Law Commons^™

Plus Ça Change: A Century-Old Removal For Cause, Michael E. Herz

Online Publications

Lots of ink has been spilled over when Congress can give federal officials for-cause protection. One would think that a necessary antecedent to that discussion would be a determination of exactly what for-cause protection entails. What is “inefficiency, neglect of duty, or malfeasance in office”? Yet no one knows; the debate over the permissibility of that restriction proceeds in blissful uncertainty as to its scope.

N. Lake Tahoe Protection Dist. V. Bd. Of Admin., 134 Nev. Adv. Op. 93 (Dec. 6, 2018) (En Banc), Hannah Nelson

Nevada Supreme Court Summaries

The Court determined that NRS 616B.578(4) does not require an employer to know the precise medical terminology for an employee’s permanent physical impairment before the subsequent injury. However, the statute requires that an employee’s preexisting permanent physical impairment be fairly and reasonably observed from a written record and the impairment must amount to at least 6% whole person impairment.

O’Keefe V. State Of Nev. Dep’T Of Motor Vehicles, Nev. Adv. Op. 92 (Dec. 6, 2018) (En Banc), Jacqueline Cope

Nevada Supreme Court Summaries

The Court reviewed de novo whether a classified employee violated a law or regulation when she challenged a challenges a state agency’s decision to terminate. Moreover, the Court applied a deferential standard of reasonableness to the agency’s decision to terminate the employee in service of the public good.

Preserving Life By Ranking Rights, John William Draper

Librarian Scholarship at Penn Law

Border walls, abortion, and the death penalty are the current battlegrounds of the right to life. We will visit each topic and more in this paper, as we consider ranking groups of constitutional rights.

The enumerated rights of the Due Process Clauses of the Fifth and Fourteenth Amendments—life, liberty, and property—merit special treatment. They have a deeper and richer history that involves ranking. Ranking life in lexical priority over liberty and property rights protects life first and maximizes safe liberty and property rights in the absence of a significant risk to life. This is not new law; aspects of it …

The Depravity Of The 1930s And The Modern Administrative State, Gary S. Lawson, Steven Calabresi

Faculty Scholarship

Gillian Metzger’s 2017 Harvard Law Review foreword, entitled 1930s Redux: The Administrative State Under Siege, is a paean to the modern administrative state, with its massive subdelegations of legislative and judicial power to so-called “expert” bureaucrats, who are layered well out of reach of electoral accountability yet do not have the constitutional status of Article III judges. We disagree with this celebration of technocratic government on just about every level, but this Article focuses on two relatively narrow points.

First, responding more to implicit assumptions that pervade modern discourse than specifically to Professor Metzger’s analysis, we challenge the normally unchallenged …

Remedies In Canadian Administrative Law: A Roadmap To A Parallel Legal Universe, Cristie Ford

All Faculty Publications

Administrative law in Canada, as in many other common law countries, centres around judicial review doctrine. Sometimes, one may even get the sense that administrative law and administrative law remedies begin at the point at which a party to an administrative action seeks judicial review of that action through the courts. Yet an overly tight focus on court action misses the hugely important first step in real-life administrative action: the varied and sometimes creative, purpose-built remedies that a tribunal itself may impose.

This chapter, which has been revised and updated for the third edition of this leading text on Canadian …

State Of Nev. Local Gov’T Emp. Mgmt. Bd., V. Educ. Support Emp. Ass’N, 134 Nev. Adv. Op. 86 (Nov. 8, 2018), Amanda Netuschil

Nevada Supreme Court Summaries

The Court determined that the plain language application of NRS § 288.160 and Nevada Administrative Code (NAC) 288.110 states that the vote-counting standard is to be determined by the majority of members of the bargaining unit and not by a majority of the votes cast.

Sarfo V. State Bd. Of Medical Examiners, 134 Nev. Adv. Op. 85 (Nov. 1, 2018), Nathaniel Saxe

Nevada Supreme Court Summaries

The Court determined that when a complaint is filed with the Nevada State Board of Medical Examiners against a physician, the physician’s due process rights do not attach to the fact-finding role of the administrative agency.

Appeal No. 0907: Donald E. Wood, V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Review of Chief's Order 2015-345 (Financial Assurance)

Appeal No. 0964: Kevin Simballa, V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Review of Chief's Order 2018-231 (Auer North Unit; Hilcorp Energy)

Appeal No. 0930: M-I L.L.C. Dba M-S Swaco, V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Review of Chief's Order 2016-267 (Temporary Authorization; Strasburg Facility)

Why Kavanaugh Should Not Attend The White House Ceremony, Michael Herz

Online Publications

Brett Kavanaugh is now Justice Kavanaugh. He has been nominated, confirmed and — in a private ceremony on Saturday conducted by Chief Justice John Roberts and the retired Justice Anthony Kennedy — sworn in. There is nothing left to do. So why is he scheduled to be at the White House on Monday evening for a public ceremony, one that President Trump has inaccurately called a “swearing-in ceremony”?

Infrastructural Exclusion And The Fight For The City: Power, Democracy, And The Case Of America's Water Crisis, K. Sabeel Rahman

Faculty Scholarship

No abstract provided.

Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang

All Faculty Scholarship

Our aim in this essay is to leverage archival research, data and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, as a means to illuminate the prospects for retrenchment in the current political landscape. We follow the scheme of the book by separately considering the prospects for federal litigation retrenchment in three lawmaking sites: Congress, federal court rulemaking under the Rules Enabling Act, and the Supreme Court. Although pertinent data on current retrenchment initiatives are limited, our historical data and comparative institutional perspectives should afford a basis for informed prediction. Of course, little in …

Eroding Immigration Exceptionalism: Administrative Law In The Supreme Court's Immigration Jurisprudence, Kate Aschenbrenner

Faculty Scholarship

No abstract provided.

