Administrative Law Commons^™

Federalism And Preemption In October Term 1999, Jonathan D. Varat

Pepperdine Law Review

No abstract provided.

Rediscovering A Principled Commerce Power , Douglas W. Kmiec

Pepperdine Law Review

No abstract provided.

Reducing Unlawful Prescription Drug Promotion: Is The Public Health Being Served By An Enforcement Approach That Focuses On Punishment?, Vicki W. Girard

Georgetown Law Faculty Publications and Other Works

Despite the imposition of increasingly substantial fines and recently successful efforts to impose individual liability on corporate executives under the Park doctrine, punishing pharmaceutical companies and their executives for unlawful promotional activities has not been as successful in achieving compliance with the Federal Food, Drug, and Cosmetic Act (FD&C Act) as the protection of the public health demands. Over the past decade, the Food and Drug Administration (FDA) and the Department of Justice (DOJ) have shifted their focus from correction and compliance to a more punitive model when it comes to allegedly unlawful promotion of pharmaceuticals. The shift initially focused …

The Open Road And The Traffic Stop: Narratives And Counter-Narratives Of The American Dream, Nancy Leong

Florida Law Review

American culture is steeped in the mythology of the open road. In our collective imagination, the road represents freedom, escape, friendship, romance, and above all, the possibility for a better life. But our shared dream of the open road comes to a halt in the mundane reality of the traffic stop—a judicially authorized policing procedure in which an officer may pull over a vehicle if she has cause to believe the driver has committed even the most minor traffic violation. I examine the cultural texts—books, movies, songs—celebrating the open road and juxtapose them against those documenting the traffic stop. The …

Cityland – Vol. 9, No. 8, Center For New York City Law

CityLand - 2012

This issue of CityLand covers major land use and preservation developments in New York City as of October 2012. The City Council approved rezoning proposals for mixed-use and residential developments in South Williamsburg and Bedford-Stuyvesant North, and considered a 90-block rezoning in West Harlem. Landmarks approved a revised plan to restore Harlem’s Corn Exchange Building and held a public hearing on the Rainbow Room’s interior landmark designation. A multi-rowhouse restoration and construction plan in Cobble Hill was reviewed, and a nine-story development adjacent to the Merchant’s House Museum raised concerns about structural impacts. A proposed rooftop addition in SoHo was …

The Courts And Beyond: The Architecture Of Justice In Transition - Introduction, Trevor C. W. Farrow

Conference Papers

No abstract provided.

Preserving Fairness In Tax Administration In The Mayo Era, Steve R. Johnson

Scholarly Publications

One of the dominant themes in contemporary federal taxation is bringing tax administration within the fold of general administrative law. In 2011, the United States Supreme Court unambiguously embraced this movement in the landmark case Mayo Foundation for Medical Education & Research v. United States, in which the Court held that challenges to the validity of Treasury regulations generally are governed by the Chevron standard to the same extent as are regulations issued by other administrative agencies.

There was an immediate and strong hostile reaction to Mayo in tax circles. Many fear that Mayo dramatically tips the balance in favor …

Groundwater In New Mexico, Darcy Bushnell

Publications

No abstract provided.

Fall 2012 Utton Center Newsletter, Utton Center, University Of New Mexico - School Of Law

Publications

No abstract provided.

Kirtland Afb - Bulk Fuels Facility Spill: Regulatory Authority Under Rcra And History, New Mexico Environment Department, University Of New Mexico - School Of Law

Publications

No abstract provided.

The Tabling Of International Treaties Inthe Parliament Of Canada: The First Four Years, Ted L. Mcdorman

Dalhousie Law Journal

In January 2008, the government ofCanada announced the adoption of the policy that international treaties would be tabled in the House of Commons following their signature or adoption and prior to Canada formally notifying its intention to be bound by the treaty. This article provides an overview of the Tabling Policy, the domestic legal structure of treaty-making in Canada, a description of the international instruments that have been tabled under the Policy from 2008 to 2011, and a review of the one treaty that has been discussed at length in the House of Commons.

The Unfortunate Triumph Of Form Over Substance In Canadian Administrative Law, Paul Daly

Osgoode Hall Law Journal

The standard of review analysis for judicial review of administrative action developed by the Supreme Court of Canada before Dunsmuir v New Brunswick had two important features. First, it provided a bulwark against interventionist judges, thereby protecting the autonomy of administrative decision makers and promoting deference. Second, it was substantive, rather than formal, and moved the focus of judicial review away from abstract concepts and towards the eccentricities of statutory schemes. However, in its more recent forays into the general principles of judicial review, the Court has threatened to reverse its deferential and substantive course by following a formalistic, categorical …

Reevaluating Administrative Evidence Policy: The Case For Two Exclusionary Rules At Social Security Administrative Hearings, Max Bookman

Cardozo Public Law, Policy & Ethics Journal

The note advocates for the adoption of two specific exclusionary rules in Social Security Administration (SSA) disability hearings to address fairness concerns while maintaining efficiency. It argues that the current process, which prioritizes efficiency over the ability to cross-examine evidence, can lead to unfair outcomes for claimants. The proposed rules aim to ensure claimants can challenge evidence, promoting a fairer process without overly burdening the system. The note challenges the traditional view that exclusionary rules are unnecessary in administrative hearings, emphasizing the need for a balance between efficiency and fairness.

