Law Commons^™

Federal Agencies In The Legislative Process: Technical Assistance In Statutory Drafting, Christopher J. Walker

Christopher J. Walker

Federal agencies draft statutes. Indeed, they are often the chief architects of the statutes they administer. Even when federal agencies are not the primary substantive authors, they routinely respond to congressional requests to provide technical assistance in statutory drafting. Yet despite their substantial role in the legislative process, our understanding about how agencies interact with Congress is greatly undertheorized and perhaps even less understood empirically. This Report, which was commissioned by the Administrative Conference of the United States (ACUS), explores the latter role of federal agencies in the legislative process: the provision of technical assistance in statutory drafting.

To better …

Inside Regulatory Interpretation: A Research Note, Christopher J. Walker

Christopher J. Walker

In response to Kevin M. Stack, Interpreting Regulations, 111 Mich. L. Rev. 355 (2012).

In Interpreting Regulations, Professor Stack provides the first comprehensive approach to regulatory interpretation and situates this approach within the larger literature on legal interpretation. His theory of regulatory interpretation is simple yet pioneering: “a regulation should be read in light of its purposes, with the regulation’s text and the statement of basis and purpose constituting the privileged interpretive sources.” This Research Note takes a look inside regulatory interpretation to explore the empirical foundation for Professor Stack’s novel approach to regulatory interpretation.

In 2013, the author conducted …

Diagnostic Inflation For The People, Benjamin Douglas

Benjamin Douglas

Workplace stress can cause diagnosable mental health problems, and there is every reason to grant psychologically injured workers the same benefits accorded to other injured workers. Nevertheless, numerous jurisdictions deny or restrict these benefits, using arguments that do not stand up to scrutiny. The real reason for the double standard is not rooted in science, medicine or reason, but in employers' need to preserve low expectations for workers' mental well-being, which enables greater employer control over their employees, and shifts the costs of failing mental health to the rest of society. To reclaim workers' compensation for those who are suffering …

Is The Chief Justice A Tax Lawyer?, Stephanie Hoffer, Christopher J. Walker

Christopher J. Walker

King v. Burwell is a crucial victory for the Obama Administration and for the future of the Affordable Care Act. It also has important implications for tax law and administration, as explored in the other terrific contributions to this Pepperdine Law Review Symposium. In this Essay, we turn to another tax-related feature of the Chief Justice’s opinion for the Court: It is hard to ignore the fingerprints of a tax lawyer throughout the opinion. This Essay focuses on two instances of a tax lawyer at work.

First, in the Chief’s approach to statutory interpretation one sees a tax lawyer as …

Vw And Gm Scandals Show Why Regulation Matters, Robert R.M. Verchick, Rena Steinzor

Robert R.M. Verchick

Conservatives love to belittle federal regulations — especially the ones designed to keep our air clean, our water drinkable, our workplaces safe, and our financial markets stable. Conservatives, of course, don’t oppose any of those things. They just think unregulated markets, left on their own, will keep bad things from happening. Customers will see when a dishonest company is putting Americans at risk; and when they do, they will unleash their fury and incinerate it. Unbridled capitalism is the world’s largest self-cleaning oven. Last week’s news from the automotive industry should lay that argument to rest.

Chevron Deference Conflicts With The Administrative Procedure Act, Richard O. Faulk

Richard Faulk

Although Chevron’s reasoning stresses the expertise of agencies as a basis for deference, the APA plainly delegates final interpretive authority to the courts. Since there is no statutory basis for superseding or diminishing the judicial role in the interpretive process, there is no justification for using deferential review to bypass the judiciary’s primary responsibility. It is time—indeed past time—for the Supreme Court to exercise its singular constitutional authority to declare “what the law is”—and to curb the increasingly intrusive and overreaching authority seized by the Executive Branch. The American people, from whom all authority is derived, are entitled to be …

Congressional Cybersecurity Oversight: Who’S Who And How It Works, Lawrence J. Trautman

Lawrence J. Trautman Sr.

