Administrative Law Commons^™

Flood And Erosion Control Structures (Climate Adaptation Academy Fact Sheet #4), Audrey Elzerman

Sea Grant Law Fellow Publications

No abstract provided.

Reforming Sec Alj Proceedings, Joanna Howard

University of Michigan Journal of Law Reform

This Note considers the current constitutional challenges to SEC administrative proceedings and suggests process reforms to enhance fairness for respondents. Challenges have developed since the Dodd-Frank Act expanded the SEC’s ability to use administrative proceedings. Arguments that there is a pre-existing flaw in the method of appointing administrative law judges provide the most potential for success. The Tenth Circuit’s December 2016 decision against the SEC in Bandimere has created a split, diverging from the D.C. Circuit’s analysis of that question in Lucia. Resolution by the Supreme Court may be inevitable. Even if the challengers do ultimately succeed, this will …

Cfius In The Age Of Chinese Investment, Patrick Griffin

Fordham Law Review

As China’s economy has developed, its companies, both state-owned and privately held, have moved to expand their operations in the United States to the point where many now seek to invest in—and on occasion, acquire—U.S. counterparts. This trend has set off alarm bells over fears that China’s unique political and economic system, which gives the state extensive influence over all corporations regardless of their ownership structure, renders such transactions national security threats. Recent hostility toward Chinese-led inbound investment is not a new trend; Congress has attempted to assert itself into the screening process undertaken by the Committee on Foreign Investment …

Who Put The Quo In Quid Pro Quo?: Why Courts Should Apply Mcdonnell ’S “Official Act” Definition Narrowly, Adam F. Minchew

Fordham Law Review

Federal prosecutors have several tools at their disposal to bring criminal charges against state and local officials for their engagement in corrupt activity. Section 666 federal funds bribery and § 1951 Hobbs Act extortion, two such statuary tools, have coexisted for the past thirty-six years, during which time § 666 has seen an increasing share of total prosecutions while the Hobbs Act’s share of prosecutions has fallen commensurately. In the summer of 2016, the U.S. Supreme Court decided McDonnell v. United States—a decision that threatens to quicken the demise of Hobbs Act extortion in favor of § 666. If …

Breaking News: New Form Of Superior Agency Guidance Discovered Hiding In Plain Sight, Michael E. Herz

Online Publications

For decades, controversy has brewed over agency (ab)use of and (over)reliance on guidance documents. On one account, agencies turn to guidance in an end run around notice-and-comment requirements, producing de facto legislative rules without either public input or, at least in some cases, judicial scrutiny. On another, guidance documents are good government in action, a helpful and illuminating benefit. In Preambles as Guidance, Kevin Stack does not take sides in this debate. But he does helpfully remind us that there is one type of guidance that (a) is not subject to the standard critique and (b) is often not …

Gorsuch, Cfpb And Future Of The Administrative State, David J. Reiss

Cornell Law Faculty Publications

U.S. Supreme Court nominee Judge Neil Gorsuch would have an outsized influence on federal consumer protection enforcement if he is confirmed. In particular, if PHH v. Consumer Financial Protection Bureau is appealed to the Supreme Court, a Justice Gorsuch is likely to vote to strongly curtail the independence of the Consumer Financial Protection Bureau and limit its enforcement powers. More generally, he will be a skeptic of agency action, one who will support greater judicial review of agency actions.

Standing Rock Sioux Tribe V. U.S. Army Corps Of Engineers, Jody D. Lowenstein

Public Land & Resources Law Review

The Standing Rock Sioux’s effort to enjoin the U.S. Army Corps of Engineers’ permitting of an oil pipeline was stifled by the United States District Court of the District of Columbia. In denying the preliminary injunction, the court held that the Tribe failed to show that the Corps violated the National Historic Preservation Act, and that the Tribe’s belated effort to litigate was futile after failing to participate in the consultation process.

Alaska Oil & Gas Association V. Pritzker, Benjamin W. Almy

Public Land & Resources Law Review

In Alaska Oil & Gas Association v. Pritzker, the Ninth Circuit reversed the United States District Court for the District of Alaska’s decision to strike down the National Marine Fisheries Service’s (“NMFS”) listing of distinct population segments of the Pacific bearded seal. The court determined that the NMFS was in full compliance with the requirements of the Endangered Species Act and squarely rejected the district court’s demand for highly specific data pertaining to the projected effects of climate change on the bearded seal.

Appeal No. 0908: Dover-Atwood Corporation V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Order 2015-416; Shirley et al Unit #3 Well

Appeal No. 0936: Coddingville Reality Ltd, V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Order 2016-368 (Liability Insurance)

Appeal No. 0929: Duck Creek Energy, Inc., V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Order 2016-162; (Cessation of Operations; Mogadore Facility)

Appeal No. 0940: Riverside Petroleum & Production, Inc., V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Order 2016-420

Appeal No. 0909: Dow Cameron Oil & Gas, Llc V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Order 2015-413; Dow Cameron Facility

Applying Motivational Interviewing To Parenting Act Mediation: The Promise Of The Process., Kristen M. Blankley, Lisa M. Pytlikzillig, Kathryn Speck

Lisa PytlikZillig Publications

Motivational Interviewing (MI) is a research-based method of helping people engage in behavior change. MI tools and strategies have been used successfully to help people tackle drug and alcohol addiction, weight loss, and other unhealthy behaviors. MI methods aim to uncover and support a person's desire to change while simultaneously respecting an individual's autonomy. Historically, Ml has been employed in support settings, such as counselors working with clients. In Nebraska, probation officers now employ MI practices to help encourage positive changes while still maintaining accountability if people choose not to follow the terms of their probation.

