Administrative Law Commons^™

Table Of Contents And Editorial Board, Yoori Chung

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Pepperdine University School Of Law Legal Summaries, Analise Nuxoll

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Slip Slidin' Away: The Erosion Of Apa Adjudication, William Funk

Journal of the National Association of Administrative Law Judiciary

Although the enactment of the Administrative Procedure Act (APA) was intended to establish a uniform set of procedures applicable to adjudications "required by statute to be determined on the record after opportunity for an agency hearing," agencies have long sought to avoid those procedures, and, in particular, Administrative Law Judges, by substituting informal, non-APA adjudications. Over time, the courts have accelerated this substitution through a misapplication of three Supreme Court opinions. This article describes the original understanding of the APA and how that original understanding has been eroded over the years. The article then asks whether this is a problem …

Impartial Hearings Under The Idea: Legal Issues And Answers, Perry A. Zirkel

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Chevron Deference In The States: Lessons From Three States, Carrie Townsend Ingram

Journal of the National Association of Administrative Law Judiciary

The appointment of Justice Neil Gorsuch to the Supreme Court of the United States has left many wondering if a change to the Chevron doctrine is impending. Justice Gorsuch’s colleague on the Court, Justice Clarence Thomas, shares similar views on Chevron. This article will compare the federal rule to three different states: Indiana, Delaware, and Arizona. Each state has taken a different path in determining that the judiciary should not give deference to an agency’s interpretation of the statutes that it is charged with enforcing. Delaware has affirmatively declared that the Chevron doctrine is not applicable in its state. A …

Restoring Effective Congressional Oversight: Reform Proposals For The Enforcement Of Congressional Subpoenas, Kia Rahnama

Journal of Legislation

This Article proposes possible legislative reforms to Congress’s exercise of its contempt power in combating non-compliance with subpoenas duly issued as part of congressional investigations. With the recent trends in leveraging congressional investigations as an effective tool of separation of powers, this Article seeks to explore the exact bounds of congressional power in responding to executive officers’ noncompliance with congressional subpoenas, and whether or not current practice could be expanded beyond what has historically been tried by the legislative branch. This Article provides a brief summary of the historic practice behind different options for responding to non-compliance with subpoenas (inherent …

Lands Of Opportunity: An Analysis Of The Effectiveness And Impact Of Opportunity Zones In The Tax Cuts And Jobs Act Of 2017, Joseph Bennett

Journal of Legislation

No abstract provided.

When Soft Law Meets Hard Politics: Taming The Wild West Of Nonprofit Political Involvement, Lloyd Hitoshi Mayer

Journal of Legislation

Beginning in the 1990s and continuing today, many of the legal and psychological barriers to nonprofits becoming involved in electoral politics have fallen. At the same time, political divisions have sharpened, causing candidates, political parties, and their supporters to scramble more aggressively for any possible edge in winner-take-all political contests. In the face of these developments, many nonprofits have violated the remaining legal rules applicable to their political activity with little fear of negative consequences, especially given vague rules and a paucity of enforcement resources. Such violations include under reporting of political activity in government filings, fly-by-night organizations that exist …

Circuit Split On The Application Of The "Safety Valve" Provision As Applied To The Maritime Drug Law Enforcement Act - Alexander And Mosquera-Murillo, Alexander D. Andruzzi

Ocean and Coastal Law Journal

When the Court of Appeals for the District of Columbia decided the case of United States v. Mosquera-Murillo, it created a circuit-split on whether individuals charged under the Maritime Drug Law Enforcement Act (codified as 46 U.S.C. § 705) are entitled to relief under the "Safety Valve" provision of 18 U.S.C. § 3553(f). The "Safety Valve" allows individuals who meet certain criteria to be sentenced according to the sentencing guidelines, regardless of any mandatory minimum sentences. This case note compares the holding of the Court of Appeals for the District of Columbia to the Eleventh Circuit's holding in United States …

Are Marine National Monuments "Situated On Lands Owned Or Controlled By The Government Of The United States?", Tyler C. Costello

Ocean and Coastal Law Journal

The ocean offers what may seem like endless supply of natural resources, ecosystem services, or for some, simple enjoyment. Yet, in the face of climate change and overexploitation, many of these unique ecosystems and their inhabitants face an uphill battle. A president's use of the Antiquities Act establishing a national monument is an efficient and effective method of protecting these diverse ecosystems, as long as the area to be protected satisfies one of the Act's limitations that the monument be "situated on land owned or controlled by the federal government." Prior to a 2017 lawsuit concerning President Obama's use of …

