Administrative Law Commons^™

On The Difficulties Of Generalization – Pcaob In The Footsteps Of Myers, Humphrey’S Executor, Morrison And Freytag, Peter L. Strauss

Faculty Scholarship

In considering what to write for this welcome occasion, I was struck by a certain resonance among Paul's scholarship – at least that of which I was first aware, and which I have often used to impress on students the problems of due process analysis – the important post he now holds, and a story our joint mentor, Walter Gellhorn, liked to tell on himself. In the wake of the Supreme Court's paradigm-shifting opinion in Goldberg v. Kelly, with its confident pronouncement of eight procedural elements that, it reasoned, minimal due process must always require of administrative procedures, Paul made …

Tax Court Invalidates New Section 6501(E) Regulations, Steve R. Johnson

Scholarly Publications

The title of an article of mine in the Fall 2009 issue of the NewsQuarterly asked “What’s Next in the Section 6501(e) Overstated Basis Controversy?” The Tax Court answered that question on May 6, 2010, in its decision Intermountain Insurance Service of Vail, LLC v. Commissioner, 134 T.C. No. 11. In that decision, the court invalidated two temporary regulations that had been issued on September 24, 2009: sections 301.6229(c)(2)-IT and 301.6501(e)-IT.

Mending Holes In The Rule Of (Administrative) Law, Evan J. Criddle

Faculty Publications

No abstract provided.

Slides: The Promise And Peril Of Oil Shale: Federal Law And Policy, David Bernhardt

The Promise and Peril of Oil Shale Development (February 5)

Presenter: David Bernhardt, Brownstein Hyatt Farber Schreck, Denver, CO

13 slides

Fiduciary Administration: Rethinking Popular Representation In Agency Rulemaking, Evan J. Criddle

Faculty Publications

Do administrative agencies undermine popular sovereignty when they make federal law? Over the last several decades, some scholars have argued that rulemaking by unelected agency officials imperils popular sovereignty and that federal law should resolve the apparent tension between regulatory practice and democratic principle by allowing the President to serve as a proxy for the "will of the people" in the administrative state. According to this view, placing federal rulemaking power firmly within the President's managerial control would advance popular preferences throughout the federal system.

This conventional wisdom is misguided. As political scientists have long recognized, the electorate's relative disengagement …

Is The United States Tax Court Exempt From Administrative Law Jurisprudence When Acting As A Reviewing Court , Diane L. Fahey

Cleveland State Law Review

Commentators have argued that the Tax Court should fill in the gaps in its statutory authority for collection due process appeals by turning to traditional administrative law jurisprudence, including the APA, which suggestion the Tax Court has resisted despite the fact that the federal district court did so. The majority of the Tax Court insists that it has never been subject to administrative law jurisprudence or the APA, nor could it be. Most of the courts of appeals that have considered the issue have held that the Tax Court is bound by the APA and traditional administrative law jurisprudence when …

The Reviewability Of The President's Statutory Powers, Kevin M. Stack

Vanderbilt Law Review

From the Supreme Court's earliest days, it has reviewed some, but not all, challenges to the President's claims that a statute authorized his action. Not surprisingly, the Court's decisions granting review of the President's assertions of statutory powers have garnered more attention than its denials of review. Beginning with Marbury v. Madison1 and Little v. Barreme,2 gaining momentum in the twentieth century with the extensive discussion of statutory authority in Youngstown Sheet & Tube Co. v. Sawyer3 and Dames & Moore v. Regan,4 and accelerating in recent years with Hamdi v. Rumsfeld,5 Hamdan v. Rumsfeld,6 and Medellin v. Texas,7 the …

The Devolution Of Nepa: How The Apa Transformed The Nation's Environmental Policy, Sam Kalen

William & Mary Environmental Law and Policy Review

No abstract provided.

Slides: The Future Public Law Of Private Ecosystems, J. B. Ruhl

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: J.B. Ruhl, Florida State University Law School

18 slides

Slides: Meaningful Engagement: The Public's Role In Resource Decisions, Mark Squillace

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: Mark Squillace, Director, Natural Resources Law Center, University of Colorado Law School

22 slides

Historical Evolution And Future Of Natural Resources Law And Policy: The Beginning Of An Argument And Some Modest Predictions, Sally K. Fairfax, Helen Ingram, Leigh Raymond

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

8 pages.

Includes bibliographical references

"Sally Fairfax, UC-Berkeley, Helen Ingram, UC-Irvine, and Leigh Raymond, Purdue University" -- Agenda

Some Preliminary Thoughts On Contrasts And Convergence In Environmental And Natural Resources Law, Karin P. Sheldon

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

16 pages.

