Law Commons^™

Aviation Security In Canada And The United States: Promoting Security And Commerce In A Multi-Layered Regime Within A Federal Regulatory Framework, Kamaal Zaidi

Kamaal Zaidi

This paper examines aviation security approaches in Canada and the United States. After the 9-11 attacks, several new aviation security measures were introduced by both nations (including legislation and policies) in order to secure the aviation sector from terrorist attacks. The thesis of the paper is that Canada and U.S. promote security and commerce within a multi-layered regime within a federal regulatory framework. Various pieces of legislation and policies are discussed, including the role that federal agencies play in working with other agencies to enhance security on the ground and in the air. Global conventions and the Open Skies policy …

Direct Final Rulemaking In The Fda: Lessons From The First Decade, Michael Kolber

Michael Kolber

In an effort to improve efficiency, several administrative agencies, including the Food and Drug Administration, have adopted a procedure known as “direct final rulemaking” (DFR). Some academics have debated whether DFR violates the Administrative Procedure Act, but none have studied how DFR has functioned in practice. This paper, which examines the first decade of DFR at the FDA, is the first of this kind. The results are surprising, and suggest DFR deserves more study than it has received. Intended for noncontroversial rules that are expected to receive no significant comments in a notice-and-comment rulemaking, FDA has often used direct final …

Toward A More Perfect Union: Regulatory Analysis And Performance Management, Jerry Brito, Jerry Ellig

Jerry Brito

Two separate but similar federal initiatives attempt to apply a scientific approach to improve government decision-making and results: performance management and regulatory analysis. Performance management finds its legislative home in the Government Performance and Results Act of 1993, while the main regulatory analysis mandate can be found in Executive Order 12,866.

Both initiatives seek to identify the nature of the problems government is trying to solve, develop alternative solutions, and evaluate the effectiveness and costs of the alternatives. Both require measurement of costs and outcomes. Both involve rigorous analysis to identify whether, and to what extent, government actions cause particular …

Economic Substance And The Standard Of Review, Christopher M. Pietruszkiewicz

Christopher M. Pietruszkiewicz

Traditionally, appellate review hinged on the distinction between law and fact, producing a simplistic exercise – appellate courts review legal conclusions de novo while factual findings are reviewed under a clearly erroneous standard of review. The systemic difficulty with the fact/law distinction is defining fact and defining law. While appellate courts often create sound bites and offer elaborate musings on the definition of each, they maintain the misguided illusion that a trial court determination is either a question of law or a question of fact. In essence, an appellate court uses the fact/law distinction and the attendant standard of review …

Synthesizing Tsca And Reach: Practical Principles For Chemical Regulation Reform, John S. Applegate

John S Applegate

The European Union’s newly enacted comprehensive regulation for industrial chemicals, known as REACH, draws heavily on three decades of experience in the United States under the Toxic Substances Control Act. Much of that experience has been negative, inasmuch as TSCA is widely regarded as a disappointment among US environmental laws, and so REACH deliberately reverses many of the legislative choices that Congress made in TSCA. REACH also takes advantage of important new regulatory concepts that were not available to the framers of TSCA thirty years ago. The passage of REACH has sparked renewed interest in reforming TSCA, and the reformers …

The Last Stand Of The Wild West: Twenty-First Century Water Wars In Southern California, Shannon M. Baker-Branstetter

Shannon M Baker-Branstetter

In 2003, the Imperial Irrigation District of California agreed to transfer water from rural Imperial County to urban Southern California cities as part of a quantitative settlement agreement (QSA). The Colorado River water that the Imperial Irrigation District (IID) transferred to the wealthy coastal cities was held in trust for the residents of the Imperial Valley, the poorest county in the State. The following paper asserts that the IID Board of Directors breached its trust to the residents and farmers of Imperial County when it sold water rights to municipal districts in Southern California, thus acerbating the poor economic conditions …

Wedging Open The Courthouse Doors: Federal Employee Access To Judicial Review Of Constitutional And Statutory Claims, Barbara A. Atkin, Elaine Kaplan, Gregory O'Duden

Barbara A. Atkin

This article addresses, in a comprehensive fashion, jurisdictional barriers that federal employees face in obtaining judicial review of statutory and constitutional claims. Many statutory claims that employees had previously brought in federal court are now precluded entirely by the Civil Service Reform Act of 1978. Courts, however, retain jurisdiction where there are independent jurisdictional bases for review. They also traditionally have preserved their jurisdiction to grant equitable relief for constitutional violations. Determination of those types of government action for which Congress intended the CSRA remedies to be exclusive has been hotly litigated. In addition, even when the claims are not …

Analogy By Necessity: The Filed Rate Doctrine And The Judicial Review Of The Agency Inaction, Julia Gorodetsky

