Administrative Law Commons^™

Foreword: Lawyering In The Regulatory State, Nancy J. Moore

Fordham Law Review

The authors use a variety of methodologies, including traditional legal analysis, as well as empirical and historical research. Finally, they focus on such diverse issues as the role of agencies in facilitating access to justice, the lawyer’s role as gatekeeper in agency litigation and regulatory compliance, and the unique role of the in-house lawyer, both private and public. Taken together, they open a large window on the complex work of many lawyers who are often overlooked in the legal profession’s literature.

Recalling The Lawyers: The Nhtsa, Gm, And The Chevrolet Cobalt, Bernard W. Bell

Fordham Law Review

This Article summarizes product safety and vehicle safety law and recounts General Motors Company’s (GM) response to the Cobalt ignition switch defect, paying particular attention to the actions of GM’s in-house and outside counsel. This Article then considers the legality and prudence of a regulatory agency’s imposition of gatekeeping responsibilities on such counsel.

Lawyering Within The Domain Of Expertise, David Mcgowan

Fordham Law Review

This Article uses the history of patent prosecution to assess the relationship between the practice of law and the claim of an administrative agency to possess and to employ expertise.

Moving Beyond “Reasonable”: Clarifying The Ftc’S Use Of Its Unfairness Authority In Data Security Enforcement Actions, Timothy E. Deal

Fordham Law Review

Data security breaches, which compromise private consumer information, seem to be an ever-increasing threat. To stem this tide, the Federal Trade Commission (FTC) has relied upon its authority to enforce the prohibition against unfair business practices under section 5 of the Federal Trade Commission Act (“section 5”) to hold companies accountable when they fail to employ data security measures that could prevent breaches. Specifically, the FTC brings enforcement actions when it finds that companies have failed to implement “reasonable” data security measures. However, companies and scholars argue that the FTC has not provided adequate notice of which data security practices …

Dynamic Incorporation Of Federal Law, Jim Rossi

Vanderbilt Law School Faculty Publications

This Article provides a comprehensive analysis of state constitutional limits on legislative incorporation of dynamic federal law, as occurs when a state legislature incorporates future federal tax, environmental or health laws. Many state judicial decisions draw on the nondelegation doctrine to endorse an ex-ante prohibition on state legislative incorporation of dynamic federal law. However, the analysis in this Article shows how bedrock principles related to separation of powers under state constitutions, such as protecting transparency, reinforcing accountability, and protecting against arbitrariness in lawmaking, are not consistent with this approach. Instead, this Article highlights two practices that can make dynamic incorporation …

Category Errors And Executive Power, Jonathan H. Adler

Faculty Publications

The purpose of this brief essay is to provide some clarity in the muddled discussion over executive power. Specifically, the aim is to help clarify what sorts of actions taken by the executive branch can be properly characterized as “enforcement” actions—where the President’s inherent authority to exercise prosecutorial discretion applies—and what sorts of actions cannot. Specifically, this essay seeks to explain why some particularly controversial actions—such as the Administration’s decision to delay the so-called employer mandate imposed by the Affordable Care Act (ACA) and to “tailor” the application of federal regulations governing greenhouse gas emissions under the Clean Air Act …

Innovation Prizes In Practice And Theory, Michael J. Burstein, Fiona Murray

Articles

Innovation prizes in reality are significantly different from innovation prizes in theory. The former are familiar from popular accounts of historical prizes like the Longitude Prize: the government offers a set amount for a solution to a known problem, like £20,000 for a method of calculating longitude at sea. The latter are modeled as compensation to inventors in return for donating their inventions to the public domain. Neither the economic literature nor the policy literature that led to the 2010 America COMPETES Reauthorization Act — which made prizes a prominent tool of government innovation policy — provides a satisfying justification …

Nepa And Uncertainty In Low-Risk, High-Impact Scenarios: Nuclear Energy As A Case Study, Irene Weintraub

Cardozo Law Review

No abstract provided.