Includes bibliographical references

"Quotidian" Judges Vs. Al-Qaeda, Mark S. Davies

Michigan Law Review

In Terror in the Balance: Security, Liberty, and the Courts, University of Chicago law professors Eric A. Posner and Adrian Vermeule invite those of us worried about the American response to al-Qaeda to consider the proper role of judges. Judges, of course, are not being dispatched to the hills of Pakistan nor are they securing our borders or buildings. But as the executive seeks to implement a range of new policies in the name of protecting us from al-Qaeda, the judicial treatment of these policies shapes the American response. Posner and Vermeule suggest a kind of Hippocratic view of …

Beyond Chevron'S Domain: Agency Interpretations Of Statutory Procedural Provisions, Melissa M. Berry

Seattle University Law Review

Part II of the Article outlines the procedures required by the APA for agency adjudications. Part III discusses the three primary approaches that courts have followed to determine what triggers formal adjudicatory procedures and introduces the Chevron doctrine. Part IV examines how courts review agency interpretations of statutory provisions under Chevron and its progeny and explores two issues on the fringes of Chevron's domain-interpretations of agency jurisdiction and judicial review provisions-and the concerns that they raise. Next, using lessons from these analogous issues, Part V analyzes similar concerns about congressional intent, institutional competency, agency self-interest, and fairness in the …

Florida East Coast Railway And The Structure Of Administrative Law, Michael P. Healy

Law Faculty Scholarly Articles

A typical Administrative Law course presents the Supreme Court's decision in United States v. Florida East Coast Railway Co. as establishing the rule that statutory text quite close to the magic words, "on the record after opportunity for an agency hearing," is needed to trigger the Administrative Procedure Act's (APA) formal hearing requirements for a rulemaking. Florida East Coast Railway is a prime example of an underrated case because, even though the case is well known, its renown is a consequence only of its black letter rule about rulemaking procedures. Many scholars and practitioners do not appreciate the case for …

Statutes That Are Not Static – The Case Of The Apa, Peter L. Strauss

Faculty Scholarship

...[T]he lesson of the past two hundred years is that we will do well to be on our guard against all-purpose theoretical solutions to our problems. As lawyers we will do well to be on our guard against any suggestion that, through law, our society can be reformed, purified, or saved. The function of law, in a society like our own, is altogether more modest and less apocalyptic. It is to provide a mechanism for the settlement of disputes in the light of broadly conceived principles on whose soundness, it must be assumed, there is a general consensus among us. …

Slides: Nepa And Adaptive Management, Denise A. Dragoo

Best Management Practices and Adaptive Management in Oil and Gas Development (May 12-13)

Presenter: Denise A. Dragoo, Partner, Snell & Wilmer L.L.P., Salt Lake City, UT

22 slides

Judicial Review Of Copyright Examination, Thomas G. Field Jr

Law Faculty Scholarship

Copyright in qualifying United States works has always arisen upon creation. For many years, however, rights could be lost by failing to, e.g., provide notice, register and deposit copies when works were first published. In 1909 formal requirements were reduced, and the Supreme Court, in 1939, concluded that registration with the U.S Copyright Office was unnecessary to retain rights. Despite that, owners could not sue infringers without having registered.

Regarding registration as helpful if not obligatory, this paper compares the burden on moving parties in circumstances in which registration decisions may be challenged in courts.

Zurko, Gartside, And Lee: How Might They Affect Patent Prosecution?, Thomas G. Field Jr

Law Faculty Scholarship

Interactions between the PTO and the courts are more complex than for most agencies. PTO decisions may be challenged not only directly but also collaterally. In the latter context, the Supreme Court has sometimes been critical of the lax standards applied when issuing patents.

While being upheld in collateral review is the ultimate issue of concern to patentees, patents must first be obtained. Thus, this paper focuses on direct challenges to PTO actions--and more specifically, on the review arising under 35 U.S.C. §§ 141-44 as addressed in Zurko, Gartside, and Lee.