Mediation is all about …

The Constitutionality Of Sec Administrative Proceedings: The Sec Should Cure Its Alj Appointment Scheme, Kaela Dahan

Cardozo Law Review

The note examines the constitutional challenges surrounding the Securities and Exchange Commission's (SEC) use of administrative law judges (ALJs), particularly under Section 929P of the Dodd-Frank Act. It argues that the SEC's ALJ appointment process violates the Appointments Clause, as current ALJs have not been properly appointed by SEC Commissioners. The note also highlights due process and Seventh Amendment concerns, as defendants in SEC administrative proceedings lack rights such as trial by jury and immediate appellate review. To maintain the integrity of its administrative processes, the SEC must adopt measures to ensure its ALJ appointments comply with constitutional requirements.

Disrupting Immigration: How Administrative Rulemaking Could Transform The Landscape For Immigrant Entrepreneurs, Tess Douglas

Pepperdine Law Review

Immigrant entrepreneurs come to the United States and start thriving companies that create jobs, drive the economy, and facilitate innovation. However, U.S. laws do not provide a clear path for immigrant entrepreneurs to lawfully enter and work in America. Therefore, immigrant entrepreneurs must seek lawful status in the United States through unusual routes. While Congress, the President, and the United States Citizenship and Immigration Services (USCIS) recognize the need for clear and accessible immigration standards for immigrant entrepreneurs, the politicized nature of immigration law has impeded significant change. This Comment details how administrative rules could offer a less politicized and …

Mitochondrial Replacement Therapy And The Regulation Of Reproductive Genetic Technologies In The United States, Bob Zhao

Duke Law & Technology Review

The ability to alter the genes of future generations no longer belongs in the realm of science fiction. The genetic modification capabilities of modern science are advancing rapidly. Mitochondrial replacement therapy (MRT) represents the first crossing of the germline barrier in humans, and as of February 2015, it is the first procedure of its kind to be legalized in the Western world. How Congress decides to regulate MRT will influence future regulation of all genetic manipulation technologies. This brief argues that the current patchwork regulatory framework established in the United States is insufficient to deal with the complex issues MRT …

Poremba V. S. Nev. Paving, 133 Nev. Adv. Op. 2 (Jan. 26, 2017) (En Banc), Christopher Kelly

Nevada Supreme Court Summaries

The Court determined that (1) an administrative officer must first determine whether to reopen a worker’s compensation benefits claim, pursuant only to the requirements of NRS 616C.390, before considering whether the insurer is entitled to reimbursement due to a third party settlement; and (2) that insurers may be entitled to reimbursement for funds an injured party receives in third party settlements that are also covered by workers’ compensation, but are not entitled to reimbursement from the portion of the settlement designated for remedies outside the definition of “compensation” in NRS 616A.090, including pain and suffering and lost wages.

Village League V. State Bd. Of Equalization, 133 Nev., Adv. Op. 1 (January 26, 2017), Yolanda Carapia

Nevada Supreme Court Summaries

The Court determined that (1) NRS 361.395 does not provide the State Board with authority to order reappraisals; and (2) the 2010 regulation purporting to provide the State Board with such authority does not apply retroactively to the tax years at issue in this case.

Coventry Health Care, Inc. V. Nevils: Brief Of Amici Curiae Constitutional And Administrative Law Scholars In Support Of Respondent, Nina A. Mendelson

Appellate Briefs

Amici law professors (listed in Appendix A) are leading scholars and teachers of constitutional and administrative law who submit this brief in their individual capacities, not on behalf of their institutions. They study and write on federal preemption of state law, including the ways in which courts can and should discipline agencies to consider federalism values. Amici have an interest in promoting judicial review that requires agencies to take state regulatory interests seriously when their rules would preempt state law. Amici submit this brief to demonstrate that Petitioner's view of judicial deference to agency preemption would encourage agencies to ignore …

The Ambiguity Of Redesignation: What Is 'Applicable' Under The Clean Air Act?, Andrew Miller

Catholic University Journal of Law and Technology

No abstract provided.

