Law Commons^™

Delegating Climate Authorities, Mark P. Nevitt

Faculty Articles

The science is clear: the United States and the world must take dramatic action to address climate change or face irreversible, catastrophic planetary harm. Within the U.S.—the world’s largest historic emitter of greenhouse gas emissions—this will require passing new legislation or turning to existing statutes and authorities to address the climate crisis. Doing so implicates existing and prospective delegations of legislative authority to a large swath of administrative agencies. Yet congressional climate decision-making delegations to any executive branch agency must not dismiss the newly resurgent nondelegation doctrine. Described by some scholars as the “most dangerous idea in American law,” the …

The Cfpb Proposed Arbitration Ban, The Rule, The Data, And Some Considerations For Change, Ramona L. Lampley

Faculty Articles

Predispute consumer arbitration has sparked energetic debate and sharply divides the utility of the class action versus the utility of individual arbitration. Thus far, the U.S. Supreme Court’s jurisprudence has given a “thumbs up” approach to predispute consumer arbitration waivers, which almost always include a class waiver agreement. Congress showed little interest in amending the Federal Arbitration Act (“FAA”), even for consumer cases. It seems that consumer arbitration was the “wild west” of the law, in that it was largely unregulated and could direct claims to the black hole of private dispute resolution. In May 2016, the Consumer Financial Protection …

The Cfpb Anti-Arbitration Proposal: Let’S Just Give Arbitration A Chance, Ramona L. Lampley

Faculty Articles

In October 2015, the Consumer Financial Protection Bureau (“CFPB”) announced that it would propose a rule banning class action waivers in arbitration agreements for consumer financial services products. This proclamation came to fruition in May 2016 when the CFPB proposed 12 C.F.R. part 1040 and sought public comment on the proposed rule. The CFPB claims that the class-waiver, often imbedded in consumer arbitration agreements, gives companies a “free pass from being held accountable by their customers[,]” comparing it to the relief a consumer can obtain as being part of a class action. At the same time, the CFPB proposed reporting …

The Underappreciated Role Of The National Environmental Policy Act In Wilderness Designation And Management, Michael Blumm, Lorena Wisehart

Faculty Articles

On its 50th anniversary, the Wilderness Act owes much to the effect of the National Environmental Policy Act (NEPA), both in terms of the number of acres in the national wilderness system and in the management of designated wilderness areas. Courts have closely scrutinized federal land management agency actions that threaten wilderness qualities — and this article maintains that the usual vehicle has been NEPA. Enacted a little over a half-decade after the Wilderness Act, NEPA was instrumental in the doubling of wilderness acres in the 1980s, as Congress added wilderness areas and released other areas to multiple uses in …

Tocqueville's Nightmare: The Administrative State Emerges In America, 1900-1940 (Book Review), Michael Ariens

Faculty Articles

No abstract provided.

Against The Profit Motive: The Salary Revolution In American Government, 1780–1940 (Book Review), Michael S. Ariens

Faculty Articles

In Against the Profit Motive, Nicholas R. Parrillo expertly explains how and why state and federal governments moved from paying their employees fees to paying them salaries. The book offers insights into the history of government finance and administrative law, shifting dramatically in time, subject matter, and geography. The book begins with a helpful fifty-page introductory summary and then is divided into two parts, each of which considers a type of activity that generated fees for government officers: facilitative payments and bounties. Further, Against the Profit Motive illustrates, in the disparate areas of criminal law enforcement, tax collection, and naval …

The Jurisdiction Of The D.C. Circuit, Matthew B. Lawrence, Eric M. Fraser, David Kessler, Stephen A. Calhoun

Faculty Articles

The U.S. Court of Appeals for the D.C. Circuit is unique among federal courts, well known for an unusual caseload that is disproportionally weighted toward administrative law. What explains that unusual caseload? This Article explores that question. We identify several factors that “push” some types of cases away from the Circuit and several factors that “pull” other cases to it. We give particular focus to the jurisdictional provisions of federal statutes, which reveal congressional intent about the types of actions over which the D.C. Circuit should have special jurisdiction. Through a comprehensive examination of the U.S. Code, we identify several …

Dueling Democracies: Protecting Labor Representation Elections From Governmental Interference, John W. Teeter Jr

Faculty Articles

Public officials should be free to support or oppose unionization, but we must prevent their electioneering from undermining the industrial democracy of labor representative elections. Such elections are designed to be freely held; workers decide whether they wish to be represented by a union for purposes of collective bargaining. This choice of whether to unionize is for the workers alone without any governmental favoritism or coercion.

Government officials however have repeatedly jeopardized laboratory conditions by campaigning in labor representation elections. The Board should reassure workers of their right to cast uncoerced ballots, clarify that the political officials are not declaring …

Erisa: Anti-Alienation Superiority In Bankruptcy, George Lee Flint Jr

Faculty Articles

Both ERISA and the Bankruptcy Code consider the issue of debtor-participant’s interest in certain pension trusts when an action has been undertaken against the bankrupt debtor participant’s estate. Many jurisdictions have offered conflicting views on the handling of the interest. These conflicts create litigious interpretation and choice of law problems and place plan administrators at risk for breach of fiduciary duty depending on jurisdictional interpretation. Paying-out a bankruptcy trustee’s turnover demand could affect the tax qualified status of the pension plan, thereby hurting all plan participants. ERISA’s preemption provision was drafted to create uniformity among the states in interpreting employee …

Erisa: The Arbitrary And Capricious Rule Under Siege, George Lee Flint Jr

Faculty Articles

While ERISA sets forth an explicit standard that the plan administrator’s actions must meet those of a prudent man acting in like circumstances, courts have applied the arbitrary and capricious standard of review to administrator decisions. Courts should apply the arbitrary and capricious standard only when dealing with disinterested plan administrators acting properly under ERISA. The arbitrary and capricious rule was applied to post-ERISA decisions as a continuation of the pre-ERISA precedent, which established the rule through the continued development of common law from union negotiated employee benefit plans decided under the Labor Management Relations Act. Unfortunately, this continuation of …