The Plural Of Anecdote Is Not Data: Teaching Law Students Basic Survey Methodology To Improve Access To Justice In Unemployment Insurance Appeals, Enrique S. Pumar, Faith Mullen

University of the District of Columbia Law Review

This project has its origins at the University of the District of Columbia David A. Clarke School of Law (UDC). In March 2008, UDC hosted a meeting between the Pro Bono Committee of the District of Columbia Office of Administrative Hearings, and clinical professors and pro bono coordinators from several law schools in the District of Columbia. At that meeting, the Pro Bono Committee initiated a dialogue about how to better meet the needs of self-represented individuals who appear before the Office of Administrative Hearings (OAH) and extended an invitation to attend some OAH hearings. Professor Mullen accepted that invitation …

Almaliach V. State, Edna Arbel, Zvi Zylbertal, Uzi Vogelman

Translated Opinions

Facts: The appellant was convicted of the crimes of carrying a weapon, intimidation, and possession of stolen property. The indictment charged that in the early morning hours of December 2, 2006, in the city of Ashdod, the appellant carried a stolen grenade into a building in which the Biton family resided, and then taped the grenade to a piece of cardboard which he then taped to the Biton family‘s front door, leaving a string tied to the grenade‘s safety mechanism. He ran away after a family member woke up and opened the door. The indictment was based on DNA evidence …

The 'No Surplusage' Canon In State-Local Tax Litigation, Steve R. Johnson

Scholarly Publications

Previous installments of this column have examined numerous canons or conventions of statutory interpretation in their application to state and local tax controversies. This installment considers another canon: the precept that courts should prefer interpretations that render no part of a statute superfluous. A recent treatise phrased the principle thus:

If possible, every word and every provision [of an enactment] is to be given effect. . . . None should be ignored. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.

The first part below describes the canon generally. The …

Cityland – Vol. 9, No. 7, Center For New York City Law

CityLand - 2012

This issue of CityLand covers key land use and preservation developments in New York City as of September 2012. The City Council denied a sidewalk café permit for Buschenschank restaurant in Carroll Gardens due to inaccurate plans and noise complaints. The City Planning Commission certified Trinity Church’s proposal to create the Special Hudson Square District, and approved the Seward Park Mixed-Use Development Project and NYCHA’s Soundview affordable housing plan. BSA approved a rooftop addition to a townhouse on West 78th Street. Landmarks designated the Brinckerhoff Cemetery in Queens and calendared the Rainbow Room for interior landmark status. A new building …

The Volcker Rule's Hedging Exemption, Spencer A. Winters

Michigan Law Review First Impressions

The comment period for the proposed regulations to be promulgated under the Volcker Rule expired on February 13, 2012. The rulemakers received over 16,000 comments during that period, in what one commentator described as a "fecal storm." Though that description is hopefully an exaggeration, it is safe to say that the Rule's implementation has been contentious. The Volcker Rule, named for former chairman of the Federal Reserve Paul Volcker, is a component of the Dodd-Frank Act, which Congress passed in response to the recent financial crisis. The Rule's statutory provision charges the nation's financial regulators with issuing a body of …

Cascading Constitutional Deprivation: The Right To Appointed Counsel For Mandatorily Detained Immigrants Pending Removal Proceedings, Mark Noferi

Michigan Journal of Race and Law

Today, an immigrant green card holder mandatorily detained pending his removal proceedings, without bail and without counsel, due to a minor crime committed perhaps long ago, faces a dire fate. If he contests his case, he may remain incarcerated in substandard conditions for months or years. While incarcerated, he will likely be unable to acquire a lawyer, access family who might assist him, obtain key evidence, or contact witnesses. In these circumstances, he will nearly inevitably lose his deportation case and be banished abroad from work, family, and friends. The immigrant's one chance to escape these cascading events is the …

Do Investment Treaties Prescribe A Deferential Standard Of Review, Anna T. Katselas

Michigan Journal of International Law

The dramatic rise in foreign investment in recent decades has brought with it a corresponding increase in the number of bilateral investment treaties (BITs) and, in turn, the number of international investment disputes arising under those treaties. Investment treaty arbitration is the predominant method used to settle those disputes and has certain advantages for both foreign investors and host states compared to available alternatives, but it can tread on delicate issues typically within the domaine rieservd of states. The concern about due regard for sovereign interests in this context is far from purely academic. In the past twenty years, the …

Roles For State Energy Regulators In Climate Change Mitigation , Brandon Hofmeister

Michigan Journal of Environmental & Administrative Law

The construction of new power plants in the United States carries the risk of significantly contributing to global climate change. After concluding that the current federal regulatory response to climate change risks from power plants is inadequate, this Article examines three potential roles for state energy regulators to play as a bridge climate mitigation strategy until a cohesive federal policy is enacted. State energy regulators have received relatively little attention as potential climate change regulators, but they are well positioned to analyze and mitigate climate change risks from new power plants. The Article considers the advantages and drawbacks of state …

