Law Commons^™

Pluralism And The Environment Revisted: The Role Of Comment Agencies In Nepa Litigation, Michael Blumm

Michael Blumm

The National Environmental Policy Act suffers from a declining reputation due to high expectations and misunderstood implementation. The U.S. Supreme Court has disappointed environmental advocates by repeatedly ruling that NEPA does not impose substantive obligations to protect the environment that are judicially enforceable. As a result, some critics have characterized NEPA as a mere paperwork statute, imposing only bureaucratic red tape. Nevertheless, some courts have read NEPA to require close judicial scrutiny of federal agency actions with significant environmental consequences and have enjoined agency proposals that do not publicly disclose those consequences. The problem is that the level of judicial …

Can Super-Committees Cure Congressional Gridlock?, Sean J. Wright

Sean J Wright

No abstract provided.

Avoiding Independent Agency Armageddon, Kent H. Barnett

Scholarly Works

In Free Enterprise Fund v. Public Company Accounting Oversight Board, the U.S. Supreme Court invalidated Congress’ use of two layers of tenure protection to shield Public Company Accounting Oversight Board (PCAOB) members from the President’s removal. The SEC could appoint and remove PCAOB members. An implied tenure-protection provision protected the SEC from the President’s at-will removal. And a statutory tenure-protection provision protected PCAOB members from the SEC’s at-will removal. The Court held that these “tiered” tenure protections unconstitutionally impinged upon the President’s removal power because they prevented the President from holding the SEC responsible for PCAOB’s actions in the same …

Go To Our Website For More (Of The Same): Reassessing Federal Policy Towards Newspapers Mergers And Cross Media Ownership And The Harm To Localism, Diversity And The Public Interest, Jason Zenor

Jason Zenor

Newspapers are workhorse of local news industry and this information is important in order to have an informed citizenry. But, the conventional wisdom is that newspapers are an endangered species and that something drastic needs to be done if this form of media is going to survive. Many proactive solutions have been forwarded such as charging for online content, using tablet and smartphone technology to publish newspapers and making newspapers more assessable to younger and more diverse generations. Another more conceding solution is to allow for greater relaxation on newspapers mergers and cross media ownership rules. But, this solution would …

A Costly Illusion? An Empirical Study Of Taiwan’S Use Of Isolation To Control Tuberculosis Transmission And Its Implications For Public Health Law And Policymaking, Shinrou Lin

Shinrou Lin

The resurgence of tuberculosis (TB) and the emergence of multidrug-resistant TB have resulted in the detention of patients in a number of international jurisdictions since the 1990s, including in Taiwan. The Taiwanese government adopted isolation as an official policy to control TB’s spread in its 2006 Ten-Year Mobilization Plan, whose goal is to halve TB incidence from 66.7 per 100,000 persons to 34 per 100,000 persons. The isolation program allows treating physicians to nominate patients for isolation while public health officials may also isolate patients if necessary. Hospitals providing care to isolated patients would be reimbursed from the budget of …

The Role Of The Law In The Availability Of Public Transit And Affordable Housing In Atlanta’S West End, Elliott Lipinsky

ELLIOTT LIPINSKY

Single family home prices in West End will remain below $250,000 on average due to the generous grants and investment incentives provided by the City of Atlanta and the State of Georgia. Atlanta wants to create affordable, well-designed urban housing. This housing will provide anyone in Atlanta an affordable place to live. The West End is the perfect example of the City’s attempts to create such an environment. Furthermore, the Sky Lofts of West End offer brand new affordable housing in the West End through developer grants, tax abatements, and down payment loans. These government-created incentives have provided affordable housing …

Could You Repeat That Please? Forty-Five Years Of Pesticide Experiments On People, Barbara R. Leiterman Esq.

Barbara R. Leiterman Esq.

