Administrative Law Commons^™

Legislative Committee Systems: A Design Perspective, Chase Stoddard

Indiana Journal of Constitutional Design

Committees are the defining characteristic of the modern legislature. While the centrality and study of party politics goes back further than committee politics, the focus on committee systems emerged over the course of the twentieth century, and legislatures could not function as we understand them without this mechanism. The United States Congressional committee system is the most studied system, yet virtually every country utilizes a committee system of some sort within its legislature. Despite their ubiquity in and centrality to the operations of legislatures, committees remain insufficiently studied, especially outside of the United States. The existing body of work tends …

Taxonomy Of Minority Governments, Lisa La Fornara

Indiana Journal of Constitutional Design

A minority government in its most basic form is a government in which the party holding the most parliamentary seats still has fewer than half the seats in parliament and therefore cannot pass legislation or advance policy without support from unaffiliated parties. Because seats in minority parliaments are more evenly distributed amongst multiple parties, opposition parties have greater opportunity to block legislation. A minority government must therefore negotiate with external parties and adjust its policies to garner the majority of votes required to advance its initiatives.

This paper serves as a taxonomy of minority governments in recent history and proceeds …

Highway Culverts, Salmon Runs, And The Stevens Treaties: A Century Of Litigating Pacific Northwest Tribal Fishing Rights, Ryan Hickey

Public Land & Resources Law Review

Isaac Stevens, then Superintendent of Indian Affairs and Governor of Washington Territory, negotiated a series of treaties with Indian tribes in the Pacific Northwest during 1854 and 1855. A century and a half later in 2001, the United States joined 21 Indian tribes in filing a Request for Determination in the United States District Court for the District of Washington. Plaintiffs alleged the State of Washington had violated those 150-year-old treaties, which remained in effect, by building and maintaining culverts under roads that prevented salmon passage. This litigation eventually reached the Ninth Circuit Court of Appeals, which held in favor …

Collaboration Through Nepa: Achieving A Social License To Operate On Federal Public Lands, Temple Stoellinger, L. Steven Smutko, Jessica M. Western

Public Land & Resources Law Review

As demand and consumption of natural gas increases, so will drilling operations to extract the natural gas on federal public lands. Fueled by the shale gas revolution, natural gas drilling operations are now frequently taking place, not only in the highly documented urban settings, but also on federal public lands with high conservation value. The phenomenon of increased drilling in sensitive locations, both urban and remote, has sparked increased public opposition, requiring oil and gas producers to reconsider how they engage the public. Oil and gas producers have increasingly deployed the concept of a social license to operate to gain …

Public-Private Conservation Agreements And The Greater Sage-Grouse, Justin R. Pidot

Public Land & Resources Law Review

In 2015, the Obama Administration announced its conservation plans for the greater sage-grouse, an iconic bird of the intermountain west.Political leadership at the time described those plans as the “largest landscape-level conservation effort in U.S. history,”and they served as the foundation for a decision by the U.S. Fish and Wildlife Service (“FWS”) that a listing of the bird was not warranted under the Endangered Species Act (“ESA”). The Trump Administration appears poised to substantially amend the plans, although an array of interested parties have urged that the plans be left intact. Regardless of the outcome of this debate, conservation of …

Streamlining The Production Of Clean Energy: Proposals To Reform The Hydroelectricity Licensing Process, Travis Kavulla, Laura Farkas

Public Land & Resources Law Review

Hydroelectric power is an efficient and clean source of power. In an era when air emissions dominate public concern about the environmental effects of the energy sector, it is a paradox that among the most highly regulated energy projects are hydroelectric dams, which do not combust fuel. This is partly due to a failure of successive statutory enactments,which have transformed hydroelectric licensing from a regulatory “one-stop shop” with a single regulator, to a process chained to a bewilderingnumber of often conflicting regulatory agencies, often riven with delay. Hydroelectric licensing has also failed because its capacious standard of review encourages special-interest …

Keeping Power In Charge: Federal Hydropower And The Downstream Environment, Reed D. Benson

Public Land & Resources Law Review

No abstract provided.

Language Matters: Environmental Controversy And The Quest For Common Ground, Scott Slovic

Public Land & Resources Law Review

No abstract provided.

