officials is necessary for effective government. The independence of the federal regulatory process is a crucial element of that confidence. When this independence is examined, however, a major concern arises about the inherent appearance of impropriety and conflict of interest in the "revolving door" practice of federal agencies.

The Natural Law Of Administrative Law, William H. Rodgers, Jr.

Articles

Law teachers and researchers are inveterate seekers of metaphors. The metaphor, even if glib and obvious, invariably suggests further parallels and relationships, the conjoinder of phenomena. This is the road to uncovering unsuspected linkages and building simple descriptive models.

Theory building, in administrative law as elsewhere, begins with the capture and expression of the convincing metaphor. Extracting metaphors from the natural sciences to account for social happenings begins with a figure of speech and often ends there. Legislatures now are squeezing fat out of administrative agencies, an apt biological picture of a weight watcher's rigor being imposed on flabby, middle-aged …

Effect Of Immigration & Naturalization Service V. Chadha On Executive Reorganization, Peter M. Mellette

University of Richmond Law Review

Three recent decisions by the United States Supreme Court, Immigration and Naturalization Service v. Chadha, Consumer Energy Council v. Federal Energy Regulatory Commission, and Consumers Union v. Federal Trade Commissions have altered the balance of power between Congress and the executive branch, invalidating a congressional check on executive power which had been in use for over fifty years. In an opinion in Chadha and by affirmance in the other cases, the Court held that under the separation of powers doctrine the legislative veto violated the presentment and bicameral requirements of the Constitution and thereby intruded on the province of the …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

Case Digest

Administrative Procedural Due Process Supported in Major Foreign Policy Dispute --Dresser Industries, Inc. v. Baldrige, 549 F. Supp. 108 (D.D.C. 1982).

Permanent Resident Alien Attempting to Reenter the United States is Entitled to Due Process in an Exclusionary Hearing --Landon v. Plasencia, 103 S. Ct. 321 (1982).

Alien does not Have a Fourteenth Amendment Interest in a Procedure to Stay Deportation Where the INS Established the Procedure for Administrative --Wong ChungWen v. Ferro, 543 F. Supp. 1016 (W.D.N.Y. 1982).

A Plaintiff Suing a Foreign Sovereign's Insurer is not Entitled to a Trial by Jury --Goar v. Compania Peruana …

Marbury And The Administrative State, Henry Paul Monaghan

Faculty Scholarship

Marbury v. Madison's prominence as a constitutional decision has long deflected interest in examining its other implications. But prior to proclaiming judicial competence to invalidate an act of Congress, the Court sustained judicial authority to enforce the specific statutory duties of administrative officials. Had the doctrine of separation of powers been understood from the beginning to bar any judicial control of administrative power, the constitutional scheme would have gone seriously awry at the outset. Congressional directives either would have been subordinated to the will of the executive department or would have generated collateral and unseemly struggles between the two …

The Antitrust System: An Impediment To The Development Of Negotiation Models, Andrew Popper

Scholarly Articles in Law Reviews & Journals

No abstract provided.

An Administrative Law Perspective On Consensual Decisionmaking, Andrew Popper

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Administrative Procedures For Resolving Complex Policy Questions: A Proposal For Proof Dissection, Harold I. Abramson

Scholarly Works

Many commentaries have charged that the use of conventional trial procedures in the administrative process fails to provide an effective means for resolving complex policy questions. In particular, the excessive use of cross-examination has been cited as needlessly impairing the economy and efficiency of administrative proceedings. Excessive and redundant use of such procedures has also been criticized as undermining the accuracy of results by allowing unfettered attack on adversaries’ witnesses. Clearly, current opinion of the adversary system is that it “rates truth too low among values that institutions of justice are meant to serve.”

The problems surrounding the use of …

Utah International, Inc. V. Watt: Adjudicative Or Legislative Hearing, Sara G. Smith

Kentucky Law Journal

No abstract provided.

Book Review, Administrative Law, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.

Regulatory Reform: Assessing The California Plan, Marsha N. Cohen

Faculty Scholarship

No abstract provided.

Ftc Rulemaking Through Negotiation, Charles H. Koch Jr., Beth Martin

Faculty Publications

The Federal Trade Commission, along with other administrative agencies, has been especially affected by the current emphasis on deregulation. Some proponents of the free market system view the Commission as an unnecessary and costly impediment to market functioning. In this article, Professor Koch and Ms. Martin review past FTC regulatory efforts in light of the FTC's mandate: to maintain an efficient, competitive free market Although the FTC has deviated from its market maintenance goal, this deviation should not serve as a basis for constricting Commission rulemaking activity. Rather, the authors demonstrate that past Commission practices illustrate the need for an …

Liberty And Property In The Supreme Court: A Defense Of Roth And Perry, Peter N. Simon

Publications

No abstract provided.

