Administrative Law Commons^™

Global Governance: The World Trade Organization's Contribution, Andrew D. Mitchell, Elizabeth Sheargold

Georgetown Law Faculty Publications and Other Works

Democracy and administrative law concern ideas of governance, legitimacy, and accountability. With the growth of bureaucracy and regulation, many democratic theorists would argue that administrative law mechanisms are essential to achieving democratic objectives. This article considers the World Trade Organization’s (WTO) contribution to governance both in terms of global administrative law and democracy. In relation to administrative law, it first explores the extent to which the WTO’s own dispute settlement process contributes to this area. Second, it considers the operation of administrative law principles embedded within the WTO Agreements on Members. For example, the WTO Agreements require that certain laws …

The Deregulatory State, Lawrence O. Gostin

O'Neill Institute Papers

Public health can be achieved only through collective action, not through individual endeavor. Collective goods are essential conditions for health, but can be secured only through a well-regulated society. Yet, successive governments have eroded health and safety protections, with serious consequences. Think about the death of miners, lead in children’s toys, industrial solvents in toothpaste, salmonella in peanut butter, e-coli in spinach, and unsafe or ineffective pharmaceuticals such as COX-2 inhibitors or non-statin cholesterol medications.

Conservatives have waged a campaign against the administrative state that has created and reinforced deep-seated concerns about over-bearing government, particularly at the national level. The …

Brief Of Amici Curiae Former Fda Commissioners Dr. Donald Kennedy And Dr. David A. Kessler In Support Of Respondent, Wyeth V. Levine, No. 06-1249 (U.S. Aug. 14, 2008), Kathryn A. Sabbeth, David C. Vladeck

U.S. Supreme Court Briefs

No abstract provided.

Brief Of Law Professors As Amici Curiae In Support Of Respondents, Summers V. Earth Island Inst., No. 07-463 (U.S. June 27, 2008), Richard J. Lazarus, Amanda C. Leiter, David C. Vladeck

U.S. Supreme Court Briefs

No abstract provided.

Brief Of Amici Curiae Tobacco Control Legal Consortium Et Al. In Support Of Respondents, Altria Group, Inc. V. Good, No. 07-562 (U.S. June 17, 2008), Kathryn A. Sabbeth, David C. Vladeck

U.S. Supreme Court Briefs

No abstract provided.

Brief Of Amici Curiae American Academy Of Pediatrics Et Al. In Support Of Neither Party, Federal Communications Commission V. Fox Television Stations, No. 07-582 (U.S. June 9, 2008), Angela J. Campbell, Coriell Wright

U.S. Supreme Court Briefs

No abstract provided.

Passport Files: Privacy Protection Needed For All Americans: Hearing Before The S. Comm. On The Judiciary, 110th Cong., July 10, 2008 (Statement Of Marc Rotenberg, Adjunct Prof. Of Law, Geo. U. L. Center), Marc Rotenberg

Testimony Before Congress

No abstract provided.

Brief Of Amicus Curiae Aarp In Support Of Respondents, Warner-Lambert Company Llc V. Kent, No. 06-1498 (U.S. Jan. 18, 2008), Kathryn A. Sabbeth, David C. Vladeck

U.S. Supreme Court Briefs

No abstract provided.

Regulatory Preemption: Are Federal Agencies Usurping Congressional And State Authority?: Hearing Before The S. Comm. On The Judiciary,, 110th Cong., Sept. 12, 2007 (Statement Of Viet D. Dinh, Geo. U. L. Center), Viet D. Dinh

Testimony Before Congress

No abstract provided.

Regulatory Preemption: Hearing Before The S. Comm. On The Judiciary, 110th Cong., Sept. 12, 2007 (Statement Of David C. Vladeck, Geo. U. L. Center), David C. Vladeck

Testimony Before Congress

No abstract provided.

Process Patents: Hearing Before The S. Comm. On The Judiciary, 110th Cong., May 1, 2007 (Statement Of John R. Thomas, Geo. U. L. Center), John R. Thomas

Testimony Before Congress

No abstract provided.

The Patent Reform Act Of 2007: Hearing Before The Subcomm. On Courts, The Internet, And Intellectual Property Of The H. Comm. On The Judiciary, 110th Cong., April 26, 2007 (Statement Of John R. Thomas, Geo. U. L. Center), John R. Thomas

Testimony Before Congress

No abstract provided.

Full Committee Hearing On The Importance Of Patent Reform On Small Business: Hearing Before The H. Comm. On Small Business, 110th Cong., Mar. 29, 2007 (Statement Of Professor John R. Thomas, Geo. U. L. Center), John R. Thomas

Testimony Before Congress

No abstract provided.

