Law Commons^™

Proposed Implementing Procedures For Restore Act Awards Under Nepa, Sara Mammarella

Sara Mammarella

On April 20, 2010, what has been described as “the worst oil spill in U.S. history,” the BP Deepwater Horizon oil spill, occurred off the Louisiana coast, affecting a five-state area in the Gulf region (Florida, Alabama, Louisiana, Mississippi, and Texas), dumping an estimated 4.9 billion barrels of oil into the Gulf of Mexico. In response, Congress enacted the federal RESTORE Act to set up a mechanism for compensating the victims of the oils spill and to Repair the environmental harm caused by the oil spill.

This article will examine the effectiveness of the regulatory scheme in place that was …

The Federal Restore Act And Its Impact On The Gulf States Following The Deepwater Horizon Oil Spill, Sara Mammarella

Sara Mammarella

On April 20, 2010, what has been described as “the worst oil spill in U.S. history,” the BP Deepwater Horizon oil spill, occurred off the Louisiana coast, affecting a five-state area in the Gulf region (Florida, Alabama, Louisiana, Mississippi, and Texas), dumping an estimated 4.9 billion barrels of oil into the Gulf of Mexico. The harms that occurred were widespread and devastating: eleven people were killed, 1,000 miles of coastline was degraded, ocean life and beaches were destroyed, and the local economy of the region was adversely impacted, especially fishing and tourism industries. In response, Congress passed the federal RESTORE …

Before There Were Mouseholes: Resurrecting The Non-Delegation Doctrine, Joel Hood

Joel Hood

Most people are unaware that James Madison original drafted 17 amendments for the Bill of Rights. Even fewer know that the 16th was an express non-delegation amendment meant to protect the American people:

The powers delegated by the Constitution to the government of the United States, shall be exercised as therein appropriated, so that the Legislative shall never exercise the powers vested in the Executive or Judicial; not the Executive the powers vested in the Legislative or Judicial; nor the Judicial the powers vested in the Legislative or Executive.

There are now over five-hundred federal agencies and departments. Some are …

Fail To Comment At Your Own Risk: Does Issue Exhaustion Have A Place In Judicial Review Of Rules?, Jeffrey Lubbers

Jeffrey Lubbers

Inside Agency Statutory Interpretation, Christopher J. Walker

Christopher J. Walker

The Constitution vests all legislative powers in Congress, yet Congress grants expansive lawmaking authority to federal agencies. As positive political theorists have long explored, Congress intends for federal agencies to faithfully exercise their delegated authority, but ensuring fidelity to congressional wishes is difficult due to asymmetries in information, expertise, and preferences that complicate congressional control and oversight. Indeed, this principal-agent problem has a democratic and constitutional dimension, as the legitimacy of administrative governance may well depend on whether the unelected bureaucracy is a faithful agent of Congress. Despite the predominance of lawmaking by regulation and the decades-long application of principal-agent …

Right-Sizing Spectrum Auction Licenses: The Case For Smaller Geographic License Areas In The Tv Broadcast Incentive Auction, William H. Lehr Phd, J. Armand Musey Cfa

J. Armand Musey, CFA

The wireless sector is a key contributor to economic activity and growth. Over the next several years, wireless service providers are expected to invest $25 to $53 billion upgrading and expanding their networks to deploy 4G mobile broadband across the nation. All told, wireless broadband investment and the services and innovation supported by such investment are expected to add between $259 and $355 billion to US GDP each year through 2017. The Federal Communications Commission ("Commission" or "FCC") is currently designing the largest ever auction of terrestrial wireless spectrum, currently planned for late 2014 (the "Incentive Auction"). The purpose is …

Agents Without Principals?: Delegation In An Age Of Diffuse And Fragmented Governance, Peter Lindseth

Peter L. Lindseth

In an earlier essay, Professor Lindseth argued that the notion of delegation from the national legislature, as well as the principal-agent relationship that it implies, should be retained in our understanding of the transfer of regulatory power from the nation-state to supranational institutions. In this essay, Professor Lindseth extends this argument to self-regulation and privatization. He recognizes that the nature of regulatory power in an era of diffuse “governance” makes it difficult to sustain the notion of delegation empirically, because the effective holders of regulatory power do not operate under the national legislature’s supervision and control in any realistic sense. …

