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Articles 31 - 60 of 88
Full-Text Articles in Administrative Law
Depoliticizing Judicial Review Of Agency Rulemaking, Scott A. Keller
Depoliticizing Judicial Review Of Agency Rulemaking, Scott A. Keller
Washington Law Review
Administrative law doctrines for reviewing agency rulemaking, such as the Supreme Court’s dicta in Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Insurance Co. and the D.C. Circuit’s hard look doctrine, give judges significant discretion to invalidate agency rules. Many commentators recognize that this discretion politicizes judicial review of agency rulemaking, as judges appointed by a president of one political party are more likely to invalidate agency rules promulgated under the presidential administration of a different political party. Unelected judges, though, should not be able to use indeterminate administrative law doctrines to invalidate agency rules on the basis …
An Iq Test For Federal Agencies? Judicial Review Of The Information Quality Act Under The Apa, Margaret Pak
An Iq Test For Federal Agencies? Judicial Review Of The Information Quality Act Under The Apa, Margaret Pak
Washington Law Review
The Information Quality Act (IQA) directs the Office of Management and Budget (OMB) to issue guidelines to federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information disseminated by the agencies. The IQA directs agencies to develop administrative mechanisms whereby a person affected by agency-disseminated information may request correction of information that the person believes does not comply with the OMB's guidelines. The IQA is silent on whether judicial review is available to challenge an agency's decision to deny a "request for correction" (RFC). Regulated parties, legislators, scholars, and other groups have framed judicial review of …
Technology And The Washington State Administrative Process—Some Preliminary Notes, William R. Andersen
Technology And The Washington State Administrative Process—Some Preliminary Notes, William R. Andersen
Washington Law Review
This brief report summarizes information obtained by a preliminary survey in the spring of 2003 of what some Washington state agencies are doing with technology. The agencies surveyed included the Utilities and Transportation Commission and the Departments of Ecology, Revenue, Social and Health Services, and Labor and Industries. To keep the subject within bounds—and within the central focus of the Access to Justice Technology Bill of Rights project—the survey inquired into the use of technology in those parts of the administrative process that are similar to legal process generally—i.e., those components of the administrative process through which binding general principles …
Government-To-Citizen Online Dispute Resolution: A Preliminary Inquiry, Anita Ramasastry
Government-To-Citizen Online Dispute Resolution: A Preliminary Inquiry, Anita Ramasastry
Washington Law Review
This Article first examines the use of ODR [online dispute resolution] as a tool for private sector dispute resolution. It explores some of the reasons for a slower rate of uptake in business-to-consumer e-commerce disputes. The Article then suggests that a new and innovative use for ODR may be for public sector dispute resolution—between governments and citizens. The use of technology for public dispute resolution may promote access to justice in the administrative context.
The Washington Equal Access To Justice Act: A Substantial Proposal For Reform, D. Greg Blankinship
The Washington Equal Access To Justice Act: A Substantial Proposal For Reform, D. Greg Blankinship
Washington Law Review
Under the Washington Administrative Procedures Act, a party can challenge an agency action in superior court. The Washington Legislature adopted the Equal Access to Justice Act, which provides fees to qualified parties that prevail in judicial reviews of agency actions, to encourage individuals and small businesses to oppose unjust agency actions. The effectiveness of this fee-shifting provision is significantly limited because awards are not authorized when a court decides that the agency action is substantially justified. The legislature should remove this limitation. Where the agency action involves factual determinations or the interpretation of statutes or regulations within the expertise of …
"Validly Adopted Interpretations": Defining The Deference Standard In Aviation Certificate Action Appeals, Denise A. Banaszewski
"Validly Adopted Interpretations": Defining The Deference Standard In Aviation Certificate Action Appeals, Denise A. Banaszewski
Washington Law Review
The split-enforcement model of agency administration creates a dilemma for the adjudicating agency regarding how much deference it should allot interpretive documents promulgated by the agency with rulemaking authority. In 1992, Congress sought to resolve this problem in the area of aviation safety by statutorily mandating that the adjudicating agency, the National Transportation Safety Board (NTSB), defer to "validly adopted" interpretations generated by the rulemaking agency, the Federal Aviation Administration (FAA). Ironically, the statute created even more uncertainty because the term "validly adopted" is vague and remains undefined. Subsequent decisions have not clarified exactly when the NTSB considers itself bound. …