Little has been published in the literature about pesticide experiments conducted on human subjects. Yet there were at least twenty-two tests between 1967 and 2011 in which people were intentionally exposed to specific doses of pesticides. Almost all of these experiments violated scientific ethics and human rights. This article aims to describe those tests and their shortcomings, and explore the laws and regulations that incentivize such human experimentation. Ironically, as the public desire for pesticide safety increases, so does the industry’s motivation to test pesticides on people. Bringing these pesticide experiments to light, expanding the public discourse on the subject …

Too Many Teeth: Understanding The Medicare Secondary Payer Act And Its Threat To Businesses, James J. Hennelly Iii

James J. Hennelly III

The Medicare Secondary Payer Act (“MSP”), first enacted in 1980, has undergone several changes over the past three decades in an effort by the government to recoup some of its losses from conditional payments it makes on behalf of Medicare beneficiaries. In light of Congress’s many cost-cutting exploits of late, more attention should be drawn towards recent amendments to the MSP in an effort to find a healthy balance between the government’s interest in recouping its losses and private businesses’ interest in staying in business. Congress reacted to increasing Medicare costs in 2003 by inserting in the Medicare Modernization Act …

The Mixed Blessing Of A Deregulatory Endpoint For The Public Switched Telephone Network, Rob Frieden

Rob Frieden

Receiving authority to dismantle the wireline public switched telephone network (“PSTN”) will deliver a mixture of financial benefits and costs to incumbent carriers. Even if these carriers continue to provide basic telephone services via wireless facilities, they will benefit from substantial relaxation of common carriage duties, no longer having to serve as the carrier of last resort and having the opportunity to decide whether and where to provide service. On the other hand, incumbent carriers may have underestimated the substantial financial and marketplace advantages they also will likely lose in the deregulatory process. This paper will identify the potential problems …

U.S. Asylum Law As A Path To Religious Persecution, Jack Dolance

Jack C Dolance II

U.S. asylum law protects against persecution “on account of . . . religion.” But must the law protect a non-believer seeking religious asylum in the United States? Many may instinctively answer “no,” for a non-believer is by most definitions not “religious.” Such a response misses the mark, however—at least in the context of U.S. asylum law, which is subject to the First Amendment. The protection of religious liberty enshrined in the First Amendment embodies freedom from persecution on account of one’s “religion”—in whatever form that religion may take. In the asylum context, then, “religion” must be defined broadly. Protection from …

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 …

Superweeds And Suspect Seeds: Does The Genetically-Engineered Crop Deregulation Process Put American Agriculture At Risk?, Margaret Sova Mccabe

Margaret Sova McCabe

The federal government’s regulatory approach to genetically engineered (GE) crops, known as “The Framework”, is now twenty-five years old. Despite two and half decades of a consistent regulatory regime, GE crop and food regulation remains controversial. This article suggests that regulatory science and its tenets of independence, transparency, and public science should guide reforms of The Framework so that it is an efficient and reliable regulatory system. The article has four parts: 1) it provides a brief overview of the history of GE crop regulation; 2)it describes the key attributes of The Framework and related regulatory documents, with particular focus …

False Certainty: Judicial Forcing Of The Quantification Of Risk, Diana R. H. Winters

Diana R. H. Winters

Risk, which is by definition only the possibility of harm, is speculative and amorphous. To transform risk into something more concrete and measurable, courts reviewing risk determinations by agencies or individuals in certain contexts will insist that the parties quantify this risk. However, forcing such quantification may undercut the benefits of judicial review. This Article looks at the judicial forcing of the quantification of risk in two contexts: first, the review of agency action, and second, the determination of whether probabilistic injury satisfies the injury-in-fact standing requirement. By juxtaposing these two contexts, the Article illuminates the work that judges think …

Iosco's Response To The Financial Crisis, Roberta S. Karmel

Roberta S. Karmel

ABSTRACT FOR IOSCO’S RESPONSE TO THE FINANCIAL CRISIS BY ROBERTA S. KARMEL, Centennial Professor, Brooklyn Law School Like other international financial bodies, the International Organization of Securities Commissions (IOSCO) has responded to the financial crisis of 2008. IOSCO thus revised its Objectives and Principles and added eight new Principles, including two that specifically focused on systemic risk. IOSCO’s ongoing efforts to support these new Principles are parallel to efforts by other financial regulators to deal with systemic risk. Yet, IOSCO’s efforts focus on somewhat different issues in the capital markets than the issues of interest to bank regulators. This Article …

The World Of Whistleblowing: From Jiminy Cricket To The Wicked Witch Of The West, Milton Heumann

Milton Heumann

In this exploratory study, we explore the world of whistleblowers and whistleblowing. This topic has produced a great deal of “buzz,” but little clear understanding of the contexts in which whistleblowers act, the paths that whistleblowers follow, or even a critical understanding of how whistleblowing ought to be understood as a social and legal practice.

