Administrative Law Commons^™

Differentiating Regulation Of Public And Private Institutions: A Preliminary Inquiry, Jonathan G.S. Koppell

Publications from President Jonathan G.S. Koppell

Twenty years ago, James Q. Wilson and Patricia Rachal argued that government cannot regulate itself. In an era of revived federalism, increased reliance on contractors, and proliferation of quasi-public organizations, the importance of government self-regulation is greater than ever. This paper tests an underlying assumption of Wilson and Rachal's claim: that regulation of public and private organizations can be differentiated. Employing a meta-research design, this pilot study uses existing regulatory case studies to create "regulatory relationship profiles" for public and private organizations. These profiles include information on the structure of the regulator, the intent of the regulation, the enforcement tools …

A Constitution Of Democratic Experimentalism, Michael C. Dorf, Charles F. Sabel

Faculty Scholarship

In this Article, Professors Dorf and Sabel identify a new form of government, democratic experimentalism, in which power is decentralized to enable citizens and other actors to utilize their local knowledge to fit solutions to their individual circumstances, but in which regional and national coordinating bodies require actors to share their knowledge with others facing similar problems. This information pooling, informed by the example of novel kinds of coordination within and among private firms, both increases the efficiency of public administration by encouraging mutual learning among its parts and heightens its accountability through participation of citizens in the decisions …

Civil Money Sanctions Barred By Double Jeopardy: Should The Supreme Court Reject Healy?, Debra Marie Ingraham

Washington and Lee Law Review

No abstract provided.

Horev V. Minister Of Transportation, Aharon Barak, Theodor Or, Mishael Cheshin, Shlomo Levin, Eliahu Mazza, Dalia Dorner, Tzevi Eliyahu Tal

Translated Opinions

Facts: The Minister of Transportation, assuming the powers of the Traffic Controller, ordered the closure of Bar-Ilan Street in Jerusalem to motor traffic on Sabbaths and Jewish holidays during hours of prayer. Petitioners are secular residents of the area and representatives of the secular population in Jerusalem, who claim that the decision of the Minister infringes their right to freedom of movement. One petitioner—the Association for the Rights of the Religious Community in Israel—counter-petitioned that Bar-Ilan should be closed to motor traffic for all hours on the Sabbath and Jewish holidays.

Held: The Court held that the Traffic Controller was …

Station Film Co. V. The Film Review Board, Aharon Barak, Eliahu Mazza, Mishael Cheshin

Translated Opinions

Facts: Respondent no. 1 decided to allow the screening of the film "L'Empire Des Sens," on the condition that several scenes be omitted from the film, and that the film only be shown to adults. According to respondent no. 1, these scenes were of a pornographic nature, and there was a near certainty that screening these parts of the film would cause serious, grave and severe harm to societal sensibilities and public morality. Petitioner accepted that the film could only be shown to adults. In this petition, it contests the deletion of the omitted scenes, except for scenes …

Textualism's Selective Canons Of Statutory Construction: Reinvigorating Individual Liberties, Legislative Authority, And Deference To Executive Agencies, Bradford Mank

Faculty Articles and Other Publications

This Article demonstrates that textualist Judges, most notably Justices Scalia, Thomas, and, to a lesser extent, Kennedy, have applied some canons too aggressively, and slighted others. Textualist Judges have overused clear-statement rules that narrow statutory meaning, especially as a means to promote federalism and states' rights. On the other hand, textualists have neglected canons that promote individual liberty or executive authority Because canons must be applied on a case-by-case basis and different canons can conflict, it is impossible to formulate one rule for how they should be applied. Nevertheless, the common textualist approach of selectively favoring some canons at the …

Judicial Restraint In The Administrative State: Beyond The Countermajoritarian Difficulty, Matthew D. Adler

Faculty Scholarship

Arguments for judicial restraint point to some kind of judicial deficit (such as a democratic or an epistemic deficit) as grounds for limiting judicial review. ("Judicial review" is used in this Article to mean, essentially, the judicial invalidation of statutes, rules, orders and actions in virtue of the Bill of Rights, or similar unwritten criteria.). The most influential argument for judicial restraint has been the Countermajoritarian Difficulty. This is a legislature-centered argument: one that points to features of *legislatures*, as grounds for courts to refrain from invalidating *statutes*. This Article seeks to recast scholarly debate about judicial restraint, and to …

Grasping The Intangible: A Guide To Assessing Nonpecuniary Damages In The Eeoc Administrative Process , Douglas M. Staudmeister

American University Law Review

No abstract provided.

Administrative Driver's License Suspension: A Remedial Tool That Is Not In Jeopardy , Jennifer E. Dayok

American University Law Review

No abstract provided.

Is A Textualist Approach To Statutory Interpretation Pro-Environmentalist?: Why Pragmatic Agency Decisionmaking Is Better Than Judicial Literalism, Bradford Mank

Faculty Articles and Other Publications

This Article provides both anecdotal evidence and a more theoretical argument for why textualist statutory interpretation is not the best approach to address environmental. issues.

The Third House Of Congress Versus The Fourth Branch Of Government: The Impact Of Congressional Committee Staff On Agency Regulatory Decision-Making, 19 J. Marshall L. Rev. 247 (1986), James P. Hill

UIC Law Review

No abstract provided.

