Administrative Law Commons^™

Florida's Workers Compensation Law: The Pendulum Swings, Ursula Hirsch

Honors Undergraduate Theses

The intent of this paper is to discuss how the recent court rulings on the current workers compensation statutes will impact the rules to Florida’s workers compensation laws.

Workers Compensation system is a social justice system that protects both the employer and employee. Employees that are injured while in the course and scope of their employment give up the right to sue, making workers compensation an exclusive remedy. In exchange for giving up that right, the injured worker receives statutory benefits in a no-fault system.

This paper covers the legislative changes over the years that have impacted the constitutionality of …

The Twin Demons Of The Trump-Bannon Assault On Democracy, Joseph P. Tomain

Faculty Articles and Other Publications

On January 30, 2017, President Donald Trump signed an executive order "Reducing Regulation and Controlling Regulatory Costs." Then, on February 24, he signed an executive order on “Enforcing the Regulatory Reform Agenda.” Together these two executive orders constitute a severe threat to American society and the American economy. In the words of Stephen Bannon, Trump’s chief strategist, they represent a plan for “the deconstruction of the administrative state.”

The purpose of the administrative state can be most simply stated this way: Unless otherwise stated in the enabling legislation, government regulation makes sense when the benefits of regulation outweigh the costs …

Regulation Of Teacher Certification In Idaho: Proceedings Before Idaho's Professional Standards Commission Covering The Denial Of An Application For Or Action Against A Teaching Certificate, John E. Rumel

Articles

No abstract provided.

The Law Of Rules, Cory Marsolek

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Leidos And The Roberts Court's Improvident Securities Law Docket, Matthew C. Turk, Karen E. Woody

Scholarly Articles

For its October 2017 term, the U.S. Supreme Court took up a noteworthy securities law case, Leidos, Inc. v. Indiana Public Retirement System. The legal question presented in Leidos was whether a failure to comply with a regulation issued by the Securities and Exchange Commission (SEC), Item 303 of Regulation S-K (Item 303), can be grounds for a securities fraud claim pursuant to Rule 10b-5 and the related Section 10(b) of the 1934 Securities Exchange Act. Leidos teed up a significant set of issues because Item 303 concerns one of the more controversial corporate disclosures mandated by the SEC—an …

Should Regulatory Compliance Be A Goal Or A Constraint For Health Care Companies? Finding Effective Methods To Assure Compliance With The Federal Anti-Kickback Statute And The False Claims Act, Roni A. Elias

Florida A & M University Law Review

The stereotypical conception of compliance is reinforced by some of the fundamental assumptions about what the primary objectives of a corporation should be and about how a corporation should accomplish those objectives. According to the prevailing theory of corporate structure, a corporation exists for the sole purpose of earning profits for its shareholders, and all of its actions are to be directed toward that end. If compliance with the law is not an inherently profit making activity, it is to be treated as a constraint on the corporation's efficient operation. According to this view, compliance will generally be considered a …

Restoring Chevron's Domain, Jonathan Adler

Faculty Publications

For some three decades, Chevron USA v. Natural Resources Defense Council has stood at the center of administrative law. Today, however, there are doubts about the doctrine’s continued vitality, and perhaps even its ultimate desirability. This brief article, based upon remarks delivered at Missouri Law Review symposium, suggests the scope of Chevron’s domain should be determined by its doctrinal grounding. Specifically, insofar as the Court’s subsequent application and elucidation of Chevron have indicated that the doctrine is predicated on a theory of delegation, courts should only provide such deference when the relevant power has been delegated by Congress. Correspondingly, …

The Shadow Of Free Enterprise: The Unconstitutionality Of The Securities & Exchange Commission's Administrative Law Judges, Linda D. Jellum, Moses M. Tincher

Articles

Six years ago, Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), for the first time giving the Securities and Exchange Commission (SEC) the power to seek monetary penalties through its in-house adjudication. The SEC already had the power to seek such penalties in federal court. With the Dodd-Frank Act, the SEC’s enforcement division could now choose between an adjudication before an SEC Administrative Law Judge (ALJ) or a civil action before an Article III judge. With this new choice, litigants contended that the SEC realized a significant home-court advantage. For example, the Wall Street Journal …

Make-Whole Or Make-Short? How Courts Have Misread Title Vii's Limitations Period To Truncate Relief In Eeoc Pattern-Or-Practice Cases, Sara A. Fairchild

American University Law Review

No abstract provided.

