Administrative Law Commons^™

In Defense Of Regulatory Peer Review, J.B. Ruhl, James Salzman

Vanderbilt Law School Faculty Publications

The debate over application of peer review to the regulatory decisions of administrative agencies has heated up in the last year. Part of the larger and controversial sound science movement, mandating peer review for certain types of agency decisions has recently been championed by the White House and proponents in Congress. Indeed, this past January the Office of Management and Budget finalized guidelines requiring peer review for large classes of agency activities. These initiatives have not gone unchallenged, and a fierce debate has resulted between those who claim peer review will strengthen the scientific basis of agency decisions and those …

Foster Children Paying For Foster Care, Daniel L. Hatcher

Cardozo Law Review

No abstract provided.

Congressional Administration, Jack M. Beermann

Faculty Scholarship

In recent years, at least since President Reagan's precedent-setting Executive Order 12291, the phenomenon of direct presidential supervision of agencies has received significant attention in legal scholarship. Congress's involvement has been much less thoroughly examined, and, although most people are familiar with congressional hearings and oversight, the dominant image as a legal matter is that once Congress legislates, it loses control over how its laws are administered unless it chooses to legislate again. In the political science/public policy literature, the understanding of Congress's role in monitoring agencies has evolved from despair that Congress is not sufficiently engaged to a recognition …

Council For Higher Education V. Haaretz, Esther Hayut, Aharon Barak, Dorit Beinisch, Eliezer Rivlin, Miriam Naor, Salim Joubran, Mishael Cheshin

Translated Opinions

Facts: In the first case, HaAretz Newspaper Publishing submitted a request to the Council for Higher Education for information. The Council gave HaAretz copies of decisions it had made, but refused to allow it access to the minutes of meetings. HaAretz therefore applied to the District Court to order the Council to grant it access to the minutes of the meetings.

In the second case, the Shachar Organization for the Advancement of Education in Israel applied to the Council for a licence to open an institute of higher education in Ashkelon. When the Council refused the licence, Shachar applied to …

Reform In Lieu Of Change: Tastes Great, Less Filling, Jonathan G.S. Koppell

Publications from President Jonathan G.S. Koppell

In this response to Light, Koppell argues that the increasing frequency of reform may reflect Congress's inability to make significant changes to the substance of entrenched government programs. Moreover, he observes that the more profound evolution in government has been the movement toward the market-based provision of services, which has created a demand for new competencies in the public sector.

The People's Agent: Executive Branch Secrecy And Accountability In An Age Of Terrorism, Sidney A. Shapiro, Rena I. Steinzor

Faculty Scholarship

The increase in government secrecy is an important and troubling policy trend. Although the trend predates the 2000 presidential election, the movement towards government secrecy has accelerated dramatically in the Bush Administration. The case for open government is usually based on political principles embraced by the Framers of the U.S. Constitution. This article seeks to bolster these arguments by applying “agency theory” to the question of how much secrecy is too much. While agency theory is most often used to analyze private sector economic relationships, commentators have also applied it to the analysis of methods for holding legislators and Executive …

Health Courts And Malpractice Claims Adjudication Through Medicare: Some Questions, Timothy Stoltzfus Jost

Scholarly Articles

No abstract provided.

Managing The Regulatory State: The Experience Of The Bush Administration, John D. Graham, Paul R. Noe, Elizabeth L. Branch

Fordham Urban Law Journal

This Article traces the history of Presidential management of the regulatory state up to the administration of President George W. Bush. It focuses on the latter's implementation of "smarter regulation," an approach to regulation based on unfunded mandates on the private sector implemented through the Office of Management and Budget, an organization within the Executive Office of the President. It finds cost-benefit analysis an essential, yet often neglected, tool for implementing efficient and effective regulations. It concludes the policies promoted under President Bush's OMB have effectively cut costs by streamlining the rule-making process and discouraging adopting new federal rules, but …

Resisting Regulation With Blue Ribbon Panels, Thomas O. Mcgarity

Fordham Urban Law Journal

The Article analyzes the use of blue ribbon panels to resolve complicated scientific issues that frequently arise during regulatory proceedings. In particular, it looks at the case of beryllium in order to illustrate how blue ribbon panels appointed and paid for by industry often lend scientific legitimacy to policy advocacy. It concludes that agencies should partially discount scientific evidence provided by industry appointed blue ribbon panels due to expected bias. However, it finds the agency will confront some difficulty convincing the public of the adequacy of regulations that are in conflict with a well-financed campaign by a regulated entity armed …

Valuation In The Cost-Benefit Analysis: Choosing Between Offer Prices And Asking Prices As The Appropriate Measure Of Willingness To Pay, 39 J. Marshall L. Rev. 429 (2006), Gregory Crespi

UIC Law Review

No abstract provided.

