Law Commons^™

Administrative Law Unbounded: Reflections On Government And Governance, Martin Shapiro

Martin Shapiro

No abstract provided.

Regulation And Regulatory Processes, Cary Coglianese, Robert Kagan

Robert Kagan

Regulation of business activity is nearly as old as law itself. In the last century, though, the use of regulation by modern governments has grown markedly in both volume and significance, to the point where nearly every facet of today’s economy is subject to some form of regulation. When successful, regulation can deliver important benefits to society; however, regulation can also impose undue costs on the economy and, when designed or implemented poorly, fail to meet public needs at all. Given the importance of sound regulation to society, its study by scholars of law and social science is also of …

The Giving Reasons Requirement, Martin Shapiro

Martin Shapiro

No abstract provided.

Oversight And Dispersed Power, Margaret Lemos, Stavros Gadinis, Ronald Krotoszynski, Emily Meazell, Alex Constanza

Stavros Gadinis

Duke Law Journal's 42nd Annual Administrative Law Symposium will focus on several important topics in administrative law today. Selected from over 80 proposals, the seven panelists explore issues pressing upon legislators, agency and Executive Branch officials, and judges, such as the politicization of agencies, the judicial review challenges posed by shared regulatory authority, and the emphasis on reason-giving in rulemaking. The participants will use both historical and empirical analysis to describe the current administrative-law landscape and prescribe alternatives for its future. Appearing: Margaret H. Lemos, moderator ; Stavros Gadinis (Berkeley Law), Ronald J. Krotoszynski, Jr. (University of Alabama), Emily Hammond …

The Power Of Politics, Edward Balleisen, Stavros Gadinis, Jodi Short, Kathryn Watts

Stavros Gadinis

Duke Law Journal's 42nd Annual Administrative Law Symposium will focus on several important topics in administrative law today. Selected from over 80 proposals, the seven panelists explore issues pressing upon legislators, agency and Executive Branch officials, and judges, such as the politicization of agencies, the judicial review challenges posed by shared regulatory authority, and the emphasis on reason-giving in rulemaking. The participants will use both historical and empirical analysis to describe the current administrative-law landscape and prescribe alternatives for its future. Appearing: Edward J. Balleisen, moderator ; Stavros Gadinis (Berkeley Law), Jodi L. Short (Georgetown University), Kathryn A. Watts (University …

How King V. Burwell Creates Tax Problems For Consumers And What The Treasury Can Do About It, Andy Grewal

Andy Grewal

Commentators have expressed concern that a government loss in King v. Burwell, which addresses whether taxpayers can enjoy tax credits for policies purchased on federal health care exchanges, will lead to a "death spiral" during future enrollment seasons.

However, this discussion threatens to mask the potential tax problems facing persons who purchase policies this enrollment season. As this short article explains, purchasers may be faced with a surprising tax bill when they complete their 2015 tax returns. Additionally, the government has argued that it can protect customers from surprise tax bills, but it's authority to do so is far from …

External Administration In Corporate Insolvency And Reorganisation: The Insider Alternative, Larelle Chapple, James Routledge

James Routledge

This article considers the merits of alternative policy approaches to management of companies in insolvency administration, in particular from an identity economics theoretical perspective. The use of this perspective provides a novel assessment of the policy alternatives for insolvency administration, which can be characterised as either following the more flexible United States Chapter 11-style debtor-in-possession arrangement, or relying on the appointment of an external administrator or trustee to manage the insolvent company, who automatically displaces incumbent management. This analysis indicates that stigma and reputational damage from automatic removal of managers in voluntary administration leads to “identity loss” and that an …

Regulatory Competitive Shelters In The Area Of Personalized Medicine, Yaniv Heled

Yaniv Heled

No abstract provided.

Resurrecting Health Care Rate Regulation, Erin C. Fuse Brown

Erin C. Fuse Brown

Our excess health care spending in the United States is driven largely by our high health care prices. Our prices are so high because they are undisciplined by market forces, in a health care system rife with market failures, which include information asymmetries, noncompetitive levels of provider market concentration, moral hazard created by health insurance, multiple principal-agent relationships with misaligned incentives, and externalities from unwarranted price variation and discrimination. These health care market failures invite a regulatory solution. An array of legal and policy solutions are typically advanced to control our health care prices and spending, including: (1) market solutions …

Land Use Planning And Development Regulation Law (Hornbook), Julian Juergensmeyer, T. Roberts

Julian C. Juergensmeyer

Land Use Planning and Development Regulation Law helps real estate and land use lawyers, professional planners, developers, state and local policy makers, officials, academics, and judges handle land use planning and development issues. Its in-depth coverage of the traditional elements of land use planning and control law makes it a practical tool for city planners and other specialists in urban planning.