Simply A Matter Of Growing Pains? Evaluating The Controversy Surrounding The Growth Management Hearings Boards, Derek W. Woolston
Simply A Matter Of Growing Pains? Evaluating The Controversy Surrounding The Growth Management Hearings Boards, Derek W. Woolston
Washington Law Review
In 1990, the Washington Legislature enacted the Growth Management Act (GMA) intending to reduce urban sprawl and manage development throughout the state. In 1991, the GMA was amended to include an administrative dispute resolution system, involving three independent regional Growth Management Hearings Boards ("Boards") empowered to hear petitions and to determine whether a county or city is complying with the GMA. The breadth of discretion given to the Boards to scrutinize local government land use policies has prompted a barrage of criticism from both local governments and the regulated community. The tension is attributable to factors within the control of …
Judicial Deference To Administrative Agencies' Legal Interpretations After Lechmere, Inc. V. Nlrb, Susan K. Goplen
Judicial Deference To Administrative Agencies' Legal Interpretations After Lechmere, Inc. V. Nlrb, Susan K. Goplen
Washington Law Review
In Lechmere, Inc. v. NLRB, the Supreme Court held that when interpreting administrative statutes, the Court will defer to its own previous interpretations rather than defer to administrative agencies' interpretations of statutes. Thus, the Court determined that stare decisis is dominant over judicial deference to administrative agencies. The Court decided Lechmere, Inc. v. NLRB wrongly. The rationales for deference to agencies exist whether or not the courts have addressed the statute in question. Therefore, courts should apply the doctrine of judicial deference even when courts have previously interpreted a statute.
The 1988 Washington Administrative Procedure Act—An Introduction, William R. Andersen
The 1988 Washington Administrative Procedure Act—An Introduction, William R. Andersen
Washington Law Review
The Washington Legislature passed a new Administrative Procedure Act ("APA") in the spring of 1988, effective July 1, 1989. The Article guides the reader through the new APA, discusses its connection to general principles of administrative law and the policies underlying the Act, describes its organization, suggests solutions to interpretative problems, and recommends methods for evaluating future proposed amendments to the Act.
The Supreme Court's Interpretation Of Section 1988 And Awards Of Attorney's Fees For Work Performed In Administrative Proceedings: A Proposal For A Result-Oriented Approach—North Carolina Department Of Transportation V. Crest Street Community Council, Inc., 107 S. Ct. 336 (1986), Richard Gans
Washington Law Review
In 1976, Congress enacted the Civil Rights Attorney's Fees Awards Act, amending 42 U.S.C. § 1988. Section 1988 authorizes courts to award attorney's fees to claimants who prevail in actions or proceedings to enforce civil rights under any of the laws enumerated in the Section. In North Carolina Department of Transportation v. Crest Street Community Council, Inc., the United States Supreme Court for the first time addressed the issue of whether a party may seek attorney's fees in a court action apart from the action or proceeding in which the party seeks to enforce civil rights. Justice O'Connor, writing for …
The Scope Of Judicial Review Of Agency Actions In Washington Revisited—Doctrine, Analysis, And Proposed Revisions, Tim J. Filer
The Scope Of Judicial Review Of Agency Actions In Washington Revisited—Doctrine, Analysis, And Proposed Revisions, Tim J. Filer
Washington Law Review
This Comment analyzes current Washington law on the scope of judicial review, and compares it to recently proposed revisions to the Washington Administrative Procedure Act (APA). Part I discusses the doctrine surrounding the review of agency actions by Washington courts. Part II examines Washington case law and identifies several elements that determine the intensity with which the court will examine a particular agency action, regardless of the doctrinally prescribed deference. Part III compares and discusses the proposed revisions to the Washington APA. While based primarily on the latest Model State APA, 6 the proposed revisions contain some significant variations. The …
Administrative Agency Inaction: Misapplication Of The Finality Doctrine—Sierra Club V. Gorsuch, 715 F.2d 653 (D.C. Cir. 1983), Jacqualee Story
Administrative Agency Inaction: Misapplication Of The Finality Doctrine—Sierra Club V. Gorsuch, 715 F.2d 653 (D.C. Cir. 1983), Jacqualee Story
Washington Law Review
This Note first summarizes the finality doctrine, and then examines the Sierra Club court's misapplication of the finality analysis. The Note suggests an alternate analysis of the agency inaction in Sierra Club and proposes that such an analysis be applied in factual situations similar to that in Sierra Club.