Rulemaking Vs. Democracy: Judging And Nudging Public Participation That Counts , Cynthia R. Farina, Mary Newhart, Josiah Heidt, Cornell Erulemaking Initiative

Michigan Journal of Environmental & Administrative Law

This Article considers how open government “magical thinking” around technology has infused efforts to increase public participation in rulemaking. We propose a framework for assessing the value of technology-enabled rulemaking participation and offer specific principles of participation-system design, which are based on conceptual work and practical experience in the Regulation Room project at Cornell University. An underlying assumption of open government enthusiasts is that more public participation will lead to better government policymaking: If we use technology to give people easier opportunities to participate in public policymaking, they will use these opportunities to participate effectively. However, experience thus far with …

A New Prescription To Balance Secrecy And Disclosure In Drug-Approval Processes, Gerrit M. Beckhaus

University of Michigan Journal of Law Reform

To obtain approval to market a drug, a manufacturer must disclose significant amounts of research data to the government agency that oversees the approval process. The data often include information that could help advance scientific progress, and are therefore of great value. But current laws in both the United States and Europe give secrecy great weight. This Article proposes an obligatory sealed-bid auction of the sensitive information based on the experience with similar auctions in mergers and acquisitions, to balance manufacturers' interest in secrecy and the public interest in disclosure.

The Federal Reserve As Last Resort, Colleen Baker

University of Michigan Journal of Law Reform

The Federal Reserve, the central bank of the United States, is one of the most important and powerful institutions in the world. Surprisingly, legal scholarship hardly pays any attention to the Federal Reserve or to the law structuring and governing its legal authority. This is especially curious given the amount of legal scholarship focused on administrative agencies that do not have anywhere near as critical a domestic and international role as that of the Federal Reserve. At the core of what the Federal Reserve does and should do is to conduct monetary policy so as to safeguard pricing, including that …

Reviving National Muffler: Analyzing The Effect Of Mayo Foundation On Judicial Deference As Applied To General Tax Authority Guidance, Matthew H. Friedman

NULR Online

No abstract provided.

Cityland – Vol. 9, No. 6, Center For New York City Law

CityLand - 2012

This issue of CityLand covers major land use and preservation developments in New York City as of August 2012. The City Council approved a further-reduced version of NYU’s Core Expansion Plan, including height reductions and community space commitments. The City Planning Commission held a hearing on Jamestown Properties’ Chelsea Market expansion, which faced opposition over its impact on the High Line and lack of affordable housing. A rezoning in South Williamsburg was approved to facilitate a two-building residential project with affordable units. The Board of Standards & Appeals adopted revised rules to streamline application procedures and approved a special permit …

Objections To The Proposed Access Copyright Post-Secondary Tariff And Its Progeny Licenses: A Working Paper, Samuel Trosow, Scott Armstrong, Brent Harasym

FIMS Publications

On March 31, 2010, Access Copyright applied to the Copyright Board to certify a tariff that would govern the relationship between the organization and the members of the Association of Universities and Colleges of Canada (AUCC) and the Association of Community Colleges of Canada (ACCC). Previously, the relationship had been governed by a series of license agreements between the organizations which had been periodically renewed. But Access Copyright chose not to seek renewal of the licenses, and applied to the Board to certify a general tariff that would cover all post-secondary institutions for the period of 2011 through 2013.

Access …

Appeal No. 0839: Municipality Of Sebring, Ohio V. Division Of Oil & Gas Resources Management And Ohio Valley Energy Systems, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Order 2011-37; (Ohio Valley Energy Systems, Grindley #1 Well)

The Disappearing Provision: Medical Liability Reform Vanishes From The Patient Protection And Affordable Care Act Despite State Court Split, Rafael Andre Roberti

Legislation and Policy Brief

The legal and medical communities have debated the impact and necessity of medical liability reform for over twenty years. At the heart of the debate is the question of how to strike a balance between compensating patients and their families for the thousands of deaths and injuries resulting from medical errors that occur annually, and encouraging physicians to continue to care for patients across America. While several states have passed medical liability reform laws previously, on March 23, 2010, President Obama signed the Patient Protection and Affordable Care Act (ACA)—colloquially known as the “health care bill”—that contains provisions on medical …

Making The Case For Wilderness: The Bureau Of Land Management’S Wild Lands Policy And Its Role In The Storied History Of Wilderness Protection, Maureen O’Dea Brill

Legislation and Policy Brief

On December 23, 2010, the Secretary of the Department of the Interior, Ken Salazar, issued Secretarial Order No. 3310, commonly referred to as the Wild Lands Policy. The Wild Lands Policy established a two-step process through which the Bureau of Land Management (BLM), an agency within the Department of the Interior, was to inventory and to manage its lands with wilderness characteristics (LWCs). The policy continued the requirement that the BLM maintain a current inventory of LWCs and evaluate these LWCs during the previously established land use planning process. The Wild Lands Policy further required that the BLM protect LWCs …