Cybersecurity remains perhaps the greatest challenge to the economic and physical well being of governments, individuals, and business worldwide. During recent months the United States has witnessed many disruptive and expensive cyber breaches. No single U.S. governmental agency or congressional committee maintains primary responsibility for the numerous issues related to cybersecurity. Good oversight stands at the core of good government. Oversight is Congress’s way of making sure that the administration is carrying out federal law in the way Congress intended. So many aspects of cybersecurity have the potential for use by: terrorists; by foreign entities as a tool to conduct …

Mindful Justice: The Search For Gandhi’S Sympathetic State After Bhopal, Nehal A. Patel

Nehal A. Patel

One of the most startling examples of unmitigated disaster occurred in Bhopal, India, in 1984, when a Union Carbide pesticide plant exploded tons of methyl isocyanate into the air, killing 3800 people overnight. 30 years later, the plant site has not been remediated, and the estimated death toll from the explosion now has reached over 20,000. Disaster victims repeatedly have sought relief directly from the government. Yet, the Indian and US governments and Union Carbide have refused to provide the necessary resources for proper remediation. In this Article, I examine the state’s response to the Bhopal disaster using the thought …

Underground Environmental Regulations: Regulations Imposed As Mitigation Measures Under Ceqa Violate The California Administrative Procedure Act, Jonathan Wood

Jonathan Wood

What happens when an agency adopts a regulation under the California Environmental Quality Act as mitigation for a program’s environmental impact, without complying with the procedural requirements of the California Administrative Procedure Act? According to a recent California Court of Appeal decision – Center for Biological Diversity v. Department of Fish and Wildlife – these mitigation measures, which this article refers to as underground environmental regulations, are invalid. This article defends that interpretation and addresses its consequences for agencies and the regulated public. Although these additional procedural protections benefit regulated parties in a variety of ways, they can also burden …

Take It To The Limit: The Illegal Regulation Prohibiting The Take Of Any Threatened Species Under The Endangered Species Act, Jonathan Wood

Jonathan Wood

The Endangered Species Act forbids the “take” – any activity that adversely affects – any member of an endangered species, but only endangered species. The statute also provides for the listing of threatened species, i.e. species that may become endangered, but protects them only by requiring agencies to consider the impacts of their projects on them. Shortly after the statute was adopted, the U.S. Fish and Wildlife Service and National Marine Fisheries Service reversed Congress’ policy choice by adopting a regulation that forbids the take of any threatened species. The regulation is not authorized by the Endangered Species Act, but …

Democratizing Startups, Seth C. Oranburg

Seth C Oranburg

The Jumpstart Our Business Startups Act of 2012 intends to “help entrepreneurs raise the capital they need to put Americans back to work and create an economy that’s built to last.” The goal is to “democratize startups” by making capital available to diverse entrepreneurs in new geographies. Yet the net effect of securities regulations and market conditions is the opposite. Startup companies are encouraged to stay private so capital is consolidating in large, mature firms instead of recycling into new startups. Evidence of consolidation is that once-rare “Unicorns” (billion-dollar startups) now number over 111. More money is going into huge …

A Program In Legislation, Dakota S. Rudesill, Daniel P. Tokaji, Christopher J. Walker

Christopher J. Walker

This Essay urges that Legislation be conceived of not just as a single course, but as a set of curricular and extracurricular offerings that collectively constitute an integrated program of instruction. The three of us teach at The Ohio State University’s Moritz College of Law, which may serve as a model of such a program. Since 1995, Moritz has required Legislation as a part of the first-year curriculum. We also have a variety of upper-level offerings and extracurricular activities that help students develop a practical understanding of the legislative process. This Essay makes the case for an integrated program of …

Closing The Door To Lost Earnings Under The National Childhood Vaccine Injury Act Of 1986, Aaron M. Levin

Aaron M Levin

After a wave of lawsuits against vaccine manufacturers hindered the profitability and production of life-saving vaccines, Congress enacted The National Childhood Vaccine Injury Act of 1986. The Act offers an incentive for individuals to get vaccinated in order to mitigate the population’s exposure to disease, while encouraging the continued production of these serums by pharmaceutical companies. Although imperfect, the Vaccine Act fosters promise in filtering out frivolous claims and provides a central route for due process to the individuals who suffer from a vaccine-related injury. By removing a potential state tort issue to the Federal Circuit, Congress created a reasonably …

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 …

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 …

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 …

The New Wild West: Preventing Money Laundering In The Bitcoin Network, Kavid Singh

Kavid Singh

Bitcoin is the most popular online decentralized currency in the world. Created by an enigmatic figure, Satoshi Nakamoto, in 2009, its propagation and use has caused heated controversy. On the legal side of its use, businesses both large and small have started to accept bitcoins as a form of payment. On the illegal side of its use, large quantities of bitcoins worth hundreds of millions of dollars have been stolen from businesses and large Bitcoin currency exchanges. The aim of this article is to introduce workable federal regulation that will help deter money laundering, a pervasive problem in the world …