Administrative Law Commons^™

Refugee Roulette In An Administrative Law Context: The Deja Vu Of Decisional Disparities In Agency Adjudication, Margaret H. Taylor

Journal of the National Association of Administrative Law Judiciary

In Refugee Roulette: Disparities in Asylum Adjudication (the Asylum Study), Professors Ramji-Nogales, Schoenholtz, and Schrag provide a comprehensive analysis of new data to document decisional disparities that undermine the fairness of asylum adjudication. The Asylum Study is an empirical project of remarkable scope. It examines patterns of asylum decisions at four different adjudication levels: at the asylum office interview, in immigration court, on administrative appeal to the Board of Immigration Appeals (BIA), and on petition for review to the federal courts of appeals. At each level, the Asylum Study generates empirical findings to support what we knew mostly by anecdote …

Administrative Decision-Making By Judges In The United States' Environmental Protection Agency Administrator's Civil Penalty Assessment Process: Whatever Happened To The Law?, Richard R. Wagner

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

How Administrative Law Halted The Death Penalty In Maryland , Arnold Rochvarg

Journal of the National Association of Administrative Law Judiciary

Numerous arguments have been raised to halt the death penalty, including constitutional claims such as ineffective assistance of counsel, equal protection, right to trial by jury, and cruel and unusual punishment. The winning argument, however, in Evans v. State, a Maryland death penalty appeal, was based not on constitutional or criminal law, but rather Administrative Law. A death row inmate attacked the validity of the procedures for administering lethal injection capital punishment because the Maryland Department of Corrections had not followed the proper statutory procedures for adopting the regulation which set forth the capital punishment process. In order for a …

Substantial Evidence Review In Social Security Cases As An Issue Of Fact, Morton Denlow

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Due Process; A Detached Judge; And Enemy Combatants, Julian Mann Iii

Journal of the National Association of Administrative Law Judiciary

In the landmark administrative law decision of Goldberg v. Kelly, Justice Brennan stated that an “impartial decision maker is essential” to procedural due process. As a corollary, in the more recent decision of Hamdi v. Rumsfeld, Justice O'Connor stated that “due process requires a neutral and a detached judge in the first instance.” Thus, the due process clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution require that the essential element of neutrality remain an integral part of any administrative hearing. There can be no departure from this fundamental guarantee of constitutional due process for the administrative hearings …

Appeal No. 0846: Frederick Petroleum V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Order 2012-22

Legal Summaries, Oscar Gutierrez

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Trust Issues: Will President Barack Obama Reconcile The Tenuous Relationship Between Antitrust Enforcement Agencies?, Kelly Everett

Journal of the National Association of Administrative Law Judiciary

Given the importance President Obama has placed on antitrust law, this comment will address the tenuous relationship between the FTC and the DOJ, and the likelihood the Obama Administration will reconcile it. This comment will first explore the development and purpose of antitrust law in the United States. Second, it will discuss why the FTC and DOJ have a contentious and ineffective relationship. Third, it will address the narrowing effect the Obama Administration is likely to have on antitrust enforcement, despite the downturned economy. Finally, this comment will summarize what circumstances created a climate of under-enforcement and uncertainty, and describe …

The Supreme Court's Bright Line Ruling In Riegel V. Medtronic, Inc. Gives Manufacturers Of Defective Medical Devices Broad Immunity, Sadaf Bathaee

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

"Yes, We Can" Grant Guantánamo Detainees Habeas Corpus Rights, In Boumediene V. Bush, Sarah Christian

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Administrative Hearing Opinion, E. Barrett Prettyman

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Know Your Audience: How Nyc Tribunals Have Addressed Self-Represented Litigants And Increased Access To Justice, Sherry M. Cohen, Joanna Weiss

Journal of the National Association of Administrative Law Judiciary

The first rule of communication is to know your audience. The “audience” at hearings in New York City (NYC) tribunals is mostly comprised of self-represented respondents with Limited English Proficiency. In order to provide full access to the hearing process, NYC tribunals must know and understand the needs of this audience of respondents. The challenge is not only to keep this audience engaged, but also to ensure that it can navigate and fully participate in the hearing process. Tribunals must communicate in a way that protects the respondents' rights and affords them an opportunity to be heard. NYC tribunals, especially …

The Times They Are A Changin': A New Jurisprudence For Social Security, Jeffrey S. Wolfe

Journal of the National Association of Administrative Law Judiciary

The Social Security Administration (SSA) is wading in waters knee deep and fast rising when it comes to what is described in repeated news stories as a rising tide of backlogged Social Security disability appeals. A change in the essential jurisprudence underlying hearings afforded to those appealing an administrative denial of Social Security disability benefits is necessary to remedy the single most pressing issue in the hearings and appeals process - the hue and cry over the pending backlog of such cases.

