Law Commons^™

Promoting Self-Sufficiency?, Matthew Main

Matthew Main

The New York City Human Resources Administration has implemented a policy that will have a disproportionate impact on poor families of color. The policy departs from the legislative mandate to support New York’s neediest and most at-risk by arbitrarily excluding incarceration from the definition of “temporary absence,” as it applies to the Cash Assistance program. Aside from the discriminatory impact on poor children and families, the policy decision comes at a higher cost to New York taxpayers in the midst of a financial crisis. This Comment evaluates the legal flaws in the policy, the persons it targets, the families it …

Polyethylene Retail Carrier Bags: Non-Market Economy Status And U.S. Unfair Trade Actions Against Vietnam, David A. Gantz

David A Gantz

Like China, Vietnam was required as a condition of WTO accession to accept that other WTO Members would be able to use non-market-economy methodology for an extended period (2018 in the case of Vietnam) when bringing antidumping actions against Vietnamese producers. Vietnam also agreed to the use of special non-national “benchmarks” for calculating the benefits derived from certain government subsidy programs when those programs were challenged under national countervailing duty actions. In 2009, the U.S Department of Commerce brought its first CVD action against Vietnam, Polyethylene Retail Carrier Bags. This article reviews the history of such actions against Vietnam (and …

Promoting Self-Sufficiency?, Matthew Main

Matthew Main

The New York City Human Resources Administration has implemented a policy that will have a disproportionate impact on poor families of color. The policy departs from the legislative mandate to support New York’s neediest and most at-risk by arbitrarily excluding incarceration from the definition of “temporary absence,” as it applies to the Cash Assistance program. Aside from the discriminatory impact on poor children and families, the policy decision comes at a higher cost to New York taxpayers in the midst of a financial crisis. This Comment evaluates the legal flaws in the policy, the persons it targets, the families it …

Promoting Self-Sufficiency?, Matthew Main

Matthew Main

The New York City Human Resources Administration has implemented a policy that will have a disproportionate impact on poor families of color. The policy departs from the legislative mandate to support New York’s neediest and most at-risk by arbitrarily excluding incarceration from the definition of “temporary absence,” as it applies to the Cash Assistance program. Aside from the discriminatory impact on poor children and families, the policy decision comes at a higher cost to New York taxpayers in the midst of a financial crisis. This Comment evaluates the legal flaws in the policy, the persons it targets, the families it …

Promoting Self-Sufficiency?, Matthew Main

Matthew Main

The New York City Human Resources Administration has implemented a policy that will have a disproportionate impact on poor families of color. The policy departs from the legislative mandate to support New York’s neediest and most at-risk by arbitrarily excluding incarceration from the definition of “temporary absence,” as it applies to the Cash Assistance program. Aside from the discriminatory impact on poor children and families, the policy decision comes at a higher cost to New York taxpayers in the midst of a financial crisis. This comment evaluates the legal flaws in the policy, the persons it targets, the families it …

Dichiarazione Del Contraente E Strumenti Finanziari Derivati Degli Enti Territoriali, Valerio Sangiovanni

Valerio Sangiovanni

No abstract provided.

Addiction Treatment Under The Mental Health Parity And Addiction Equity Act Of 2008 – Expanded Behavioral Health Benefits Bring Risks Of Increased Cost Shifting To Public Funding Sources, Greg Heller

Greg Heller

The Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (the “Parity Act”) promises to do a great deal of good for a lot of families, by making health insurance coverage for behavioral health care more extensive. Managed care techniques, and specialized vendors known as behavioral health carve-out companies, will play a significant role in this expanded coverage. This article reports on a study that documented a significant shift in the costs of addiction treatment, from private insurers who should have paid for the care to the public fisc, as a result of managed care …

Cooling The Core Habitat Provision Of The Endangered Species Act Before It Goes Critical: Practical Critical Habitat Reformulation, Allan J. Ray

Allan J Ray

The Endangered Species Act contains provisions that aim to protect “critical habitat.” However, while having generated heated controversy and conflict and having served as fertile ground for legal, political, and economic theorists, these provisions have done very little to reduce the impact on endangered species from the land uses to which private owners put their property. This article synthesizes several of the most powerful criticisms of critical habitat, together with the responses thereto, to argue that the agencies implementing the Act have low-cost options available to them under the Act as presently structured that might pay big habitat dividends over …

A Proposed National Healthcare Information Network Architecture And Complementary Preemption Of State Health Information Privacy Laws, Arlen W. Langvardt, John W. Hill

Arlen W Langvardt

(Abstract is included with text of paper.)