Administrative Adjudication—A New Legal Standard For Its Use—Ford Motor Co. V. Ftc, 673 F.2d 1008 (9th Cir. 1981), Cert. Denied, 103 S. Ct. 358 (1982), Barbara Himes Schuknecht
Administrative Adjudication—A New Legal Standard For Its Use—Ford Motor Co. V. Ftc, 673 F.2d 1008 (9th Cir. 1981), Cert. Denied, 103 S. Ct. 358 (1982), Barbara Himes Schuknecht
Washington Law Review
This Note examines prior case law concerning agency use of adjudication for policy formulation. It also analyzes policy considerations both for and against that practice. The Note concludes that the Ninth Circuit's formula for abuse of discretion represents a new, and inadvisable, legal standard. Although Ford may have been an appropriate case for rulemaking, the court created an overly broad standard for when rulemaking must be used. This standard may preclude judicial consideration of policy factors favoring adjudication when the result of the adjudication is one which changes existing law and has widespread application. Furthermore, the Ford standard might deprive …
Experiments In Agency Justice: Informal Adjudicatory Procedures In Administrative Procedure Acts, Karen E. Boxx
Experiments In Agency Justice: Informal Adjudicatory Procedures In Administrative Procedure Acts, Karen E. Boxx
Washington Law Review
The 1961 Revised Model State Administrative Procedure Act and most state administrative procedure acts ("APAs") provide for only one type of agency adjudication: a formal, trial-type hearing. The 1981 Model Act and five state APAs have departed from this approach by providing additional, more informal adjudicatory procedures. This Comment examines the developments since 1961 that prompted the drafters of these acts to include informal procedures. The major impetus for the change was the "due process explosion," which extended hearing rights to interests that had been considered too minor for formal hearings. The Comment then compares the 1981 Model Act and …
Quis Custsodiet Ipsos Custodes?: Gubernatorial And Legislative Review Of Agency Rulemaking Under The 1981 Model Act, David S. Neslin
Quis Custsodiet Ipsos Custodes?: Gubernatorial And Legislative Review Of Agency Rulemaking Under The 1981 Model Act, David S. Neslin
Washington Law Review
Legislatures frequently delegate broad rulemaking powers to administrative agencies to implement and enforce statutes. To control the use of this delegated authority, most states subject agency rulemaking to legislative or executive review. Through the use of various kinds of nonjudicial review, the states have served as innovative laboratories for the development of this concept. This Comment first outlines the history of nonjudicial review of agency rulemaking. It then describes and evaluates the gubernatorial and legislative review provisions of the 1981 Model Act. Finally, drawing upon the experiences of several states, it proposes a modification of the Act's approach to nonjudicial …
Environmental Regulation And Regulatory Reform, Douglas M. Costle
Environmental Regulation And Regulatory Reform, Douglas M. Costle
Washington Law Review
Regulatory relief asks the wrong question when it asks whether a regulation's benefits justify its costs. True regulatory reform asks how to make regulation fair, reasonable, and effective-that is, both efficient in spending social resources and successful in achieving compliance. Instead of simply devising new procedural burdens to impede the regulator, we ought to focus our regulatory reform efforts on finding effective ways to regulate by stimulating and rewarding industry's efficient compliance with regulation.
Administrative Law—Licensing By Municipal Bodies: A Judicial Function—Standow V. City Of Spokane, 88 Wn. 2d 624, 564 P.2d 1145 (1977), Leila Taaffe
Washington Law Review
In this note, the reasoning behind the court's decision will be examined and it will be urged that, despite flaws in the analysis, the result in this case is a sound one. Discretionary municipal action which cannot be reviewed under the Washington Administrative Procedure Act but which "involves application of existing law to past or present facts for the purpose of declaring or enforcing liability... resembles the ordinary business of courts" and should be susceptible to judicial review on petition for a writ of statutory certiorari.
