Administrative Law Commons^™

Unwarranted Fears Mask The Benefits Of Network Diversity: An Argument Against Mandating Network Neutrality, Elvis Stumbergs

ExpressO

The rapid development of the Internet has necessitated an update to Federal telecommunications laws. Recent Congressional efforts to enact such an update, however, have spawned a fiery debate over a somewhat nebulous concept: network neutrality. The debate concerns the way that Internet access providers handle the data traffic being sent over their networks. These providers would like the option to offer some of their customers, web site hosting companies and similar entities, additional services that would essentially result in these customers’ content loading faster, more reliably, or more securely than others not receiving such priority treatment. Yet, this proposed “diversity” …

Appeal No. 0742: B & B Petroleum V. Division Of Mineral Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Order 2004-88

Peeking Behind The Iron Curtain: How Law "Works" Behind Prison Walls, Donald F. Tibbs

ExpressO

The prison disciplinary process plays a major role in maintaining institutional order. It starts from the premise that the safety of the institution trumps the punishment of the inmate. Given the massive incarceration rates in virtually every part of the United States, most prisons are overcrowded and, therefore, forced to place a premium on order and safety. The only way to maintain order and safety is to have prison rules that deter inmate behavior; and the only way to enforce those rules is fairly and humanely.

Peeking Behind the Iron Curtain is a study of the law-in-action. Using a variety …

A New Clean Water Act, Paul Boudreaux

ExpressO

The Supreme Court’s new federalism has struck its strongest blows so far on the Clean Water Act. This summer, in Rapanos v. United States, a sharply divided Court nearly struck down a large chunk of the Act’s protection of wetlands and other small waterways – five years after an earlier decision had narrowed the reach of the Act because of its supposed overreaching into state prerogative. Why has the Clean Water Act been the Court’s favorite target? One reason is that the statute was fatally flawed when enacted. Congress chose to cover “navigable waters,” but its practical definition has never …

Searches & The Misunderstood History Of Suspicion & Probable Cause: Part One, Fabio Arcila

ExpressO

This article, the first of a two-part series, argues that during the Framers’ era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment’s restrictions. Learned treatises in particular, and to a lesser extent a …

Administrative Agencies: A Comparison Of New Hampshire And Federal Agencies’ History, Structure And Rulemaking Requirements, Scott F. Johnson

The University of New Hampshire Law Review

[Excerpt] "In this day and age it is difficult to think of anything that is not regulated in some way by a state or federal agency. State and federal agencies routinely make decisions that impact our daily lives. The air we breathe, the water we drink, the food we eat, the clothes we wear, and the places where we live and work are all regulated to some extent.

Agencies sometimes regulate things in ways that lead to strange results. For example, New Hampshire, state regulations allow anyone to own a yak, a bison, a wild boar, or an emu, but …

A Tough Pill To Swallow: Does The First Amendment Prohibit Wv From Regulating Pharmaceutical Companies' Advertising Expenses To Lower The Cost Of Prescription Drugs?, Brienne Taylor Greiner

West Virginia Law Review

No abstract provided.

Examining Epact 2005: A Prospective Look At The Changing Regulatory Approach Of The Ferc, Heather Curlee

Washington and Lee Law Review

No abstract provided.

Judicial Review And The "Hard Look" Doctrine, Patrick M. Garry

Nevada Law Journal

No abstract provided.

Understanding Farmers’ Forecast Use From Their Beliefs, Values, Social Norms, And Perceived Obstacles, Qi Hu, Lisa M. Pytlikzillig, Gary Lynne, Alan Tomkins, William J. Waltman, Michael Hayes, Kenneth Hubbard, Ikrom Artikov, Stacey Hoffman, Donald A. Wilhite

Lisa PytlikZillig Publications

Although the accuracy of weather and climate forecasts is continuously improving and new information retrieved from climate data is adding to the understanding of climate variation, use of the forecasts and climate information by farmers in farming decisions has changed little. This lack of change may result from knowledge barriers and psychological, social, and economic factors that undermine farmer motivation to use forecasts and climate information. According to the theory of planned behavior (TPB), the motivation to use forecasts may arise from personal attitudes, social norms, and perceived control or ability to use forecasts in specific decisions. These attributes are …

Understanding The Influence Of Climate Forecasts On Farmer Decisions As Planned Behavior, Ikrom Artikov, Stacey Hoffman, Gary Lynne, Lisa M. Pytlikzillig, Q. Steven Hu, Alan Tomkins, Kenneth Hubbard, Michael Hayes, William J. Waltman