Epa’S Attempt To Regulate Greenhouse Gases Under The Clear Air Act: Will Chevron Allow The Tailoring Rule To Withstand Judicial Review? And Why The Answer Doesn’T Matter, James Valvo

James Valvo

The Environmental Protection Agency has issued three new Clean Air Act regulations targeting greenhouse gases, as a response to the Supreme Court’s ruling in Massachusetts v. EPA. One of these proposals, the Tailoring Rule, seeks to adjust the applicability thresholds that trigger the prevention of significant deterioration and title V permit requirements. EPA is attempting to use the Tailoring Rule to soften the blow of new greenhouse gas regulations on both businesses and state permitting agencies. This proposed rule clearly violates the expressed congressional intent in the statute. Legal challenges to EPA’s actions are looming and the standard of review …

Super Deference, The Science Obsession, And Judicial Review Of Agency Science, Emily H. Meazell

Emily H. Meazell

When courts review agencies’ scientific and technical determinations, they often emphasize that the specialized subject matter requires them to be at their most deferential. This “super-deference” principle seems appealing because it is supported by basic notions of institutional competence and accommodates a natural judicial tendency to avoid deep encounters with science. But it stands in stark tension with the expectation that courts must reinforce administrative-law values like participation, transparency, and deliberation. And it fails to further the legitimizing function of incorporating the best possible science into institutional decisionmaking. Surprisingly, there is no scholarship comprehensively assessing super deference. This Article begins …

Simplify, Simplify, Simplify – An Analysis Of Two Decades Of Judicial Review In The Veterans Benefits Adjudication System, Rory E. Riley

Rory E. Riley

Prior to the Veterans' Judicial Review Act, the Department of Veterans Affairs existed in "splendid isolation" - meaning that the department was insulated from judicial review by statute. After the due process revolution of the 1960's and pressure from various veterans’ organizations after the Vietnam war, Congress passed the Veterans' Judicial Review Act in 1988. The Act created the U.S. Court of Appeals for Veterans Claims, an article I court with exclusive jurisdiction over decisions by the Board of Veterans' Appeals. This article argues that 20 years after the Veterans' Judicial Review Act was implemented, the system has become more …

Cheaters Shouldn't Prosper And Consumers Shouldn't Suffer: The Need For Governmental Enforcement Against Economic Adulteration Of 100% Pomegranate Juice And Other Imported Food Products, Michael T. Roberts

Michael T. Roberts Esq.

ABSTRACT

This article examines the failure of government agencies, including the U.S. Food and Drug Administration, to enforce against the adulteration of economically adulterated imported food product. The problem of economic adulteration has emerged in the modern global food system as a serious threat to the health of consumers, the economic livelihoods of honest purveyors of food, and the integrity of national food regulatory systems. These consequences were recently evidenced by the China melamine scandal that sickened and killed both infants and pets.

This article addresses the problem of a lack of enforcement against economic adulteration through the prism of …

Global Administrative Law Meets “Soft” Powers: The Uncomfortable Case Of Interpol Red Notices, Mario Savino

Mario Savino

With its 188 members, Interpol is the second largest global entity after the United Nations. It is not a treaty-based organization and it is not entrusted with any traditional police powers. However, Interpol issues “red notices”, i.e. warrants to seek the arrest of (suspect) criminals for extradition purposes that are published and circulated worldwide through a sophisticated communication network. From a public law standpoint, red notices are elusive administrative measures: albeit “soft” (non binding), they de facto impinge upon the fundamental right to personal freedom. How to treat such an atypical international power? How appropriate is to put it under …

To Infinity And Beyond: Fcc Enforcement Limiting Broadcast Indecency From George Carlin To Cher And Into The Digital Age, Blake M. Lawrence

Blake M Lawrence

Abstract: This article argues that FCC enforcement of broadcast indecency has become severely outdated, especially with the internet revolution of the past two decades. In Fox Television Studios v. FCC, the Court insisted on upholding the analysis of In re Pacifica (from the 1970s) which limited indecent speech based on the “unique accessibility” and the “uniquely pervasive” nature of broadcast television. However, the rise of cable television and internet television (from sites such as YouTube and Hulu) has nullified that rationale. The article further argues that the FCC’s method of enforcement based on complaints does not serve the public interest …

Super Deference, The Science Obsession, And Judicial Review Of Agency Science, Emily H. Meazell

Emily H. Meazell

When courts review agencies’ scientific and technical determinations, they often emphasize that the specialized subject matter requires them to be at their most deferential. This “super-deference” principle seems appealing because it is supported by basic notions of institutional competence and accommodates a natural judicial tendency to avoid deep encounters with science. But it stands in stark tension with the expectation that courts must reinforce administrative-law values like participation, transparency, and deliberation. And it fails to further the legitimizing function of incorporating the best possible science into institutional decisionmaking. Surprisingly, there is no scholarship comprehensively assessing super deference. This Article begins …