Julia Gorodetsky

This paper argues that the judicial review of private party antitrust claims predicated upon market-based tariffs, filed with a regulatory agency, should not be precluded by the filed rate doctrine (an antitrust doctrine that prevents challenge of electricity rates once they have been filed with, and approved by, the regulatory agency). The paper analogizes the filed rate doctrine with the notion of agency inaction in administrative law. Applying the Heckler test to the specifics of a case study leads to the general conclusion that there is a strong case for making all agency market-based tariff approval decisions presumptively reviewable in …

Should Securities Industry Self-Regulatory Organizations Be Considered Government Agencies?, Roberta S. Karmel

Roberta S. Karmel

Abstract for

“Should Securities Industry Self-Regulatory Organizations Be Considered Government Agencies?”

by Roberta S. Karmel, Centennial Professor, Brooklyn Law School

Securities industry self-regulatory organizations (“SROs”) began as private sector membership organizations of securities industry professionals. This article addresses the questions of whether, and to what extent, securities industry SROs have become government agencies, and whether, and to what extent, they should be subject to constitutional and statutory controls on government agencies. It focuses principally on the Financial Industry Regulatory Agency (“FINRA”), a new entity which combined the National Association of Securities Dealers, Inc. (“NASD”) and the member regulation functions of …

Economic Substance And The Standard Of Review, Christopher M. Pietruszkiewicz

Christopher M. Pietruszkiewicz

Traditionally, appellate review hinged on the distinction between law and fact, producing a simplistic exercise – appellate courts review legal conclusions de novo while factual findings are reviewed under a clearly erroneous standard of review. The systemic difficulty with the fact/law distinction is defining fact and defining law. While appellate courts often create sound bites and offer elaborate musings on the definition of each, they maintain the misguided illusion that a trial court determination is either a question of law or a question of fact. In essence, an appellate court uses the fact/law distinction and the attendant standard of review …

A Fragile Foundation -- The Role Of "Intermodal" And "Facilities-Based" Competition In Communications Policy, John F. Blevins

John F. Blevins

The communications industry is currently experiencing extensive and rapid deregulation. The policies justifying this deregulation have been constructed upon the concepts of “intermodal” and “facilities-based” competition. At both the federal and state level, regulators and courts have increasingly embraced deregulatory policies that promote – and assume the existence of – these forms of competition. In short, these concepts have become the theoretical foundation of modern communications policy. In the rush to either embrace or reject these forms of competition, policymakers and scholars have not paused to ask whether these two concepts are descriptively meaningful. In this article, I argue that …

Substance Or Illusion? The Dangers Of Imposing A Standing Threshold, Amanda Leiter

Amanda Leiter

Individuals and interest groups challenging agency action or inaction often must allege not that they or their members have been or certainly will be harmed by the agency’s approach, but instead that they face an increased risk of future harm. Courts struggle to analyze standing in these so-called “increased-risk” cases: Does the elevated risk constitute the necessary injury-in-fact, or must the likelihood of realized harm exceed a certain threshold before the case becomes cognizable? Several circuits take the former view, but the D.C. Circuit requires plaintiffs to establish that the alleged risk clears some indeterminate “sufficiency” or “substantiality” bar. The …

Celebrity In Cyberspace: A Personality Rights Paradigm For Personal Domain Name Disputes, Jacqueline Lipton

Jacqueline D Lipton

When the Oscar™-winning actress Julia Roberts fought for control of the domain name, what was her aim? Did she want to reap economic benefits from the name? Probably not, as she has not used the name since it was transferred to her. Or did she want to prevent others from using it on either an unjust enrichment or a privacy basis? Was she, in fact, protecting a trademark interest in her name? Personal domain name disputes, particularly those in the space, implicate unique aspects of an individual’s persona in cyberspace. Nevertheless, most of the legal rules developed for these disputes …

Rational Crises, Anup Malani, Albert Choi

Anup Malani

The paper engages the ongoing debate among scholars such as Cass Sunstein, Max Bazerman and Richard Posner about why governments fail to take action to prevent crises such as Hurricane Katrina and global warming. Standard explanations rely on public choice theories (specifically collective action problems or conflicts between interest groups) or on cognitive limitations (such as hyperbolic discount rates or the inability to value low-probability events). In contrast, we offer a simple rational-choice explanation. The government may not act on information about a forthcoming crisis because there are many lobbies (including government agencies) seeking funding to address their selected crisis …

Justice Kennedy And Ecosystem Services: A Functional Approach To Clean Water Act Jurisdiction After Rapanos, Robin K. Craig

Robin K. Craig

Justice Kennedy’s “significant nexus” test may emerge as the proverbial silver lining of the U.S. Supreme Court’s June 2006 decision in Rapanos v. United States, at least so far as recognition of ecosystem services is concerned. The Court’s opinion in Rapanos was fractured. Nevertheless, it left no doubts that the Clean Water Act’s jurisdiction over “navigable waters” had been limited, drawing criticism for both its lack of clarity and its restriction of federal jurisdiction under the Act.

