Administrative Law Commons^™

Transition Administration, Michael Herz, Katherine A. Shaw

Articles

The period from November 3, 2020 to January 20, 2021, was unlike any presidential transition in our history. President Donald Trump refused to accept his ballot-box defeat, instead battling to overturn the election’s outcome. This dramatic public campaign was waged in state and federal courts, state legislatures, the offices of state and local election officials, the Department of Justice, and finally the halls of Congress, where on January 6, 2021, a mob incited by the President stormed the Capitol with the explicit goal of preventing the final counting of electoral votes for Joe Biden. These efforts had more mundane and …

Pergeseran Kompetensi Absolut Dari Peradilan Umum Ke Peradilan Tata Usaha Negara: Gugatan Perbuatan Melawan Hukum Oleh Penguasa (Onrechtmatige Overheidsdaad), Muhamad Raziv Barokah, Anna Erliyana

Jurnal Hukum & Pembangunan

The absolute competency-shifting in adjudicating a lawsuits against the law by authorities from the general court to the state administration court suddenly based on Supreme Court Regulation No. 2/2019 raises 2 (two) issues regarding differences in the parameters of evaluating government actions in terms of civil law with state administration law and a significant reduction in the time period for filing a lawsuit from 30 (thirty) years to 90 (ninety) days. This research takes the form of a normative juridical approach to the rule of law. This study concludes there are differences in the parameters of the OOD Claims between …

Wasiat Wajibah Bagi Suami Murtad Dalam Pendekatan Teleologik Menuju Realisme Hukum (Suatu Analisis Terhadap Putusan Ma Nomor 331 K/Ag/2018), Raju Mohammad Hazmi, Nurul Adhha, - Kamarusdiana

Jurnal Hukum & Pembangunan

The Compulsory will (wasiyah wajibah) is one of the products of ijtihad in the field of contemporary Islamic jurisprudence. The case of compulsory wills is also included in the sub-discussion of inheritance in family or civil law in several countries with a majority Muslim community. The provision of a mandatory will appears as an alternative to several inheritance problems, such as the right to inheritance for heirs of different religions, children and adoptive parents. This condition is faced with the reality of the inheritance law of a society that cannot be separated from the structure, norms and traditions of a …

Tindak Pidana Pencucian Uang Yang Dilakukan Oleh Korporasi: Studi Kasus Putusan Pengadilan Negeri Nomor: 64/Pid.Sus/Tpk/2016/Pn.Bgl, Jeanny Jessica

Jurnal Hukum & Pembangunan

The typologies of money laundering are very closely related to corporate activities, which the activities of corporation are involved indirectly or are associated with financial institutions that made corporations very high risk as criminal offender of money laundering crimes. The handling of money laundering cases that corporation as subjects have only been carried out in Bengkulu with the corruption as primary criminal act, whereas will be expected that the application of corporations as subjects of money laundering crimes will also trigger other law enforcement agencies to uncover money laundering cases that made by corporations

Implikasi Pilihan Metode Konversi Suara Terhadap Proporsionalitas Perolehan Kursi Dalam Pemilihan Umum Anggota Dewan Perwakilan Rakyat, Bimo Fajar Hantoro

Jurnal Hukum & Pembangunan

Choice of vote conversion method, as an element of the general election system, has implications for the degree of proportionality. The degree of proportionality in question is divided into two elements, namely between the percentage of seats acquired and the fairness to large and small parties. The author here is interested in measuring the degree of proportionality generated by each of the vote conversion methods. The author then performs a simulation to measure these two elements from two families of vote conversion methods, namely the Quota method and the Divisor method. The simulation results show that in terms of proportionality …

Perkembangan Kedudukan Hukum (Legal Standing) Dalam Pengujian Administratif Di Pengadilan Tata Usaha Negara Dan Uji Materi Di Mahkamah Agung, Oce Madril, Jery Hasinanda

Jurnal Hukum & Pembangunan

Legal standing is one of the most important aspect accordance citizen legal protection from government act which is general or concrete . In implementation at Indonesia, there are many changes in the legal standing rule. Nevertheless, this changes of rule is considered not to clarify related legal standing aspect that has impact to citizen who are having trouble for access to justice through Administratif Judicial at Administratif Court and Judicial Review at Supreme Court. Plus, the emergence of many judge decision from Administrative Court and Supreme Court Judge that sometimes expanding the meaning of legal standing, but sometimes restricting the …

Kesepakatan Perjanjian Jual Beli Melalui Mesin Jual Otomatis (Vending Machine) Ditinjau Dari Aspek Hukum Perjanjian, Diah Anggraeni Ndaomanu, Indirani Wauran

