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- Journal of the National Association of Administrative Law Judiciary (5)
- Michigan Journal of Environmental & Administrative Law (2)
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- Chicago-Kent Journal of Intellectual Property (1)
- Donald J. Kochan (1)
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- Research Collection Yong Pung How School Of Law (1)
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Articles 1 - 21 of 21
Full-Text Articles in Law
Agency Pragmatism In Addressing Law’S Failure: The Curious Case Of Federal “Deemed Approvals” Of Tribal-State Gaming Compacts, Kevin K. Washburn
Agency Pragmatism In Addressing Law’S Failure: The Curious Case Of Federal “Deemed Approvals” Of Tribal-State Gaming Compacts, Kevin K. Washburn
University of Michigan Journal of Law Reform
In the Indian Gaming Regulatory Act of 1988 (IGRA), Congress imposed a decision-forcing mechanism on the Secretary of the Interior related to tribal-state compacts for Indian gaming. Congress authorized the Secretary to review such compacts and approve or disapprove each compact within forty-five days of submission. Under an unusual provision of law, however, if the Secretary fails to act within forty-five days, the compact is “deemed approved” by operation of law but only to the extent that it is lawful. In a curious development, this regime has been used in a different manner than Congress intended. Since the United States …
Judicial Review In An Age Of Hyper-Polarization And Alternative Facts, David A. Dana, Michael Barsa
Judicial Review In An Age Of Hyper-Polarization And Alternative Facts, David A. Dana, Michael Barsa
San Diego Journal of Climate & Energy Law
This Article is organized as follows: Part I reviews the case law and commentary on judicial review of agency shifts in policy or practice, focusing on the technocratic case for deference and how recent political realities call such deference into question. Part II sets forth the background and history regarding fuel economy standards, leading to the Obama Administration’s adoption of standards in 2012 and the “midterm” review of those standards that Obama’s EPA declared final as of January 2017. Part II also reviews the legal issues surrounding Trump’s EPA’s “re-opening” of the midterm review. We suggest how courts could, and …
Presidential Permitting For Pipelines: Constitutionality And Reviewability, Joan Campau
Presidential Permitting For Pipelines: Constitutionality And Reviewability, Joan Campau
Michigan Journal of Environmental & Administrative Law
Federal oversight of cross-border pipelines occurs during the presidential permitting process. Pursuant to Executive Order 13337, the Department of State is authorized to review applications and grant permits to projects that “serve the national interest.” Scholars and litigants have questioned the constitutionality of this process and reviewability under the Administrative Procedure Act (“APA”). This Note argues that the permitting process is constitutional and derives legitimacy from both the executive powers explicitly enumerated in the Constitution as well as an implicit sanction from the legislative branch. Further, this Note argues that APA review is appropriate for at least one component of …
Buffalo Field Campaign V. Zinke, Hallee C. Kansman
Buffalo Field Campaign V. Zinke, Hallee C. Kansman
Public Land & Resources Law Review
Despite years of litigation and legislation, the protection status of bison in and around Yellowstone National Park remains unsettled. Buffalo Field Campaign, a non-profit group, has spent decades spearheading the fight to list the species as either endangered or threatened under the Endangered Species Act. Buffalo Field Campaign v. Zinke tests the scope of agency directives and the strictness of the statutory language which guides agency actions.
Lucia Et Al. V. Securities And Exchange Commission: Opinion Of The Court, Elena Kagan
Lucia Et Al. V. Securities And Exchange Commission: Opinion Of The Court, Elena Kagan
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Lucia Et Al. V. Securities And Exchange Commission: Brief Of Amicus Curiae The Forum Of United States Administrative Law Judges In Support Of Neither Party, Gerald Marvin Bober
Lucia Et Al. V. Securities And Exchange Commission: Brief Of Amicus Curiae The Forum Of United States Administrative Law Judges In Support Of Neither Party, Gerald Marvin Bober
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Introduction To Lucia Et Al. V. Securities And Exchange Commission, Selina Malherbe
Introduction To Lucia Et Al. V. Securities And Exchange Commission, Selina Malherbe
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
In Defense Of A Little Judiciary: A Textual And Constitutional Foundation For Chevron, Terence J. Mccarrick Jr.