The extent of that restriction, however, would depend on which of the three major opinion’s in the case – Justice Scalia’s plurality, Justice …

Hernandez-Ortiz V. Gonzales: Creating Unsound Rules For Adjudicating Asylum Claims In The Ninth Circuit, Sarah A. Schroeder

Sarah A Schroeder

United States asylum law has developed out of several international agreements to which the United States is a party. More specifically, the United States has incorporated into its domestic legislation the asylum requirements set forth in the United Nations Convention Relating to the Status of Refugees (“Refugee Convention”) and the United Nations Protocol Relating to the Status of Refugees (“Refugee Protocol”). The Refugee Convention accords refugee status to people who adequately demonstrate that they have been or will be persecuted on account of their race, religion, nationality, membership in a particular social group, or political opinion. However, over time new …

Immigration Posses: U.S. Immigration Law And Local Enforcement Practices, Kevin J. Fandl

Kevin J Fandl

The failure of the United States Congress to pass comprehensive immigration legislation at a time when the issue of immigration has reached a boiling point has created an overwhelming demand by citizens for local reform. States have responded by enacting hundreds of laws that regulate immigration at the state-level. This creates significant tension both between states with conflicting laws, which creates havens in some states and rampant enforcement in others, and between states and the federal government, which is ultimately responsible for regulating immigration law. This article examines the history of immigration legislation since the founding of the United States …

The Lost Sanctuary: Examining Sex Trafficking Through The Lens Of United States V. Ah Sou, M. Margaret Mckeown, Emily Ryo

Emily Ryo

Drawing upon original court records and other previously-unexamined archival materials, this article uncovers the story of one of the earliest reported and documented cases of sex trafficking in American history, United States v. Ah Sou, 138 F. 775 (9th Cir. 1905). Through Ah Sou’s legal challenge, we investigate the development of international human rights norms relevant to sex trafficking and the domestication of those norms in U.S. law. We then examine in detail the remedies presently available for sex trafficking victims and apply those remedies retrospectively to Ah Sou’s case. We conclude that despite the development of the law—both in …

Natural Justice And Its Applications In Administrative Law, Mubashshir Sarshar

Mubashshir Sarshar

No abstract provided.

Over The River And (Around) The Woods To Grandma's House We Go: Long-Term Firm Transmission Rights, Transmission Market Power & Gaming Strategies In A Deregulated Energy Market-An International Comparison, Richard R. Bradley

Richard R Bradley

This Article was awarded the 2006-2007 Gulf Coast Power Association Scholarship in Electric Power for student writing involving electric power regulation. This Article focuses on the history of electricity deregulation and the current structure of the transmission grid while exploring the antitrust implications of firm transmission rights and gaming behaviors through reduced competition, decreased electricity reliability, and, typically, higher prices to consumers. Furthermore, this Article illustrates how the international community addresses the non-competitive aspects of transmission capacity. Among the countries examined are: England, the Scandinavian countries of Finland, Denmark, Sweden, and Norway, and Argentina. Many of the aforementioned electricity markets …

Searching For Chevron In Muddy Watters: The Roberts Court And Judicial Review Of Agency Regulations, Ann Graham

ann graham

SEARCHING FOR CHEVRON IN MUDDY WATTERS: THE ROBERTS COURT AND JUDICIAL REVIEW OF AGENCY REGULATIONS

Ann Graham

Abstract

In April 2007, the U.S. Supreme Court delivered its opinion in Watters v. Wachovia. The majority opinion did not invoke the classic administrative law analysis prescribed by the Two-Step Chevron Doctrine, which for more than twenty years has been the foundation of determining judicial deference to agency regulations. The Watters case presented a golden opportunity to clarify the Chevron Doctrine. Instead of taking that expected path, the Supreme Court dodged Chevron altogether – raising serious issues about why and what may be …

Advancing Freshwater Conservation In The Context Of Energy And Climate Policy: Assessing Progress And Identifying Challenges In The Western United States, Adell L. Amos

Adell L. Amos

This article critically evaluates freshwater conservation efforts in light of energy and climate policy in the western United States. Many, if not all, governmental entities today are facing tough and controversial questions involving energy demand and consumption. In the western United States, these energy questions are often inextricably linked to water resource availability and demand issues. With increased population and development pressure the challenges involving energy and water are likely to increase. Moreover, as the impacts from changes to climate and weather patterns increase various areas of the country will see changes to precipitation patterns, increased drought cycles, increased storm …