Lisa PytlikZillig Publications

Results of a set of four regression models applied to recent survey data of farmers in eastern Nebraska suggest the causes that drive farmer intentions of using weather and climate information and forecasts in farming decisions. The model results quantify the relative importance of attitude, social norm, perceived behavioral control, and financial capability in explaining the influence of climate-conditions information and short-term and long-term forecasts on agronomic, crop insurance, and crop marketing decisions. Attitude, serving as a proxy for the utility gained from the use of such information, had the most profound positive influence on the outcome of all the …

Scientific Expertise In Policymaking: The Case For Open Review And Patent Reform, Beth Simone Noveck

ExpressO

The Energy Research Advisory Board, the group of external scientific advisors that provided impartial expert advice to the Secretary of Energy since 1978, was disbanded this May. The Administration, like its predecessors, regularly replaces experts on agency advisory panels with ideologues and political allies. We are at the nadir of a historical progression since World War II away from trust in and use of scientific expertise in policymaking. This shift however, has not been countered with greater public participation. Instead, administrative law and theory have developed a model of the managerial administrative authority. The "expertocratic" agency relies on internal expertise …

Light From The Trees: The Story Of Minors Oposa And The Russian Forest Cases , Oliver Austin Houck

ExpressO

This article describes two lawsuits in the late twentieth century that changed their countries in ways from which there will be no return. One took place in the Philippines, emerging from the reign of Fernando Marcos, and the other in Russia, following a near century of communist rule. They have two things in common. They declared the rights of their citizens to challenge, and reverse, government decisions. And they were about the environment, more particularly, trees. What we learn is that notions of environmental protection, citizen enforcement and judicial review have traveled the world and that, in differing legal systems, …

Regulating Land Use In A Constitutional Shadow: The Institutional Contexts Of Exactions, Mark Fenster

ExpressO

In a refreshingly clear and comprehensive decision issued towards the end of its 2004 Term, the Supreme Court explained in Lingle v. Chevron (2005) that the Takings Clause requires compensation only for the effects of a regulation on an individual’s property rights. Under the substantive due process doctrine, by contrast, courts engage in a deferential inquiry into both a regulation’s validity and the means by which the regulation attempts to meet the government’s objective. Lingle’s explanation appeared to cast doubt on the doctrinal foundation and reach of Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), …

Swallows As It Might Have Been: Regulations Revising Case Law, Steve R. Johnson

Scholarly Publications

This is the second of two reports on the Swallozvs Holding decision. 1 In that case, the Tax Court, over three dissenting opinions, invalidated a timing rule contained in a Treasury regulation under IRC section 882. That timing rule provided that some foreign corporations could not claim otherwise available deductions if their returns for the tax year were filed outside an 18-month grace period. The majority and the dissenters clashed over which line of authority – Chevron 2 or the pre-Chevron tax-specific line of decisions typified by National Muffier3 – provides the governing standard for evaluating the validity of …

Appeal No. 0756: Dalton Smith V. Division Of Mineral Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Order 2006-36

Appeal No. 0758: John C. Brown V. Division Of Mineral Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Order 2006-56

Appeal No. 0760: A.W Tipka Oil & Gas, Inc. V. Division Of Mineral Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Order 2006-76

Crisis Bureaucracy: Homeland Security And The Political Design Of Legal Mandates, Mariano-Florentino Cuellar

ExpressO

Policymakers fight over bureaucratic structure because it helps shape the legal interpretations and regulatory decisions of agencies through which modern governments operate. In this article, we update positive political theories of bureaucratic structure to encompass two new issues with important implications for lawyers and political scientists: the implications of legislative responses to a crisis, and the uncertainty surrounding major bureaucratic reorganizations. The resulting perspective affords a better understanding of how agencies interpret their legal mandates and deploy their administrative discretion. We apply the theory to the creation of the Department of Homeland Security. Two principal questions surrounding this creation are …

The "Benefits" Of Non-Delegation: Using The Non-Delegation Doctrine To Bring More Rigor To Benefit-Cost Analysis, Victor B. Flatt

ExpressO

This article examines the problems of benefit-cost (or cost-benefit) analysis in our regulatory system and posits that a more nuanced version of the “non-delegation” doctrine (made famous in Schechter Poultry) could improve many of the problems associated with the use of benefit-cost analysis. In particular this article notes that many of the problems with benefit-cost analysis are its use by agencies to make large policy decisions, which could be characterized as legislative. The article also notes that though the “non-delegation” doctrine may appear to be dead or dormant, that a form of it, in separation of powers doctrine, exists in …

Sherman's March (In)To The Sea, Andrew S. Oldham

ExpressO

This Article argues that the Sherman Act is unconstitutional. At the very least, scholars and jurists must not take for granted Congress's ability to statutorily deputize the federal courts with common-lawmaking powers. The federal antitrust statute—which has been described as the Magna Carta of free enterprise—raises serious constitutional questions that have heretofore gone unexplored and unanswered. Specifically, it is difficult (if not impossible) to reconcile the Sherman Act with the separation of powers, the nondelegation doctrine, and the Supremacy Clause.

