Administrative Law Commons^™

Competition Policy On Online Taxi In Indonesia, Udin Silalahi

Jurnal Hukum & Pembangunan

The presence of application-based taxis such as Grabcar and Gocar is a challenge for conventional taxis. Its existence can be reduced to conventional taxi company turnover. On March 22, 2016 thousands of conventional taxi drivers held a demonstration against the existence of online taxis, because online taxis were declared in violation of the Traffic Law and consequently the streets in Jakarta were chaotic. The existence of online taxis cannot be avoided any more, due to technological developments. Online taxis provide benefits and convenience for passengers in ordering and the rates are cheaper than conventional taxi rates. Anyone who has a …

Lessons Learned: Thomas C. Baxter, Jr., Esq., Alec Buchholtz, Rosalind Z. Wiggins

Journal of Financial Crises

Baxter, who was General Counsel of the Federal Reserve Bank of New York during the crisis, gives us his take on how best to prepare for future crises.

Yale Program On Financial Stability Lessons Learned: Scott Alvarez, Esq., Alec Buchholtz, Rosalind Z. Wiggins

Journal of Financial Crises

Alvarez, who was General Counsel of the Federal Reserve System, Board of Governors during 2007-2009, gives us his take on how best to prepare for future crises.

Pharmaceutical Price Gouging: The Need For Direct Regulation On The Gray Market, Nicole Rende

Journal of Civil Rights and Economic Development

(Excerpt)

This Note proposes federal legislation that will ultimately shut down the Pharmaceuticals gray market. The federal government should directly regulate the gray market and the price gouging mechanisms used. Congress should pass the Fair Accountability and Innovative Research Drug Pricing Act of 2016, currently proposed. This Act will increase price transparency and provide a civil penalty for wrong doers. In addition to the passage of this Act, there needs to be a direct attack on the gray market by creating an act that does not allow companies to participate in these distributions and ultimately form monopolies. This act needs …

Private Enforcement In Administrative Courts, Michael Sant'ambrogio

Vanderbilt Law Review

Scholars debating the relative merits of public and private enforcement have long trained their attention on the federal courts. For some, laws giving private litigants rights to vindicate important policies generate unaccountable private attorneys general" who interfere with public enforcement goals. For others, private lawsuits save cash-strapped government lawyers money, time, and resources by encouraging private parties to police misconduct on their own. Yet largely overlooked in the debate is enforcement inside agency adjudication, which often is depicted as just another form of public enforcement, only in a friendlier forum.

This Article challenges the prevailing conception of administrative enforcement. Based …

Eligible Non-Participation In Canadian Social Welfare Programs, Stephanie Ben-Ishai, Jennifer Robson, Saul Schwartz

Articles & Book Chapters

To be effective in meeting their policy or political goals, social programs must reach the intended target groups. Many social programs, however, have low take-up rates. We examine three illustrative federal programs targeted to lower income Canadians and note that efforts by government agencies to serve all they intend to serve vary considerably. In this paper we discuss the sources of eligible non-participation and present estimates of its extent. We point out that the Canada Revenue Agency (CRA) plays a critical role in all three Canadian social welfare programs. We find that the legislative framework governing the CRA may be …

Regulatory Design For Transport Security Regulations Of Nuclear And Other Radioactive Material, Marc R. Fialkoff

Purdue Workshop on Nonproliferation: Technology and Approaches

A cornerstone within a nuclear security regime of a country is a legislative and regulatory framework that both regulates the individuals using radioactive and nuclear materials, but also regulates the regulators for their commitments under International Law. When drafting nuclear law and regulations, both technical and legal expertise is needed to ensure the regulation meets the technical requirements for security, but also is legally enforceable within a country’s jurisdiction. While the Primary Nuclear Law, or Enabling Act provides establishes the Competent Authority and responsibilities for nuclear security, regulatory development is where the proverbial, rubber meets the road for requirements. The …

Capturing The Regulatory Agenda: An Empirical Study Of Agency Responsiveness To Rulemaking Petitions, Daniel E. Walters