In Defense Of A Little Judiciary: A Textual And Constitutional Foundation For Chevron, Terence J. Mccarrick Jr.
San Diego Law Review
This Article hopes to help fill that “important gap in the administrative law literature.” And it proceeds in three parts. Part II offers a brief history of the Chevron doctrine and its discontents. It traces the doctrine’s origin and scope and ends by articulating the textualist and originalist critique of Chevron described above. Part III grapples with that criticism and offers a textualist and originalist defense of Chevron. Section III.A describes the textual footing for Chevron in the APA and argues that Chevron—if not commanded by the APA—does not upset the role it envisions for courts. Section III.B describes the …
Regulatory Rationalisation Clauses In Ftas: A Complete Survey Of The Us, Eu, And China, Ching-Fu Lin, Han-Wei Liu
Regulatory Rationalisation Clauses In Ftas: A Complete Survey Of The Us, Eu, And China, Ching-Fu Lin, Han-Wei Liu
Research Collection Yong Pung How School Of Law
Mechanisms on regulatory coherence or good regulatory practices have emerged as one of the unique features of preferential trade agreements (PTAs) in the age of mega-regionalism. Led by the United States, for instance, the Trans-Pacific Partnership (‘TPP’), now known as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (‘CPTPP’) introduces a standalone chapter that focuses on the domestic rule-making process. Such design is unique for it goes beyond traditional output-oriented proxies by including a set of input-oriented elements that apply to the rulemaking process of each party, before a regulatory action is taken. These elements, like transparency, public consultation, regulatory …
The Emperor’S New Clothes: The Variety Of Stakeholders In Climate Change Regulation Assuming The Mantle Of Federal And International Authority, Linda A. Malone
The Emperor’S New Clothes: The Variety Of Stakeholders In Climate Change Regulation Assuming The Mantle Of Federal And International Authority, Linda A. Malone
Faculty Publications
In June 2017, President Donald Trump announced the United States would be withdrawing from the Paris Climate Accord. President Trump believes the United States should be more focused on its economic wellbeing than on environmental concerns. Since being elected, President Trump has, with the help of the Environmental Protection Agency, been rolling back, or attempting to roll back, major climate change regulations. However, this Article points out that due to factors such as international law, the United States Constitution, and the Administrative Procedure Act, one cannotjust simply withdraw from an international agreement, such as the Paris Accord, or take back …
Reworking The Revolution: Treasury Rulemaking & Administrative Law, David Berke
Reworking The Revolution: Treasury Rulemaking & Administrative Law, David Berke
Michigan Journal of Environmental & Administrative Law
How administrative law applies to tax rulemaking is an open and contested question. The resolution of this question has high stakes for the U.S. tax system. The paradigm is shifting away from so-called “tax exceptionalism”—where Treasury action is considered effectively exempt from the Administrative Procedure Act (the “APA”) and related administrative law doctrines. This paradigm-shift is salutary. However, currently prevailing anti-exceptionalist theory—an administrative framework for tax that is rapidly gaining credence within both the federal judiciary and the legal academy—threatens to destabilize the U.S. tax system. This formalistic approach to administrative law in tax rulemaking has the potential to invalidate …
Without Clear Rules, Ptab Practices May Run Afoul Of The Apa, Arpita Bhattacharyya, Rachel L. Emsley
Without Clear Rules, Ptab Practices May Run Afoul Of The Apa, Arpita Bhattacharyya, Rachel L. Emsley
Chicago-Kent Journal of Intellectual Property
No abstract provided.
Reconstructing An Administrative Republic, Jeffrey A. Pojanowski
Reconstructing An Administrative Republic, Jeffrey A. Pojanowski
Michigan Law Review
Review of Jon D. Michaels, Constitutional Coup: Privatization's Threat to the American Republic.
