Administrative Law Commons^™

Comptroller Of City Of New York V. Mayor Of New York (Decided July 29, 2004), Leslie Spitalnick

NYLS Law Review

No abstract provided.

Limiting Raich, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

On Monday, November 29th, 2004, at 10:30 a.m., I rose to argue the case of Gonzales v. Raich in the Supreme Court on behalf of Angel Raich and Diane Monson. On Monday, June 6th, 2005, at 10:00 a.m., the Court announced its decision. Even today it is painful to read the opinions in the case. I am saddened for my clients, and the thousands like them, whose suffering is alleviated by the use of cannabis for medical purposes, as recommended by their physicians and permitted by the laws of their states, but who are nevertheless considered criminals by the federal …

Preemption And Regulatory Failure, David C. Vladeck

Georgetown Law Faculty Publications and Other Works

This symposium was convened to address the growing and seemingly conflicting jurisprudence governing federal preemption of state damage actions. One way to evaluate the evolution of preemption law is to examine it through the lens of litigation under the preemption provision of the 1976 Medical Device Amendments ("MDA") to the federal Food, Drug, and Cosmetic Act - a provision that in many respects is typical of express preemption provisions in regulatory statutes and has spawned a high volume of litigation. The question raised in cases under the MDA is whether the Act's preemption provision nullifies state damage actions based on …

Chevron Matters: How The Chevron Doctrine Redefined The Roles Of Congress, Courts And Agencies In Environmental Law, E. Donald Elliott

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Ambiguity And Policy Making: A Cognitive Approach To Synthesizing Chevron And Mead, Peter M. Shane

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Rubber-Stamping V. Probing Review - The Judicial Role In Enforcing The Substantive Requirements Of The National Forest Management Act: Lands Council V. Powell, Jamie Kester

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Consensus-Building In Administrative Law: The Revival Of The Administrative Conference Of The U.S., Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

Introduction: In President Bush's first press conference after the bitter 2004 election, he remarked:"With the campaign over,Americans are expecting a bipartisan effort and results." l He also commented that," [O]ne of the disappointments of being here in Washington is how bitter this town can become and how divisive. I'm not blaming one party or the other. It's just the reality of Washington, D.C ... It also makes it difficult to govern at times."2 The President actually took a first step to promoting bipartisanship and reducing bitterness in Washington a few days before the election on October 30, 2004, by signing …

Weight-Loss Advertising Too Good To Be True: Are Manufacturers Or The Media To Blame?, Jodie Sopher

Cardozo Arts & Entertainment Law Journal

No abstract provided.

A "Quizzical" Look Into The Need For Reality Television Show Regulation, Tara Brenner

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Squaring The Circle? Reconciling Sovereignty And Global Governance Through Global Government Networks (Review Of Anne-Marie Slaughter, A New World Order), Kenneth Anderson

Book Reviews

This book review summarizes and critiques A New World Order, offering both an internal critique of the argument's consistency as well as an outside critique of the argument from the standpoint of the value of democratic sovereignty. The review locates Slaughter's argument within the debate over international relations realism and idealism, and further locates it within a continuum of seven idealized positions in the debate between global governance and sovereignty, with pure sovereignty at one extreme and world government at the other, with the most relevant positions of democratic sovereignty and liberal internationalism located in the middle. The article concludes …

After 70 Years Of The Nlrb: Warm Congratulations -- And A Few Reservations, Theodore J. St. Antoine

Articles

The following essay is based on a talk the speaker was invited to deliver to the National Labor Relations Board on June 3 in Washington, D.C., on the occasion of the agency's 70th anniversary.

The Statutory President, Kevin M. Stack

Vanderbilt Law School Faculty Publications

American public law has no answer to the question of how a court should evaluate the president's assertion of statutory authority. In this Article, I develop an answer by making two arguments. First, the same framework of judicial review should apply to claims of statutory authority made by the president and federal administrative agencies. This argument rejects the position that the president's constitutional powers should shape the question of statutory interpretation presented when the president claims that a statute authorizes his actions. Once statutory review is separated from consideration of the president's constitutional powers, the courts should insist, as they …

Rulemaking Versus Adjudication: A Psychological Perspective, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Legal systems make law in one of two ways: by abstracting general principles from the decisions made in individual cases (through the adjudicative process) or by declaring general principles through a centralized authority that are to be applied in individual cases (through the rulemaking process). Administrative agencies have long had the unfettered authority to choose between the two methods. Although each method could identify the same solution to the legal issues that come before them, in practice, the two systems commonly settle upon different resolutions. Each system presents the underlying legal issue from a different cognitive perspective, highlighting and hiding …

Foreword: What's So Wicked About Lochner?, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this brief Foreword to a forthcoming symposium on Lochner v. New York, Professor Randy Barnett asks the question, What's So Wicked About Lochner? Modern Progressives cannot complain about its protection of so-called substantive due process, since they favor just that. Nor can they claim that Lochner violates the original meaning of the Fourteenth Amendment, since these legal analysts by and large reject originalism altogether. This leaves only today's judicial conservatives to adhere to a purified Roosevelt New Deal jurisprudence of disdain for Lochner.

