Administrative Law Commons^™

Tax Law Uncertainty And The Role Of Tax Insurance, Kyle D. Logue

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In the broadest sense, this is an article about legal or regulatory uncertainty and the role that private and public insurance can play in managing it. More narrowly, the article is about tax law enforcement and the familiar if ill-defined distinctions between tax evasion, tax avoidance, and abusive tax avoidance. Most specifically, the article is about a new type of tax risk insurance policy, sometimes called tax indemnity insurance or transactional tax risk insurance that provides coverage against the risk that the Internal Revenue Service (Service) will disallow a taxpayer-insured's tax treatment of a particular transaction. The question is whether …

Principles Of Non-Arbitrariness: Lawlessness In The Administration Of Welfare, Christine N. Cimini

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This article explores whether there exists a concept of non-arbitrariness that imposes limitations on the administration of welfare benefits without rules, regulations, policies or procedures. To address this question, the article examines the concept of non-arbitrariness within various jurisprudential doctrines and the potential applicability of the concept to limit arbitrary governmental action in the welfare context. In each of the areas where courts regulate arbitrary governmental action, underlying judicial concerns give rise to jurisprudential principles. Four principles stand out. First, at a minimum, there must be a rational relationship between the government’s ends and the means it chooses to reach …

Seeking Truth For Power: Informational Strategy And Regulatory Policymaking, Cary Coglianese, Richard Zeckhauser, Edward A. Parson

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Information is the lifeblood of regulatory policy. The effective use of governmental power depends on information about conditions in the world, strategies for improving those conditions, and the consequences associated with deploying different strategies. Indeed, this need for information has led legislatures to create specialized committee structures, delegate policy authority to expert agencies, and develop administrative procedures that encourage analysis. Although legal scholars have extensively debated procedures and reforms designed to improve the analytic and scientific basis of regulatory policymaking, they have paid relatively little attention to how regulators gain the information they need for making and implementing regulatory policy. …

Chevron And Preemption, Nina A. Mendelson

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This Article takes a more functional approach to reconciling preemption doctrine with Chevron when Congress has not expressly delegated preemptive authority to an agency, an approach that considers a variety of concerns, including political accountability, institutional competence, and related concerns. The Article assumes that federalism values, such as ensuring core state regulatory authority and autonomy, are important and can be protected through political processes." It argues that although Congress's "regional structure" might hint at great sensitivity to state concerns, it actually may lead Congress to undervalue some federalism benefits that are more national in nature. Meanwhile, executive agencies generally have …

Against Chevron - A Modest Proposal, William R. Andersen

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This Article proposes a short amendment to § 706 of the Administrative Procedure Act (APA), which is intended to effectively abolish the Chevron doctrine. The solution will not end all debate on these important issues. It will, however, put the decisions and discussions on a sounder basis, leading to improved decisions and more predictability. The proposal is based on three principles whose validity cannot seriously be questioned.

First, the Rule of Law requires that professionals attend seriously to doctrinal sets marked by bewildering inconsistency and its resulting unpredictability. Whatever components one includes in the concept of Rule of Law, surely …

Rulemaking, Michael Herz

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The Rehnquist Court And Administrative Law, Michael Herz

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Behavioral Economics And The Sec, Stephen J. Choi, Adam C. Pritchard

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Not all investors are rational. Quite apart from the obvious examples of credulity in the face of the latest Ponzi scheme, there is no shortage of evidence that many investors' decisions are influenced by systematic biases that impair their abilities to maximize their investment returns. For example, investors will often hold onto poorly performing stocks longer than warranted, hoping to recoup their losses. Other investors will engage in speculative trading, dissipating their returns by paying larger commissions than more passive investors. And we are not just talking about widows and orphans here. There is evidence that supposedly sophisticated institutional investors-mutual …

Self-Regulation And Securities Markets, Adam C. Pritchard

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Enron, Arthur Andersen, Tyco, ImClone, WorldCom, Adelphia - as American investors reel from accounting scandals and self-dealing by corporate insiders, the question of trust in the securities markets has taken on a new urgency. Securities markets cannot operate without trust. Markets known for fraud, insider trading, and manipulation risk a downward spiral as investors depart in search of safer investments. Today, many investors are rethinking the wisdom of entrusting their financial futures to the stock market. Absent trust in the integrity of the securities markets, individuals will hoard their money under the proverbial mattress.