The Tethered President: Consistency And Contingency In Administrative Law, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

The law governing administrative agency policy change and the checking of unjustified inconsistency is rooted in a web of intertwined doctrine. The Supreme Court’s 2016 opinion in Encino Motorcars modestly recast that doctrine to emphasize that the agency pursuing a change cannot leave “unexplained inconsistency” or neglect to address past relevant underlying facts, but reaffirmed its central stable precepts. Nonetheless, radically different views about broad, unaccountable, and agency power to make rapid policy changes have been articulated by Justice Neil Gorsuch while on the Tenth Circuit and by agencies pursuing deregulatory policy shifts under the leadership of President Donald J. …

Judge Kavanaugh, Chevron Deference, And The Supreme Court, Kent H. Barnett, Christina L. Boyd, Christopher J. Walker

Popular Media

How might a new U.S. Supreme Court Justice Brett Kavanaugh review federal agency statutory interpretations that come before him on the Court?

To find at least a preliminary answer, we can look to his judicial behavior while serving on the U.S. Court of Appeals for the D.C. Circuit—and there is plenty of relevant Kavanaugh judicial behavior to observe. Since starting his service on the D.C. Circuit in 2006, Judge Kavanaugh has participated in the disposition of around 2,700 cases and has authored more than 300 opinions. Over a third of those authored opinions involved administrative law.

Get Moving With Climate Action, Gina Mccarthy

The Regulatory Review in Depth

No abstract provided.

The Politics Of Selecting Chevron Deference, Kent H. Barnett, Christina L. Boyd, Christopher J. Walker

Scholarly Works

In this article, we examine an important threshold question in judicial behavior and administrative law: When do federal circuit courts decide to use the Chevron deference framework and when do they select a framework that is less deferential to the administrative agency's statutory interpretation? The question is important because the purpose of Chevron deference is to give agencies-not judges-policy-making space within statutory interpretation. We expect, nonetheless, that whether to invoke the Chevron framework is largely driven by political dynamics, with judges adopting a less deferential standard when their political preferences do not align with the agency's decision. To provide insight, …

Appeal No. 0955: Ms. Kelly M. Rahach, Trustee, Rahach Revocable Trust, V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Review of Chief's Orders 2018-45, 2018-87 & 2-18-88 (Old Farm Units; Chesapeake Exploration, LLC)

Appeal No. 0956: Ms. Kelly M. Rahach, Trustee, Rahach Revocable Trust, V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Review of Chief's Orders 2018-45, 2018-87 & 2-18-88 (Old Farm Units; Chesapeake Exploration, LLC)

Appeal No. 0955: Ms. Kelly M. Rahach, Trustee, Rahach Revocable Trust, V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Review of Chief's Orders 2018-45, 2018-87 & 2-18-88 (Old Farm Units; Chesapeake Exploration, LLC)

Appeal No. 0952: Patrick Hunkler, V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Review of Chief's Order 2018-13 (Surratt Unit) (Chesapeake Exploration, LLC)

Appeal No. 0954: Patrick Hunkler, V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Review of Chief's Order 2018-42 (Keller Unit) (Chesapeake Exploration, LLC)

Appeal No. 0953: George Jr. & Karen L. Dudich, V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Review of Chief's Order 2018-13 (Surratt Unit; Chesapeake Exploration, LLC)

Appeal No. 0963: Adams Oil & Gas, Llc, V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Review of Chief's Order 2018-124

Two Views On The Nationwide Injunction, Jack M. Beermann

Shorter Faculty Works

I feel a bit like Gilligan in one of my favorite episodes of Gilligan’s island. The Professor and the Skipper are having an argument over some issue vital to the castaway’s prospects of being rescued from the island. Gilligan is standing in the middle agreeing with everything both parties to the argument say, and finally the two disputants become fed up with Gilligan’s endorsement of diametrically opposing views and they turn on him. In this Jot, I praise two articles that take conflicting views on an issue vital to the future of administrative law, namely, when should federal courts, confronted …

Drug Approval In A Learning Health System, W. Nicholson Price

Articles

The current system of FDA approval seems to make few happy. Some argue FDA approves drugs too slowly; others too quickly. Many agree that FDA—and the health system generally—should gather information after drugs are approved to learn how well they work and how safe they are. This is hard to do. FDA has its own surveillance systems, but those systems face substantial limitations in practical use. Drug companies can also conduct their own studies, but have little incentive to do so, and often fail to fulfil study commitments made to FDA. Proposals to improve this dynamic often suggest gathering more …

20th Annual Open Government Summit: Access To Public Records Act And Open Meetings Act, 2018, Department Of Attorney General, State Of Rhode Island

School of Law Conferences, Lectures & Events

10

The Porous Court-Agency Border In Patent Law, Saurabh Vishnubhakat

Faculty Scholarship

The progression toward reevaluating patent validity in the administrative, rather than judicial, setting became overtly substitutionary in the America Invents Act. No longer content to encourage court litigants to rely on Patent Office expertise for faster, cheaper, and more accurate validity decisions, Congress in the AIA took steps to force a choice. The result is an emergent border between court and agency power in the U.S. patent system. By design, the border is not absolute. Concurrent activity in both settings over the same dispute remains possible. What is troubling is the systematic weakening of this border by Patent Office encroachments …