Considering Innovative Alternatives To Handling Cases Of Adults With Special Conditions Under The Social Security Act , Sarah Robichaud

Journal of the National Association of Administrative Law Judiciary

Title II and Title XVI of the Social Security Act provide critical support to individuals with disabilities. However, until recently, the way that the Social Security Administration processed medical information to make disability determinations had not changed in any fundamental way since the inception of the Act. The disability determination process is logical for many frequently handled, well-known conditions, yet there are a significant number of cases regarding special conditions that are not as well-known or as frequently considered by the Office of Disability Adjudication and Review, which administers hearings and appeals for the Social Security Administration. The Social Security …

Delineating Administrative Exhaustion Requirements And Establishing Federal Courts' Jurisdiction Under The Individuals With Disabilities Education Act: Lessons From The Case Law And Proposals For Congressional Action , Lewis M. Wasserman

Journal of the National Association of Administrative Law Judiciary

The Individuals with Disabilities Education Act (IDEA), enacted through Congress's Spending Clause Power, is the principal federal statute aimed at insuring that children with disabilities receive a Free Appropriate Public Education (FAPE) in the nation's public schools. The Act has spawned a substantial and growing body of litigation between parents and local and state educational agencies in federal and state courts during the last decade. During this period nearly 20%-21% of these cases have addressed the issue of exhaustion of IDEA's administrative remedies, and the related concern about federal courts' jurisdiction, when the law's exhaustion requirements have not been satisfied. …

Legal Summaries, Lisa Lester

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Advancing The Judicial Independence And Efficiency Of The Administrative Judiciary: A Report To The President-Elect Of The United States, Federal Administrative Law Judges Conference

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Self-Represented Litigants And The Access To Justice Revolution In The State Courts: Cross-Pollinating Perspectives Toward A Dialogue For Innovation In The Courts And The Administrative System, Richard Zorza

Journal of the National Association of Administrative Law Judiciary

In the last ten to fifteen years, state courts have responded to a tidal wave of self-represented litigants with a wide range of innovations that are fundamentally transforming the courts. These innovations impact the whole system and range from new ways of accepting cases into the system to innovative courtroom procedures and management practices, and from a more proactive process of managing the flow of cases to innovations that help make sure that the parties comply with the court's orders. Indeed, the Self-Represented Litigation Network, a national network of groups working for access to justice for the self-represented, has identified …

State Agency-Based V. Central Panel Jurisdiction: Is There A Deference?, A. Michael Nolan

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Summary Of Majuba Mining V. Pumpkin Copper, 129 Nev. Adv. Op. 19, Timothy A. Wiseman

Nevada Supreme Court Summaries

The court considered whether a mining company’s failure to pay federal claim maintenance fees, required to avoid forfeiting an unpatented mining claim, rendered a dispute over superior title moot. The court found that since the mining claim was forfeited under federal law, the dispute over superior title was no longer actionable and moot.

Eitanit Construction Products V. State, Neal Hendel, Asher Grunis, Zvi Zylbertal

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

This is a motion challenging the constitutionality of section 74 of the Prevention of Hazards from Asbestos and Harmful Dust Act, 2011 (“Asbestos Act”). The motion is directed primarily at the obligation of the moving party (“Eitanit”), an asbestos-cement factory in the Nahariya area, to shoulder the cost of half the project’s expenses, up to NIS 150m.