Searches And The Misunderstood History Of Suspicion And Probable Cause: Part One, Fabio Arcila

ExpressO

This article, the first of a two-part series, argues that during the Framers’ era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment’s restrictions. Learned treatises in particular, and to a lesser extent a …

Making Regulation Evolve: A Case Study In Maladaptive Management, Alejandro E. Camacho

ExpressO

This Article is the first cross-disciplinary, comprehensive assessment of one of the earliest regulatory reinvention programs developed to foster more participation and adaptation in decision-making—the Endangered Species Act’s Habitat Conservation Plan Program. Drawing not only from legal sources but also integrating data from recent scientific studies, interviews, surveys of government officials, newspaper investigations, and unpublished databases, this Article delves into the pioneering but defective HCP program as an example of regulatory innovation gone awry.

In the active literature on regulatory reinvention, many have pointed to the HCP program as a prototype for collaborative, experimentalist innovations in governance. Though a few …

Cityland – Vol. 3, No. 7, Center For New York City Law

CityLand - 2006

The August 2006 issue of CityLand covers significant land use and preservation developments across New York City. The City Council approved a controversial rezoning in Pelham Parkway and Indian Village, Bronx, and finalized designations for two West Village historic districts. The School Construction Authority received approval to convert the former Brooklyn Family Court into a high school. The Planning Commission approved Silvercup Studios’ 2-million-square-foot mixed-use development in Long Island City, and certified a downzoning proposal for Douglaston/Little Neck. A private developer’s rezoning in North Tribeca was approved despite opposition. The Commission also extended the inclusionary housing program to Queens for …

Designing Interstate Institutions: The Example Of The Ssuta, Brian D. Galle

ExpressO

This Article presents a case study in designing cooperative interstate institutions. It takes as its subject the Streamlined Sales and Use Tax Agreement (“SSUTA”), a recently-developed compact among the States now awaiting congressional ratification. The SSUTA’s primary goal is to bring uniformity to the field of state and local sales taxation, a regime in which multi-jurisdictional sellers now confront literally thousands of different sets of rules. I predict here that the SSUTA as currently designed is unlikely to accomplish that goal, and attempt to suggest possible amendments that could improve its expected performance. From these efforts I extract larger lessons …

The Much Maligned 527 And Institutional Choice, Lloyd H. Mayer

ExpressO

The continuing controversy over “527” organizations has led Congress to impose extensive disclosure requirements on these political organizations and to consider imposing extensive restrictions on their funding as well. The debate about what laws should govern these entities has, however, so far almost completely ignored the fact that such laws raise a complicated institutional choice question. This Article seeks to resolve that question by developing a new institutional choice framework to guide this and similar choices. The Article first explores the context for making this determination by describing the current laws governing 527s, including both federal election laws administered by …

8th Annual Open Government Summit: Access To Public Records Act & Open Meetings Act, 2006, Department Of Attorney General, State Of Rhode Island

School of Law Conferences, Lectures & Events

No abstract provided.

Beilin V. Prime Minister, Dorit Beinisch, Edna Arbel, Ayala Procaccia

Translated Opinions

Facts: On 12 July 2006, the Hezbollah organization carried out an offensive operation inside the territory of Israel, as a result of which eight Israel Defence Forces (IDF) soldiers were killed and two other soldiers were kidnapped and taken over the border into Lebanon. In response, the IDF began military operations in Lebanon, and the State of Israel was attacked at the same time with thousands of missiles and Katyusha rockets, which caused death and injuries to dozens of Israeli citizens in the north of Israel, as well as substantial damage to property.

The petitioners argued that the government was …

Federal Employment Law: Current Problems And A Call For Reform, Joseph Prud'homme

Journal of Race, Gender, and Ethnicity

No abstract provided.

Carbon Dioxide And The Clean Air Act, Eric Schwartz

Cardozo Public Law, Policy & Ethics Journal

The EPA's authority to regulate CO2 under the Clean Air Act is supported by the statute's broad definition of "air pollutant" and judicial interpretations, including the Supreme Court's decision in Massachusetts v. EPA. The agency's initial reluctance to regulate CO2 was based on policy considerations, not legal limitations, and the Chevron doctrine requires courts to defer to the EPA's interpretation when Congress's intent is unclear. The ruling in Massachusetts v. EPA established that states have standing to challenge the EPA's failure to regulate CO2, emphasizing the importance of federal authority in addressing climate change. This decision has significant implications …