Administrative Law Commons^™

The Propriety Of Section 10(J) Bargaining Orders In Gissel Situations, Michigan Law Review

Michigan Law Review

The courts have split on the question of whether a bargaining order constitutes ''just and proper" relief under section 10(j). This Note contends that such an order is always just in a Gissel situation but that a district court may properly issue one only in situations where the Board's prior decisions clearly establish the relevant labor policy and indicate a high probability that the Board will eventually issue a Gissel bargaining order. Part I of the Note develops the criteria relevant to determining what kind of temporary relief is "just." Although section 10(j) does not itself define these criteria, the …

The Legalization Of American Society: Economic Regulation, Peter O. Steiner

Michigan Law Review

My central thesis is that regulation may be insightfully classified into three broad types of response to perceived market failure, and I will merely touch examples of each. The first is protection of competitive results. I shall focus on natural monopoly regulation, although anti-trust would do as well. The second is protection from competitive results, such as entry control and setting of minimum prices. The third is regulation of externalities such as pollution and accidents arising as byproducts of more usual production.

Does Nepa Require An Impact Statement On Inaction?, Michigan Law Review

Michigan Law Review

This Note considers the question of whether NEPA requires an EIS in cases of official refusal to exercise discretionary agency authority. Part I develops the competing theories for resolving this question. The current judicial attitude, which has excluded important cases with far-reaching environmental effects from the EIS requirement, plainly frustrates the statute's procedural purposes. Regulations promulgated by the Council on Environmental Quality define "major federal action" to include the failure to act under certain circumstances, and offer one alternative to the current approach. But the regulations condition the classification of inaction as action upon reviewability under the Administrative Procedures Act, …

Rationalizing Regulatory Reform, Ernest Gellhorn

Michigan Law Review

A Review of Regulation and Its Reform by Stephen Breyer

Regulation In Perspective: Historical Essays, Michigan Law Review

Michigan Law Review

A Review of Regulation and Perspective: Historical Essays edited by Thomas K. McCraw

Industry Influence In Federal Regulatory Agencies, Michigan Law Review

Michigan Law Review

A Review of Industry Influence in Federal Regulatory Agencies by Paul J. Quirk

Judicial Responses To The Eeoc's Failure To Attempt Conciliation, Michigan Law Review

Michigan Law Review

This Note suggests that a court faced with inadequate conciliation efforts by the EEOC should dismiss the action without prejudice. Part I argues that dismissal better serves the remedial purpose of the statute than summary judgment. Part II then demonstrates that dismissal satisfies the policy concerns of courts that dispose of inadequately conciliated suits. Although dismissal may not promote judicial efficiency as well as summary judgment, courts and the Commission can handle the dismissal to minimize duplication. Part III advances dismissal for failure to state a claim upon which relief can be granted as the appropriate procedural vehicle for disposing …

Eis Supplements For Improperly Completed Projects: A Logical Extension Of Judicial Review Under Nepa, Michigan Law Review

Michigan Law Review

This Note argues that the private cause of action under NEPA retains its utility despite the completion of the project sued upon. Part I describes the procedural implementation of the policy concerns underlying NEPA through the EIS process for proposed actions, and the EIS supplementation process for project changes made after the original EIS has been prepared. Part II examines current law applicable to projects completed in violation of NEPA and concludes that the denial of post-completion relief conflicts with the underlying goals of NEPA. Part III analyzes extension of relief to completed projects, and proposes court-ordered EIS supplementation for …

Deducting The Cost Of Smoking Cessation Programs Under Internal Revenue Code Section 213, Michigan Law Review

Michigan Law Review

This Note argues that enrollment fees for a smoking cessation program should be classified as deductible medical expenses. Part I defends this conclusion without questioning the accepted interpretation of section 213(e). Recent medical evidence indicates that the nicotine addiction that cessation program patients seek to break is itself a disease. And even prior to the onset of more serious health consequences, sustained cigarette smoking significantly impairs the functioning of the lungs and heart. Under this analysis, enrollment fees should be deductible as expenses for the treatment of an existing disease or defect, and as "amounts paid . . . for …

Federal Agency Access To Grand Jury Transcripts Under Rule 6 (E), Michigan Law Review

Michigan Law Review

Part I examines the courts' current certainty-based perspective, and rejects this approach because it sacrifices important interests in civil law enforcement and judicial consistency for speculative and coincidental reductions in grand jury abuse. Part II defends the proposed standard by arguing that it comports with the language and intent of the rule while more effectively advancing the policy interests in civil law enforcement and grand jury secrecy.