‘Always Embedded' Administration: The Historical Evolution Of Administrative Justice As An Aspect Of Modern Governance, Peter Lindseth

Peter L. Lindseth

The administrative sphere is where ‘the rubber meets the road’ in the modern state. It is the point of contact between state and society where efforts to implement specific legislative goals generate the ‘friction’ of social and political resistance. Various kinds of resistance to state action have long been the object of scholarly analysis, but some forms have received less attention than others. This chapter focuses on one of the less studied forms: what the French call 'le contentieux administratif,' or litigation initiated by private parties challenging the legality of administrative action. Through the mechanism of administrative litigation, private interests …

Reconciling With The Past: John Willis And The Question Of Judicial Review In Interwar And Postwar England, Peter L. Lindseth

Peter L. Lindseth

This contribution was prepared for a conference at the University of Toronto Faculty of Law in honor of John Willis, the late Anglo-Canadian administrative law theorist who died in 1997. It will appear in a forthcoming issue of the University of Toronto Law Journal. Throughout his career, John Willis puzzled over the way in which both popular and elite opinion in England (not to mention throughout the Commonwealth and in the United States) persistently, and in his view uncritically, equated the "Rule of Law" in important respects with judicial review in the administrative state. Willis believed this attachment to judicial …

The Proposed Inheritance Tax And Its Impact On China's Economy, Michael Steve

Michael Steve

No abstract provided.

Downstream Inundations Caused By Federal Flood Control Dam Operations In A Changing Climate: Getting The Proper Mix Of Takings, Tort, And Compensation, Robert H. Abrams, Jacquiline Bertelsen

Robert H Abrams

The 2012 United States Supreme Court decision in Arkansas Game & Fish Commission v. United States (AG&FC) presented the Court with a claim that the property of a landowner downstream of a flood control dam was taken without compensation as a result of non-permanent inundations of low lying portions of that parcel caused by a change in the dam’s pattern of releases. The Court held that that “government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection” and must instead be tested according to the Court’s usual precedents governing temporary physical invasions and regulatory takings.[1] On …

A Public Interest Perspective On Local Number Portability: Consumers, Competition And Other Risks, J. Armand Musey Cfa, Michael Calabrese

J. Armand Musey, CFA

Before the Commission finalizes the selection of a vendor for the Local Number Portability Administrator (“LNPA”) contract, the Commission should take this opportunity to reconsider the future role of the number portability system and of the LNPA in relation to market competition, public safety and the IP technology transition. The functionality of today’s LNP platform extends well beyond providing routine number porting services between telecom carriers. It has evolved into a significant component in the greater ecosystem of telecommunications competition, public safety and technological evolution. As a result, any changes to the LNPA now will have broader and evolving public …

Market Corrective Rulemaking: Drawing On Eu Insights To Rationalize U.S. Regulation, Reeve T. Bull

Reeve T Bull

When justifying the government’s role in intervening in the free market, economists and legal scholars alike point to the problem of “market failures”: laissez-faire capitalism may not produce optimal outcomes in certain cases, and government interventions can promote overall market efficiency. The existence of such market failures is not terribly controversial; the question of whether government regulators can correctly identify these flaws and devise appropriate solutions, by contrast, is significantly more contentious. Unfortunately, under the existing regulatory framework, government officials are not especially well-positioned to make these difficult determinations. Congress does not, as a general matter, consider the economic costs …

Agencies, Courts, And The Limits Of Balancing, Daniel A. Farber

Daniel A Farber

Courts have struggled in several very different contexts to determine when a decision maker can consider costs that are not explicitly addressed in the governing statute. This issue arises when agencies decide whether to conduct a rulemaking or what rule to issue after a rulemaking. It also arises when courts decide whether to enjoin a violation of a statute or whether to vacate an administrative rule rather than simply remanding. Judicial opinions point in different directions and often ignore each other.

This Article contends that the same principles should govern judicial and agency discretion to consider costs across all these …

Shared Sovereignty: The Role Of Expert Agencies In Environmental Law, Michael Blumm, Andrea Lang

Michael Blumm

Environmental law usually features statutory interpretation or administrative interpretation by a single agency. Less frequent is a close look at the mechanics of implementing environmental policy across agency lines. In this article, we offer such a look: a comparative analysis of five statutes and their approaches to sharing decision-making authority among more than one federal agency. We call this pluralistic approach to administrative decisionmaking “shared sovereignty.”