In The Service Of Secrets: The U.S. Supreme Court Revisits Totten, 39 J. Marshall L. Rev. 475 (2006), Douglas Kash, Matthew Indrisano

UIC Law Review

No abstract provided.

"For It's One, Two, Three Strikes, You're Out . . .", 39 J. Marshall L. Rev. 493 (2006), Kaycee Hopwood

UIC Law Review

No abstract provided.

Hitching A Ride: Every Time You Take A Drive, The Government Is Riding With You, 39 J. Marshall L. Rev. 1499 (2006), Benjamin Burnham

UIC Law Review

No abstract provided.

Commonwealth Of Massachusetts V. Epa: Passing The Buck On Regulation Of Greenhouse Gas Emissions, Daniel Baylson

Villanova Environmental Law Journal (1991 - )

No abstract provided.

The Unbearable Lightness Of Regulatory Costs, Frank Ackerman

Fordham Urban Law Journal

The Article counters the presumption that increased environmental regulation necessarily decreases economic prosperity. It analyzes the European chemical regulatory structure and deduces that any costs imposed on the consumer are minimal, and more cost effective than watered-down American regulations covering the same subject matter with approximately the same cost imposed on the consumer-taxpayer. It argues the Office of Management and Budget and regulated industries have consistently overestimated the costs of environmental regulation and promoted the theory that environmental regulation causes factories and jobs to move offshore. It concludes that deregulation may not spur growth.

Statutory Interpretation In The Era Of Oira, Lisa Heinzerling

Fordham Urban Law Journal

The Article is a case study regarding a rule governing cooling water towers for power plants promulgated pursuant to the Clean Water Act ("CWA"). It analyzes the history of the Office of Information and Regulatory Affairs ("OIRA") within the Office of Management and Budget ("OMB"), and its influence in compelling the Environmental Protection Agency ("EPA") to conduct cost-benefit analysis of all regulations. It argues that the EPA should not receive Chevron deference since it has acted illegally by interpreting the CWA not as a technology-based environmental law, but instead as a cost-benefit law.

Willful Blindness: Federal Agencies' Failure To Comply With The Regulatory Flexibility Act's Periodic Review Requirement-And Current Proposals To Invigorate The Act, Michael R. See

Fordham Urban Law Journal

The Article first explains the basic requirements of the Regulatory Flexibility Act, and in particular focuses on the periodic review requirement contained in Section 610. It traces the history of Presidential efforts through the promulgation of executive orders to delay the implementation of regulations and require agencies to consult with regulated industries. Reviewing agency action from 1997-2005 following Section 610 review, it found agencies are confused as to when review is necessary, and, though Section 610 is meant to decrease the regulatory burden on small business, agencies often increase the regulatory burden on small business. It concludes the key problem …

Cost-Benefit Analysis: Where Should We Go From Here?, Sally Katzen

Fordham Urban Law Journal

The Article addresses the criticism of cost benefit analysis (CBA). Although it accepts the monetization of costs will generally oppose regulation, it finds CBA is at least close to an objective standard. It argues the results of CBA are informative, but are not dispositive, and often the procedures used in CBA are imperfect. It concludes financial resources should be devoted to retrospective analyses and/or organization studies in order to achieve rational regulatory decision making.

Shifting Science, Considered Costs, And Static Statutes: The Interpretation Of Expansive Environmental Legislation, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

Congress often passes expansive legislation, frequently environmental and public health regulatory statutes, where both the definition of those items being regulated and the mandate have significant breadth. How should these provisions be construed? While it is difficult to establish a model which determines whether to broadly or narrowly construe an expansive statutory provision, factors that impact this choice include the existence of express limitations on the mandate, understandings of congressional intent, the need to avoid regulation that might do more harm than good, the nature of the regulated item, and intervening circumstances such as new understandings in law, policy, or …

Revisiting The Tense Relationship Between The U.S. Supreme Court, Administrative Procedure, And The National Environmental Policy Act, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

This Article addresses the possibility, under the prevailing understanding of NEPA, that an agency might draft a comprehensive report containing information about potential environmental effects and alternate approaches to a proposed plan--and then wholly disregard all of this information in making its final decision. Although an agency may contend that it has “considered” the environmental consequences of alternative courses of action, what if these factors have no actual impact on its final decision? Hypothetically, an agency could simply “steamroll” toward its preferred decision, hurdling NEPA's procedural obstacles without genuinely considering potential environmental harms or the means to avoid them.

This …

Chenery Ii And The Development Of Federal Administrative Law, Linda Jellum

Articles

No abstract provided.