Jurnal Hukum & Pembangunan

In the making of an agreement, it always refers to 4 (four) terms of the validity of the agreement which is regulated in Article 1320 of the Indonesian Civil Code. There is an important element from 4 (four) legal requirements named the agreement between the two parties. The background of this thesis writing is the development of technology where there are developments in the trade sector, namely buying and selling through vending machines without involving the seller directly or real. This research writing aims to determine the form of sale and purchase agreements through vending machines in terms of the …

Eksistensi Perlindungan Paten Atas Vaksin Covid-19, Adzhani Tharifah, Agus Sardjono

Jurnal Hukum & Pembangunan

The Covid-19 vaccine is expected to be a solution to return to normal life. However, the need for vaccines that are global in nature raises several questions in the community, especially regarding the existence of patent protection. For this reason, this paper will answer these questions by discussing the patentability of the Covid-19 vaccine as well as how to implement patent protection in the midst of a pandemic and public concerns about limited access to vaccines. The research method used in the writing of this thesis is normative juridical with a qualitative approach where the data comes from literature studies …

Evaluasi Kebijakan Peradilan Elektronik (E-Court) Mahkamah Agung Republik Indonesia, Abdul Rachmat Ariwijaya, Palupi Lindiasari Samputra

Jurnal Hukum & Pembangunan

This study aims to evaluate the administrative policies and electronic trial (E-Court) of the Supreme Court of the Republic of Indonesia and the judicial bodies under it in achieving the principles of administering judicial power, namely: simple, fast, and low-cost justice. The research method uses a retrospective evaluation theory that directs the present results after implementing the E-Court policy. The data used consisted of secondary data (documents) and primary data through in-depth interviews from experts and E-Court policymakers. The results showed that the E-Court policy succeeded in clarifying the Supreme Court of the Republic of Indonesia's organization in realizing simple, …

Penerapan Sanksi Pidana Terhadap Perbuatan Pengalihan Barang Jaminan Fidusia (Studi Kasus Pada Polres Serang Kota), Rahmat Wiguna, Benny Irawan, Rena Yulia

Jurnal Hukum & Pembangunan

At this time, many financial institutions (leasing) offer easy credit applications for potential customers. This has attracted consumers to apply for motor vehicle loans, both cars and motorbikes, in leasing companies. However, the problem that has occurred recently in financial institutions is the number of cases concerning the transfer of fiduciary collateral. In fact, the said act has been regulated in statutory regulations which have criminal consequences, namely if the debtor transfers goods or pawns the goods which are guaranteed to be Fiduciary without the creditor's permission, the debtor can be subject to a fiduciary crime. This research aims to …

Framework For Enhanced Applicability Of The Egyptian Public Procurement Law To International Administrative Construction Contracts, Amr Abu Helw

Theses and Dissertations

Local governments and public authorities conclude contracts for the purpose of acquisition of goods, delivery of services and construction of public facilities like bridges, infrastructures and public buildings. A public contract is an agreement to perform particular tasks financed by government funds to the benefit of the whole community. Private entities and corporations are subject to stricter standards in their dealings with the government than in private transactions. Conversely, the government must deal fairly and equitably with those who it contracted with to achieve successful implementation of the projects. On October 3, 2018, a new Egyptian public procurement law, namely, …

Mass Comments’ Opportunity Costs, Michael Herz

Online Publications

Agencies, courts, and academics agree that notice-and-comment rulemaking is not a referendum. But that conceptualization presents a challenge when an agency is confronted with mass comments. If agencies are not counting but reading comments, and if mass comments are duplicative and often devoid of content beyond a strong expression of values or preference, then what do they add?

"You Should Have Known:" The Need For Evidentiary Notice Requirements In Immigration Court, Marisa Moore Apel

University of Cincinnati Law Review

No abstract provided.

Ute Indian Tribe Of The Uintah & Ouray Reservation V. U.S. Dep't Of Interior, Valan Anthos

Public Land & Resources Law Review

The Ute Indian Tribe of the Uintah & Ouray Reservation brought 16 claims against federal agencies and the State of Utah for alleged mismanagement of water resources held in trust and for alleged discrimination in water allocation. The United States District Court for the District of Columbia dismissed several of the claims as time-barred and others as lacking a proper statutory basis to create an enforceable trust duty. The remaining claims were transferred to the United States District Court of the District of Utah because the events occurred in Utah and most of the parties reside there.