Ttab Decisions No Longer The “Red-Headed Stepchild” Of Precedential Authority, Rebecca Knight

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

Kebijakan Bailout Century: Diskresi Atau Kriminalisasi Kebijakan, Lily Evelina Sitorus

Jurnal Hukum & Pembangunan

Century bailout policy is the government's discretion. However, when there is resistance in the Parliament, this policy is a problem that until now has not as well satisfy the parties. On the other hand, the economic crisis is a reality that is happening in the community. Government as the policy makers feel they have the authority as stipulated in the legislation in force. Therefore, the decision to prosecute government policy is regarded as a form of criminalization policies. This study tried to find a middle ground on the issue. The standpoint of administrative law is used as an analysis in …

Movement For Quality Government V. Prime Minister, Elyakim Rubinstein, Salim Joubran, Noam Sohlberg, Uzi Vogelman, Esther Hayut

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

The Petitions disputed the legal validity of the Gas Outline adopted by the Government in the framework of Government Decision 432 in regard to the treatment of the gas reserves (hereinafter: the Gas Outline). The state and the gas companies holding the franchises defended the Gas Outline.

The Supreme Court, sitting as High Court of Justice (in an expanded bench of five justices) ruled …

Local Health Agencies, The Bloomberg Soda Rule, And The Ghost Of Woodrow Wilson, Paul A. Diller

Fordham Urban Law Journal

No abstract provided.

Individualized Education Programs (Ieps) And Special Education Programming For Students With Disabilities In Urban Schools, Mitchell L. Yell, Terrye Conroy, Antonis Katsiyannis, Tim Conroy

Fordham Urban Law Journal

This Article examines the individualized education program (IEP) requirement of the Individuals with Disabilities Education Act (IDEA) and presents a method for improving the education of students with disabilities in urban settings by appropriately developing IEPs. Part I considers the unique problems facing special educations in urban school districts. Part II presents an overview of the IDEA and its requirement that school districts provide students with a free appropriate public education (FAPE). Part III examines the components of an IEP and the process for developing students’ IEPs—the key vehicle for providing a FAPE. Part IV outlines a process for developing …

"Gatekeeping" Agency Reliance On Scientific And Technical Materials After Daubert: Ensuring Relevance And Reliability In The Administrative Process, Paul S. Miller, Bert W. Rein

Touro Law Review

No abstract provided.

Tom V. Innovative Home Systems, Llc, 132 Nev. Adv. Op. 15 (Mar. 10, 2016), Adrienne Brantley

Nevada Supreme Court Summaries

The Court determine that the decision of the State Contractors’ Board closing homeowners’ complaint and directing contractor to make repairs to residence was not a final decision resolving a contested case, as required to preclude a homeowner from relitigating whether contractor was required to have an electrical license. The Court also determine that genuine issues of material fact existed as to whether the contractor needed an electrical license and genuine issues of material fact existed as to whether the contractor completed its contractual obligations to homeowner.

Is The Veterans' Benefits Jurisprudence Of The U.S. Court Of Appeals For The Federal Circuit Faithful To The Mandate Of Congress?, Charles G. Mills

Touro Law Review

No abstract provided.

Coastal Conservation Association V. United States Department Of Commerce, Taylor R. Thompson

Public Land & Resources Law Review

The Eastern Louisiana District Court upheld Amendment 40 to the Gulf of Mexico Fishery Management Council’s Reef Management Plan. The court held that the Gulf Council and the National Marine Fisheries Service’s proposed rule establishing fishing quotas for the red snapper met all of the statutory guidelines imposed under the Magnusson-Stevens Act.

Regulatory Entrepreneurship, Jordan M. Barry, Elizabeth Pollman

Faculty Scholarship

Numerous corporations, ranging from Airbnb to Tesla, and from DraftKings to Uber, have built huge businesses that reside in legal gray areas. Instead of taking the law as a given, these companies have become agents of legal change, focusing major parts of their business plans on changing the law. To achieve their political goals, these companies employ conventional lobbying techniques, but also more innovative tactics. In particular, some attempt to enter markets quickly, then grow too big to ban before regulators can respond. If regulators do take aim at them, they respond by mobilizing their users for political support. This …

Legal Implications Of Int 0467-2014, The New York City "Mascot Law" Bill: Commentary, Legal Arguments And Loopholes To Consider, Joseph Fan

Journal of Civil Rights and Economic Development

No abstract provided.

