Administrative Law Commons^™

Antitrust Governance, Yane Svetiev

ExpressO

In this article, the author argues that antitrust law has entered a new phase of its controversial existence. The role of antitrust in moderating inter-firm relationships depends both on the problems of the underlying market regime and the institutional capacity of antitrust decision-makers to respond to those challenges. For much of the 20th century, the model firm was hierarchical: vertical integration within the business organization was a way of achieving transaction cost efficiencies and delivering higher levels of output at lower prices. Recognition of this fact transformed antitrust from its traditional focus on concentrated power, to a policy focused on …

A Practitioner's View Of Broadcaster Power, Andrew J. Siegel

Federal Communications Law Journal

A Review of J. H. Snider's Speak Softly and Carry a Big Stick: How Local TV Broadcasters Exert Political Power, iUniverse, Inc. 2005. Assistant General Counsel for CBS Andrew J. Siegel reviews this critique of the spectrum award given to television stations as part of The Telecommunications Act of 1996. Using a principal-agent theory, this book examines the complicated relationship between politicians, local television broadcasters, and the U.S. public in an attempt to explain why television broadcasters received the additional spectrum.

What's Old Is New: The Problem With New Source Review, Shi-Ling Hsu

Scholarly Publications

No abstract provided.

Terrorism And Asylum Seekers: Why The Real Id Act Is A False Promise, Marisa S. Cianciarulo

Working Paper Series

The Real ID Act, passed on May 11, 2005, is the first post-September 11 antiterrorism legislation specifically to target a group of vulnerable individuals to whom the United States has historically granted protection: asylum seekers. The passage of the Real ID Act led asylum advocates to wring their hands in despair and immigration restrictionists to clap their hands in glee. This Article argues that both sides of the debate may have been justified in their reactions, but not because of the immediate chilling impact on asylum that they seem to expect. With regard to requirements for establishing asylum eligibility, the …

Spread Spectrum Is Good-But It Does Not Obsolete Nbc V. U.S.!, Charles Jackson, Raymond Pickholtz, Dale Hatfield

Federal Communications Law Journal

The Authors criticize recent statements by leading legal commentators suggesting that the development of spread spectrum has eliminated radio interference and helped make the underlying legal foundations for regulating spectrum obsolete. The Authors provide a non-technical explanation of how spread spectrum works and why it does not have the effect of eliminating radio interference. The Authors conclude that new technologies are likely to increase the availability of usable spectrum, but they have not wiped out the problem of interference.

Brand X And The Wireline Broadband Report And Order: The Beginning Of The End Of The Distinction Between Title I And Title Ii Services, J. Steven Rich

Federal Communications Law Journal

This Article traces the development of the FCC's distinction between "telecommunications services" subject to common carrier services under Title II of the 1934 Communications Act and "information services" regulated under Title I of the Act from the Computer Inquiry line of cases through the Brand X decision and recent Wireline Broadband Report and Order. The Author pays particular attention to the Brand X decision and the FCC's Wireline Broadband Order and its implications, suggesting that the Order may be subject to reversal when it is challenged in court and proposing how the Commission might react to a reversal. The Author …

Cable Operators' Fifth Amendment Claims Applied To Digital Must-Carry, Nissa Laughner, Justin Brown

Federal Communications Law Journal

This Article addresses the legal and policy implications of property rights in the digital must-carry issue. The Authors review must-carry regulations, present a traditional Fifth Amendment analysis of must-carry, address free speech implications of that property-based analysis, and show how property-based claims might influence future cable regulations and policies. The Authors conclude that while the Fifth Amendment claims are unlikely to succeed legally, they do contain significant rhetorical power that can help shift public policy in ways favorable to the cable industry.