Delegation, Administration, And Improvisation, Kevin Arlyck

Notre Dame Law Review

Nondelegation originalism is having its moment. Recent Supreme Court opinions suggest that a majority of Justices may be prepared to impose strict constitutional limits on Congress’s power to delegate policymaking authority to the executive branch. In response, scholars have scoured the historical record for evidence affirming or refuting a more stringent version of nondelegation than current Supreme Court doctrine demands. Though the debate ranges widely, sharp disputes have arisen over whether a series of apparently broad Founding-era delegations defeat originalist arguments in favor of a more demanding modern doctrine. Proponents—whom I call “nondelegationists”—argue that these historical delegations can all be …

Oversight Riders, Kevin M. Stack, Michael P. Vandenbergh

Notre Dame Law Review

Congress has a constitutionally critical duty to gather information about how the executive branch implements the powers Congress has granted it and the funds Congress has appropriated. Yet in recent years the executive branch has systematically thwarted Congress’s powers and duties of oversight. Congressional subpoenas for testimony and documents have met with blanket refusals to comply, frequently backed by advice from the Department of Justice that executive privilege justifies withholding the information. Even when Congress holds an official in contempt for failure to comply with a congressional subpoena, the Department of Justice often does not initiate criminal sanctions. As a …

Researching Administrative Law, Keith Lacy

Law Librarian Scholarship

Administrative law is a broad subject area concerning the laws and procedures governing administrative agencies. It also encompasses the substantive law produced by those agencies — most commonly in the form of regulations (rules) or agency decisions. This article highlights a few major resources for researching administrative law in the United States.

Health Insurance And Bankruptcy Risk: Examining The Impact Of The Affordable Care Act, Philip M. Pendergast, Michael D. Sousa, Tim Wadsworth

Brooklyn Law Review

The passage of the Patient Protection and Affordable Care Act (“ACA”) in 2010 represented a watershed moment for healthcare in the United States. As is well-noted, the federal courts are still wrangling over the constitutionality of the law, and there is significant uncertainty regarding the extent to which the ACA will survive these legal battles. Unquestionably, the ACA has expanded access to health insurance for many millions of Americans. Prior to the advent of the ACA, Medicaid income eligibility for adults without dependents was approximately 61 percent of the Federal Poverty Line. Empirical studies since the advent of the ACA …

Ai In Adjudication And Administration, Cary Coglianese, Lavi M. Ben-Dor

Brooklyn Law Review

The use of artificial intelligence has expanded rapidly in recent years across many aspects of the economy. For federal, state, and local governments in the United States, interest in artificial intelligence has manifested in the use of a series of digital tools, including the occasional deployment of machine learning, to aid in the performance of a variety of governmental functions. In this Article, we canvass the current uses of such digital tools and machine-learning technologies by the judiciary and administrative agencies in the United States. Although we have yet to see fully automated decision-making find its way into either adjudication …

Apocalypse Ahoy: How The Cruise Industry Boom Is Harming The World’S Oceans And Problems With Enforcing Environmental Regulations, Nicholas J. Sarnelli

Brooklyn Law Review

The global cruise line industry enjoyed an incredible surge in popularity before the coronavirus pandemic. While the industry nearly sank in the wake of the pandemic, cruise lines are poised to continue to enjoy record-breaking profits while continuing to build larger and more opulent ships. This boom exacts a heavy toll on the environment, as cruise ships burn dirty fuel and dump dirty water into the world’s oceans. The current international legal framework for regulating the world’s shipping industry allows companies to effectively select which nation’s environmental laws to submit to, with ships flying under so-called “flags of convenience”. While …

Federal Land Conservation In Rural Areas, Jessica Owley, Jess Phelps

Brooklyn Law Review

Rural land has an important role to play in environmental protection. This Article examines how the federal government works to further the goals of land conservation in rural areas—ranging from farmland to forests and wetlands; from working landscapes to national parks; and from private to public landownership. We note three approaches. The federal government mandates conservation through laws like the Endangered Species Act and the Clean Water Act. The federal government incentivizes conservation through Farm Bill programs and tax incentives. Finally, the federal government facilitates conservation through noncoercive funding, review, and technical assistance programs under the Farm Bill, the National …

Redefining The Safe Third Country Exception Of The Immigration And Nationality Act In The Wake Of Trump, Daniel E. Rabbani

Brooklyn Law Review

The U.S. Immigration and Nationality Act lays out when an asylum seeker has the right to apply for asylum in the United States. This right is not available, however, when an asylum seeker passes through a designated Safe Third Country. A Safe Third Country is an internationally used concept that, pursuant to an international agreement, requires refugees to seek asylum in the first safe country that they step foot in. As the Safe Third Country exception on the Immigration and Nationality Act stands now, there are no guidelines on how to evaluate whether a country is in fact safe. This …

Putting A Finger On Biometric Privacy Laws: How Congress Can Stitch Together The Patchwork Of Biometric Privacy Laws In The United States, Eliza Simons

Brooklyn Law Review

The use of biometric identification in the consumer industry has grown immensely over the last decade and is projected to continue growing at an even faster rate. As private entities abandon password-based security systems and opt for the more secure, convenient, and cost-effective method of using biometric data, individuals are worried how that information will be protected. Although the right to privacy has always been valued in the United States, Congress has yet to specifically address biometric privacy. This note sets the legal landscape of privacy law, through the lens of biometric privacy, by surveying four categories of privacy law: …