Center For Biological Diversity V. Zinke, Ryan Hickey

Public Land & Resources Law Review

The oft-cited “arbitrary and capricious” standard revived the Center for Biological Diversity’s most recent legal challenge in its decades-long quest to see arctic grayling listed under the Endangered Species Act. While this Ninth Circuit decision did not grant grayling ESA protections, it did require the United States Fish and Wildlife Service to reconsider its 2014 finding that listing grayling as threatened or endangered was unwarranted. In doing so, the court found “range,” as used in the ESA, vague while endorsing the FWS’s 2014 clarification of that term. Finally, this holding identified specific shortcomings of the challenged FWS finding, highlighting how …

Friends Of Animals V. United States Fish & Wildlife Service, Bradley E. Tinker

Public Land & Resources Law Review

In Friends of Animals v. United States Fish & Wildlife Service, the Ninth Circuit held that the plain language of the Migratory Bird Treaty Act allows for the removal of one species of bird to benefit another species. Friends of Animals argued that the Service’s experiment permitting the taking of one species––the barred owl––to advance the conservation of a different species––the northern spotted owl––violated the Migratory Bird Treaty Act. The court, however, found that the Act delegates broad implementing discretion to the Secretary of the Interior, and neither the Act nor the underlying international conventions limit the taking of …

Much Ado About Nothing?: Local Resistance And The Significance Of Sanctuary Laws, Alyssa Garcia

Seattle University Law Review

This Comment explores the current constitutional discourse of sanctuary laws and compares their various components. Part I provides background on the basic policy components of sanctuary laws and modern policies. Part II explores and compares the substantive legal and political value of sanctuary laws. This section will first assess the impact of sanctuary policies on existing immigration and constitutional law. In doing so, specific sanctuary jurisdictions involved in litigation, Seattle, San Francisco, and Chicago, and their likelihood of withstanding preemption under existing doctrine will be compared. The impact sanctuary laws may have on the Tenth Amendment will next be discussed. …

Public Employees For Environmental Responsibility V. United States Epa, F. Aaron Rains

Public Land & Resources Law Review

Prior to 2016, the EPA acknowledged that human activities significantly contribute to climate change. However, on March 9, 2017, EPA Administrator Scott Pruitt announced that significant debate regarding the issue remained in the scientific community. In response to these statements, a nonprofit organization filed a FOIA request with the EPA seeking any documents or records Pruitt may have used when formulating his statements or substantiating his position. The EPA refused to comply with the request, citing undue burden and improper interrogation and this action followed. Upon review, the District Court for the District of Columbia found the plaintiff’s FOIA request …

Why Kavanaugh Should Not Attend The White House Ceremony, Michael Herz

Online Publications

Brett Kavanaugh is now Justice Kavanaugh. He has been nominated, confirmed and — in a private ceremony on Saturday conducted by Chief Justice John Roberts and the retired Justice Anthony Kennedy — sworn in. There is nothing left to do. So why is he scheduled to be at the White House on Monday evening for a public ceremony, one that President Trump has inaccurately called a “swearing-in ceremony”?

Some Aspects Of Public Service In Foreign Countries: A Comparative Legal Analysis, M Rakhimova

ProAcademy

This a rticle analyzes som e aspects re la te d to the process o f d ete rm in ing a n d d e ve lo p in g the civil service. The analysis o f p ractice o f a n um b e r o f W est countries a n d the R epublic o f U zbekistan on p u b lic service issues is given.

It Is Necessary To Adopt The Code Of Misdemeanors, M Mamasiddikov

ProAcademy

The article analyzes the le g a l fra m e w o rk fo r the provision o f p u b lic services in Uzbekistan, the p rio rity a rea s fo r re fo rm in g th e p u b lic service system, a n d a n analysis o f fo re ig n experience in the provision o f p u b lic services

Why And How Independent Agencies Should Conduct Regulatory Impact Analysis, Jerry Ellig

Cornell Journal of Law and Public Policy

Independent regulatory agencies face increasing pressure to conduct high-quality economic analysis of regulations, similar to the regulatory impact analysis conducted by executive branch agencies. Such analysis could be required by evolving judicial doctrines, regulatory reform statutes, or executive order. This article explains how regulatory impact analysis can contribute to smarter regulation, documents the current low quality of such analysis at many independent regulatory agencies, and offers a blueprint that independent agencies can use to build their capacity to conduct objective, high-quality analysis.