An Economic Approach To The Regulation Of Direct Marketing, Daniel R. Shiman

Federal Communications Law Journal

The growing ubiquity of electronic media and the almost total absence of cost in mass distributions of direct marketing have exacerbated the problem of the increasing intrusion of direct marketing into the privacy of citizens. The Author proposes utilization of a microeconomic social welfare analysis to guide policymakers in determining what forms of direct media should be regulated and what the most effective forms of regulation are likely to be. Sending and receiving costs provide the key factors in determining the extent of the "welfare-reducing marketing" and "marketing aversions," but the Author points to a number of other factors as …

Supreme Guidance For Wet Growth: Lessons From The High Court On The Powers And Responsibilities Of Local Governments, Michael Allan Wolf

UF Law Faculty Publications

Before the merger of water law and land use planning can occur, local and state regulators need strong guidance from experts in the field, not only in extra-legal fields such as planning, hydrology, geology, engineering, biology, and transportation, but also in mainstream legal areas including legislation (local, state, and federal), administrative law, and enforcement. The purpose of this article is to identify a somewhat unorthodox source of guidance - the United States Supreme Court, specifically the Rehnquist Court from October, 1984, through June, 2005, a period of remarkable stability for the nation’s highest tribunal.

Rethinking Reform Of The Fcc: A Reply To Randolph May, Russ Taylor

Federal Communications Law Journal

This brief Article responds to Randolph May's article, Recent Developments in Administrative Law-The FCC's Tumultuous Year in 2003: An Essay on an Opportunity for Institutional Agency Reform, 56 Admin. L. Rev. 1307 (2004). Taylor disputes May's anecdotal evidence that the FCC's poor handling of the Triennial Review and the media ownership proceedings are symptomatic of a broad agency inefficiency that should be remedied by drastically cutting the size of the FCC and placing it under the exclusive control of the executive branch to ensure electoral accountability. Taylor argues that while these suggestions may have value, such a rush to action …

Rethinking Regulation Of Advertising Aimed At Children, William A. Ramsey

Federal Communications Law Journal

In 1990, Congress passed the Children's Television Act ("CTA"), which directed the FCC to establish standards for broadcasters regarding the amount of children's programming aired and to enforce limits on the amount of commercial time aired during children's programming. The limits are meant to protect children from various harms caused by advertising aimed at children. This Note examines the constitutionality and the effectiveness of these commercial limits. The Note concludes that while the CTA's commercial limits are probably constitutional under the Court's test for regulations of commercial speech, the limits do not provide children with adequate protection from the harms …

Plan B For The Fda: A Need For A Third Class Of Drug Regulation In The United States Involving A "Pharmacist-Only" Class Of Drugs, Matthew J. Seamon

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

What Do Snowmobiles, Mercury Emissions, Greenhouse Gases, And Runoff Have In Common?: The Controversy Over "Junk Science", Linda A. Malone

Faculty Publications

No abstract provided.

Kav Laoved Worker’S Hotline V. Government Of Israel, Edmond E. Levy, Mishael Cheshin, Aharon Barak

Translated Opinions

Facts: The government of Israel adopted a policy of allowing foreign workers to come to work in Israel. The residence permits given to the foreign workers are conditional upon the foreign workers working for a specific employer (‘the restrictive employment arrangement’). Consequently, if the worker leaves his employer, he automatically becomes an illegal alien, and is liable to be arrested and deported. The petitioners attacked this policy, on the grounds that it violates the dignity and liberty of the foreign workers. It also undermines the bargaining power of the foreign workers in the employment market. The respondents replied that the …

Discarded Deference: Judicial Independence In Informal Agency Guidance, Christopher M. Pietruszkiewicz

ExpressO

In the past few years, the Supreme Court has resurrected an intermediate deference standard from the 1940s to be applied by courts in considering informal guidance issued by administrative agencies. The decision upon which the deference standard is based is a product of a political solution and not a comprehensive evaluation of how the New Deal agencies fit within traditional role of the courts as sole interpreters of the law.