In this analysis, we compare implementation of the National Environmental Policy, the National Historic Preservation Act, the Endangered Species Act, the Clean Water Act, and the Federal Power Act. All of these statutes incorporate …

One Small Problem With Administrative Driver’S License Suspension Laws: They Don’T Reduce Drunken Driving, Steve R. Darnell

Steve R Darnell

Only eight states continue to rely on the judicial system to suspend a drunken driver’s license instead of an administrative process. Federal agencies and special interest groups such as Mothers Against Drunk Driving (MADD) and the Insurance Institute for Highway Safety press for Administrative License Suspension (ALS) laws arguing these laws reduce drunken driving. While some research supports this view, there is an equally and more compelling literature indicating ALS laws are not effective in reducing drunken driving. This study analyzed data from eight states that have adopted ALS laws to determine if the ALS laws reduced drunken driving. A …

Chevron For Juries, William Ortman

Law Faculty Research Publications

No abstract provided.

Searching For Proportionality In U.S. Administrative Law, Jud Mathews

Contributions to Books

There is no such thing as “proportionality review” in American administrative law, but instead, a number of doctrines that courts deploy to evaluate agency exercises of discretion. In some respects, these frameworks for review resemble proportionality in operation, but there are also notable differences. This essay surveys the doctrines governing judicial review of administrative discretion in the United States, highlighting three distinguishing features of the American approach. First, American judicial review is characterized by a high degree of unpredictability, not only with respect to outcomes, but often with respect to what framework of review is applicable. Second, while classical proportionality …

Visualizing Change In Administrative Law, Aaron L. Nielson

Georgia Law Review

Although few realize it, the structure of administrative law has not changed much in two decades. Unlike past eras of upheaval, the key statutes, institutions, and judicial doctrines that defined administrative law in the early 1990s remain remarkably intact today. Administrative law's complexity, however, makes it difficult to see the big picture. This Article addresses that complexity by introducing a new visual framework. This framework has two principal benefits. First, it illustrates how administrative law's many parts fit together and shows that the field has been in a holding pattern for a long time. Second, it also allows scholars to …

The Organizational Premises Of Administrative Law, William H. Simon

Faculty Scholarship

The core doctrines of administrative law have not taken account of developments in the theory and practice of organization. The contours of these doctrines were set in the mid-twentieth century when the Administrative Procedure Act (APA) was passed. Although these doctrines have evolved since then, administration itself has changed more. Many of the widely perceived deficiencies of the doctrines, including some associated with overregulation and others with underregulation, seem influenced by an anachronistic understanding of organization.

Much administrative law continues to understand public administration as bureaucracy. In particular, doctrine is strongly influenced by three premises. First, the backward-looking conception of …

Administrative Equal Protection: Federalism, The Fourteenth Amendment, And The Rights Of The Poor, Karen M. Tani

All Faculty Scholarship

This Article intervenes in a burgeoning literature on “administrative constitutionalism,” the phenomenon of federal agencies — rather than courts — assuming significant responsibility for elaborating the meaning of the U.S. Constitution. Drawing on original historical research, I document and analyze what I call “administrative equal protection”: interpretations of the Fourteenth Amendment’s Equal Protection Clause in a key federal agency at a time when the Clause’s meaning was fiercely contested. These interpretations are particularly important because of their interplay with cooperative federalism — specifically, with states’ ability to exercise their traditional police power after accepting federal money.

The Article’s argument is …

Dirty Debts Sold Dirt Cheap, Dalie Jimenez

Dalie Jimenez

More than 77 million Americans have a debt in collections. Many of these debts will be sold to debt buyers for pennies, or fractions of pennies, on the dollar. This Article details the perilous path that debts travel as they move through the collection ecosystem. Using a unique dataset of 84 consumer debt purchase and sale agreement, it examines the manner in which debts are sold, oftentimes as simple data on a spreadsheet, devoid of any documentary evidence. It finds that in many contracts, sellers disclaim all warranties about the underlying debts sold or the information transferred. Sellers also sometimes …

Searching For Proportionality In U.S. Administrative Law, Jud Mathews

Jud Mathews

Patent Conflicts, Tejas N. Narechania

Tejas N. Narechania

Law Abiding Drones, Henry H. Perritt Jr., Eliot O. Sprague

Henry H. Perritt, Jr.