From Expertise To Politics: The Transformation Of American Rulemaking, Peter L. Strauss

Faculty Scholarship

In this speech to be given on November 15, 1996, as the American contribution to the week-long conference on administrative law sponsored by the Fundaci6n Estudios de Derecho Administrativo in Caracas, Venezuela, Professor Peter L. Strauss addresses the history and developing political character of rulemaking in federal law over the fifty years since enactment of the Administrative Procedure Act. As a framework, Professor Strauss sets forth a hierarchy of institutional rulemaking, from constitution through informal advising. He then develops his discussion of rulemaking by tracing the federal process of rulemaking through time, beginning with the enactment of the Administrative Procedure …

Introduction, Harold H. Bruff

Publications

As citizens, we ought to ensure that our criticisms of Congress are constructive, lest we damage ourselves. In that spirit, the American Bar Association's Section of Administrative Law and Regulatory Practice created a special Congressional Process Committee to study selected aspects of congressional procedures and to recommend appropriate reforms. The Committee, which I chair, is composed of administrative lawyers who are experienced in legislative practice, or who have worked in Congress. We decided to address selected aspects of congressional structure and procedure for which we believe administrative lawyers possess relevant expertise.

The articles that form this Symposium grew out of …

Miller V. Minister Of Defence, Eliahu Mazza, Dalia Dorner, Tova Strasberg-Cohen, Yaakov Kedmi, Tzevi Eliyahu Tal

Translated Opinions

Facts: The petitioner asked the army to assign her to the air force for training as a pilot. The army refused, since it was established policy not to train women as pilots. The army’s reasoning was based on the length of service: by law, men are obliged to serve until the age of 54, whereas women are only obliged to serve until the age of 38, and they are exempt if they are pregnant or have children. Consequently, the army argued, the huge investment involved in training a pilot could not be justified for women, and planning for the deployment …

Section 7: Constitutional Structure: Federalism, Administrative Law, Checks And Balances, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

The Illusion Of Due Process In West Virginia's Property Tax Appeals System: Making The Constitution's Promise A Reality, Michael E. Caryl

West Virginia Law Review

No abstract provided.

Power, Responsibility, And Republican Democracy, Marci A. Hamilton

Michigan Law Review

A Review of Power Without Responsibility: How Congress Abuses the People Through Delegation by David Schoenbrod

Attorney General V. National Labour Court, Dov Levin, Mishael Cheshin, Tzevi Eliyahu Tal

Translated Opinions

Facts: The second petitioner, the Bezeq Corporation, had a monopoly in the field of providing telephone services in Israel. When the Government decided to allow competition in this field, the General Federation of Labour feared that the restriction of the monopoly would affect the jobs and rights of Bezeq’s employees, and it therefore gave notice of a strike. The petitioners applied to the Regional Labour Court for an injunction against the strike. The injunction was given, but the National Labour Court overturned it on appeal. The petitioners then petitioned the High Court of Justice to set aside the judgment of …

Judicial Protection Of The Individual Against Administrative Actions In The United States And In Germany, Joerg Nikolaus Uhl

LLM Theses and Essays

From the Preamble of the U.S. Constitution which begins “We the people…,” the focus of the American legal system is clear. The individual and personal freedom are the primary concern for protection under U.S. law. Conversely, the German legal system places its focus on the preservation of the democratic system. This difference and the weight the U.S. places on separation of powers, whereas the executive and legislative branches are closely related in Germany, have combined to produce many differences between the U.S. and German political and legal systems. This paper analyzes these differences, especially with regards to administrative agencies and …

That The Laws Shall Bind Equally On All: Congressional And Executive Roles In Applying Laws To Congress, Harold H. Bruff

Publications

No abstract provided.

An American Perspective On Environmental Impact Assessment In Australia, Mark Squillace

Publications

No abstract provided.

Liberating Commercial Speech: Product Labeling Controls And The First Amendment, Lars Noah, Barbara A. Noah

Faculty Scholarship

As federal regulators impose increasing limits on what manufacturers may say about their products, constitutional protections for commercial speech become ever more important. Indeed, the United States Supreme Court's most recent First Amendment decisions suggest meaningful regard for the value of advertising and labeling as types of protected expression. At the same time, however, federal lawmakers are imposing ever more onerous restrictions on promotional activities and product labeling. The Authors discuss federal law relating to regulation of product labeling.

Israel Women’S Network V. Government Of Israel, Eliahu Mazza, Itzchak Zamir, Yaakov Kedmi

Translated Opinions

Facts: In 1993, the Government Corporations Law was amended, and s. 18A was added. This section provides that the boards of directors of Government corporations shall have equal representation of men and women, and until such time as this goal is achieved, members of the underrepresented sex should be appointed, ‘to the extent that circumstances allow’ (affirmative action).

After the new section came into effect, and despite the new section, men were appointed in two cases by Government ministers to boards of directors of Government corporations, on which there were no women directors.

The petitioner argued that the appointments were …

On War And Justice, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Apple Of Gold: Constitutionalism In Israel And The United States, Michel Rosenfeld

Articles

No abstract provided.

Management Approaches To Addressing Takings Issues: Endangered Species Protection, I. Michael Heyman

Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15)

15 pages.

Contains footnotes.

Regulation Of Water Use And Takings—The Government Lawyer’S Perspective, Richard M. Frank

Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15)

11 pages.

Contains 3 pages of references.

Private Property Rights Protection Legislation Across The Nation, Nancie G. Marzulla

Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15)

25 pages (includes 1 map).

Contains footnotes.

Regulatory Takings And Resources: What Are The Constitutional Limits?, John D. Echeverria

Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15)

25 pages.

Searching For Basinwide Solutions To Endangered Species Problems Of The South Platte Of Colorado, James S. Lochhead

Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15)

42 pages (includes illustrations and map).

Contains endnotes.