Defining Fishing, The Slippery Seaweed Slope, Ross V. Acadian Seaplants Ltd., Rebecca P. Totten

Ocean and Coastal Law Journal

In Maine, the intertidal zone has seen many disputes over its use, access, and property rights. Recently, in Ross v. Acadian Seaplants, Ltd., the Maine Supreme Judicial Court, sitting as the Law Court, held that rockweed seaweed in the intertidal zone is owned by the upland landowner and is not part of a public easement under the public trust doctrine. The Court held harvesting rockweed is not fishing. This case will impact private and public rights and also the balance between the State's environmental and economic interests. This Comment addresses the following points: first, the characteristics of rockweed and the …

Avoiding Maladaptations To Flooding And Erosion: A Case Study Of Alaska Native Villages, Elizaveta Barrett Ristroph

Ocean and Coastal Law Journal

This article offers perspective on how Alaska Native Villages (ANVs), which are small and rural indigenous communities, are adapting to changes in flooding and erosion. It considers which adaptations might be maladaptations and what might be done to facilitate adaptation short of relocating entire communities. It outlines the United States' legal framework applicable to flooding and erosion and considers why this framework may do little to assist ANVs and similarly situated small and rural communities. Findings regarding adaptation strategies and obstacles are drawn from my Ph.D. research, which involved a review of plans for fifty nine ANVs and 153 interviews …

Concerns About Ice Detainee Treatment And Care At Four Detention Facilities, John V. Kelly

United States Department of Homeland Security

In response to concerns raised by immigrant rights groups and complaints to the Office of Inspector General (OIG) Hotline about conditions for detainees held in U.S. Immigration and Customs Enforcement (ICE) custody, we conducted unannounced inspections of four detention facilities to evaluate their compliance with ICE detention standards.

Overall, our inspections of four detention facilities revealed violations of ICE’s 2011 Performance-Based National Detention Standards, which set requirements for facilities housing detainees. This report summarizes findings on our latest round of unannounced inspections at four detention facilities housing ICE detainees. Although the conditions varied among the facilities and not every problem …

The Marketplace Of Ideas Online, Dawn C. Nunziato

Notre Dame Law Review

This Article surveys the severe problems in today’s online marketplace of ideas and the efforts that regulators—and the online platforms themselves—have recently adopted in an attempt to address such problems. In Part I, this Article examines the historical foundations of the “marketplace of ideas” model, as articulated in Holmes’s early opinions, as well as the Court’s eventual adoption of the marketplace model and, with it, the adoption of counterspeech, instead of censorship, as the default response to harmful speech. Part II then examines the scope and extent of the problems besieging the modern online marketplace of ideas, focusing on problems …

Financial Assurance For Hardrock Mining: Epa And Cercla, Braden Murphy

Notre Dame Law Review

Hardrock mining operators are required to perform reclamation activities, primarily as a matter of state law. To ensure funds will be available to perform reclamation in the event an operator defaults on its obligations and declares bankruptcy, financial assurance requirements have emerged. Apart from limited federal regulations (which govern only federal lands), state laws and regulations comprise the universe of financial assurance requirements. In several cases, existing requirements have proven grossly insufficient, and taxpayers have been forced to bear cleanup costs. Many congressional bills have emerged in the past three decades to establish comprehensive federal legislation for hardrock mining and …

A Prophecy Misread That Could Have Been: Regulatory Adjudications And A Weakening Of The Environmental Rights Amendment In Logan V. Department Of Environmental Protection, Alexander N. Palmer

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Invalid Harms: Improper Use Of The Administrative Procedure Act's Good Cause Exemption, Miriam R. Stiefel

Washington Law Review

On October 13, 2017, the U.S. Department of Health & Human Services, U.S. Department of Treasury, and U.S. Department of Labor published two nearly identical interim final rules in the Federal Register. To do so, the agencies invoked the Administrative Procedure Act’s good cause exemption, permitting the rules to bypass prepromulgation notice and comment rulemaking requirements. The interim final rules allowed employers and insurers that provide group healthcare coverage under the Affordable Care Act to seek constitutional and moral exemptions—specifically for contraceptives and other preventive health services coverage. Using the two 2017 interim final rules as an illustration, this Comment …

