Administrative Law Commons^™

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 …

Information Mischief Under The Trump Administration, Nathan Cortez

Chicago-Kent Law Review

The Trump administration has used government information in more cynical ways than its predecessors. For example, it has removed certain information from the public domain, scrubbed certain terminology from government web sites, censored scientists, manipulated public data, and used “transparency” initiatives as a pretext for anti-regulatory policies, particularly environmental policy. This article attempts to tease out an emerging “information policy” for the Trump administration, explain how it departs from the information policies of predecessors, and evaluate the extent to which both legal and non-legal mechanisms might constrain executive discretion.

Civil Servant Disobedience, Jennifer Nou

Chicago-Kent Law Review

Bureaucratic resistance is a historically unexceptional feature of the administrative state. What is striking is the extent to which it has become publicly defiant under the Trump Administration. Civil servants are openly defying executive directives in their official capacity, despite strong norms to the contrary. The social practice raises both parallels and contrasts to civil disobedience by private citizens; it thus similarly raises the need for sustained scholarly debate. This article seeks to isolate the phenomenon of civil servant disobedience conceptually and begin an exploration into its normative implications. In particular, it considers the ideal of a reciprocal hierarchy, whereby …

Regulatory Review In Anti-Regulatory Times, Daniel A. Farber

Chicago-Kent Law Review

This article investigates the role of cost-benefit analysis during an antiregulatory period. The period since 2016 has seen several new developments, including the first vigorous use by Congress of its power to overturn recently issued regulations and the creation of novel deregulatory mechanisms layered on top of cost-benefit analysis. This period also contains important examples of sharply reversed CBAs, in which regulations that were said to have large net benefits under Obama are instead said to have net costs under Trump. The Trump Administration’s regulatory review initiatives focus heavily on costs, with limited attention to benefits. Case studies of three …

Legislative Committee Abbreviations

California Regulatory Law Reporter

No abstract provided.

Prosecutors At The Periphery, Peter M. Shane

Chicago-Kent Law Review

Contrary to so-called unitary executive theory, Article II does not guarantee presidents the power to control federal criminal prosecution, a supervisory role Congress has placed by statute with the Attorney General. Nor is Congress without authority to protect federal prosecutors from policy-based dismissals. Rule-of-law values embodied in our system of checks and balances could alone justify these conclusions. But the same conclusions follow also from close attention to the entirety of the relevant constitutional text and from an understanding of how the Founding generation would have understood the relationship between executive power and criminal prosecution. In contemplating the newly proposed …

Executive Rulemaking And Democratic Legitimacy: "Reform" In The United States And The United Kingdom's Route To Brexit, Susan Rose-Ackerman

Chicago-Kent Law Review

Established public law principles are under strain from the prospect of Brexit in the United Kingdom and the Trump Administration in the United States. In the United Kingdom the Parliament is playing an increasingly important role in overseeing the Government, and the judiciary is beginning to support democratic accountability in executive policymaking. In the United States, possible statutory changes and the power of the president to reshape the public administration are of concern. Although in the United States the most draconian measures will likely die with the return of the House to Democratic Party control, they may remain on the …

Appalachian Voices V. State Water Control Board, Thomas C. Mooney-Myers

Public Land & Resources Law Review

The Virginia State Water Control Board certified the issuance of permits for the construction of a natural gas pipeline that traversed over 300 miles of Virginia in addition to other states. Local environmental groups and individuals petitioned the Fourth Circuit to review the certification under the Administrative Procedure Act. The Fourth Circuit Court of Appeals gave deference to the agency’s actions and denied the petition for review.

Dental Board Of California, Helene E. Mayer, Debra Jorgensen

California Regulatory Law Reporter

No abstract provided.

Department Of Managed Health Care, Kaitlyn Enticknap, Monet Mccord, Debra Jorgensen

California Regulatory Law Reporter

No abstract provided.