Administrative Law Commons^™

Reflections On The New York City Law Department, Edward I. Koch

NYLS Law Review

No abstract provided.

Lawyers For Government Have Unique Responsibilities And Opportunities To Influence Public Policy, Frederick A.O. Schwarz Jr.

NYLS Law Review

No abstract provided.

Reflections On My Years As Corporation Counsel, Peter L. Zimroth

NYLS Law Review

No abstract provided.

The Giuliani Years: Corporation Counsel 1994–1997, Paul A. Crotty

NYLS Law Review

No abstract provided.

The New York City Corporation Counsel: The Best Legal Job In America, Michael A. Cardozo

NYLS Law Review

No abstract provided.

The Independence Of The Law Department, Jeffrey D. Friedlander

NYLS Law Review

No abstract provided.

Taking The Offensive: New York City’S Affirmative Suits, Gail Rubin

NYLS Law Review

No abstract provided.

Preemption And Institutional Choice, Thomas W. Merrill

Faculty Scholarship

Public law scholarship is increasingly turning from questions about the content of law to questions about which institution should determine the content of the law – that is, to "deciding who decides." Implicit in this turn is the understanding that public law – including broadly not just constitutional law, but also administrative law and statutory interpretation – consists of norms that are contestable and changing. In a world of normative flux, the question naturally occurs: Who should be responsible for "say[ing] what the law is?" The answer traditionally given by American legal academics – the federal courts, and especially the …

Administrative Law As The New Federalism, Gillian E. Metzger

Faculty Scholarship

Despite the recognized impact that the national administrative state has had on the federal system, the relationship between federalism and administrative law remains strangely inchoate and unanalyzed. Recent Supreme Court case law suggests that the Court is increasingly focused on this relationship and is using administrative law to address federalism concerns even as it refuses to curb Congress's regulatory authority on constitutional grounds. This Article explores how administrative law may be becoming the new federalism and assesses how well-adapted administrative law is to performing this role. It argues that administrative law has important federalism-reinforcing features and represents a critical approach …

Mitigating Disaster: A Communitarian Response, Robert M. Ackerman

Cardozo Journal of Conflict Resolution

In this essay, I present a communitarian view as to how we might best respond to disaster, and in particular, to losses suffered by the direct victims of disaster. My focus will be on financial compensation to disaster victims, which admittedly occupies only a small part of the spectrum of disaster response. Emergency "first responder" activities are matters about which I have no expertise; volunteering at my local food bank hardly qualifies me to advise FEMA or the Red Cross. The blunders for which these organizations have recently been responsible are apparent, and so are some of their causes, but …

Achieving Policymaking Consensus: The (Unfortunate) Waning Of Negotiated Rulemaking, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

Introduction: As the ADR movement made its way from the courts to the agency hearing rooms in the 1980s, negotiated rulemaking (sometimes called "regulatory negotiation" or simply "reg-neg") also emerged on a parallel track as an alternative to traditional procedures for drafting proposed regulations. This exemplar of regulatory reform was based on two insights: (1) that the usual process of written notice-and-comment rulemaking has an intrinsic weakness because stakeholders engaged in it do not interact with each other or with the agency; and (2) in certain situations, it is possible to bring together representatives of the agency and the various …

Brief Of Law Professors As Amici Curiae In Support Of Respondents, Summers V. Earthisland Inst., No. 07-463 (U.S. June 27, 2008), Amanda Leiter

Amicus Briefs & Court Filings

No abstract provided.

Introduction, Rachel Kalman

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Administrative Law Agonistes, Mathew D. Mccubbins, Roger Noll, Barry R. Weingast, Daniel B. Rodriguez

Faculty Scholarship

No abstract provided.

The Transformation Of The U.S. Rulemaking Process - For Better Or Worse, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Relational Duties, Regulatory Duties, And The Widening Gap Between Individual Health Law And Collective Health Policy, William M. Sage

Faculty Scholarship

In response to a prominent editorial by Dr. Jeffrey M. Drazen, Professor Sage explains how a relational approach has impeded health law's ability to effectively govern the American health care system, arguing that health law has traditionally focused on the physician-patient encounter rather than on achieving collective objectives (which he calls regulatory duties). Professor Sage traces health law's relational emphasis to private and public law, professional ethics and bioethics, budgetary and general politics, and health care consumerism. He concludes that four areas of health policy-conflicts of interest in biomedical research, managed care and pay-for-performance, health care transparency and education, and …

Achieving The Potential: The Future Of Federal E-Rulemaking: A Report To Congress And The President, Committee On The Status And Future Of Federal E-Rulemaking (U.S.), Cynthia R. Farina

Cornell Law Faculty Publications

Federal regulations are among the most important and widely used tools for implementing the laws of the land – affecting the food we eat, the air we breathe, the safety of consumer products, the quality of the workplace, the soundness of our financial institutions, the smooth operation of our businesses, and much more. Despite the central role of rulemaking in executing public policy, both regulated entities (especially small businesses) and the general public find it extremely difficult to follow the regulatory process; actively participating in it is even harder.