Since the Supreme Court reversed the …

Prescribing The Right Dose Of Peer Review For The Endangered Species Act, J.B. Ruhl

Vanderbilt Law School Faculty Publications

....what I examine here is whether scientific-style peer review, depending on how it is dosed out, could be counterproductive for environmental law.The use of peer review as a component of regulatory procedure has not received much discrete attention in environmental law literature, but it is truly the sleeping dog of the "sound science" movement. Understanding this concept requires some background on science and administrative law. The "sound science" movement, as its name suggests, advocates that environmental law decisions be based principally on scientific information and conclusions that have been derived through the rigorous, unbiased practice of science. Science is generally …

Legislating Chevron, Elizabeth Garrett

Michigan Law Review

One of the most significant administrative law cases, Chevron v. Natural Resources Defense Council, lnc., is routinely referred to as the "counter-Marbury." The reference suggests that Chevron's command to courts to defer to certain reasonable agency interpretations of statutes is superficially an uneasy fit with the declaration in Marbury v. Madison that "[i]t is emphatically the province and duty of the judicial department to say what the law is." According to the consensus view, Chevron deference is consistent with Marbury, as long as Congress has delegated to agencies the power to make policy by interpreting ambiguous statutory language or filling …

Are You Willing To Make The Commitment In Writing? The Apa, Aljs, And Ssa, Jeffrey Scott Wolfe

Oklahoma Law Review

No abstract provided.

Blackletter Statement Of Federal Administrative Law: Standing, Cynthia R. Farina

Cornell Law Faculty Publications

No abstract provided.

The Case For Strict Statutory Construction Of Mandatory Agency Deadlines Under Section 706(1), Catherine Zaller

William & Mary Law Review

No abstract provided.

Regulatory Improvement Legislation: Risk Assessment, Cost-Benefit Analysis, And Judicial Review, Fred Anderson, Mary Ann Chirba-Martin, E. Donald Elliott, Cynthia R. Farina, Ernest Gellhorn, John D. Graham, C. Boyden Gray, Jeffrey Holmstead, Ronald M. Levin, Lars Noah, Katherine Rhyne, Jonathan Baert Weiner

Cornell Law Faculty Publications

As the number, cost, and complexity of federal regulations have grown over the past twenty years, there has been growing interest in the use of analytic tools such as risk assessment and cost-benefit analysis to improve the regulatory process. The application of these tools to public health, safety, and environmental problems has become commonplace in the peer-reviewed scientific and medical literatures. Recent studies prepared by Resources for the Future, the American Enterprise Institute, the Brookings Institution, and the Harvard Center for Risk Analysis have demonstrated how formal analyses can and often do help government agencies achieve more protection against hazards …

Administrative Procedure Act Standards Governing Judicial Review Of Findings Of Fact Made By The Patent And Trademark Office, Peter J. Corcoran Iii

Richmond Journal of Law & Technology

The United States Patent and Trademark Office (the "PTO") is one of the oldest agencies in the American administrative system. Throughout the history of the United States Court of Appeals for the Federal Circuit ("Federal Circuit") and its predecessor courts, the factual decisions of the PTO administrative boards have been reviewed by the same standard that is applied to decisions of district courts. The standard that has been used is the "clearly erroneous" standard, and its use to review PTO decisions dates back over one hundred years.

Proposals For Reforming The Administrative Procedure Act: Globalization, Democracy And The Furtherance Of A Global Public Interest (Earl A. Snyder Lecture In International Law), Alfred C. Aman

Indiana Journal of Global Legal Studies

No abstract provided.

Zurko Raises Issue Of Patentability Standards, Thomas G. Field Jr.

Law Faculty Scholarship

In re Zurko isolated one of the oldest U.S. agencies from mainstream administrative law because the Federal Circuit has chosen to review the U.S. Patent and Trademark Office more as it would a federal district court. The case is important, if only because the Supreme Court rarely treats the PTO as an agency. Also, regardless of whether the issue or the Federal Circuit itself is the primary target, the decision could have a major effect on the type of case most commonly encountered by that court.

Multicultural Participation In The Public Hearing Process: Some Theoretical, Pragmatical, And Analeptical Considerations, John C. Duncan, Jr.

Journal Publications

Ideally, public participation in rule-making leads to better rules. Failure to involve the public obviously dilutes or vitiates democracy in crucial ways. This Article will discuss the hearing process of administrative rule-making, and ways that agencies can accommodate multi-cultural differences so as to improve both access to participation and the efficacy of that participation. Specifically, this paper will discuss the environmental justice movement. Part II of this Article places participation problems in context by looking at specific issues of environmental equity in the rule-making process. Part III examines the need to expand public participation as a desirable goal, discusses obstacles …

Annual Survey Of Virginia Law: Administrative Procedure, Charles Bonner, John Paul Jones, Henry M. Kohnlein

University of Richmond Law Review

Since the last report on developments in Virginia's law of administrative procedure, both her General Assembly and her courts have been busy making new law. This year's General Assembly revamped the Freedom of Information Act ("FOIA"), and made adjustments to laws regulating the periods in which agencies must decide certain types oflicensing cases and promulgate certain procedural regulations. Meanwhile, the courts of the Commonwealth were active in the field, addressing open questions concerning the following subjects: rulemaking, due process, evidence, timeliness, and judicial review.