Why Preemption Proponents Are Wrong, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

The basic idea of federal preemption is easily stated: It is a constitutionally mandated principle that demands that federal law trumps state law when the two conflict or in the rare instances when a federal law is so comprehensive that there’s no role left for state law to fill. But in practice, courts have often had difficulty applying the principle.

For plaintiff lawyers, preemption is an ever-present worry. When your client has been injured by a defective car, truck, medical device, boat, tobacco product, pesticide, or mislabeled drug, or has been victimized by a bank or other lending institution, the …

Amending Executive Order 12866: Good Governance Or Regulatory Usurpation? Part I And Part Ii: Hearing Before The H. Comm. On Science And Technology, 110th Cong., Feb. 13, 2007 (Statement Of Professor David C. Vladeck, Geo. U. L. Center), David C. Vladeck

Testimony Before Congress

No abstract provided.

Technology Unbound: Will Funded Libertarianism Dominate The Future?, Steven Goldberg

Georgetown Law Faculty Publications and Other Works

The panel decision in Abigail Alliance, which found a constitutional right to use certain medicines that have not received Food and Drug Administration approval, may not survive further review, but it already stands as an important signpost on the road to further deregulation of the drug market. This trend mirrors the evolution of the in vitro fertilization (IVF) industry which is remarkably unregulated although it raises numerous ethical and consumer protection issues. These developments share an obvious libertarian underpinning, but in both cases it is an odd sort of libertarianism, because proponents of unmediated access to drugs and IVF also …

Private Standards, Public Governance: A New Look At The Financial Accounting Standards Board, William W. Bratton

Georgetown Law Faculty Publications and Other Works

The Financial Accounting Standards Board (the "FASB") presents a puzzle: How has this private standard setter managed simultaneously (1) to remain independent, (2) to achieve institutional stability and legitimacy, and (3) to operate in a politicized context in the teeth of opposition from its own constituents? This Article looks to governance design to account for this institutional success. The FASB's founders made a strategic choice to create a regulatory agency that sought independence rather than political responsiveness. The FASB also set out a coherent theory of accounting, the "Conceptual Framework," to contain and direct its decisions. The Conceptual Framework contributed …

Pandemic Influenza: Ethics, Law, And The Public's Health, Lawrence O. Gostin, Benjamin E. Berkman

Georgetown Law Faculty Publications and Other Works

Highly pathogenic Influenza (HPAI) has captured the close attention of policy makers who regard pandemic influenza as a national security threat. Although the prevalence is currently very low, recent evidence that the 1918 pandemic was caused by an avian influenza virus lends credence to the theory that current outbreaks could have pandemic potential. If the threat becomes a reality, massive loss of life and economic disruption would ensue. Therapeutic countermeasures (e.g., vaccines and antiviral medications) and public health interventions (e.g., infection control, social separation, and quarantine) form the two principal strategies for prevention and response, both of which present formidable …

Climate Change And The Clean Air Act, Lisa Heinzerling

Georgetown Law Faculty Publications and Other Works

In Massachusetts v. EPA, petitioners - twelve states, three cities, an American territory, and numerous health and environmental groups - have asked the Supreme Court to hold that the Clean Air Act gives EPA the power to regulate greenhouse gas emissions from motor vehicles and that EPA may not decline to exercise this power based on statutorily irrelevant factors. The problem petitioners ultimately seek to address - climate change - is unique in its scope and complexity. But the legal issues before the Court in Massachusetts v. EPA are neither particularly grand nor particularly complex. They are the kinds of …

Perspectives On Patents: Post-Grant Review Procedures And Other Litigation Reforms: Hearing Before The Subcomm. On Intellectual Property Of The S. Comm. On The Judiciary, 109th Cong., May 23, 2006 (Statement Of Professor John R. Thomas, Geo. U. L. Center), John R. Thomas

Testimony Before Congress

No abstract provided.

Net Neutrality: Hearing Before The Senate Committee On Commerce, Science And Transportation, 109th Cong., Feb. 7, 2006 (Statement Of J. Gregory Sidak, Visiting Prof. Of Law, Geo. U. L. Center), J. Gregory Sidak

Testimony Before Congress

No abstract provided.