Constitutionally Conforming Agency Adjudication, Jennifer L. Mascott

Scholarly Articles

In June 2017 the D.C. Circuit issued a judgment that essentially reaffirms the constitutionality of current appointments procedures for administrative law judges (ALJs) in the Securities and Exchange Commission (SEC). After conducting an en banc hearing in the case, the en banc court split evenly over whether the ALJs are “Officers of the United States” subject to the constitutional requirement of appointment by the president, a department head, or a court of law. The evenly divided vote resulted in the affirmance of the D.C. Circuit’s earlier panel decision finding that the ALJs are not “officers”—continuing the court’s split with the …

A Rock Unturned: Justice Scalia's (Unfinished) Crusade Against The Seminole Rock Deference Doctrine, Kevin O. Leske

Faculty Scholarship

No abstract provided.

Irreconcilable Similarities: The Inconsistent Analysis Of 212(C) And 212(H) Waivers, Kate Aschenbrenner Rodriguez

Faculty Scholarship

No abstract provided.

Blood Biofuels, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Contractors’ State License Board, Mayra Castro, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.

A Stinging Effect: The Legal Implications Biting Into The Effects Of The Zika Virus, Keanu Bader Mr

Honors Undergraduate Theses

People are afraid of contagious diseases. The thought that disease can spread throughout an entire population tends to make people wary of their interactions with their surrounding environment. Hearing about, or even seeing pictures of mosquitoes can make people squeamish or even stimulate an itch. Throughout the ages, the reaction to contagious diseases has been to quarantine and isolate. From the bubonic plague to the 1918 “Spanish” flu, the protocol was to quarantine those infected and isolate the rest. It may be this practice that inspired such precautions be taken by the public. Often these precautions are not warrantless and …

Do Sagebrush Rebels Have A Colorable Claim? The Space Between Parochialism And Exclusion In Federal Lands Management, Ann M. Eisenberg

Faculty Publications

This Article asks whether the troubling nature of the Sagebrush Rebellion and similar movements (e.g., their violence, antienvironmentalism, and racist overtones) has made us overly dismissive of a kernel of truth in their complaints. Commentators often acknowledge that federal lands management may be “unfair” to local communities, but the ethical and legal characteristics of the unfairness concern remain under-explored. Although the Sagebrush Rebellion and federal lands communities are far from synonymous, substantial overlap between the complaints and demands of Sagebrush Rebels and the complaints and demands of many regional local (and state) governments suggests that to explore the one necessitates …

The Shadow Of Free Enterprise: The Unconstitutionality Of The Securities & Exchange Commission's Administrative Law Judges, Linda Jellum

Articles

Six years ago, Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), for the first time giving the Securities and Exchange Commission (SEC) the power to seek monetary penalties through its in-house adjudication. The SEC already had the power to seek such penalties in federal court. With the Dodd-Frank Act, the SEC's enforcement division could now choose between an adjudication before an SEC Administrative Law Judge (ALJ) or a civil action before an Article III judge. With this new choice, the SEC realized a significant home-court advantage. For example, in 2014, the SEC's enforcement division prevailed …

Pueblo Indian Water Rights: Charting The Unknown, Richard W. Hughes

Publications

This article examines the so-far-unsuccessful efforts to judicially define and quantify the water rights appurtenant to the core land holdings of the 19 New Mexico Pueblos, many of whose lands straddle the Rio Grande. It explains that the Tenth Circuit Court of Appeals has squarely held that Pueblo water rights are governed by federal, not state law, and are prior to those of any non-Indian appropriator, but also that the Tenth Circuit acknowledged that it could not say how those rights should be characterized. Part I of the article examines the course of the cases that have sought to achieve …

Simplexity: Plain Language And The Tax Law, Joshua D. Blank, Leigh Osofsky

Articles

In recent years, federal government agencies have increasingly attempted to use plain language in written communications with the public. The Plain Writing Act of 2010, for instance, requires agencies to incorporate "clear and simple" explanations of rules and regulations into their official publications. In the tax context, as part of its "customer service" mission, the Internal Revenue Service bears a "duty to explain" the tax law to hundreds of millions of taxpayers who file tax returns each year. Proponents of the plain language movement have heralded this form of communication as leading to simplicity in tax compliance, more equitable access …