Avoiding Wasteful Competition: Why Trading On Inside Information Should Be Illegal, Michael D. Guttentag

Brooklyn Law Review

This article offers a new and compelling reason to make all trading based on inside information illegal. The value realized by trading on inside information is unusual in two respects. First, inside information is produced at little or no incremental cost and is nevertheless quite valuable. Second, profits made from trading on inside information come largely at the expense of others. When the value of something exceeds the cost to produce it, a wasteful race to be the first to capture the resulting surplus is likely to ensue. Similarly, resources expended solely to take something of value from others are …

A Call To Replace The Apa’S Notice-And-Comment Exemption For Guidance Documents, Crystal M. Cummings

Brooklyn Law Review

Section 553 of the APA requires public “notice-and-comment” before a federal agency issues substantive rules and exempts from these procedures guidance documents that merely offer nonbinding insight and assistance on existing law. The problem of federal agencies using the notice-and-comment exemption to issue legislative rules that are legally binding has garnered considerable attention. Congressional efforts to amend the APA in response have failed and, in turn, variations have been offered on a seemingly simple fix—mandate or encourage agencies to solicit public input before issuing guidance documents. This note characterizes these proposals as overlays on the § 553(b)(A) exemption. The note …

Without A Voice, Without A Forum: Finding Iirira Section 1252(G) Unconstitutional, Amanda Simms

Brooklyn Law Review

The Federal Tort Claims Act (FTCA) abrogates sovereign immunity in certain circumstances to allow private individuals, regardless of citizenship, to sue the United States for specific torts committed by government officials. Yet when two lawful permanent residents—located in different parts of the country—separately tried to sue the government for wrongful removal, one court dismissed the suit for lack of subject matter jurisdiction while the other court did not. These decisions, though reaching opposite conclusions, both relied on federal immigration statute 8 U.S.C. § 1252(g) in order to determine whether judicial review of immigrants’ removal orders is precluded. This note argues …

Tightening The Legal ‘Net’: The Constitution’S Supremacy Clause Straddle Of The Power Divide, Steven Ferrey

Michigan Journal of Environmental & Administrative Law

This article analyzes Constitutional Supremacy Clause tensions in preempting state law that addresses climate change and the rapid warming of the Planet. Net metering laws, enacted in 80% of U.S. states, are a primary legal mechanism to control and mitigate climate warming. This article analyzes three recent federal court decisions creating a preemptive Supremacy Clause stand-off between federal and state law and presents a detailed state-by-state analysis of which those 80% of states’ laws could be preempted by legal challenge.

If state net metering laws affected only ordinary technologies, this issue would not be front and center with global warming. …

Community Empowerment In Decarbonization: Nepa’S Role, Wyatt G. Sassman

Washington Law Review

This Article addresses a potential tension between two ambitions for the transition to clean energy: reducing regulatory red-tape to quickly build out renewable energy, and leveraging that build-out to empower low-income communities and communities of color. Each ambition carries a different view of communities’ role in decarbonization. To those focused on rapid build-out of renewable energy infrastructure, communities are a potential threat who could slow or derail renewable energy projects through opposition during the regulatory process. To those focused on leveraging the transition to clean energy to advance racial and economic justice, communities are necessary partners in the key decisions …

Adding Bite To The Zone Of Twilight: Applying Kisor To Revitalize The Youngstown Tripartite, Zachary W. Singer

Michigan Journal of Environmental & Administrative Law

In the half century and more since Justice Jackson’s famous concurrence in Youngstown Sheet & Tube Co. v. Sawyer, the fog surrounding acceptable executive power in national security and foreign affairs has only thickened. Today, whether presidents are responding to the challenges of an amorphous global war on terrorism or a global pandemic, they act against a backdrop of ambiguous constitutional and statutory authorization and shifting precedent. While Justice Jackson outlined zones of presidential power by tying that power to congressional acts, the Court subsequently watered down the test by looking to other factors, like legislative intent. At other …

Eia Directive Procedural Guarantees As Substantive Individual Rights In Il V. Land Nordrhein-Westfalen, Alexis Haddock

Michigan Journal of Environmental & Administrative Law

Environmental impact assessments serve as a necessary tool for attaining the goals of the Aarhus Convention and the EIA Directive (2011/92). The Aarhus Convention and EIA Directive aim to guarantee the public’s right to participate in environmental decision-making, to be provided information necessary to effectively participate, and to have access to a procedure to challenge a decision. The ECJ’s recent case IL v. Land Nordrhein-Westfalen articulates the current interpretation of the European Union Member States’ obligations under the EIA Directive to provide individuals standing to challenge impact assessment decisions. This opinion reaffirmed that in cases where the procedural defect did …