An Environmental Pool For The Rio Grande, Kara Gillon

Publications

The Bureau of Reclamation and Corps of Engineers operate a series of dams, reservoirs, and levees along the Middle Rio Grande of New Mexico. The plight of the Rio Grande silvery minnow, an endangered species, and of the river itself demonstrates the need for a change from the emphasis on water development to sustainable river management. Conservation groups invoked the protections of the Endangered Species Act to catalyze this change. Recognizing that flexibility is necessary to meeting competing water needs, the groups also promoted the need for and several approaches to a sustainable and long-term approach to river management and …

When Do Interest Groups Use Electronic Rulemaking?, John M. De Figueiredo

Faculty Scholarship

This paper analyzes how electronic rulemaking is affecting the propensity of interest groups to file comments and replies at the Federal Communications Commission. The paper shows that exogenous events and a handful of issues drive filing behavior. Implications of the analysis are discussed.

Precaution Against Terrorism, Jonathan B. Wiener, Jessica Stern

Faculty Scholarship

Stunned by the terrorist attacks of September 11, 2001, the Bush administration adopted a new National Security Strategy in September 2002. The UK government took a similar stance. This new strategy calls for anticipatory attacks against potential enemies with uncertain capacities and intentions, even before their threat is imminent. Rather than wait for evidence of weapons of mass destruction, it shifts the burden of proof, obliging ‘‘rogue’’ states to show that they do not harbor weapons of mass destruction or terrorist cells, or else face the possibility of attack. This new strategy amounts to the adoption of the Precautionary Principle …

Valuation In Cost-Benefit Analysis: Choosing Between Offer Prices And Asking Prices As The Appropriate Measure Of Willingness To Pay, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

Cost-benefit analysis is a well-known technique for evaluating the merits of a policy by attempting to quantify in financial terms all of the costs and benefits that will result from its implementation. In this article, the author focuses on the important question of whether offer prices or asking prices are the theoretically appropriate measure in determining "willingness to pay" and overall efficiency consequences when conducting a cost-benefit analysis. The author surveys the existing literature on this valuation question and offers personal conclusions and recommendations.

Out Of Thin Air: Using First Amendment Public Forum Analysis To Redeem American Broadcasting Regulation, Anthony E. Varona

University of Michigan Journal of Law Reform

American television and radio broadcasters are uniquely privileged among Federal Communications Commission (FCC) licensees. Exalted as public trustees by the 1934 Communications Act, broadcasters pay virtually nothing for the use of their channels of public radiofrequency spectrum, unlike many other FCC licensees who have paid billions of dollars for similar digital spectrum. Congress envisioned a social contract of sorts between broadcast licensees and the communities they served. In exchange for their free licenses, broadcast stations were charged with providing a platform for a "free marketplace of ideas" that would cultivate a democratically engaged and enlightened citizenry through the broadcasting of …

Not From Concentrate? Media Regulation At The Turn Of The Millennium M Arch 18-19, 2005, Journal Of Law Reform

University of Michigan Journal of Law Reform

Transcript from a March 2005 Symposium held in the University of Michigan Law School, Hutchins Hall.

The Status Of Administrative Agencies Under The Georgia Constitution, David E. Shipley

Georgia Law Review

This Article reviews the state constitutional provisions regulating administrative agenciesin Georgia and analyzes the court decisions construing those provisions to find that state agencies occupy a secure place under the Georgia Constitution. The two most significant constitutional limitations on administrative agencies are the separation of powers provision and the prohibition on delegating legislative powers to nonlegislative entities, known as the nondelegation doctrine. The Georgia Supreme Court has invalidated grants of authority to state agencies on these grounds, but only rarely, and the court generally exhibits a pragmatic and deferential approach to the General Assembly's blending of quasi-legislative,quasi-judicial,and quasi-executive power in …

Self-Regulation For Safety And Security: Final Minutes Or Finest Hour?, Douglas C. Michael

Law Faculty Scholarly Articles

The terrorist attacks of September 11, 2001, and the accounting and auditing crisis later caused by the Enron and Worldcom scandals of that same year, created a great sense of insecurity in many Americans. In this Article, I analyze the federal government's response to crisis. I first define what a crisis is: a sudden, existential threat to which the entity has insufficient resources to respond. I then explain how regulation for safety and security is unique in two aspects: perceptions matter, and the assistance of the regulated entities is essential. I proceed by describing and analyzing the regulatory history and …

Junking The Junk Science Law: Reforming The Information Quality Act, Stephen M. Johnson

Articles

In addition, the law contributes to the ossification of rulemaking agencies; encourages agencies to make decisions informally through guidance documents and policies rather than rules; and encourages agencies to avoid using electronic dialogues and disseminating information to the public. This Article examines the problems created by the IQA suggests repeal of the law or some reforms to address those problems.

Part II of this Article examines the shift in environmental policymaking from command and control regulation to information disclosure programs and economic based programs. It also examines the strengths limitations of information disclosure programs. Part III reviews the and the …