Administrative Law—Freedom Of Information Act—Agency Secrecy Continues—Nlrb V. Sears, Roebuck & Co., 421 U.S. 132 (1975); Renegotiation Board V. Grunman Aircraft Engineering Corp., 421 U.S. 168 (1975), Greg Adams
Washington Law Review
Sears, Roebuck and Company brought an action under the Freedom of Information Act (FOIA) to compel disclosure of Advice and Appeals Memoranda issued by the General Counsel of the National Labor Relations Board. In ordering disclosure of both sets of documents, the district court held that Advice Memoranda qualified under the Act as "'instructions' [to staff] which affect a member of the public," but that Appeals Memoranda were "final opinions" which did not fall within the Act's exemption for "intra-agency memoranda." The Court of Appeals for the District of Columbia affirmed without opinion. In another case requiring interpretation of the …
Administrative Law—Shorelines Management—Judicial Review Of Shorelines Hearings Board Decisions—Department Of Ecology V. Ballard Elks Lodge No. 827, 84 Wn. 2d 551, 527 P.2d 1121 (1974), Glenna Spitzer Hall
Administrative Law—Shorelines Management—Judicial Review Of Shorelines Hearings Board Decisions—Department Of Ecology V. Ballard Elks Lodge No. 827, 84 Wn. 2d 551, 527 P.2d 1121 (1974), Glenna Spitzer Hall
Washington Law Review
Appellant, a fraternal lodge owning a parcel of real estate including tidelands on Shilshole Bay in Seattle, Washington, applied to the City for a substantial development permit pursuant to requirements of the Washington Shoreline Management Act (SMA). The initial application proposed an over-the-water lodge building, constructed entirely on filled tideland, exceeding the SMA's 35-foot height restriction. A second, modified application reduced the building's height, provided an easement for public access to the water's edge, and proposed construction of the lodge building over the water on pilings rather than on filled tidelands. The area selected for construction was one of relatively …
Administrative Law—Judicial Review—"Mental Process" Privilege Prevents Discovery Of Existence Of Agency Head's Statutorily-Required Personal Decision—National Nutritional Foods Association V. Food & Drug Administration, 491 F. 2d 1141 (2d Cir. 1974), Robert O'Callahan
Washington Law Review
Within 13 days of being named Commissioner of the Food and Drug Administration (FDA), Commissioner Schmidt issued "14 final regulations, 13 proposed regulations and six notices stretching over many pages of the Federal Register. Schmidt was authorized to make the requisite final review of the National Nutritional Foods Association's objections prior to issuing final FDA regulations. The final regulations, which govern the public sale of dietary supplements, were preceded by a recital that the Commissioner had considered the evidence from public hearings, the hearing examiner's report and all the later exceptions and written arguments filed against the regulations. Petitioners argued …
Administrative Searches And Seizures: What Happened To Camara And See?, Mark A. Rothstein, Laura F. Rothstein
Administrative Searches And Seizures: What Happened To Camara And See?, Mark A. Rothstein, Laura F. Rothstein
Washington Law Review
In recent years the Government's efforts in promoting health, safety and welfare have necessitated an increased number of administrative inspections of commercial and noncommercial premises. Although such inspections were previously held to be excluded from the fourth amendment's ban on unreasonable searches and seizures, the Supreme Court held in Camara v. Municipal Court and See v. Seattle that administrative inspections must comply with the warrant provision of the fourth amendment. Since those decisions, the Court has emphasized the exceptions to, rather than the strictures of, the warrant requirement. This article analyzes developments in the law concerning administrative searches and seizures …
Administrative Law—Scope Of Review: Review Court May Not Examine The Wisdom Of Local School Board Decision, But May Determine Whether Fundamental Rights Have Been Violated—Citizens Against Mandatory Bussing V. Palmason, 80 Wn.2d 445, 495 P.2d 657 (1972), Anon
Washington Law Review
Defendant, the Seattle School Board, attempted to implement a plan to desegregate the Seattle school system. The plan included the restructuring of school grade classifications in accordance with a "middle school" concept,' and mandatory reassignment of approximately 850 black and white sixth, seventh and eighth grade children from their "neighborhood schools"' to schools in other areas of the city. Mandatory bussing was not required, but bus transportation was to be available for those students who desired it. Plaintiffs, Citizens Against Mandatory Bussing (CAMB), obtained an injunction restraining implementation of the plan for one year. The basis for the injunction was …
Due Process—Administrative Law—Public Assistance: Applicant's Right To A Fair Hearing—Davis V. Toledo Metropolitan Housing Authority, 311 F. Supp. 795 (N.D. Ohio 1970), Anon
Washington Law Review
Plaintiff applied for admission to a low income housing program administered by the Toledo Metropolitan Housing Authority. The Authority's regulation concerning admission to the program provided several standards for determining an applicant's character eligibility. The regulations required that applicants of unqualified character be declared ineligible on the general grounds of "non-desirability." Plaintiff was denied a place on the waiting list for housing program vacancies on those grounds. Her request for the specific facts supporting the Housing Authority's decision was denied, and her appeal for a "fair hearing" to contest the decision was refused. Plaintiff brought suit to enjoin the Housing …