Collaborative Governance: Emerging Practices And The Incomplete Legal Framework For Citizen And Stakeholder Voice, Lisa Blomgren Bingham

Lisa Blomgren Bingham

I argue here that we need a comprehensive model to understand emerging uses of collaboration across the policy continuum, and that we need to re-examine our legal framework for policy making, implementation, and enforcement to encompass this new collaborative governance. I take as my starting point the normative assumption that collaboration exists, and that it is useful and desirable in certain contexts if designed and implemented well. This article describes the broad range of processes through which citizens and stakeholders collaborate to make, implement, and enforce public policy, and then describes the incomplete legal framework for these processes. First, it …

Lies, Damn Lies And Statistics: Developing A Clearer Assessment, Rob M. Frieden

Rob Frieden

Depending on the source one can conclude that United States consumers enjoy access to a robustly competitive and nearly ubiquitous marketplace for inexpensive broadband Internet access, or they suffer the consequences of a tightly concentrated industry offering inferior service at high rates. On one hand, the Federal Communications Commission (“FCC”), the National Telecommunications and Information Administration (“NTIA”) and some sponsored researchers offer a quite sanguine outlook, possibly influenced by their appreciation for the political and public relations dividends in compiling positive results. On the other hand, other statistical compilations and interpretations show the U.S. behind in terms of market penetration …

The Identifiability Bias In Environmental Law, Shi-Ling Hsu

Shi-Ling Hsu

The identifiability effect is the human propensity to have stronger emotions regarding identifiable individuals or groups rather than abstract ones. The more information that is available about a person, the more likely this person's situation will influence human decision-making. This human propensity has biased law and public policy against environmental and ecological protection because the putative economic victims of environmental regulation are usually easily identifiable workers that lose their jobs, while the beneficiaries – people who avoid a premature death from air or water pollution, people who would be saved by medicinal compounds available only in rare plant and animal …

Pollution Tax Heuristics: An Empirical Study Of Willingness To Pay For Higher Gasoline Taxes, Shi-Ling Hsu, Joshua Walters, Anthony Purgas

Shi-Ling Hsu

Economists widely agree that in concept, pollution taxes are the most cost-effective means of reducing pollution. With the advent of monitoring and enforcement technologies, the case for pollution taxation is generally getting stronger on the merits. Despite widespread agreement among economists, however, pollution taxes remain unpopular, especially in North America. Some oppose pollution taxes because of a suspicion that government would misspend the tax proceeds, while others oppose pollution taxes because they would impose economic hardships upon certain individuals, groups, or industries. And there is no pollution tax more pathologically hated as the gasoline tax. This is unfortunate from an …

Some Quasi-Behavioral Arguments For Environmental Taxation, Shi-Ling Hsu

Shi-Ling Hsu

For decades, economists have advocated for the adoption of environmental taxes to reduce pollution at least cost. While this campaign has largely succeeded in Europe, where a wide variety of environmental taxes are in effect, environmental taxes are few and far between in North America, as economists have failed to persuade policymakers to make any significant policy use of environmental taxes. This paper presents three new arguments that draw heavily upon the behavioralist and organizational literatures, and augment the economic arguments proffered thus far in favor of environmental taxes.

First, environmental taxation creates conditions under which firms undertake creative processes …

The Paradox Of Social Instability In China And The Role Of The Xinfang System, Matthew Adam Bruckner

Matthew Adam Bruckner

No abstract provided.

Gender Equity In College Athletics: Women Coaches As A Case Study, Deborah L. Rhode, Christopher J. Walker

Christopher J. Walker

As Title IX celebrates its thirty-fifth anniversary, many have noted its enormous positive effect on women's sports. But an unintended and too-often neglected byproduct is that as opportunities for female students have increased, opportunities for female professionals have declined. This Article focuses on the barriers that still confront women in college athletics, particularly those who seek professional positions in coaching and administration. Part I presents a brief overview of Title IX, which makes clear its limitations in securing gender equity. Part II.A discusses the declining representation and lower success rate of women coaches, while Part II.B explores the areas of …

A Climate Of Extremes: Transboundary Conflict Resolution, Prof. Elizabeth Burleson

Prof. Elizabeth Burleson

This Article examines evolving climate change policy. In April 2007 Massachusetts v. Environmental Protection Agency clarified that the EPA has the authority to regulate greenhouse gas emissions. This Supreme Court ruling coincided with the United Nations Security Council's decision to put climate change on its agenda. The Intergovernmental Panel on Climate Change (IPCC) has found that anthropogenic climate change has impacted the natural world and human societies. Scientific and governmental consensus has coalesced that multilateral climate mitigation and adaptation must be implemented. International institutions, governments, businesses, non-governmental organizations, and civil society can achieve multilateral greenhouse gas mitigation and climate adaptation.