Appeal No. 0041: Petrocon, Inc. V. State Of Ohio, Acting By And Through The Chief Of The Division Of Oil And Gas Department Of Natural Resources, Ohio Oil & Gas Board Of Review

Ohio Oil & Gas Commission Decisions

Adjudication Order No. 15

Experiments In Agency Justice: Informal Adjudicatory Procedures In Administrative Procedure Acts, Karen E. Boxx

Washington Law Review

The 1961 Revised Model State Administrative Procedure Act and most state administrative procedure acts ("APAs") provide for only one type of agency adjudication: a formal, trial-type hearing. The 1981 Model Act and five state APAs have departed from this approach by providing additional, more informal adjudicatory procedures. This Comment examines the developments since 1961 that prompted the drafters of these acts to include informal procedures. The major impetus for the change was the "due process explosion," which extended hearing rights to interests that had been considered too minor for formal hearings. The Comment then compares the 1981 Model Act and …

Judicial Responses To The Eeoc's Failure To Attempt Conciliation, Michigan Law Review

Michigan Law Review

This Note suggests that a court faced with inadequate conciliation efforts by the EEOC should dismiss the action without prejudice. Part I argues that dismissal better serves the remedial purpose of the statute than summary judgment. Part II then demonstrates that dismissal satisfies the policy concerns of courts that dispose of inadequately conciliated suits. Although dismissal may not promote judicial efficiency as well as summary judgment, courts and the Commission can handle the dismissal to minimize duplication. Part III advances dismissal for failure to state a claim upon which relief can be granted as the appropriate procedural vehicle for disposing …

Eis Supplements For Improperly Completed Projects: A Logical Extension Of Judicial Review Under Nepa, Michigan Law Review

Michigan Law Review

This Note argues that the private cause of action under NEPA retains its utility despite the completion of the project sued upon. Part I describes the procedural implementation of the policy concerns underlying NEPA through the EIS process for proposed actions, and the EIS supplementation process for project changes made after the original EIS has been prepared. Part II examines current law applicable to projects completed in violation of NEPA and concludes that the denial of post-completion relief conflicts with the underlying goals of NEPA. Part III analyzes extension of relief to completed projects, and proposes court-ordered EIS supplementation for …

Quis Custsodiet Ipsos Custodes?: Gubernatorial And Legislative Review Of Agency Rulemaking Under The 1981 Model Act, David S. Neslin

Washington Law Review

Legislatures frequently delegate broad rulemaking powers to administrative agencies to implement and enforce statutes. To control the use of this delegated authority, most states subject agency rulemaking to legislative or executive review. Through the use of various kinds of nonjudicial review, the states have served as innovative laboratories for the development of this concept. This Comment first outlines the history of nonjudicial review of agency rulemaking. It then describes and evaluates the gubernatorial and legislative review provisions of the 1981 Model Act. Finally, drawing upon the experiences of several states, it proposes a modification of the Act's approach to nonjudicial …

Book Review: Federal Rulemaking, Jeffrey A. Parness

Vanderbilt Law Review

In the 1979 Annual Report on the State of the Judiciary'Chief Justice Burger called for a fresh look at the entire federal rule making process. Following the Chief Justice's lead, the Federal Judicial Center' responded with a report by Winifred R. Brown entitled Federal Rulemaking: Problems and Possibilities. In a foreward to that report Professor A. Leo Levin, the Federal Judicial Center's director, discouraged any attempt to intiate "a thorough review of the strengths and weaknesses of the process," and advised the author instead to focus "on those aspects of the process that had been singled out for criticism and …

Deducting The Cost Of Smoking Cessation Programs Under Internal Revenue Code Section 213, Michigan Law Review

Michigan Law Review

This Note argues that enrollment fees for a smoking cessation program should be classified as deductible medical expenses. Part I defends this conclusion without questioning the accepted interpretation of section 213(e). Recent medical evidence indicates that the nicotine addiction that cessation program patients seek to break is itself a disease. And even prior to the onset of more serious health consequences, sustained cigarette smoking significantly impairs the functioning of the lungs and heart. Under this analysis, enrollment fees should be deductible as expenses for the treatment of an existing disease or defect, and as "amounts paid . . . for …

Appeal No. 0046: Atlas Energy Group, Inc. V. State Of Ohio, Acting By And Through The Chief Of The Division Of Oil And Gas Department Of Natural Resources, Ohio Oil & Gas Board Of Review

Ohio Oil & Gas Commission Decisions

Adjudication Order No. 336

Appeal No. 0039: Petro Oil Company, Inc. V. State Of Ohio, Acting By And Through The Chief Of The Division Of Oil And Gas Department Of Natural Resources, Ohio Oil & Gas Board Of Review

Ohio Oil & Gas Commission Decisions

Adjudication Order No. 313

Appeal No. 0028: Edmund C. Gallenz V. State Of Ohio, Acting By And Through The Chief Of The Division Of Oil And Gas Department Of Natural Resources, Ohio Oil & Gas Board Of Review

Ohio Oil & Gas Commission Decisions

Adjudication Order No. 273

New Mexico V. Mescalero Apache Tribe, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

Motor Vehicle Manufacturers Association Of The United States, Inc. V. State Farm Mutual Automobile Insurance Company, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

American Paper Institute, Inc. V. American Electrical Power Service Corp., Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.