Administrative Law—Combination Of Functions: May An Administrative Tribunal Be Both Prosecutor And Judge?—State Ex Rel. Beam V. Fulwiler, 76 Wn.2d 313, 456 P.2d 322 (1969), Anon
Washington Law Review
Respondent Beam was Chief Examiner and Secretary to the Spokane Civil Service Commission. About two years before the instant action, the Commission requested Beam to retire. When he refused, the Commission was instrumental in reducing his pay and in demoting him by creating a position superior to his for another person. Beam successfully brought action to have his duties restored and to set aside the new position created by the Commission. Subsequently, the Commission members investigated Beam's conduct, formed conclusions, promulgated charges, transmitted accusations personally signed by four of the five board members to the City Manager and recommended his …
The Right To Fair Hearing In Japanese Administrative Law, Nathaniel L. Nathanson, Yasuhiro Fujita
The Right To Fair Hearing In Japanese Administrative Law, Nathaniel L. Nathanson, Yasuhiro Fujita
Washington Law Review
The right to fair hearing in contemporary Japanese administrative law is a tender plant, lacking deep roots in historical tradition, and struggling for survival in a relatively hostile environment, Fair hearing was a concept practically unknown to the administrative law of pre-war Japan, which, taking its cue from German and French law, relied principally, not on the procedural rights of the individual, but rather upon the skill and dedication of administrators for the achievement of efficiency and justice, with only occasional judicial review by the Administrative Court. The Anglo-American maxim that "he who decides must hear" was indeed foreign to …
Judicial Review Of Administrative Actions In Japan, Ichiro Ogawa
Judicial Review Of Administrative Actions In Japan, Ichiro Ogawa
Washington Law Review
The reform of administrative litigation under the new Constitution involves a shift from an "administrative state" to a "judicial state." This does not mean, however, that the system of administrative litigation is now the same as the system in the Anglo-American "judicial state." The distinction between public and private law is still maintained in Japan, and "administrative acts" (Gyosei-koi) are regulated by principles of public law quite different from rules applicable to private persons.
Ftc Preliminary Relief Powers Under Section 7 Of The Clayton Act, Anon
Ftc Preliminary Relief Powers Under Section 7 Of The Clayton Act, Anon
Washington Law Review
Respondents Dean Foods Company and Bowman Dairy Company, substantial competitors in the sale of packaged milk, planned to merge. Dean was to purchase substantially all of Bowman's assets and Bowman was to cease doing business. The Federal Trade Commission, after issuing a formal complaint under section 7 of the Clayton Act and section 5 of the Federal Trade Commission Act, applied to the Seventh Circuit Court of Appeals for a preliminary injunction to maintain the status quo until the Commission could hold hearings to determine the legality of the merger. Dismissal of the Commission's petition was appealed to the Supreme …
Ftc Preliminary Relief Powers Under Section 7 Of The Clayton Act, Anon
Ftc Preliminary Relief Powers Under Section 7 Of The Clayton Act, Anon
Washington Law Review
Respondents Dean Foods Company and Bowman Dairy Company, substantial competitors in the sale of packaged milk, planned to merge. Dean was to purchase substantially all of Bowman's assets and Bowman was to cease doing business. The Federal Trade Commission, after issuing a formal complaint under section 7 of the Clayton Act and section 5 of the Federal Trade Commission Act, applied to the Seventh Circuit Court of Appeals for a preliminary injunction to maintain the status quo until the Commission could hold hearings to determine the legality of the merger. Dismissal of the Commission's petition was appealed to the Supreme …
Judicial Control Of Administrative Action, By Louis L. Jaffe (1965), Cornelius J. Peck
Judicial Control Of Administrative Action, By Louis L. Jaffe (1965), Cornelius J. Peck
Washington Law Review
A book with the depth and scope of Professor Jaffe's recently published work on judicial control of administrative action is not an easy one to review. While one is tempted to write a parallel work of commentary and criticism, such a task is beyond the scope of a review; anything less, however, seems light and superficial when put beside the work commented upon. Nevertheless, the following is offered for interested readers. Professor Jaffe's book was not written in the tradition of legal treatises which present a detailed, systematic, and tightly organized treatment of a subject. On the contrary, though he …
Reviewability Of Arbitrary And Capricious Actions Of Liquor Control Board, Anon
Reviewability Of Arbitrary And Capricious Actions Of Liquor Control Board, Anon
Washington Law Review
In June 1962, plaintiff applied to the State Liquor Control Board for change of location of his tavern license. Plaintiff proposed to move his tavern business around the corner and across the street from its former location. The Board investigated the proposed move, and, after careful consideration, notified the plaintiff of the Board's approval. In reliance on this notice of approval, plaintiff spent his life's savings acquiring, remodeling, and equipping the new location. Thereafter, without a formal hearing, the Board informed the plaintiff that approval of the proposed move had been withdrawn. The plaintiff sought a writ of mandamus directed …