Interest Representation And The Federal Land Policy And Management Act, Michigan Law Review

Michigan Law Review

The role of the BLM under the FLPMA, this Note argues, is accurately captured in the "interest representation" model of administrative law; judicial review under this model serves to vindicate the "participation rights" of parties interested in public lands management. Part I places the FLPMA in the context of other recent congressional reform efforts and attempts to justify heightened judicial scrutiny of the BLM's activities. To protect citizens' participation rights, it concludes, courts should recognize a limited right to initiate the planning and management provisions of the FLPMA. The Act, in other words, should be interpreted to comprehend "agenda forcing" …

Clean Coal/Dirty Air, Michigan Law Review

Michigan Law Review

A Review of Clean Coal/Dirty Air by Bruce A. Ackerman and William T. Hassler

Models Of Regulation, James V. Delong

Michigan Law Review

A Review of The Politics of Regulation edited by James Q. Wilson

Powerline: The First Battle Of America's Energy War, Michigan Law Review

Michigan Law Review

A Review of Powerline: The First Battle of America's Energy War by Barry M. Casper and Paul David Wellstone

Beyond The Limits Of Executive Power: Presidential Control Of Agency Rulemaking Under Executive Order 12,291, Morton Rosenberg

Michigan Law Review

This Article addresses the substantial legal problems posed by Executive Order 12,291. Part I argues that the Order, taken as a whole or separated into its procedural and substantive components, violates the constitutional separation of powers. Drawing on the analytic framework outlined by Justice Jackson in the Steel Seizure case, Part I maintains that courts should demand clear congressional support for the Order's requirements. The available evidence, however, conclusively demonstrates Congress's intent to deny the President formalized, substantive control over administrative policymaking. As interpreted by the Supreme Court, moreover, the informal rulemaking provisions of the Administrative Procedure Act (AP A) …

Home Office Deductions: May A Taxpayer Have More Than One Principal Place Of Business?, Michigan Law Review

Michigan Law Review

This Note argues that the Tax Court's more liberal interpretation is correct because it more nearly reflects Congress's intent. Part I seeks a basis for preferring one of the competing interpretations in the text of section 280A and in the section's legislative history, but finds none. Looking, of necessity, to the purposes that Congress sought to advance with section 280A, Part II argues that those purposes do not demand a restrictive reading of "principal place of business." Such a reading, moreover, would undermine fundamental and longstanding congressional tax policies. In the absence of a more explicit statement of congressional intent, …

Refunding Overcharges Under The Emergency Petroleum Allocation Act: The Evolution Of A Compensatory Obligation, Michigan Law Review

Michigan Law Review

The DOE's authority to order noncompensatory remedies has been seriously questioned. This Note will evaluate the propriety of such remedies in light of the history of petroleum price control enforcement. Although the DOE's enabling legislation does not explicitly impose a compensatory obligation, the Note finds that Congress anticipated that remedies would compensate, to the extent feasible, those persons actually overcharged. Part I traces the development of a compensatory obligation through the various stages of price regulation. Part II criticizes the DOE for abnegating that obligation. The Note concludes that the Department's recent consent orders violate both its own rules and …

Union Representation Elections: Law And Reality: The Authors Respond To The Critics, Stephen B. Goldberg, Julius G. Getman, Jeanne G. Getman

Michigan Law Review

The response to the study in the academic journals was extensive, particularly in light of its multidisciplinary nature, which could be seen as calling for reviewers capable of assessing not only the labor law recommendations, but also the data collection methodology and the statistical analysis. One law review dealt with the multidisciplinary nature of the study by inviting a psychologist and a law teacher to write a joint review, and another law review published separate reviews by a lawyer, a professor of labor law, a labor economist, a professor of industrial relations, and a labor reporter and editor. Most legal …

The Propriety Of Benefit-Spreading Regulations Under The 10% Lending Limit Of The National Bank Act, Michigan Law Review

Michigan Law Review

This Note examines whether the ten percent lending limit of the National Bank Act should be used to promote benefit-spreading. Section I evaluates the legislative and judicial history of the lending limit and concludes that Congress never intended the Comptroller to issue regulations to foster benefit-spreading. Section II examines the practical ramifications of the benefit-spreading regulations. It concludes that the lending limit cannot effectively foster benefit-spreading without undermining the risk-reducing function of the statute; that compliance with the benefit-spreading regulations is costly while the penalties for noncompliance are inappropriate and unfair; and that existing statutes better promote benefit-spreading while avoiding …

Crisis And Legitimacy: The Administrative Process And American Government, Michigan Law Review

Michigan Law Review

A Book Notice about Crisis and Legitimacy: The Administrative Process and American Government by James O. Freedman

The Sec And Corporate Disclosure: Regulation In Search Of A Purpose, Michigan Law Review

Michigan Law Review

A Book Notice about The SEC and Corporate Disclosure: Regulation in Search of a Purpose by Homer Kripke

Relaxation Of Implementation Plans Under The 1977 Clean Air Act Amendments, David P. Currie

Michigan Law Review

This Article probes the convoluted ameliorative provisions of the 1977 Amendments in three parts. Section I deals with delayed compliance orders - orders granted to stationary sources unable to meet the statutory deadlines for compliance. Section 113( d) is the fountainhead provision, and besides a general provision for delayed compliance, it also contains specific provisions for sources unable to comply due to retirement of present facilities, due to investment in innovative facilities with the promise of greater pollution reduction in the future or due to government orders to convert from cleaner fuels to coal.