Agency Burrowing: Entrenching Policies And Personnel Before A New President Arrives, Nina A. Mendelson

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This Article examines executive branch agency actions concluded just before a new President takes office, such as "midnight" rulemaking and late-term hiring and promotion, which Professor Mendelson collectively refers to as "agency burrowing." Congress, the media, and some commentators have portrayed such activities as unsavory power grabs that undermine the President-elect's ability to direct the functions of administrative agencies. Rather than dismissing agency burrowing out of hand, however, Professor Mendelson argues for a more nuanced approach. In some cases, burrowing can make positive contributions to the democratic responsiveness of agencies, agency accountability, and the "rule of law." A fuller analysis …

Harnessing Information Technology To Improve The Environmental Impact Review Process, Michael B. Gerrard, Michael Herz

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An Outcomes Analysis Of Scope Of Review Standards, Paul R. Verkuil

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Rulemaking, Michael Herz

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Agency Rules With The Force Of Law: The Original Convention, Thomas W. Merrill, Kathryn Tongue Watts

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The Supreme Court recently held in United States v. Mead Corp. that agency interpretations should receive Chevron deference only when Congress has delegated power to the agency to make rules with the force of law and the agency has rendered its interpretation in the exercise of that power.

The first step of this inquiry is difficult to apply to interpretations adopted through rulemaking, because often rulemaking grants authorize the agency to make "such rules and regulations as are necessary to carry out the provisions of this chapter" or words to that effect, without specifying whether "rules and regulations" encompasses …

Washington, Patton, Schwarzkopf And Ashcroft?, Michael Herz

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Reading The Clean Air Act After Brown & Williamson, Michael Herz

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Economics V. Equity Ii: The European Experience, Stephen M. Johnson

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Lawmakers in the European Union and its member states, like their counterparts in the United States, increasingly are using economic tools to protect the environment while reducing their focus on command and control regulation. The reliance on economic approaches to environmental protection may disproportionately impact low income and minority communities. Although evidence of environmental injustice in Europe is not as strong as in the United States, several recent studies demonstrate that traditional environmental protection measures in Europe have disproportionately funneled pollution to low income communities. Economic-based environmental measures can only exacerbate that trend.

The Current Life Insurance Crisis: How The Law Should Respond, Kyle D. Logue

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This article explores some of the issues raised by the new evidence of underinsurance. Part I explores the initial theoretical question: why do people buy life insurance? Put differently, what function does life insurance serve? Part II provides some background on the life insurance market as it currently exists. Thus, Part II summarizes the major types of life insurance that are currently offered and summarizes the main elements of the current regulatory regime for life insurance companies. Part III then provides support for the claim that households tend to drastically underconsume life insurance. Section A of that Part summarizes the …

Responsible Regulation: A Sensible Cost-Benefit, Risk Versus Risk Approach To Federal Health And Safety Regulation, Steve Calandrillo

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Federal health and safety regulations have saved or improved the lives of thousands of Americans, but protecting our citizens from risk entails significant costs. In a world of limited resources, we must spend our regulatory dollars responsibly in order to do the most we can with the money we have. Given the infeasibility of creating a risk-free society, this paper argues that a sensible cost-benefit, risk versus risk approach be taken in the design of U.S. regulatory oversight policy. The goal should always be to further the best interests of the nation, rather than to satisfy the narrow agenda of …

Rulemaking, Michael Herz

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Re-Examining The Role Of Patents In Appropriating The Value Of Dna Sequences, Rebecca S. Eisenberg

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As public and private sector initiatives race to complete the sequence of the human genome, patent issues have played a prominent role in speculations about the significance of this achievement. How much of the genome will be subject to the control of patent holders, and what will this mean for future research and the development of products for the improvement of human health? Is a patent system developed to establish rights in mechanical inventions of an earlier era up to the task of resolving competing claims to the genome on behalf of the many sequential innovators who elucidate its sequence …

Economics V. Equity: Do Market-Based Environmental Reforms Exacerbate Environmental Injustice?, Stephen M. Johnson