(If) Things Fall Apart: Searching For Optimal Regulatory Solutions To Combating Climate Change Under Title I Of The Existing Clean Air Act If Congressional Action Fails, Timothy J. Mullins, M. Rhead Enion

Timothy J Mullins

The prospects for a Congressional climate change bill have lessened since the Copenhagen summit. If the legislative process fails, EPA may have a number of options available under the existing Clean Air Act to create a cap-and-trade program that could, in many ways, mimic a Congressionally-created regime. Under Title I in particular, EPA could have this type of authority under the NAAQS program (§§ 107–110) or the New Source Performance Standards and existing source regulation (§ 111(b) and (d)). This Article analyzes the potential of both of these sections and their associated regulatory programs to create a large-scale cap-and-trade program …

Environmental Deliberative Democracy And The Search For Administrative Legitimacy: A Legal Positivism Approach, Michael R. Harris

Michael R. Harris

Recent scholarship suggests that legitimizing environmental lawmaking will require a breach of the administrative apparatus by democratization of a particular kind, namely the inclusion of greater public discourse within the context of administrative decision-making and more meaningful civic self-determination. In this article, I examine this claim through the lens of modern legal positivism. It is argued that legal positivism provides the tools necessary to test for and identify the specific structural deficiencies that undermine the legitimacy of the administrative state as a lawmaking institution, and more importantly, to determine what legal changes to agency practice and procedure must be implemented …

When Natural Science Meets The Dismal Science, Stephanie Tai

Stephanie Tai

Both the natural sciences—such as ecology, biology, chemistry, and physics—and economics—the so-called “dismal science”— have become integral to contemporary governance. This article examines how the Supreme Court and appellate courts have taken into account developments in natural science and economics in evaluating Commerce Clause challenges to environmental laws, and applies this examination to the context of wetlands regulation. I present a descriptive claim: that courts, especially the Supreme Court, have already been incorporating new developments in science and economics in their Commerce Clause opinions; this use of developments in scientific and economic research, I contend, arises out of the empirical …

Defragmenting The Regulatory Process, Stuart Shapiro

Stuart Shapiro

The regulatory process is often criticized for being cumbersome and slow, much like a computer whose hard drive is fragmented by files no longer used or useful. Like such a computer, the regulatory process contains many requirement of dubious utility. These include the Paperwork Reduction Act, the Regulatory Flexibility Act, the Unfunded Mandates Reform Act, and numerous executive orders. While other parts of the regulatory process such as notice and comment and cost-benefit analysis have received much more academic attention, these other parts of the process deserve examination as well. This paper argues that such an examination will reveal that …

The Supreme Court's Assault On Litigation: Why (And How) It Could Be Good For Health Law, Abigail R. Moncrieff

Abigail R. Moncrieff

In recent years, the Supreme Court has narrowed or eliminated private rights of action in many legal regimes, much to the chagrin of the legal academy. That trend, although certainly not limited to health law, has had a significant impact on the field; the Court’s decisions have eliminated the private enforcement mechanism for at least three important healthcare regimes: Medicaid, employer-sponsored insurance, and medical devices. In a similar trend outside the courts, state legislatures have capped noneconomic and punitive damages for medical malpractice litigation, weakening the tort system’s deterrent capacity in those states. This Article points out that the trend …

A Million Little Takings, Dru Stevenson

Dru Stevenson

IOLTA programs are a very popular mechanism for funding legal services for the poor, and are now operating in every state. As a result, however, IOLTA has become the most frequent and widespread instance of government takings of private property in America. The post-Kelo era has seen increasing legislative restrictions on takings, and the post-Kelo reforms in several states appear to have inadvertently made their respective IOLTA programs illegal by banning all takings where the government immediately gives the taken property to another private party (in this case, private poverty-law foundations and legal aid clinics). IOLTA takings also highlight a …

Understanding Vague Signing Statements, Michael J. Mccarthy

Michael J. McCarthy

This paper identifies and assesses vagueness as a reoccurring feature of modern signing statements. It analyzes how vagueness affects a signing statement’s ability to achieve a variety of objectives, from preserving executive prerogatives to shaping how the judiciary construes statutory language. While vagueness consistently decreases a signing statement’s effectiveness, specificity may unintentionally frustrate the signing statement’s purpose. The interplay between the risks of specificity and the inefficiency of vagueness may suggest that the signing statement is not as powerful a presidential tool as is commonly thought.