This 1940s decision has evolved such that deference to the views of administrative agencies has become a matter of judicial discretion, finding deference when the views of an agency parallel …

Cityland – Vol. 3, No. 2, Center For New York City Law

CityLand - 2006

The March 2006 issue of CityLand covers a wide range of land use and preservation developments across New York City. The City Council approved rezonings in Sheepshead Bay and Homecrest, Brooklyn, and adopted follow-up corrective actions (FUCAs) for the Greenpoint-Williamsburg rezoning. The Planning Commission approved rezonings in Midwood, Pelham Bay, Westchester Square, and Middle Village/Glendale, as well as modifications to the High Line/West Chelsea district and the establishment of Flight 587 Memorial Park in Far Rockaway. A special permit for a parking garage in Gramercy was approved despite opposition from new Manhattan Borough President Scott Stringer. The Bay Ridge 5th …

Towards An Interest-Group-Based Approach To Lobbying Regulation, Anita S. Krishnakumar

ExpressO

No abstract provided.

Auditing Executive Discretion, Mariano-Florentino Cuellar

ExpressO

Executive branch officials routinely make thousands of decisions affecting public security and welfare. While it is rare that such discretionary decisions are entirely immune from some kind of judicial review, courts’ role is often so circumscribed or deferential that in some domains the probability of uncovering problems through such review almost certainly falls close to zero. The resulting amount of executive discretion carries considerable risks along with rewards. Some discretionary decisions undoubtedly benefit from the speed and flexibility that results from limiting judicial review. Yet judicial review’s evisceration as a tool to restrain certain forms of discretion also makes it …

Regulatory Status Of Voip In The Post-Brand X World, Jerry Ellig

ExpressO

During the past several years, the Federal Communications Commission has engaged in a series of rulemakings to determine the regulatory status of Voice over Internet Protocol (VoIP). The Supreme Court’s Brand X decision clarifies that even if the FCC’s determination conflicts with that of a court, the FCC’s judgment holds sway as long as the decision is reasonable. We believe that VoIP should be classified as an information service, rather than a telecommunications service, for several reasons. First, the Internet Protocol nature of VoIP technology means that it functions like an information service, rather than a telecommunications service. Second, in …

A Costly Signaling Theory Of "Hard Look" Judicial Review, Matthew C. Stephenson

ExpressO

Judges often review decisions made by government actors, such as agencies or legisla-tures, with greater expertise about the effects of different policy choices. One judicial response to this asymmetric information problem has been to shift the focus of review from a substantive evaluation of the policy to an assessment of the quality of the explana-tion the government offers in support of that choice. Proponents of this type of “hard look” review argue that it improves the quality of government decisions; critics charge that it imposes costs on government policymakers without providing useful information to reviewing courts. This paper offers an …

The Takings Clause, Version 2005: The Legal Process Of Constitutional Property Rights, Mark Fenster

ExpressO

The three takings decisions that the Supreme Court issued at the end of its October 2004 Term marked a stunning reversal of the Court’s efforts the past three decades to use the Takings Clause to define a set of constitutional property rights. The regulatory takings doctrine, which once loomed as a significant threat to the modern regulatory state, now appears after Lingle v. Chevron to be a relatively tame, if complicated, check on exceptional instances of regulatory abuse. At the same time, the Public Use Clause, formerly an inconsequential limitation on the state’s eminent domain authority, now appears ripe for …

The Bureaucratic Due Process Of Government Watch Lists, Peter M. Shane

ExpressO

Watch lists have become increasingly important tools for law enforcement and the protection of homeland security since the terrorist attacks of September 11, 2001,. These lists, however, pose dangers that innocent persons may be burdened either because they are included on such lists without justification or because they share a name with another individual who is appropriately listed. Our public law traditionally addresses this sort of risk through some redress-oriented scheme of due process that allows individuals alleging improper treatment to seek administrative and judicial relief from the error they assert in their particular case. Such an approach is inadequate …

Regulatory Reform: The New Lochnerism?, David M. Driesen

ExpressO

This article explores the question of whether contemporary regulatory reformers’ attitudes toward government regulation have anything in common with those of the Lochner-era Court. It finds that both groups tend to favor value neutral law guided by cost-benefit analysis over legislative value choices. Their skepticism toward redistributive legislation reflects shared beliefs that regulation often proves counterproductive in terms of its own objectives, fails demanding tests for rationality, and violates the natural order. This parallelism raises fresh questions about claims of neutrality and heightened rationality that serve as important justifications modern regulatory reform.