Section II analyzes two specific relief …

State Control Over The Reclamation Waterhole: Reality Or Mirage, Michigan Law Review

Michigan Law Review

This Note assesses how much state law section 8 saves from preemption. Section I reviews the interplay of state and federal water law in the West. It begins with a brief description of appropriation, the system of water rights found in the Western states, outlines the Reclamation Act of 1902, and then traces the Supreme Court's evolving construction of the Act. It culminates in a discussion of California v. United States, the Court's latest gloss on section 8. Section II expands the analysis of the California decision, integrating it with traditional preemption doctrine. It shows that section 8 respects …

Rationalizing Administrative Searches, Michigan Law Review

Michigan Law Review

At the outset, this Note examines the major decisions concerning administrative searches. Specifically, it traces the development of a warrant requirement and of the corresponding lower standard of probable cause announced in the Camara and See decisions. Subsequent modifications of that seemingly absolute rule are then analyzed. To develop a framework for evaluating administrative search cases, Section II groups those principal Supreme Court cases, along with pertinent lower court opinions, into three tiers of fourth amendment protection: administrative searches that require a warrant based on a traditional criminal standard of probable cause; administrative searches that require a warrant based on …

Afterthoughts On The Short-Lived Experiment In Deregulation Of Representation Elections, David B. Ross

Michigan Law Review

A Review of Union Representation Elections: Law and Reality by Julius G. Getman, Stephen B. Goldberg, and Jeanne B. Herman

The Little Agency That Could, Sallyanne Payton

Michigan Law Review

A Review of Regulatory Justice: Implementing a Wage-Price Freeze By Robert A. Kagan

The Power Of The Fcc To Regulate Newspaper-Broadcast Cross-Ownership: The Need For Congressional Clarification, Michigan Law Review

Michigan Law Review

The controversy surrounding the FCC's Second Report and . Order, its appeal, and the subsequent decision in NCCB raises basic questions concerning the statutory authority of the FCC to promulgate rules concerning newspaper-broadcast cross-ownership. This Note suggests that the FCC, notwithstanding judicial affirmation in NCCB of the Commission's authority to adopt such rules, might well be exercising more authority than Congress intended it to possess under the Communications Act of 1934. This Note therefore concludes that, irrespective of the merits of the Second Report and Order, Congress should reexamine and clarify the scope of the FCC's power in this regard.

The Ftc's Injunctive Authority Against False Advertising Of Food And Drugs, Michigan Law Review

Michigan Law Review

Two judicial decisions in the early 1950s construing the FTC's section 13 (a) power produced a conflict that has not been resolved either by later courts or by the amendments to section 13 enacted in 1973. The dispute basically concerns the depth of the courts' inquiry into whether an advertisement violates- section 12 and the applicability of traditional equitable concepts in the context of the statutory injunction procedure. This Note contends that the legislative history of pertinent provisions of the Act suggests an appropriate resolution of the conflict through a two-step approach that would relax the scrutiny ordinarily accorded petitions …

Public Participation In The Adoption Of Interpretive Rules And Policy Statements, Michael Asimow

Michigan Law Review

Section I of this article surveys the practices of a selected group of federal agencies in the adoption of interpretive rules and policy statements. It emphasizes the importance of these rules both to members of the public and to the administrative process. Section II analyzes the cases that have considered the AP A exemption of interpretive rules and policy statements from preadoption notice and comment procedures. These cases are in disarray for several reasons. For one thing, the bright lines traditionally assumed to distinguish interpretive rules and policy statements from legislative rules have become blurred and indistinct. Moreover, the courts …

Program Environmental Impact Statements: Review And Remedies, Michigan Law Review

Michigan Law Review

This Note discusses the application of NEPA to federal programs. It first analyzes when the courts have required a program impact statement and draws upon that analysis to explain the relative functions of site-specific and program statements. It then examines the appropriate scope of judicial inquiry and the proper standards for reviewing federal program compliance with NEPA. Finally, the Note scrutinizes the types of remedies that may be imposed if a program does not comply with NEPA and proposes a procedure for determining the proper scope of judicial remedies.