La Prevención Y Represión De Los Fraudes Alimentarios En La Unión Europea, Luis González Vaqué

Luis González Vaqué

Food fraud, or the act of defrauding buyers of food or ingredients for economic gain has vexed the food industry throughout history. Despite the integrity of the majority of the food industry and their commitment to consumer protection and consumer confidence, the issue of food fraud has gained attention in recent times. Although EU food law is very detailed with respect to food safety (including controls and tests in areas such as residues and other contaminants of food and feed), there is no framework in place specifically to target food fraud, other than the general stipulation that consumers may not …

Regulating Interconnection (Lightly!), Daniel A. Lyons

Daniel Lyons

No abstract provided.

Independence After Matsqui?, Richard Haigh, Jim Smith

Richard Haigh

The authors look at the Supreme Court's latest fully reasoned decision on independence in Canadian Pacific v. Matsqui, where native tribunals were found to be biased because of certain institutional characteristics. The authors argue that the court employs, on the one hand, a very simplified analysis of independence, but at the same time, sets standards for testing independence and bias in tribunals that are impossible to adequately quantify in practice. Neither the reasoning of Lamer C.J, nor Sopinka J. is adequate to address the full range of tribunal experience; in fact, the Supreme Court examines administrative tribunals as if they …

In The Shadows Of Sunlight: The Effects Of Transparency On State Political Campaigns, Abby K. Wood, Douglas M. Spencer

Douglas M. Spencer

In recent years, the courts have deregulated many areas of campaign finance while simultaneously upholding campaign finance disclosure requirements. Opponents of disclosure claim that it chills speech and deters political participation. We leverage state contribution data and find that the speech-chilling effects of disclosure are negligible. On average, donors to state-level campaigns are no less likely to contribute in subsequent elections in states that increase the public visibility of campaign contributions, relative to donors in states that do not change their disclosure laws or practices over the same time period – estimates are indistinguishable from zero and confidence intervals are …

First Amendment; Freedom Of Speech; Broadcasting; Obscenity; Fcc V. Pacifica Foundation, James E. Moliterno

James E. Moliterno

“ ‘I was thinking about the curse words and the swear words, the cuss L words and the words you can't say . . .the words you couldn't say on the public, ah, airwaves... the ones that will curve your spine [and] grow hair on your hands ....’ While this is the satiric opinion of George Carlin, the Federal Communications Commission (FCC) and a bare majority of the United States Supreme Court have embraced it as their genuine opinion.' They have decided to protect the public from the fate of hearing Carlin's social criticism regarding seven ‘dirty’ words.”

Acus Statement # 19 (Issue Exhaustion), Jeffrey Lubbers

Jeffrey Lubbers

Regulatory Competitive Shelters, Yaniv Heled

Yaniv Heled

This Article identifies an array of seemingly disparate federal exclusivity regimes as belonging to an increasingly prevalent and relatively new class of highly valuable government benefits, which it names “regulatory competitive shelters” (RCSs). It characterizes RCSs and distinguishes them from other, more traditional kinds of government-instituted properties. The Article then proceeds to describe a particular brand of RCSs established in federal statutory frameworks whose aim—much like patents—is to create incentives for technological innovation. Identifying several common motifs of such RCS regimes, the Article offers a taxonomy of these RCSs and describes the mechanisms by which RCSs instituted under such regimes …

Broadband Institute Of California Amicus Brief.Pdf, Jodi Benassi

Jodi Benassi

Evolving Contours Of Immigration Federalism: The Case Of Migrant Children, Elizabeth Keyes

Elizabeth Keyes

In a unique corner of immigration law, a significant reallocation of power over immigration has been occurring with little fanfare. States play a dramatic immigration gatekeeping role in the process for providing protection to immigrant youth, like many of the Central American children who sought entry to the United States in the 2014 border “surge.” This article closely examines the history of this Special Immigrant Juvenile Status provision, enacted in 1990, which authorized a vital state role in providing access to an immigration benefit. The article traces the series of shifts in allocation of power between the federal government and …

Deference Lotteries, Jud Mathews

Jud Mathews

When should courts defer to agency interpretations of statutes, and what measure of deference should agencies receive? Administrative law recognizes two main deference doctrines — the generous Chevron standard and the stingier Skidmore standard — but Supreme Court case law has not offered a bright-line rule for when each standard applies.Many observers have concluded that courts’ deference practice is an unpredictable muddle. This Article argues that it is really a lottery, in the sense the term is used in expected utility theory. Agencies cannot predict which deference standard a court will apply or with what effect, but they have a …

Strategic Delegation, Discretion, And Deference: Explaining The Comparative Law Of Administrative Review, Jud Mathews, Nuno M. Garoupa

Jud Mathews

This paper offers a theory to explain cross-national variation in administrative law doctrines and practices. Administrative law regimes vary along three primary dimensions: the scope of delegation to agencies, agencies’ exercise of discretion, and judicial practices of deference to agencies. Working with a principal-agent framework, we show how cross-national differences in institutions’ capacities and the environments they face encourage the adoption of divergent strategies that lead to a variety of distinct, stable, equilibrium outcomes. We apply our model to explain patterns of administrative law in the United States, Germany, France, and Commonwealth jurisdictions.