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For almost three decades, the federal government and state governments have addressed environmental problems primarily through "command and control" regulation. Under this traditional approach, the federal government establishes uniform national pollution limits ("command") that the federal or state governments impose on individual polluters through a system of permits or other controls. However, as the command and control approach has eliminated many of the most prolific sources of pollution, the incremental cost of cleaning up the remaining pollution has risen dramatically, and command and control regulation has become politically less attractive. In addition, command and control regulation may be too rigid …

Judicial Review, Michael Herz

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Speculating About The Next Administrative Conference: Connecting Public Management To The Legal Process, Paul R. Verkuil

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The article advocates for the establishment of a new initiative inspired by the legacy of the Administrative Conference of the United States (ACUS) to address the need for improved public management in the federal system. It proposes a reimagined organization that would bridge the gap between legal processes and management issues, fostering a unified approach to public management. The new initiative would build on the strengths of the ACUS, such as its ability to facilitate dialogue between public and private sectors, while overcoming its limitations, including a narrow focus on legal procedures. The article emphasizes the importance of connecting legal …

The Internet Changes Everything: Revolutionizing Public Participation And Access To Government Information Through The Internet, Stephen M. Johnson

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The internet holds great promise when agencies affirmatively use it to solicit public in- put during initial policy development in either notice and comment rule- making, or in the initial development of interpretive rules, guidelines, or policies. The Clinton administration has embraced such a vision. Many federal agencies actively use the Internet to disseminate government information and solicit public input on important policy matters. This Article explores the manner in which the Internet and similar technological innovations can be, and are being, used to expand public access to government information and to increase public participation in all forms of agency …

A Critique Of The Proposed National Tobacco Resolution And A Suggested Alternative, Jon D. Hanson, Kyle D. Logue

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The first criticism is that the proposed resolution would not require manufacturers and, in tum, consumers to pay anything approaching the true total costs of cigarettes, costs that we estimate to be at least $7 per pack, a number that is considerably higher than other estimates that have been reported in the media. Our estimate includes some, but not all, of the costs borne ultimately by smokers themselves, by smokers' insurers, and by individuals injured by second-hand smoke. It includes only future costs and excludes many of those. So, for example, the figure includes neither the health-care costs that have …

Smokers' Compensation: Toward A Blueprint For Federal Regulation Of Cigarette Manufacturers, Jon D. Hanson, Kyle D. Logue, Michael S. Zamore

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Although nothing is certain in Washington, sweeping federal legislation in the cigarette area is more likely now than has ever been the case. Congress is currently considering several proposals for comprehensive federal regulation of the cigarette market, a market that has until now gone largely untouched by government intervention. Among those proposals, the one that has received the most attention, and the one that in fact motivated policy makers to look anew at the problems posed by cigarettes, is the proposed national tobacco resolution (the "Proposed Resolution"). The Proposed Resolution, which has been advanced by a coalition of state attorneys …

The Costs Of Cigarettes: The Economic Case For Ex Post Incentive-Based Regulation, Jon D. Hanson, Kyle D. Logue

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Cigarette smoking causes over 420,000 deaths annually in the United States, roughly twenty percent of all U.S. deaths, making cigarettes the single greatest preventable cause of death in this country. Indeed, tobacco kills more people every year than alcohol, illicit drugs, automobile accidents, violent crime, and AIDS combined. And not only are cigarettes deadly to smokers; they kill nonsmokers as well. According to a recent report from the Environmental Protection Agency (EPA), the "sidestream" or "passive" smoke from cigarettes - so-called environmental tobacco smoke (ETS) - is responsible annually for approximately 3000 lung cancer deaths, between 150,000 and 300,000 lower …

Understanding The "Public Interest" Justification For Government Actions, Paul R. Verkuil

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The article examines the concept of "public interest" as a justification for government actions, arguing that while the term has historically been a cornerstone of administrative law, its meaning has become increasingly ambiguous and subjective over time. The author traces the evolution of the public interest standard, from its origins in the New Deal era to its current use, and questions whether it can still serve as an objective standard for evaluating government behavior. The analysis highlights the tension between the public interest as a justification for government action and its susceptibility to political and bureaucratic influence.

The Battle That Never Was: Congress, The White House, And Agency Litigation Authority, Neal Devins, Michael Herz

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No abstract provided.