Agency Pragmatism In Addressing Law’S Failure: The Curious Case Of Federal “Deemed Approvals” Of Tribal-State Gaming Compacts, Kevin K. Washburn

University of Michigan Journal of Law Reform

In the Indian Gaming Regulatory Act of 1988 (IGRA), Congress imposed a decision-forcing mechanism on the Secretary of the Interior related to tribal-state compacts for Indian gaming. Congress authorized the Secretary to review such compacts and approve or disapprove each compact within forty-five days of submission. Under an unusual provision of law, however, if the Secretary fails to act within forty-five days, the compact is “deemed approved” by operation of law but only to the extent that it is lawful. In a curious development, this regime has been used in a different manner than Congress intended. Since the United States …

Eroding Immigration Exceptionalism: Administrative Law In The Supreme Court's Immigration Jurisprudence, Kate Aschenbrenner

Faculty Scholarship

No abstract provided.

Accusers As Adjudicators In Agency Enforcement Proceedings, Andrew N. Vollmer

University of Michigan Journal of Law Reform

Largely because of the Supreme Court’s 1975 decision in Withrow v. Larkin, the accepted view for decades has been that a federal administrative agency does not violate the Due Process Clause by combining the functions of investigating, charging, and then resolving allegations that a person violated the law. Many federal agencies have this structure, such as the Securities and Exchange Commission (SEC) and the Federal Trade Commission.

In 2016, the Supreme Court decided Williams v. Pennsylvania, a judicial disqualification case that, without addressing administrative agencies, nonetheless raises a substantial question about one aspect of the combination of functions at agencies. …

Infrastructural Exclusion And The Fight For The City: Power, Democracy, And The Case Of America's Water Crisis, K. Sabeel Rahman

Faculty Scholarship

No abstract provided.

Abandoned But Not Forgotten: Improperly Plugged And Orphaned Wells May Pose Serious Concerns For Shale Development, Bret Wells, Tracy Hester

Michigan Journal of Environmental & Administrative Law

This Article addresses the intersection of oil and gas law and environmental law on a topic that has profound significance for the nation’s oil industry and for the environment. In this regard, the Permian Basin is experiencing a renaissance that has fundamentally impacted oil production in the United States. Horizontal drilling and hydraulic fracturing now allow the industry to produce in the Permian Basin’s unconventional shale formations in ways that were unimaginable a decade ago. But, the hot shale plays within the Permian Basin exist above conventional fields that are littered with a century’s worth of abandoned wells. Fracturing new …

Patent Trolls, Nuisance Suits, And The Federal Trade Commission, Matthew Spitzer

North Carolina Journal of Law & Technology

The Federal Trade Commission’s (“FTC’s”) Patent Assertion Entity Activity Report (“The Report”) includes a path-breaking collection of data. The Report was compiled with the object of changing policy, both in Congress and before the courts. Because of the FTC’s ability to force businesses and individuals to provide information, a power that no ordinary researcher possesses, the FTC has amassed a data set that can potentially be of great value. For example, the Report’s description of litigation Patent Assertion Entities’ (“PAEs”) and portfolio PAEs’ structure and behavior is, although not entirely new, very instructive. Unfortunately, the FTC made analytical errors that …

Cybersecurity Of Autonomous Systems In The Transportation Sector: An Examination Of Regulatory And Private Law Approaches With Recommendations For Needed Reforms, Jeanne C. Suchodolski

North Carolina Journal of Law & Technology

The past twenty-five years gave rise to increasing levels of automation within the transportation sector. From initial subsystems, like vessel satellite tracking and automobile chassis control, automation continues apace. The future promises fully autonomous devices such as unmanned aerial systems (“UAS”) and self-driving cars (“UAV”). These autonomous and automatic systems and devices (“AASD”) provide safety, efficiency, and productivity benefits. Yet AASD operate under continual threat of cyber-attack. ¶ Compromised AASD can produce dire consequences in the transportation sector. The possible consequences extend far beyond financial harms to severe bodily injury or even death. Given both the prevalence of cyber threats …

Language's Empire: A Counter-Telling Of Administrative Law In Canada, Nicholas Hooper

LLM Theses

This thesis renders the unstated assumptions that animate statutory interpretation in the administrative state. It argues that the current approach is a disingenuous rhetorical overlay that masks the politics of definitional meaning. After rejecting the possibility of structuring principles in our (post)modern oversaturation of signs, the thesis concludes with an aspirational account of interpretive pragmatism in the face of uncertainty.