Some Kind Of Hearing Officer, Kent H. Barnett

Washington Law Review

In his prominent 1975 law-review article, “Some Kind of Hearing,” Second Circuit Judge Henry Friendly explored how courts and agencies should respond when the Due Process Clause required—in the U.S. Supreme Court’s exceedingly vague words—“some kind of hearing.” That phrase led to the familiar Mathews v. Eldridge balancing test, under which courts weigh three factors to determine how much process or formality is due. But the U.S. Supreme Court has never applied Mathews to another, often ignored, facet of due process: the requirement for impartial adjudicators. As it turns out, Congress and agencies have broad discretion to fashion not only …

The Case Against Absolute Judicial Immunity For Immigration Judges, Jacqueline Stevens

Minnesota Journal of Law & Inequality

A federal regulation states that immigration hearings shall be open to the public. Courts and scholars also have located a right to observe these proceedings in the First Amendment. And yet immigration judges (IJ) have excluded members of the press and other observers from hearings for no stated legal reasons, thus effectively eliminating public scrutiny of proceedings that affect millions of citizens and non-citizens in the United States. In response to a lawsuit pursuing monetary, injunctive, and declaratory relief after an IJ ordered guards to remove a reporter from a federal building, an Eleventh Circuit panel held IJs have absolute …

Faithful Execution And Article Ii, Andrew Kent, Ethan J. Leib, Jed Handelsman Shugerman

Faculty Scholarship

Article II of the U.S. Constitution twice imposes a duty of faithful execution on the President, who must "take Care that the Laws be faithfully executed" and take an oath or affirmation to 'faithfully execute the Office of President." These Faithful Execution Clauses are cited often, but their background and original meaning have never been fully explored. Courts, the executive branch, and many scholars rely on one or both clauses as support for expansive views of presidential power, for example, to go beyond standing law to defend the nation in emergencies; to withhold documents from Congress or the courts; or …

Management Alert -- Dhs Needs To Address Dangerous Overcrowding Among Single Adults At El Paso Del Norte Processing Center (Redacted), John V. Kelly

United States Department of Homeland Security

During the week of May 6, 2019, we visited five Border Patrol stations and two ports of entry in the El Paso area, including greater El Paso and eastern New Mexico, as part of our unannounced spot inspections of CBP holding facilities. We reviewed compliance with CBP’s Transport, Escort, Detention and Search (TEDS) standards, which govern CBP’s interaction with detained individuals, and observed dangerous holding conditions at the El Paso Del Norte Processing Center (PDT) Border Patrol processing facility, located at the Paso Del Norte Bridge, that require immediate attention. Specifically, PDT does not have the capacity to hold the …

Are Gaming Concessions Obsolete? A Comparative Study Of Macau And Portugal, Jorge Godinho

International Conference on Gambling & Risk Taking

Abstract

The concept of a concession for the operation of games of chance is the legal basis of the largest casino gaming industry in the world, that of the Macau Special Administrative Region of the People’s Republic of China. This concept, in its modern form, came to Macau in 1961, from Portuguese law, where it was started in 1927.

This paper has two main goals.

The first is to sumarize the evolution of concessions of games of chance in Portugal and Macau, covering the common legal and conceptual basis in both systems, highlighting the similarities and differences, especially regarding the …

The Trump Administration's Impact On F-1 And J-1 Visas, Laura Caty

Immigration and Human Rights Law Review

President Donald Trump is known throughout the world for continuously promoting “the wall” between Mexico and the United States. Since his inauguration in 2016, President Trump has pushed the legislature to fund construction of a physical barrier on the southern border of the United States. Not only is the wall an actual construct, but the wall also represents his entire approach to immigration law. Mexican residents are not the only ones suffering from the Trump administration's policies. While targeting Southern neighbors and undocumented or “illegal” immigrants, Trump has also created difficulties across the entire visa process for legal immigrants. Individuals …