Federalism In Corporate/Securities Law: Reflections On Delaware, California, And State Regulation Of Insider Trading, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

In this brief Essay, I offer some thoughts on both the theory and the politics underlying the federalism question. My comments will touch on some of the controversies and also look at a somewhat quieter question, the state regulation of insider trading. Over the course of the last few years, judges in California and Delaware have traveled markedly different routes on questions involving the states' role in regulating insider trading. A California court of appeal has recently expanded the reach of the state insider trading statute to cover a claim alleging misconduct in California by an executive of a Delaware …

Statutory Interpretation In The Era Of Oira, Lisa Heinzerling

Georgetown Law Faculty Publications and Other Works

In recent years, the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB) has asserted a remarkable degree of authority over administrative agencies' rulemaking processes. One of the ways in which OIRA has exercised power over agencies has been to foist upon them its own views about the requirements of the statutes under which they operate. The most notable trend in this area has been OIRA's insistence on converting technology-based environmental laws into cost-benefit laws. In OIRA's hands, for example, the Clean Water Act ("the Act") is being transformed from a technology- based regime …

Block Grants, Early Childhood Education, And The Reauthorization Of Head Start: From Positional Conflict To Interest-Based Agreement, Eloise Pasachoff

Georgetown Law Faculty Publications and Other Works

In early 2003, the Bush administration proposed and Congress considered two types of highly controversial structural reform to Head Start, the federal program that since 1965 has provided early education and comprehensive health and social services to low-income preschoolers and their families. First, the proposal would begin funding Head Start through federal block grants to the states rather than through direct federal grants to local agencies. Second, the proposal would shift oversight of Head Start at the federal level from the Department of Health and Human Services (HHS) to the Department of Education (ED). Variations on these two proposals have …

Nepa: Lessons Learned And Next Steps: Hearing Before The Task Force On Updating The National Environmental Policy Act Of The H. Comm. On Resources, 109th Cong., Nov. 17, 2005 (Statement Of Professor Robert G. Dreher, Geo. U. L. Center), Robert G. Dreher

Testimony Before Congress

No abstract provided.

Limiting Raich, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

On Monday, November 29th, 2004, at 10:30 a.m., I rose to argue the case of Gonzales v. Raich in the Supreme Court on behalf of Angel Raich and Diane Monson. On Monday, June 6th, 2005, at 10:00 a.m., the Court announced its decision. Even today it is painful to read the opinions in the case. I am saddened for my clients, and the thousands like them, whose suffering is alleviated by the use of cannabis for medical purposes, as recommended by their physicians and permitted by the laws of their states, but who are nevertheless considered criminals by the federal …

Preemption And Regulatory Failure, David C. Vladeck

Georgetown Law Faculty Publications and Other Works

This symposium was convened to address the growing and seemingly conflicting jurisprudence governing federal preemption of state damage actions. One way to evaluate the evolution of preemption law is to examine it through the lens of litigation under the preemption provision of the 1976 Medical Device Amendments ("MDA") to the federal Food, Drug, and Cosmetic Act - a provision that in many respects is typical of express preemption provisions in regulatory statutes and has spawned a high volume of litigation. The question raised in cases under the MDA is whether the Act's preemption provision nullifies state damage actions based on …

Foreword: What's So Wicked About Lochner?, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this brief Foreword to a forthcoming symposium on Lochner v. New York, Professor Randy Barnett asks the question, What's So Wicked About Lochner? Modern Progressives cannot complain about its protection of so-called substantive due process, since they favor just that. Nor can they claim that Lochner violates the original meaning of the Fourteenth Amendment, since these legal analysts by and large reject originalism altogether. This leaves only today's judicial conservatives to adhere to a purified Roosevelt New Deal jurisprudence of disdain for Lochner.

The author answers that Lochner is objectionable precisely because its reliance on the Due …

Applying Cost-Benefit To Past Decisions: Was Environmental Protection Ever A Good Idea?, Lisa Heinzerling, Frank Ackerman, Rachel Massey

Georgetown Law Faculty Publications and Other Works

In this Article, however, we do not mount a critique from outside the technique of cost-benefit analysis. Instead, we examine an argument that proponents of cost-benefit analysis have offered as a linchpin of the case for cost-benefit: that this technique is neither anti- nor pro-regulatory, but rather a neutral tool for evaluating public policy. In making this argument, these proponents have often invoked the use of cost-benefit analysis to support previous regulatory decisions (their favorite example involves the phase down of lead in gasoline, which we shall shortly discuss) as a sign that this technique can be used to support …

Brief For American Public Health Association Et Al. As Amici Curiae Supporting Respondents, Department Of Transportation V. Public Citizen, No. 03-358 (U.S. Mar. 12, 2004), Hope M. Babcock, Lisa Goldman

U.S. Supreme Court Briefs

No abstract provided.