Flying Under The Radar: Low-Altitude Local Drone Use And The Reentry Of Property Rights, Kenneth Maher

Duke Law & Technology Review

The characteristics and capabilities of civilian drones have proliferated in recent years, giving rise to a burgeoning industry. The popular media and academic literature have predominantly focused on privacy concerns, devoting considerably less attention to the regulatory challenges created by the new technology. Congress instructed the FAA to integrate drones into the National Airspace System in 2012, but rulemaking delays and a moratorium on commercial uses hampered the industry and withheld benefits from the public. Final regulations are now in place, but the new rules revive legal uncertainty over the constitutional limits of federal authority and the ambiguous vertical bounds …

Exhausted Yet? Stephens V. Pension Benefit Guaranty Corporation And The Application Of The Exhaustion Doctrine To Statute-Based Erisa Claims, Carson D. Phillips-Spotts

Maine Law Review

By 1974, the U.S. Congress recognized that employer-provided retirement pension plans had “become an important factor affecting the stabilization of employment and the successful development of industrial relations” and enacted the Employee Retirement Income Security Act (ERISA) with the aim of protecting “the interests of participants in employee benefit plans and their beneficiaries.” In enacting ERISA, Congress established “standards of conduct, responsibility, and obligation[s] for fiduciaries of employee benefit plans” and provided for “appropriate remedies, sanctions and ready access to the Federal courts.” Apart from creating federal causes of action to ensure efficient and equitable administration of private pension plans, …

Ceri (Cornell E-Rulemaking) Moderator Protocol, Cornell Erulemaking Initiative

Cornell e-Rulemaking Initiative Publications

From 2005-2017, CeRI was a multidisciplinary group of Cornell University researchers engaged in theoretical and applied research, in partnership with government agencies and civil society groups, to discover how the design and process of online engagement can support public discussion that is informed, inclusive and insightful.

The Moderator Protocol was used by moderators (students in a Cornell Law School e-Government Clinic) to facilitate dialogue and discussion during live discussions on our RegulationRoom.org and SmartParticipation.com platforms. It is provided here as a resource and reference tool. Additional information on the project is available at SmartParticipation.com.

Technological Innovation, Data Analytics, And Environmental Enforcement, David L. Markell, Robert L. Glicksman, Claire Monteleoni

Scholarly Publications

Technical innovation is ubiquitous in contemporary society and contributes to its extraordinarily dynamic character. Sometimes these innovations have significant effects on the environment or on human health. They may also stimulate efforts to develop second-order technologies to ameliorate those effects. The development of the automobile and its impact on life in the United States and throughout the world is an example. The story of modern environmental regulation more generally includes chapters filled with examples of similar efforts to respond to an enormous array of technological advances.

This Article uses a different lens to consider the role of technological innovation. In …

#Betterrules: The Appropriate Use Of Social Media In Rulemaking, Stephen M. Johnson

Articles

In December 2015, the Government Accountability Office (GAO) concluded that the Environmental Protection Agency’s (EPA’s) use of various social media tools in a rulemaking under the Clean Water Act violated prohibitions in federal appropriations laws against publicity, propaganda, and lobbying. Although academics previously explored whether the use of technology in rulemaking might violate the Administrative Procedures Act (APA), the Paperwork Reduction Act, or the Federal Advisory Committee Act, none predicted that one of the first firestorms surrounding the use of social media in rulemaking would arise out of federal appropriations laws. ...

As the Administrative Conference of the United States …

Pre-Enforcement Litigation Needed For Taxing Procedures, Stephanie Mcmahon

Faculty Articles and Other Publications

Courts have opened tax guidance to procedural attack. Consequently, taxpayers who are found to owe tax may challenge the validity of the guidance implementing the tax if the procedure used by the Treasury Department in adopting the guidance failed to comply with the Administrative Procedure Act, in particular, with notice-and-comment. This increased willingness to consider tax guidance's procedural defects offers little to most taxpayers unless they are also given a better means to raise procedural challenges. Under current law and in most circumstances, generally, taxpayers can bring a challenge only after they have been found to owe taxes in an …

Florida's Workers Compensation Law: The Pendulum Swings, Ursula Hirsch

Honors Undergraduate Theses

The intent of this paper is to discuss how the recent court rulings on the current workers compensation statutes will impact the rules to Florida’s workers compensation laws.

Workers Compensation system is a social justice system that protects both the employer and employee. Employees that are injured while in the course and scope of their employment give up the right to sue, making workers compensation an exclusive remedy. In exchange for giving up that right, the injured worker receives statutory benefits in a no-fault system.

This paper covers the legislative changes over the years that have impacted the constitutionality of …

The Twin Demons Of The Trump-Bannon Assault On Democracy, Joseph P. Tomain

Faculty Articles and Other Publications

On January 30, 2017, President Donald Trump signed an executive order "Reducing Regulation and Controlling Regulatory Costs." Then, on February 24, he signed an executive order on “Enforcing the Regulatory Reform Agenda.” Together these two executive orders constitute a severe threat to American society and the American economy. In the words of Stephen Bannon, Trump’s chief strategist, they represent a plan for “the deconstruction of the administrative state.”

The purpose of the administrative state can be most simply stated this way: Unless otherwise stated in the enabling legislation, government regulation makes sense when the benefits of regulation outweigh the costs …

Regulation Of Teacher Certification In Idaho: Proceedings Before Idaho's Professional Standards Commission Covering The Denial Of An Application For Or Action Against A Teaching Certificate, John E. Rumel

Articles

No abstract provided.