The High Court of Justice (written by …

Regulation Room: How The Internet Improves Public Participation In Rulemaking, Jackeline Solivan, Cynthia R. Farina

Cornell e-Rulemaking Initiative Publications

Cornell eRulemaking Initiative (CeRI) designed and operated Regulation Room, a pilot project that provides an online environment for people and groups to learn about, discuss, and react to selected proposed federal rules. The project is a unique collaboration between CeRI academic researchers and the government. The U.S. Department of Transportation (USDOT) was CeRI's first agency partner and chose Regulation Room as its first open government "flagship initiative." USDOT received a White House Open Government Leading Practices Award for its collaboration in the project. CeRI owns, designs, operates, and controls Regulation Room, but works closely with partner agencies to identify suitable …

Resolving The Alj Quandary, Kent Barnett

Vanderbilt Law Review

Federal administrative law judges ("ALJs") understand Euripides's irony all too well. They, along with Article I judges, are the demigods of federal adjudication. As both courts and ALJs have noted, the function of ALJs closely parallels that of Article III judges. ALJs hear evidence, decide factual issues, and apply legal principles in all formal administrative adjudications under the Administrative Procedure Act ("APA"). Indeed, they outnumber Article III judges and decide more than two hundred and fifty thousand cases each year. But they lack the defining characteristics of Article III deities.

Article III judges are installed under the Appointments Clause, enjoy …

Permits For Puddles? The Constitutionality And Necessity Of Proposed Agency Guidance Clarifying Clean Water Act Jurisdiction, Jennifer L. Baader

Chicago-Kent Law Review

The Clean Water Act, enacted and amended in the mid-20th century, was a significant development in the protection and restoration of the Nation’s waters. The Act authorized the Environmental Protection Agency and the Army Corps of Engineers to regulate the discharge of pollutants into many types of bodies of water. However, this wide-spread jurisdictional authority was challenged by the Supreme Court in two turn of the century cases which limited the application of the Act to certain waters. In 2011, a draft guidance document was released by the Environmental Protection Agency and the Army Corps of Engineers, which would increase …

Midnight Rules: A Reform Agenda, Jack M. Beermann

Michigan Journal of Environmental & Administrative Law

There is a documented increase in the volume of regulatory activity during the last ninety days of presidential administrations when the President is a lame duck, having either been defeated in a bid for re-election or being at the end of the second term in office. This includes an increase in the number of final rules issued as compared to other periods. The phenomenon of late-term regulatory activity has been called “midnight regulation,” based on a comparison to the Cinderella story in which the magic wears off at the stroke of midnight. This Article looks closely at one species of …

Avoiding Jeopardy, Without The Questions: Recovery Implementation Programs For Endangered Species In Western River Basins, Reed D. Benson

Michigan Journal of Environmental & Administrative Law

The application of the Endangered Species Act to water resources has generated much controversy in the American West. In several western river basins, however, Recovery Implementation Programs (RIPs) provide an alternative, collaborative approach to ESA compliance. These programs offer an enhanced role for states and stakeholders in ESA decisionmaking, and increased certainty that ESA requirements will not disrupt ongoing water project operations and established uses. This Article examines the origins, purposes, and elements of various RIPs, with particular emphasis on these programs’ approach to compliance with the requirements of ESA section 7 for federal agency actions. The Article also considers …

Making Method Visible: Improving The Quality Of Science-Based Regulation, Pasky Pascual, Wendy Wagner, Elizabeth Fisher

Michigan Journal of Environmental & Administrative Law

Scientific inferences are theories about how the world works that scientists formulate based on their observations. One of the most difficult issues at the intersection of law and science is to determine whether the weight of evidence supports one scientific inference versus other competing interpretations of the observations. In administrative law, this difficulty is exacerbated by the behavior of both the courts and regulatory agencies. Agencies seldom achieve the requisite visibility that explains the analytical methods they use to reach their scientific inferences. Courts—because they appreciate neither the variety of inferential methods nor their epistemic foundations—do not demand this level …

Regulating The Corporate Tap: Applying Global Administrative Law Principles To Achieve The Human Right To Water, Kristin L. Retherford

Indiana Law Journal

No abstract provided.

Dissenting State Patent Regimes, Camilla A. Hrdy

IP Theory

No abstract provided.

Taxation Without Representation: The Illegal Irs Rule To Expand Tax Credits Under The Ppaca, Jonathan H. Adler, Michael F. Cannon

Faculty Publications

The Patient Protection and Affordable Care Act (PPACA) provides tax credits and subsidies for the purchase of qualifying health insurance plans on state-run insurance exchanges. Contrary to expectations, many states are refusing or otherwise failing to create such exchanges. An Internal Revenue Service (IRS) rule purports to extend these tax credits and subsidies to the purchase of health insurance in federal exchanges created in states without exchanges of their own. This rule lacks statutory authority. The text, structure, and history of the Act show that tax credits and subsidies are not available in federally run exchanges. The IRS rule is …