Network Neutrality Over The Top: Why The Fcc Should Not Try To Establish Rules Affecting Internet Content And Applications Providers, Rob M. Frieden

Rob Frieden

The Federal Communications Commission (“FCC”) has issued a Notice of Proposed Rulemaking (“NPRM”) that would codify rules aiming to preserve a free and open Internet for consumers. The NPRM appropriately concentrates on preventing broadband Internet access providers (“IAPs”) from acting as gatekeepers between end-users and online content and application providers. However, the NPRM does invite comments on a proposal of AT&T that openness principles be applied to Internet content and application providers. This article strongly opposes AT&T’s imitative as both unlawful and unwise. The FCC’s appropriate concern about end user access to the Internet via IAPs does not justify an …

Pacifica Reconsidered: Implications For The Current Controvery Over Broadcast Indecency, Angela J. Campbell

Angela J. Campbell

This article tells the story behind the Pacifica decision, which found the FCC acted consistently with the First Amendment in finding that the broadcast of George Carlin’s monologue “Seven Dirty Words” violated federal law prohibiting indecent broadcasts, and considers the implications of Pacifica for two cases recently remanded by the Supreme Court. The issues on remand in the Fox and CBS cases are whether Pacifica justifies the FCC’s reprimand of stations for airing “fleeting expletives” and “fleeting nudity” and whether Pacifica remains good law in light of legal and technological changes. To tell the story of Pacifica, I researched the …

Financial Regulatory Reformation In South Korea And Experience Of The Consolidated Regulatory System, Jeongdoo Lee

Jeongdoo Lee

One significant recommendation for the U.S. financial reformation is the consolidation of regulatory system, which South Korea adopted after the Asian financial crisis. This paper briefly reflects the causes of the Korean financial crisis from the points of financial regulation, and explains the process of reformation and experiences of Korean consolidated system including some modifications after the initial reformation. In addition, this paper evaluates the Korean regulatory system with general standards and needs for changes in the backgrounds of various economic and political surroundings. Although there can be general requisites for desirable regulatory system, the reason for the change itself …

Why Do Judges Read Statutes?, Alexander Volokh

Alexander Volokh

The standard view that "statutory interpretation matters" -- that different methods can "lead to" different results -- is hard to square with the standard rational-choice account of judicial decisionmaking. Indeed, under the standard model, it is not obvious why a judge should bother to even read the statute.

I show, within the rational-choice account, how the judge can benefit from reading the statute when the preferences of legislators are uncertain. Doing so shows the judge what policy the legislators agreed to in the past, which gives him clues as to legislators' preferences today. Moreover, different assumptions about how the legislature …

All I Need Is A Miracle And A Constitutional Right To Access It: The Rights Of The Terminally Ill Reconsidered, Amy M. Dudash

Amy M. Dudash

In Abigail Alliance for Better Access to Developmental Drugs v. Von Eschenbach, Abigail Alliance sought to enjoin the FDA from preventing the sale of investigational drugs to terminally ill patients. The Alliance argued that terminally ill patients have a constitutional right to access investigational drugs under the Due Process Clause of Fifth Amendment. In order to determine if a right to non-FDA approved drugs existed under the Due Process Clause, the court applied the test laid out in Washington v. Glucksberg. An en banc panel of the D.C. Circuit Court of Appeals held that terminally ill patients did not have …

An Extinction Of Transparency: The Opaque Endangered Species List, Benjamin W. Cramer

Benjamin W. Cramer

This article reconstructs the Endangered Species Act (ESA) as an informational statute with unresolved problems of transparency and disclosure. The article introduces the informational requirements of modern American environmental legislation, including the ESA. The article then examines the conflict between the substantive goals of the ESA and the procedural focus of American administrative jurisprudence. This is followed by a case history of the informational requirements of the ESA in general and the official endangered species list in particular, with coverage of political manipulation of the list and whether or not it is a truly transparent item of government-held information. The …

Abuse Of The Warranted But Precluded Designation: A Real Or Imagined Purgatory?, K. Mollie Smith

K. Mollie Smith

Despite a strong policy of protecting all seriously declining species, the Endangered Species Act (ESA) falls far short of its goal. Currently, it protects less than nineteen percent of plant and animal species at risk of extinction. While many factors contribute to this shortfall, critics allege that abuse of the warranted but precluded (WBP) designation plays an integral role. The WBP designation allows the listing agency to acknowledge that a species warrants protection under the ESA, but delay such protection if it only has the resources to address higher priority species. The purpose of the WBP designation is to give …