Addressing Bias In Administrative Environmental Decisions, Robert R. Kuehn
Addressing Bias In Administrative Environmental Decisions, Robert R. Kuehn
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
The Shadow Of Free Enterprise: The Unconstitutionality Of The Securities & Exchange Commission’S Administrative Law Judges, Linda D. Jellum, Moses M. Tincher
The Shadow Of Free Enterprise: The Unconstitutionality Of The Securities & Exchange Commission’S Administrative Law Judges, Linda D. Jellum, Moses M. Tincher
Journal of the National Association of Administrative Law Judiciary
Six years ago, Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), for the first time giving the Securities and Exchange Commission (SEC) the power to seek monetary penalties through its in-house adjudication. The SEC already had the power to seek such penalties in federal court. With the Dodd-Frank Act, the SEC’s enforcement division could now choose between an adjudication before an SEC Administrative Law Judge (ALJ) or a civil action before an Article III judge. With this new choice, the SEC realized a significant home-court advantage. For example, in 2014, the SEC’s enforcement division prevailed …
Interpreting An Unamendable Text, Thomas W. Merrill
Interpreting An Unamendable Text, Thomas W. Merrill
Vanderbilt Law Review
Many of the most important legal texts in the United States are highly unamendable. This applies not only to the Constitution, which has not been amended in over forty years, but also to many framework statutes, like the Administrative Procedure Act and the Sherman Antitrust Act. The problem is becoming increasingly severe, as political polarization makes amendment of these texts even more unlikely. This Article considers how interpreters should respond to highly unamendable texts. Unamendable texts have a number of pathologies, such as excluding the people and their representatives from any direct participation in legal change. They also pose an …
Tax As Part Of A Broken Budget: Good Taxes Are Good Cause Enough, Stephanie Mcmahon
Tax As Part Of A Broken Budget: Good Taxes Are Good Cause Enough, Stephanie Mcmahon
Faculty Articles and Other Publications
The federal budget is a myth. Despite being a myth, Congress uses the budget to limit its choices by linking its revenue-raising and spending powers under a federal debt ceiling. Through its self-imposed limits, Congress puts tremendous pressure on how it calculates its budget, and that calculation generally assumes any tax provisions will raise revenue when the law becomes effective. However, many tax provisions require additional direction to ensure they operate as the budgetary process expects. That task falls to the Treasury Department and the Internal Revenue Service (IRS) as a bureau of the Department. Consequently, limiting the production of …
Designing The Decider, Emily S. Bremer
Designing The Decider, Emily S. Bremer
Journal Articles
The Administrative Procedure Act (APA) contains several provisions designed to ensure that presiding officials in so-called formal adjudications are able to make fair, well-informed, independent decisions. But these provisions do not apply to the vast majority of federal adjudicatory hearings. In this world of adjudication outside the APA, agencies enjoy broad procedural discretion, including substantial freedom to “design the decider.” This Article defines the scope of this discretion and explores how various agencies have exercised it. The discussion is enriched by examples drawn from an expansive new database of federal adjudicatory procedures. The Article argues that, although agency discretion to …
Chevron Step Two's Domain, Kent H. Barnett, Christopher J. Walker
Chevron Step Two's Domain, Kent H. Barnett, Christopher J. Walker
Scholarly Works
An increasing number of judges, policymakers, and scholars have advocated eliminating or narrowing Chevron deference—a two-step inquiry under which courts defer to federal agencies’ reasonable interpretations of ambiguous statutes the agencies administer. Much of the debate centers on either Chevron’s domain (i.e., when Chevron should apply at all) or how courts ascertain statutory ambiguity at Chevron’s first step. Largely lost in this debate on constraining agency discretion is the role of Chevron’s second step: whether the agency’s resolution of a statutory ambiguity is reasonable. Drawing on the most comprehensive study of Chevron in the circuit courts, this Essay explores how …
Fail To Comment At Your Own Risk: Does Issue Exhaustion Have A Place In Judicial Review Of Rules, Jeffrey Lubbers
Fail To Comment At Your Own Risk: Does Issue Exhaustion Have A Place In Judicial Review Of Rules, Jeffrey Lubbers
Articles in Law Reviews & Other Academic Journals
Lubbers discusses whether issue exhaustion have a place in judicial review of rules.
The Commenting Power: Agency Accountability Through Public Participation, Donald J. Kochan
The Commenting Power: Agency Accountability Through Public Participation, Donald J. Kochan
Donald J. Kochan