Pereira V. Sessions And The Future Of Deportation Proceedings, Louisa Edzie

Immigration and Human Rights Law Review

Article 1 section 8 of the United States Constitution give the U.S. government enumerated powers to establish a uniform rule on Naturalization. To carry out these duties, 8 U.S. Code § 1227 gives the government the power to initiate removal proceedings against non citizens who are undocumented or may have lost their status in the U.S. However, before removal proceedings commence, the government per 8 U.S. Code § 1229 has to send a Notice to Appear (NTA) to the non-citizen. An NTA is a written notice given to the non-citizen about the nature of proceedings against the non-citizen, the legal …

Unitary Theory, Consolidation Of Presidential Authority, And The Breakdown Of Constitutional Principles In Immigration Law, Grant Wilson

Immigration and Human Rights Law Review

This paper will argue that beginning with President Reagan the adoption of unitary theory as a central tenet in presidential administrations created a now ongoing consolidation of executive regulatory authority. This consolidation of power has considerably accelerated over the course of the last four decades. As Courts continue to defer to the executive in decisions made within the broad grants of power delegated by Congress, the relevance of the legislative body dwindles. The checks on executive assumption of power have largely been removed. The wall between the executive and the administrative have crumbled, and what were once considered unofficially separate …

Juliana V. United States, Daniel Brister

Public Land & Resources Law Review

In 2015, a group of adolescents between the ages of eight and nineteen filed a lawsuit against the federal government for infringing upon their civil rights to a healthy, habitable future living environment. Those Plaintiffs in Juliana v. United States alleged that the industrial-scale burning of fossil fuels was causing catastrophic and destabilizing impacts to the global climate, threatening the survival and welfare of present and future generations. Seeking to reduce the United States’ contributions to atmospheric carbon dioxide, Plaintiffs demanded injunctive and declaratory relief to halt the federal government’s policies of promoting and subsidizing fossil fuels, due to the …

Sec V. Creditors: Why Sec Civil Enforcement Practice Demonstrates The Need For A Reprioritization Of Securities Fraud Claims In Bankruptcy, Sean Kelly

St. John's Law Review

(Excerpt)

This Note examines how this tension has motivated the SEC to use receiverships as a preferred vehicle to maximize recovery for defrauded security holders and, in the process, create what amounts to an SEC-run bankruptcy proceeding. The use of these receiverships has triggered a high-stakes race to the courthouse among the SEC and creditors, where mere hours can be the difference between millions in recovery and nothing at all. To end this costly race, this Note proposes a solution that seeks to harmonize securities fraud enforcement with bankruptcy law, which starts with revisiting Bankruptcy Code § 510(b) to reprioritize …

Crowdfunding Capital In The Age Of Blockchain-Based Tokens, Patricia H. Lee

St. John's Law Review

(Excerpt)

To illustrate the findings, this Article proceeds like so. Part I provides a brief history of the Reg. CF exemption law and the research findings about investment crowdfunding, generally, and digital tokens, more specifically. Next, Part II provides insights on the current state of offering blockchain-based digital tokens to unsophisticated investors and the silver linings in the data. Finally, Part III provides recommendations for a path forward in Reg. CF. First, the SEC should re-evaluate its regulatory policy in light of the proliferation of blockchain-based token offerings and gaps in funding portals, and provide additional warnings to unsophisticated investors …

A Perfect Storm: Religion, Sex, And Administrative Law, Helen M. Alvare

St. John's Law Review

(Excerpt)

In order to propose a way forward toward better sexual and reproductive health regulation, which also avoids undercutting or crossing swords with religion, this Article will proceed as follows: Part I will paint with a broad brush the current state of sexual and reproductive health problems in the United States, focusing a bit upon younger Americans to whom SRA programs are addressed. It will highlight disparities according to race and socioeconomic conditions when these obtain. These are troubling on their face, but particularly troubling today at a time of perceived heightened racial and socioeconomic class tension in the United …

Warning! Tiered Internet Ahead: Expect Delays, Courtney Loyack

Notre Dame Law Review Reflection

As the topic of net neutrality becomes increasingly polarized, the question becomes: Who should decide how consumers use the internet? Are usage determinations best left unregulated and to the discretion of massive corporations, or should usage be determined by regulations that aim to ensure an open and freely accessible internet? The answer to this question has far-reaching and deeply meaningful implications for the lives of every American.

The ways in which consumers communicate, access information, and participate in social media are all subject to change as the future of net neutrality regulation becomes uncertain. Part I of this Essay will …