This paper seeks to articulate some of these boundaries through a mixed method analysis. We have conducted a legal analysis, a review of extant quantitative data, and a series of interviews in order to be able to sketch a plausible picture of the current state …

Down-Sizing The Little Guy Myth In Legal Definitions, Mirit Eyal-Cohen

Mirit Eyal-Cohen

What is “small” in the eyes of the law? In fact, there is not one standard definition. Current lax legal definitions of firm’s size are inconsistent and overinclusive. They result in data distortion that reinforces favoritism toward small entities as studies on the contribution of small business to the economy are greatly dependent on those studies’ delineation of the term “small.” Therefore, I argue that the current focus on size in legal definitions is a waste of time and money. In this time of huge deficits and rise in economic inequality, a lot of money is being spent based on …

The Standing Doctrine's Dirty Little Secret, Evan Lee, Josephine Mason

Evan T. Lee

For at least forty years, the Supreme Court has insisted that the standing doctrine’s requirements of imminent injury-in-fact, causation, and redressability are mandated by Article III of the Constitution. During that same time, however, the federal courts have consistently permitted Congress to relax or eliminate altogether the imminence, redressability, and even injury-in-fact requirements in most so-called “procedural rights cases”—cases in which there exists a statutory right to judicial review regardless of the plaintiff’s own personal interest in the matter. After asking whether the Necessary and Proper Clause could augment Article III to close up this gap, we conclude that the …

The Benefits Of Capture, Dorit R. Reiss

Dorit R. Reiss

Observers of the administrative state warn against “capture” of administrative agencies and lament its disastrous effects. This article suggests that the term “capture”, applied to a close relationship between industry and regulator, is not useful—by stigmatizing that relationship, judging it as problematic from the start, it hides its potential benefits. The literature on “capture” highlights its negative results—lax enforcement of regulation; weak regulations; illicit benefits going to industry. This picture, however, is incomplete and in substantial tension with another current strand of literature which encourages collaboration between industry and regulator. The collaboration literature draws on the fact that industry input …

The Reality Of Eu-Conformity Review In France, Juscelino F. Colares

Juscelino F. Colares

French High Courts embraced review of national legislation for conformity with EU law in different stages and following distinct approaches to EU law supremacy. This article tests whether adherence to different views on EU law supremacy has resulted in different levels of EU directive enforcement by the French High Courts. After introducing the complex French systems of statutory, treaty and constitutional review, this study explains how EU-conformity review emerged among these systems and provides an empirical analysis refuting the anecdotal view that different EU supremacy theories produce substantial differences in conformity adjudication outcomes. These Courts' uniformly high rates of EU …

Doctors, Patients, And Pills--A System Popping Under Too Much Physician Discretion? A Law-Policy Prescription To Make Drug Approval More Meaningful In The Delivery Of Health Care, Michael J. Malinowski

Journal Articles

This article challenges the scope of physician discretion to engage in off-label use of prescription drugs. The discretion to prescribe dimensions beyond the clinical research that puts new drugs on pharmacy shelves has been shaped by two historic influences: a legacy of physician paternalism, solidarity, autonomy, and self-determination that predates the contemporary commercialization of medicine by more than half a century, and regulatory necessity due to the limits of science and innate crudeness of pharmaceuticals prior to the genomics revolution (drug development and delivery based upon genetic expression). Although both factors have changed immensely, the standard for drug approval has …

The Chevron Two-Step In Georgia's Administrative Law, David E. Shipley

Georgia Law Review

Like federal and state administrative agencies
throughout the nation, Georgia's many boards,
commissions and authorities make policy when they apply
their governing statutes in promulgating regulations and
in ruling on specific matters like granting or denying an
application for a permit or determining the residency of a
candidate for public office. Sometimes governing statutes
are clear, but sometimes there is ambiguity. When there is
ambiguity in the governing statute, an agency must
interpret that legislation when it promulgates regulations
or decides a particular contested matter. This Article asks
and answers the fundamental question of what deference,
if any, must a …

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 …

The "Forest Roads" Case: A Stormy Approach To Judicial Review Of Environmental Regulations, Marie Kyle

Marie Kyle

No abstract provided.

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 …