Millennial Pivot: Sustainability-Purposed Performance Zoning Guidelines In Urban Commercial Development, Michael Widener

Michael N Widener

This paper argues that economic competitiveness requires cities and towns to reimagine their zoning regulations, leveraging technology advances to address challenges revealed by demands for sustainability in building urban projects. The optimal means to accomplish this is to use performance zoning, a method encouraging creative solutions to problems caused by increasing development densities. Performance zoning consists of a series of standards addressing specific sub-optimal neighborhood or community impacts of commercial development; these standards can be negative or positive expressions of municipal goals for sustainability and environmental justice. Pivoting to performance zoning is desirable because the development community has a firmer …

El Derecho De Propiedad Dentro Del Propio Estado, Jancarlos Jair Vega Lugo

Jancarlos Jair Vega Lugo

No abstract provided.

Edilizia Residenziale Convenzionata E Fallimento Della Cooperativa Concessionaria, Valentina Gastaldo

Valentina Gastaldo

L’edilizia convenzionata rappresenta una forma particolare, ma molto comune di edilizia pubblica. L’acuirsi della crisi economica e finanziaria, che negli ultimi anni ha colpito il nostro Paese, ha inevitabilmente dato origine ad innumerevoli problemi durante la fase di realizzazione degli impegni assunti in sede di convenzione. Il saggio si pone l’obiettivo di esaminare l’ipotesi di fallimento della cooperativa concessionaria ed, in particolare, se la sentenza di fallimento comporti l’automatica decadenza della convezione stipulata con l’Amministrazione Comunale. Un ulteriore quesito riguarda, poi, le sorti della convenzione in caso di risoluzione del contratto di locazione stipulato tra la cooperativa fallita ed il …

The Nlrb As An Uberagency For The Evolving Workplace, Michael Z. Green

Michael Z. Green

In addressing legal issues regarding the relationships between employers and employees, one must navigate a complex maze of rights and remedies that govern the workplace. This Essay details several recent and important workplace disputes addressed by the National Labor Relations Board (NLRB) pursuant to Section 7 of the National Labor Relations Act (NLRA). Section 7 protects a worker's right to pursue an activity for mutual aid or protection regarding wages, hours, and other terms and conditions of employment. The NLRB, a unique agency with its ultimate decisions determined by five members who primarily establish rules through adjudication rather than rule …

Summary Of Gilman V. Nevada State Bd. Med. Exam’Rs, 120 Nev. Adv. Op. 31, Angela Morrison

Angela D. Morrison

Bradley Gilman appealed an order denying judicial review of a disciplinary action taken against him by the Nevada State Board of Veterinary Medical Examiners.

Misconstruing Notice In Eeoc Administrative Processing & Conciliation, Angela D. Morrison, Angela D. Morrison

Angela D. Morrison

No abstract provided.

Law And Public Administration In Ireland, Fiona Donson, Darren O'Donovan

Darren O'Donovan

Extract: It is often said that administrative law is notoriously difficult to study and to teach because its doctrines are abstract and nuanced, moving across a wide array of statutes and aspects of legal practice. This book is an attempt to defend administrative law as an exciting and dynamic subject which is central to meeting the future challenges facing Irish public governance. Law and Public Administration in Ireland inevitably focuses heavily upon judicial review, as the central aspect of the legal regulation of governance, providing a firm backstop against government abuse of power. In our account of the grounds of …

Critical Junctures: Regulatory Failures, Ireland's Administrative State And The Office Of The Ombudsman, Fiona Donson, Darren O'Donovan

Darren O'Donovan

Extract: In the aftermath of global financial crisis, the importance of effective regulatory interventions by government has come into sharp relief. The failure of public administration and political oversight that underwrote the collapse of the Irish economy in 2008 has provoked widespread reflection on the need for increased administrative review in the country. This has extended beyond the specific financial sphere, to broader public law reform targeting executive power by building an improved parliamentary culture, greater independent oversight and concentrating democratic participation. In this article, we critique the Irish regulatory state through the prism of the pressures, conflicts and reforms …

Deferred Action, Supervised Enforcement Discretion, And The Rule Of Law Basis For Executive Action On Immigration, Anil Kalhan

Anil Kalhan

In November 2014, the Obama administration announced the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) initiative, which built upon a program instituted two years earlier, the Deferred Action for Childhood Arrivals (DACA) initiative. As mechanisms to channel the government’s scarce resources toward its enforcement priorities more efficiently and effectively, both DACA and DAPA permit certain individuals falling outside those priorities to seek “deferred action,” which provides its recipients with time-limited, nonbinding, and revocable notification that officials have exercised prosecutorial discretion to deprioritize their removal. While deferred action thereby facilitates a highly tenuous form of quasi-legal recognition …