Timber! The Sec Falls Hard As The Georgia District Court In Timbervest Finds The Appointment Of The Sec Aljs "Likely Unconstitutional", Moses M. Tincher

Mercer Law Review

The higher you go, the harder you fall. This simple, yet powerful, adage could not be more apt regarding the recent rise and fall in power of the United States Securities and Exchange Commission (SEC). The rise began in 2010 when Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), giving the SEC new power over its administrative proceedings. Using this new power, the SEC brought more insider-trading and highly contested cases before specially hired administrative law judges (ALJs), who conduct these administrative proceedings. This "home-court" advantage corresponded with the SEC's enforcement division enjoying an 86%, …

Consume Or Invest: What Do/Should Agency Leaders Maximize?, William E. Kovacic, David A. Hyman

Washington Law Review

In the regulatory state, agency leaders face a fundamental choice: should they “consume,” or should they “invest”? “Consume” means launching high profile cases and rulemaking projects. “Invest” means developing and nurturing the necessary infrastructure for the agency to handle whatever the future may bring. The former brings headlines, while the latter will be completely ignored. Unsurprisingly, consumption is routinely prioritized, and investment is deferred, downgraded, or overlooked entirely. This Article outlines the incentives for agency leadership to behave in this way and explores the resulting agency costs (pun intended). The U.S. Federal Trade Commission’s health care portfolio provides a useful …

Practical Reasoning And The Application Of General Federal Regulatory Laws To Indian Nations, Alex T. Skibine

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Regulation Of Emerging Risks, Matthew T. Wansley

Vanderbilt Law Review

Why has the EPA not regulated fracking? Why has the FDA not regulated e-cigarettes? Why has NHTSA not regulated autonomous vehicles? This Article argues that administrative agencies predictably fail to regulate emerging risks when the political environment for regulation is favorable. The cause is a combination of administrative law and interest group politics. Agencies must satisfy high initial informational thresholds to regulate, so they postpone rulemaking in the face of uncertainty about the effects of new technologies. But while regulators passively acquire more information, fledgling industries consolidate and become politically entrenched. By the time agencies can justify regulation, the newly …

Manufacturing Barriers To Biologics Competition And Innovation, W. Nicholson Price Ii., Arti K. Rai

Articles

As finding breakthrough small-molecule drugs becomes more difficult, drug companies are increasingly turning to "large molecule" biologics. Although biologics represent many of the most promising new therapies for previously intractable diseases, they are extremely expensive. Moreover, the pathway for generic-type competition set up by Congress in 2010 is unlikely to yield significant cost savings. This Article provides a fresh diagnosis of and prescription for this major public policy problem. It argues that the key cause is pervasive trade secrecy in the complex area of biologics manufacturing. Under the current regime, this trade secrecy, combined with certain features of Food and …

Controlling Presidential Control, Kathryn A. Watts

Michigan Law Review

Presidents Reagan and Clinton laid the foundation for strong presidential control over the administrative state, institutionalizing White House review of agency regulations. Presidential control, however, did not stop there. To the contrary, it has evolved and deepened during the presidencies of George W. Bush and Barack Obama. Indeed, President Obama’s efforts to control agency action have dominated the headlines in recent months, touching on everything from immigration to drones to net neutrality. Despite the entrenchment of presidential control over the modern regulatory state, administrative law has yet to adapt. To date, the most pervasive response both inside and outside the …

Underbanked: Cooperative Banking As A Potential Solution To The Marijuana-Banking Problem, Patrick A. Tighe

Michigan Law Review

Numerous states have recently legalized recreational marijuana, which has created a burgeoning marijuana industry needing and demanding access to a variety of banking and financial services. Due, however, to the interplay between the federal criminalization of marijuana and federal anti-money laundering laws, U.S. financial institutions cannot handle legally the proceeds from marijuana activity. As a result, most financial institutions are unwilling to flout federal anti-money laundering laws, and so too few marijuana-related businesses can access banking services. This Note argues that the most viable policy option for resolving this “underbanking” problem is a financial cooperative approach such as a cannabis-only …

Administrative Oversight Of State Medicaid Payment Policies:Giving Teeth To The Equal Access Provision, Julia Bienstock

Fordham Urban Law Journal

No abstract provided.

Appeal No. 0886: Stonebridge Operating Co., Llc. V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Orders 2014-39 (suspension of operations); 2014-236, 2014-238,2014-239, 2014-241 (denials of plug-back permits); 2014-253, 2014-256 thru 2014-262 & 2014-264 thru 2014-266 (plug orders)

Appeal No. 0881: Stonebridge Operating Co., Llc. V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Orders 2014-39 (suspension of operations); 2014-236, 2014-238,2014-239, 2014-241 (denials of plug-back permits); 2014-253, 2014-256 thru 2014-262 & 2014-264 thru 2014-266 (plug orders)

Appeal No. 0880: Stonebridge Operating Co., Llc. V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Orders 2014-39 (suspension of operations); 2014-236, 2014-238,2014-239, 2014-241 (denials of plug-back permits); 2014-253, 2014-256 thru 2014-262 & 2014-264 thru 2014-266 (plug orders)