Democratizing The Administrative State, Richard James Pierce

ExpressO

The Court's 1984 effort to democratize the administrative state has fallen far short of its potential because of temporal problems with the manner in which the Court applies the deference doctrines that lie at the core of the Court's democratization project. Professor Pierce urges adoption of four changes in doctrine that will create a more democratic and constitutionally legitimate administraive state.

The President's Statutory Powers To Administer The Laws, Kevin M. Stack

Vanderbilt Law School Faculty Publications

When does a statute grant powers to the President as opposed to other officials? Prominent theories of presidential power argue or assume that any statute granting authority to an executive officer also implicitly confers that authority upon the President. This Article challenges that statutory construction. It argues that the President has statutory authority to direct the administration of the laws only under statutes which grant to the President in name. Congress's enduring practice of granting power to executive officers subject to express conditions of presidential control supports a strong negative inference that the President has no directive authority when a …

Refugee Security And The Organizational Logic Of Legal Mandates, Mariano-Florentino Cuellar

ExpressO

While the refugee protection system is one of international law’s most recognizable features, it routinely places massive numbers of refugees in camps in the developing world, where they face chronic threats to their physical security from crime and disorder, coercion, and military attacks. Yet key actors responsible for refugee protection, including host states, advanced industrialized countries, and the United Nations High Commissioner for Refugees (UNHCR), generally have failed to prioritize refugee security. This article asks: (1) Why? (2) What have been the consequences? (3) And what do these answers reveal about how organizations carry out legal mandates in complicated political …

Summary Of Simonian V. The University And Community College System Of Nevada, 122 Nev. Adv. Op. 16, Bryan Lindsey

Nevada Supreme Court Summaries

An appeal challenging an order that UCCSN is a state entity not subject to liability under False Claims Act (FCA) and an award of attorney fees as sanctions for bringing a claim not wellgrounded in fact or law.

Cityland – Vol. 3, No. 1, Center For New York City Law

CityLand - 2006

The February 2006 issue of CityLand highlights major land use and preservation developments across New York City. The City Council approved the redevelopment of the Bronx Terminal Market into a one-million-square-foot retail center and down-zoned 311 blocks in Whitestone, Queens. Staten Island saw three commercial rezonings and a text amendment to restrict residential-only development in commercial districts. The Council also approved zoning changes for Metropolis Studios in East Harlem and adopted 17 corrective amendments to the Hudson Yards revitalization plan. The Planning Commission approved rezonings in Baychester, Woodlawn, Ferry Point, Sheepshead Bay, and Homecrest. BSA decisions included variances for a …

Legislation And Legitimation: Congress And Insider Trading In The 1980s, Thomas W. Joo

ExpressO

Legislation and Legitimation:

Congress and Insider Trading in the 1980s

Abstract

Orthodox corporate law-and-economics holds that American corporate and securities regulation has evolved inexorably toward economic efficiency. That position is difficult to square with the fact that regulation is the product of government actors and institutions. Indeed, the rational behavior assumptions of law-and-economics suggest that those actors and institutions would tend to place their own self-interest ahead of economic efficiency. This article provides anecdotal evidence of such self-interest at work. Based on an analysis of legislative history—primarily Congressional hearings—this article argues that Congress had little interest in the economic policy …

Toward A Federal Common Law Of Bankruptcy: Judicial Lawmaking In A Statutory Regime, Adam J. Levitin

ExpressO

Bankruptcy is a statutory system, yet it is replete with practices for which there is no direct authorization in the Bankruptcy Code. This article argues that the authorization for judicial creation of bankruptcy law beyond the provisions of the Code has been misidentified as the equity powers of bankruptcy courts. This misidentification has led courts to place inappropriate statutory and historical limitations on non-Code practices because of discomfort with unguided equitable discretion.

Both the statutory and historic limitations are problematic. The statutory authorization for the bankruptcy courts’ equitable powers appears to have been repealed by what one judge has called …