Faculty Scholarship

In environmental regulation as well as in other regulatory domains, a critical question is how outside interests shape the rulemaking agenda. A great deal of skepticism toward regulation stems from the widespread perception that agencies excessively, or even exclusively, cater to business interests. One answer to these concerns is administrative procedure, in particular rulemaking petitions, which are provided for in the Administrative Procedure Act and in many substantive environmental statutes. Although rulemaking petitions could in theory be used by business interests to strengthen their hold on regulatory agenda-setting, a growing number of scholars, highlighting the critical role a rulemaking petition …

Inaccessible Websites Are Discriminating Against The Blind: Why Courts, Websites, And The Blind Are Looking To The Department Of Justice For Guidance, Elizabeth Sheerin

St. John's Law Review

(Excerpt)

This Note argues that Title III of the ADA should extend to websites and mobile applications as “places of public accommodation” and suggests a framework to determine which accommodations should be adopted to make websites accessible to people with visual disabilities. Specifically, it calls on Congress and the DOJ to fix this hole in the law and ensure the Act protects all persons with disabilities, as it was intended to. Part I will introduce the ADA, including its legislative history and amendments, and then will describe the standards private agencies have developed to make the Internet accessible to those …

Establishment Of The Antitrust Division Of The U.S. Department Of Justice, Gregory J. Werden

St. John's Law Review

(Excerpt)

To fill in the knowledge gaps, this Article proceeds largely in reverse chronological order. First, it reviews Order No. 2507 and related circumstances, finding clear and convincing evidence that the Order did not create the Antitrust Division. Next, the Article examines the prior tenure of AG Cummings, finding clear and convincing evidence that the Antitrust Division existed before Roosevelt became President and Cummings became AG, and that Cummings lowered the standing of the Antitrust Division within the DOJ prior to issuing Order No. 2507. Finally, the Article scours the prior history of the DOJ and determines that the Antitrust …

Too Plain To Be Misunderstood: Sovereign Immunity Under The Arkansas Constitution, Robert C. Dalby

Arkansas Law Review

The framers of the constitution certainly knew that instances of hardship would result from the prohibition of suits against the State, but they nevertheless elected to write that immunity into the constitution. The language is too plain to be misunderstood, and it is our duty to give effect to it. Given the fluid nature of the law, time is often the greatest enemy of clarity in court precedent. From law students to experienced judges, anyone who has tried to research the doctrine of sovereign immunity under the Arkansas Constitution has surely struggled with that enemy as they sift through the …

Medical Marijuana In Arkansas: The Risks Of Rushed Drafting, Carol Goforth, Robyn Goforth

Arkansas Law Review

Arkansas voters passed the Arkansas Medical Marijuana Amendment to the state constitution in late 2016. Almost certainly, the vast majority of voters did so without reading or understanding the intricacies of the initiative, and instead voted simply to affirm their desire to permit the medical use of marijuana in the state. Among many other provisions, the amendment imposed a 120 day time limit (later extended by the Arkansas legislature to 180 days) within which the Arkansas Department of Health and other agencies were to adopt rules implementing the voter mandate. While six months might seem like plenty of time in …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Rehabilitating The Nuisance Injunction To Protect The Environment, Doug Rendleman

Washington and Lee Law Review

The Trump Administration has reversed the federal government’s role of protecting the environment. The reversal focuses attention on states’ environmental capacity. This Article advocates more vigorous state environmental tort remedies for nuisance and trespass. An injunction is the superior remedy in most successful environmental litigation because it orders correction and improvement. Two anachronistic barriers to an environmental injunction are the New York Court of Appeals’ decision, Boomer v. Atlantic Cement, and Calabresi and Melamed’s early and iconic law-and-economics article, One View of the Cathedral. This Article examines and criticizes both because, by subordinating the injunction to money damages, they undervalue …

Antidiscrimination Laws And The Administrative State: A Skeptic's Look At Administrative Constitutionalism, David E. Bernstein

Notre Dame Law Review

This Article discusses why administrative agencies charged with enforcing antidiscrimination legislation while implicitly undertaking administrative constitutionalism tend to be inconsiderate of constitutional limitations on government authority in general, and especially of the limitations imposed by the First Amendment’s protection of freedom of expression.