A Better Calculus For Regulators: From Cost-Benefit Analysis To The Social Welfare Function, Matthew D. Adler

Faculty Scholarship

The “social welfare function” (SWF) is a powerful tool that originates in theoretical welfare economics and has wide application in economic scholarship, for example in optimal tax theory and environmental economics. This Article provides a comprehensive introduction to the SWF framework. It then shows how the SWF framework can be used as the basis for regulatory policy analysis, and why it improves upon cost-benefit analysis (CBA).

Two types of SWFs are especially plausible: the utilitarian SWF, which sums individual well-being numbers, and the prioritarian SWF, which gives extra weight to the well-being of the worse off. Either one of these …

Signing Statements And Presidentializing Legislative History, John De Figueiredo, Edward H. Stiglitz

Faculty Scholarship

Presidents often attach statements to the bills they sign into law, purporting to celebrate, construe, or object to provisions in the statute. Though long a feature of U.S. lawmaking, the President has avowedly attempted to use these signing statements as tool of strategic influence over judicial decision making since the 1980s — as a way of creating “presidential legislative history” to supplement and, at times, supplant the traditional congressional legislative history conventionally used by the courts to interpret statutes. In this Article, we examine a novel dataset of judicial opinion citations to presidential signing statements to conduct the most comprehensive …

Benchmark Regulation, Gina-Gail S. Fletcher

Faculty Scholarship

Benchmarks are metrics that are deeply embedded in the financial markets. They are essential to the efficient functioning of the markets and are used in a wide variety of ways—from pricing oil to setting interest rates for consumer lending to valuing complex financial instruments. In recent years, benchmarks have also been at the epicenter of numerous, multi-year market manipulation scandals. Oil traders, for example, deliberately execute trades to drive benchmarks lower artificially, allowing the traders to capitalize on the manipulated benchmarks. This ensures that later trades relying on the benchmarks will be more profitable than they otherwise would have been. …

Summary Narrative Of Chief Compliance Officer Liability, Luke Trompeter

American University Business Law Review

No abstract provided.

Improving Green Building: Comparing Leed Certification To The Fda And Its Private, Third Party Rating Approach, Patrick Kain

American University Business Law Review

No abstract provided.

The Battle Over U.S. Water: Why The Clean Water Rule "Flows" Within The Bounds Of Supreme Court Precedent, Ashleigh Allione

American University Law Review

No abstract provided.

How Privacy Distorted Standing Law, Felix T. Wu

Articles

No abstract provided.

Rulemaking Ex Machina, Melissa Mortazavi

Faculty Articles

Emerging technologies promise to expedite administrative rulemaking by analyzing public input through computerized natural language rather than clunky, old human brains. Moving far beyond software that keyword searches and deduplicates content, natural language processing (as a type of predictive coding) employs artificial intelligence that adapts and modulates depending on inputs, rendering it fluid and dynamic. With the current concerted push to streamline agencies, the question of how and when to use automation in rulemaking will likely be decided in the next year. Considering that recently, a single proposed rule garnered over 3.7 million public comments, mechanisms that can make comprehending …

Building Bridges: Why Expanding Optional Practical Training Is A Valid Exercise Of Agency Authority And How It Helps F-1 Students Transition To H-1b Worker Status, Pia Nitzschke

American University Law Review

No abstract provided.

Advancing Auer In An Era Of Retreat, Stephen M. Johnson

Articles

At the dawn of the modern administrative state, the Supreme Court held, in Bowles v. Seminole Rock & Sand Company, that an agency’s interpretation of its own regulation is “of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” A half century later, the Court retained that approach in Auer v. Robbins, a decision authored by Justice Scalia. Auer deference is generally regarded as the most accommodating standard of judicial review applied by courts to agency decision-making.

Although the Supreme Court created Seminole Rock/Auer deference more than seventy years ago, the Court has created exceptions to …

Sharing The Skies: The Legal State Of “Flight-Sharing” After Flytenow And Current Regulatory Issues With Lyfting The Sharing Economy Off The Ground, Alexander P. Cohen

Journal of Air Law and Commerce

No abstract provided.