The Tethered President: Consistency And Contingency In Administrative Law, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

The law governing administrative agency policy change and the checking of unjustified inconsistency is rooted in a web of intertwined doctrine. The Supreme Court’s 2016 opinion in Encino Motorcars modestly recast that doctrine to emphasize that the agency pursuing a change cannot leave “unexplained inconsistency” or neglect to address past relevant underlying facts, but reaffirmed its central stable precepts. Nonetheless, radically different views about broad, unaccountable, and agency power to make rapid policy changes have been articulated by Justice Neil Gorsuch while on the Tenth Circuit and by agencies pursuing deregulatory policy shifts under the leadership of President Donald J. …

Swamp Money: The Opportunity And Uncertainty Of Investing In Wetland Mitigation Banking, Elan L. Spanjer

Northwestern University Law Review

In recent years, the wetland mitigation banking program has emerged as a favored mechanism for protecting the nation’s aquatic resources while allowing for economically beneficial development projects to proceed. Mitigation banks generate wetland credits, which in turn can be sold at a profit to developers who need them to offset wetland impacts. The number of mitigation banks has grown significantly in recent years, and the market has seen an influx of institutional investment. However, investors face significant risks and uncertainty, and many prospective investors lack access to information about wetland credit prices—which are neither reported to the regulatory authorities nor …

Administrative Law's Political Dynamics, Kent Barnett, Christina L. Boyd, Christopher J. Walker

Vanderbilt Law Review

Over thirty years ago, the Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. commanded courts to uphold federal agency interpretations of ambiguous statutes as long as those interpretations are reasonable. This Chevron deference doctrine was based in part on the Court's desire to temper administrative law's political dynamics by vesting federal agencies, not courts, with primary authority to make policy judgments about ambiguous laws Congresscharged the agencies to administer. Despite this express objective, scholars such as Frank Cross, Emerson Tiller, and Cass Sunstein have empirically documented how politics influence circuit court review of agency statutory interpretations …

A Fish Out Of Water: Why The Gao's Approach To Finding Agency Propaganda Is Inadequate In The Social Media Age, Jennifer Pierce

Cardozo Law Review

No abstract provided.

Peluang Penyelesaian Sengketa Perdata Tentang Tanah Melalui Alternative Dispute Resolution Dengan Asas-Asas Hukum Perjanjian Di Dalamnya, Made Oka Cahyadi Wiguna

Jurnal Hukum & Pembangunan

The current developments, there are many land disputes that are vertical or horizontal. Issues concerning land affairs are often caused by salim claims over land rights. The intended land dispute is a civil dispute concerning the land. Achieving a win-win solution in the settlement of civil disputes over land is relatively difficult to materialize, if the settlement is resolved through a trial (litigation). The choice of law that can be chosen to obtain and realize a win-win solution in solving civil disputes over land is of course through alternative dispute resolution. By way of negotiation, mediation and conciliation. In the …

Pengawasan E Commerce Dalam Undang-Undang Perdagangan Dan Undang-Undang Perlindungan Konsumen, Deky Pariadi

Jurnal Hukum & Pembangunan

E-commerce started to expand significantly when the internet was introduced. Internet makes trade transactions no longer sees the boundaries of the country. The number of ease in accessing the internet makes consumer of e-commerce increased, some of the reasons, among others, is a practical, easy payment systems, efficiency of time and the many attractive promo price of online businesses. But reversed all the convenience and benefits offered, also arises concerns about online corporate responsibility to the consumer e-commerce because so many companies online. Act No. 7 of 2014 on Trade (Commerce Act) and Law No. 8 of 1999 on Consumer …