To establish the existence and contours of the problem, Part I of this Article provides context by recounting several detailed examples of how federal, state, and local civil rights agencies have favored broad antidiscrimination enforcement over countervailing constitutional doctrines that impose limits on regulatory authority. These examples include the U.S. Department of Education’s Office of Civil Rights’ …

A Wall Impervious To Facts: Seawalls, Living Shorelines, And The U.S. Army Corps Of Engineers' Continuing Authorization Of Hard Coastal Armoring In The Face Of Sea Level Rise, Travis Brandon

Law Faculty Scholarship

This Article critiques the U.S. Army Corps of Engineers’ continued authorization of hard coastal armoring under Nationwide Permit 13 (NWP 13) in light of mounting scientific evidence demonstrating the ecological, physical, and economic harms associated with seawalls and bulkheads. Despite documented reductions in biodiversity, accelerated shoreline erosion, and the impairment of wetland migration under conditions of sea level rise, the Corps reissued NWP 13 in 2017, allowing significant shoreline stabilization projects without individualized review. At the same time, the Corps adopted Nationwide Permit 54 to streamline approval of “living shorelines,” a more ecologically adaptive alternative, yet imposed comparatively stricter conditions …

The Fair Housing Act After Fifty Years: Opening Remarks, Julián Castro

Cardozo Law Review

Fifty years ago, on this day in late March, the United States was about to go through one of the darkest stretches in modern American history. At the end of March 1968, President Lyndon Johnson announced that he would not run for reelection. Just a few days later, of course, on April 4th, Martin Luther King Jr. was assassinated. A couple of months after that, on June 6th, Robert Kennedy died as he campaigned for President of the United States. Cities across our country were in a state of total unrest. It was, as many have described it, a year …

Wildearth Guardians V. United States Bureau Of Land Management, Seth Sivinski

Public Land & Resources Law Review

In WildEarth Guardians v. U.S. BLM, the District Court of Colorado showed that economic and developmental uncertainty is an area where agencies are given broad discretion in deciding whether an impact is reasonably foreseeable and requires a further conformity analysis under the Clean Air Act. This case exemplifies the tactical limitation of using climate change and the science around it to force greater analysis of projects undertaken by federal agencies. However, the court presented a potential roadmap for successful future challenges.

Predictability For Privacy In Data Driven Government, Jordan Blanke, Janine Hiller

Minnesota Journal of Law, Science & Technology

No abstract provided.

Solenex Llc V. Jewell, F. Aaron Rains

Public Land & Resources Law Review

In Solenex LLC v. Jewell, the Secretary of the Interior cancelled a highly contentious oil and gas lease in Montana’s Badger-Two Medicine area, an environmentally sensitive and culturally significant area to the Blackfeet Tribe, nearly thirty years after the lease had been issued. Solenex, a Louisiana based oil and gas company and holder of the lease, brought this action to enjoin the cancellation. The District Court for the District of Columbia agreed with Solenex and found that the Secretary’s decision took an unreasonable amount of time and violated good-faith contractual obligations. On these grounds, the court found the Secretary’s …

Sierra Club V. Virginia Electric & Power Company, Thomas C. Mooney-Myers

Public Land & Resources Law Review

The Sierra Club alleged Dominion violated the Clean Water Act by allowing arsenic to leak from coal ash storage pits into state waters. The Fourth Circuit Court of Appeals found for the polluter, using a narrow definition of point source. Additionally, the Fourth Circuit deferred to agency interpretation of the polluter’s permit to find no violation occurred.

Project Based Learning For Administrative Law, Ann M. Johnson

Q2S Enhancing Pedagogy

This problem includes a case study of an incident (or crisis) that occurred and a regulation that was created by an administrative agency as a response. Students identify an agency and regulation and analyze agency action based on legal and media research.