E-rulemaking is the use of technology (particularly, computers and the World …

The California Greenhouse Gas Waiver Decision And Agency Interpretation: A Response To Galle And Seidenfeld, Nina A. Mendelson

Articles

Professors Brian Galle and Mark Seidenfeld add some important strands to the debate on agency preemption, particularly in their detailed documentation of the potential advantages agencies may possess in deliberating on preemption compared with Congress and the courts. As they note, the quality of agency deliberation matters to two different debates. First, should an agency interpretation of statutory language to preempt state law receive Chevron deference in the courts, as other agency interpretations may, or should some lesser form of deference be given? Second, should a general statutory authorization to an agency to administer a program and to issue rules …

A Presumption Against Agency Preemption, Nina A. Mendelson

Articles

Federal agencies are increasingly taking aim at state law, even though state law is not expressly targeted by the statutes the agencies administer. Starting in 2001, the Office of the Comptroller of the Currency (OCC) issued several notices saying that state laws would apply to national bank operating subsidiaries (incorporated under state law) to the same extent as those laws applied to the parent national bank. In 2003, the OCC specifically mentioned state consumer protection laws and took the position that the state laws were preempted and did not apply to mortgage lenders owned by national banks. In December 2006, …

A "New Approach" To Standards And Consumer Protection, Jane Winn, Nicolas Jondet

Articles

As consumer use of information and communication technology (ICT) products grows, the importance of ICT standards in consumer markets also grows. While standards for manufactured products were once developed at the national level in formal standards bodies, standards for ICT products today are more likely to be developed by informal standards bodies that target global markets, creating new challenges for national consumer protection laws.

As part of the process of creating a single market, the EU developed an innovative and successful form of “coregulation” known as the “New Approach” that coordinated the work of legislators and standards developers to reduce …

Envisioning The Future Of Aboriginal Health Under The Health Transfer Process, Constance Macintosh

Articles, Book Chapters, & Popular Press

The Canadian government, and many Aboriginal communities, are committed to formally transferring varying aspects of governance responsibilities from federal hands to Aboriginal ones. These transfers take various forms, from creating Aboriginal political bodies with broad sets of governance powers, as was the case with the Nisga'a Treaty of 2000, to more partial transfers of specific powers or responsibilities, or types of responsibilities. One core transfer area is public health programming, for which there are specific and highly developed initiatives dating back to around 1989. Although it is expected that these initiatives will, overall, have very positive effects for improving the …

The Other Delegate: Judicially Administered Statutes And The Nondelegation Doctrine, Margaret H. Lemos

Faculty Scholarship

The nondelegation doctrine is the subject of a vast and everexpanding body of scholarship. But nondelegation literature, like nondelegation law, focuses almost exclusively on delegations of power to administrative agencies. It ignores Congress's other delegate-the federal judiciary.

This Article brings courts into the delegation picture. It demonstrates that, just as agencies exercise a lawmaking function when they fill in the gaps left by broad statutory delegations of power, so too do courts. The nondelegation doctrine purports to limit the amount of lawmaking authority Congress can cede to another institution without violating the separation of powers. Although typically considered only with …

Fda Regulatory Compliance Reconsidered, Carl W. Tobias

Law Faculty Publications

Many observers consider the Food and Drug Administration (FDA) vital for the protection of consumer health and safety. One hundred years ago, Congress established the entity that would become the FDA and authorized it to regulate foods and drugs, critical responsibilities that the agency has long discharged carefully. Throughout the past century, the FDA's regulatory power has expanded systematically, albeit gradually, while legislatures and courts in the fifty American jurisdictions broadened liability exposure for manufacturers that sold defective products that injured consumers. Observers have recently criticized the agency for overseeing pharmaceuticals too leniently, even as states increasingly narrowed manufacturers' liability …

Annual Survey Of Virginia Law: Administrative Law, John Paul Jones

Law Faculty Publications

This article selects from developments since May of 2007 in the law of Virginia pertaining to the work of administrative agencies state and local, as well as access to their meetings and information in their custody. Elsewhere in this issue of the Annual Survey can be found reports of developments in the laws these agencies are bound to carry out.

Not-So-Independent Agencies: Party Polarization And The Limits Of Institutional Design, Neal Devins, David E. Lewis

Faculty Publications

No abstract provided.

Primer For U.S. Lawyers On European Union Government And Law, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

Law And Governance In The 21st Century Regulatory State, Jason M. Solomon

Faculty Publications

No abstract provided.

Diverse Conceptions Of Emotions In Risk Regulation, Peter H. Huang

Publications

No abstract provided.

Reexamining The Legacy Of Dual Regulation: Reforming Dual Merger Review By The Doj And The Fcc, Philip J. Weiser

Publications

Most debates over the structure of merger review in the telecommunications industry focus on the criticism that the role of the Federal Communications Commission (FCC) is entirely redundant in light of the review conducted by the antitrust agencies. The FCC's lack of a consistently applied standard only reinforces such criticisms. There are, however, cases where the FCC's review of a merger - and imposition of conditions that complement the existing regulatory regime - enable the antitrust agencies to clear mergers that would otherwise pose potential objections.

The central challenge for competition policy merger review is to structure the analysis of …

Reforming Our Wasteful Hazardous Waste Policy, Jonathan H. Adler

Faculty Publications

Federal hazardous waste regulation and cleanup programs suffer from poor prioritization, insufficient flexibility, high costs, and questionable benefits. Many of these problems are a result of excessive regulatory centralization. The federal government has assumed primary responsibility for hazardous waste policy, placing states in a secondary role, even though the environmental threats posed by hazardous waste are generally quite localized. Hazardous waste itself is not a form of pollution, but rather a “precursor to pollution.” It only becomes an environmental problem when mismanaged, and allowed to contaminate land or water. Properly managed, however, hazardous waste is not a particularly pressing environmental …