Law Commons^™

#Betterrules: The Appropriate Use Of Social Media In Rulemaking, Stephen M. Johnson

Articles

In December 2015, the Government Accountability Office (GAO) concluded that the Environmental Protection Agency’s (EPA’s) use of various social media tools in a rulemaking under the Clean Water Act violated prohibitions in federal appropriations laws against publicity, propaganda, and lobbying. Although academics previously explored whether the use of technology in rulemaking might violate the Administrative Procedures Act (APA), the Paperwork Reduction Act, or the Federal Advisory Committee Act, none predicted that one of the first firestorms surrounding the use of social media in rulemaking would arise out of federal appropriations laws. ...

As the Administrative Conference of the United States …

Advancing Auer In An Era Of Retreat, Stephen M. Johnson

Articles

At the dawn of the modern administrative state, the Supreme Court held, in Bowles v. Seminole Rock & Sand Company, that an agency’s interpretation of its own regulation is “of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” A half century later, the Court retained that approach in Auer v. Robbins, a decision authored by Justice Scalia. Auer deference is generally regarded as the most accommodating standard of judicial review applied by courts to agency decision-making.

Although the Supreme Court created Seminole Rock/Auer deference more than seventy years ago, the Court has created exceptions to …

On Competence: (Re)Considering Appropriate Legal Standards For Examining Sixth Amendment Claims Related To Criminal Defendants’ Mental Illness And Disability, Sarah Gerwig-Moore

Articles

This Article addresses the questions of attorney error and client competency and examines the following issues: the origin and development of the legal tests for intellectual competency to stand trial or enter a plea and the tests for evaluating Sixth Amendment effective assistance of counsel claims; the range of state and federal approaches to circumstances when those two situations converge; and whether and how our legal tests should be shaped to best assess attorney error when the client likely has an intellectual disability or incompetence. When consideration of a defendant's mental illness or mental disability forms the basis of a …

The Shadow Of Free Enterprise: The Unconstitutionality Of The Securities & Exchange Commission's Administrative Law Judges, Linda D. Jellum, Moses M. Tincher

Articles

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, litigants contended that the SEC realized a significant home-court advantage. For example, the Wall Street Journal …

Will Patenting Make As Much Sense In The New Regime Of Weakened Patent Rights And Shorter Product Life Cycles?, David Hricik

Articles

After its founding in 1982, the US Court of Appeals for the Federal Circuit strengthened patent protection. During that time, businesses—which acquire 90 percent of all patents—increasingly applied for and enforced patents. Clearly, the benefit of having a patent outweighed the cost of doing so.

This Article shows that a central benefit of applying for a patent is that it permits its owner to exclude others from making the patented invention. A patent owner can use the coercive power of a patent to exclude others from making the invention, or to permit others to make the patented invention, but only …

Whither The Functional Parent? Revisiting Equitable Parenthood Doctrines In Light Of Same-Sex Parents’ Increased Access To Obtaining Formal Legal Parent Status, Jessica Feinberg

Articles

Until relatively recently, the law did not provide avenues through which both members of a same-sex couple could gain recognition as the parents of the children they were raising together. Instead, generally only the member of the same-sex couple who was the child’s biological parent was recognized as the child’s legal parent, and the nonbiological parent was considered a legal stranger to the child. Historically, nonbiological parents in same-sex relationships could not gain legal parent status because the traditional avenues for establishing legal parent status in the United States have been based upon biology, marriage, and adoption. Since joint biological …