Data-Informed Duties In Ai Development, Frank A. Pasquale

Faculty Scholarship

Law should help direct—and not merely constrain—the development of artificial intelligence (AI). One path to influence is the development of standards of care both supplemented and informed by rigorous regulatory guidance. Such standards are particularly important given the potential for inaccurate and inappropriate data to contaminate machine learning. Firms relying on faulty data can be required to compensate those harmed by that data use—and should be subject to punitive damages when such use is repeated or willful. Regulatory standards for data collection, analysis, use, and stewardship can inform and complement generalist judges. Such regulation will not only provide guidance to …

Justice Kavanaugh, Lorenzo V. Sec, And The Post-Kennedy Supreme Court, Matthew C. Turk, Karen E. Woody

Scholarly Articles

This Article analyzes a recent Supreme Court case, Lorenzo v. Securities and Exchange Commission, and explains why it provides a valuable window into the Court's future now that Justice Kennedy has retired and his seat filled by Justice Brett Kavanaugh. Lorenzo is an important case that raises fundamental interpretative questions about the reach of federal securities statutes. But most significant is its unique procedural posture: when the Supreme Court issues its decision on Lorenzo in 2019, Justice Kavanaugh will be recused while the other eight Justices rule on a lower court opinion from the D.C. Circuit in which he wrote …

The Threat Is Real: Protecting The Energy Infrastructure From Cyberattacks, Patricia Blotzer

Barry Law Review

No abstract provided.

You’Re Fired! Why The Alj Multi-Track Dual Removal Provisions Violate The Constitution & How To Fix Them, Linda D. Jellum

Articles

This Article explains why the for-cause removal provisions for ALJs are unconstitutional and offers three potential solutions to remedy this problem. Part I provides background information, which explains that the APA was a compromise of competing interests. Some wanted ALJs to be completely in-dependent from their agencies to further unbiased decision-making and inde-pendence, and others feared agencies would lose control over setting policy, should ALJs have such an independent function.Ultimately, Congress com-promised by including provisions to make the ALJs more independent, while also ensuring that agencies retained complete control to set policy.

As part of the independence piece of the …

Does The Evolving Concept Of Due Process In Obergefell Justify Judicial Regulation Of Greenhouse Gases And Climate Change?: Juliana V. United States, Bradford Mank

Faculty Articles and Other Publications

Justice Kennedy’s Obergefell opinion, which held that same sex marriage is a fundamental right under the Constitution’s due process clause, reasoned that the principles of substantive due process may evolve because of changing societal views of what constitutes “liberty” under the clause, and that judges may recognize new liberty rights in light of their “reasoned judgement.” In Juliana v. United States, Judge Aiken used her “reasoned judgement” to conclude that evolving principles of substantive due process in the Obergefell decision allowed the court to find that the plaintiffs were entitled to a liberty right to a stable climate system capable …

Private Standards And The Benzene Case: A Teaching Guide, Cary Coglianese, Gabriel Scheffler

Articles

No abstract provided.

The Calm After The Storm: 45 Years Of The Aba Young Lawyers Division’S Disaster Legal Services Program, Andrew Jack Vansingel

Touro Law Review

No abstract provided.

Blank Checks: An Analysis Of Emergency Actions Warranting Unilateral Executive Action, Megan E. Ball

Notre Dame Law Review

This Note discusses the separation of powers issues raised in the D.C. Circuit by then-Judge, now Justice Kavanaugh in Mexichem Fluor’s suit. Specifically, this Note analyzes the federal government’s approach to climate change, overreach of the EPA to act beyond its statutorily granted authority, and the EPA’s reliance upon President Obama’s executive directives as the justification for its overreach. Part I of this Note provides a broad introduction of the CAA and the importance of the policy motivations for the later addition of Title VI to the Act. Part II discusses in more depth the decision in Mexichem Fluor v. …