The author answers that Lochner is objectionable precisely because its reliance on the Due …

Applying Cost-Benefit To Past Decisions: Was Environmental Protection Ever A Good Idea?, Lisa Heinzerling, Frank Ackerman, Rachel Massey

Georgetown Law Faculty Publications and Other Works

In this Article, however, we do not mount a critique from outside the technique of cost-benefit analysis. Instead, we examine an argument that proponents of cost-benefit analysis have offered as a linchpin of the case for cost-benefit: that this technique is neither anti- nor pro-regulatory, but rather a neutral tool for evaluating public policy. In making this argument, these proponents have often invoked the use of cost-benefit analysis to support previous regulatory decisions (their favorite example involves the phase down of lead in gasoline, which we shall shortly discuss) as a sign that this technique can be used to support …

Judicial Federalism And The Future Of Federal Environmental Regulation, Jonathan H. Adler

Faculty Publications

This article assesses the current and likely impact of the Supreme Court's federalism cases on federal environmental regulation. As a result of this assessment, the article seeks to make four points: (1) Thus far, the Supreme Court's federalism cases have had a limited impact on federal regulation, as federal courts have not used these cases as a basis for limiting the reach of federal regulatory authority. (2) Notwithstanding this limited impact, the underlying logic of the Supreme Court's cases does pose a challenge for federal regulation, particularly in the Commerce Clause context. (3) The thrust of the federalism cases makes …

Jurisdictional Mismatch In Environmental Federalism, Jonathan H. Adler

Faculty Publications

Jurisdictional mismatch plagues contemporary environmental law and policy. The division of authority and responsibility for environmental protection between the federal and state governments lacks any cohesive rationale or justification. The federal government regulates in many areas where there is no clear analytical basis for federal involvement. At the same time, the federal government is relatively absent where a stronger federal presence could be justified. Conversely, states are precluded, discouraged, or otherwise inhibited from adopting environmental protections where state efforts would be worthwhile. In addition, state intervention seeps into areas where a dominant federal role would be more defensible. This jurisdictional …

The Future Of Citizen Participation In The Electronic State, Beth Simone Noveck

Articles & Chapters

Agencies, not Congress, are the primary lawmakers in the American federal legal system. By law, the public has a right to participate in the making of agency rules. With the passage of the E-Government Act, administrative agencies are now required to use information and communication technologies to promulgate their rulemakings and to afford the public the opportunity to participate via the Internet. As currently envisioned, however, the move from rulemaking to electronic rulemaking will not realize the opportunity to improve participation to the full extent. Instead, the design of the screens through which people will interact with government are likely …

Summary Of Gumm V. Nevada Department Of Education, Justin L. Carley

Nevada Supreme Court Summaries

The Gumms filed a petition for a writ of mandamus asserting that they had no other means to challenge the Douglas County School District’s (DCSD) refusal to pay Mrs. Gumm’s forfeited salary and benefits for the time she spent transporting her son to an autism program.

Summary Of Seino V. Employers Insurance Co. Of Nevada, 121 Nev. Adv. Op. 17, Danielle Oakley

Nevada Supreme Court Summaries

This case was an appeal from a district court order denying Plaintiff/Appellant’s petition for judicial review in a workers’ compensation case.

The Sec At 70: Time For Retirement?, Adam C. Pritchard

Articles

As one grows older, birthdays gradually shift from being celebratory events to more reflective occasions. One's 40th birthday is commemorated rather differently from one's 2lst, which is, in turn, celebrated quite differently from one's first. After a certain point, the individual birthdays become less important and it is the milestone years to whch we pay particular attention. Sadly for entities like the Securities and Exchange Commission, it is only the milestone years (the ones ending in five or zero, for some reason), that draw any attention at all. No one held a conference to celebrate the SEC's 67th anniversary. Clearly …

Principles Of Non-Arbitrariness: Lawlessness In The Administration Of Welfare, Christine N. Cimini

Articles

This article explores whether there exists a concept of non-arbitrariness that imposes limitations on the administration of welfare benefits without rules, regulations, policies or procedures. To address this question, the article examines the concept of non-arbitrariness within various jurisprudential doctrines and the potential applicability of the concept to limit arbitrary governmental action in the welfare context. In each of the areas where courts regulate arbitrary governmental action, underlying judicial concerns give rise to jurisprudential principles. Four principles stand out. First, at a minimum, there must be a rational relationship between the government’s ends and the means it chooses to reach …

Lessons From The Nextwave Saga: The Federal Communications Commission, The Courts, And The Use Of Market Forms To Perform Public Functions, Rodger D. Citron, John A. Rogovin

Scholarly Works

No abstract provided.

The (Non)Uniqueness Of Environmental Law, Jay D. Wexler

Faculty Scholarship

In everyday discourse, the label "environmental law" signifies a distinct and unique area of the law. The uniqueness of environmental law stems most obviously from the subject matter of environmental legislation and regulation. But does environmental law also differ from other areas of law with respect to how judges ought to approach deciding cases? Should judges act differently somehow when they are deciding an environmental law case as opposed to, for example, a labor law or banking law case? At least one influential scholar - Richard Lazarus of the Georgetown University Law Center - has argued that the distinctive features …

War And Uncertainty, Lori Fisler Damrosch

Faculty Scholarship

When the current phase of our conflict with Iraq began in March 2003, much was unknown. Our political leaders based the case for war on the conviction that Iraq possessed weapons of mass destruction (WMD) that had not been eliminated despite twelve years of grinding sanctions. Congress voted in October 2002 to authorize renewed use of military force against Iraq, acting on the basis of representations by the Bush Administration that Iraq had been actively concealing WMD stockpiles and programs from the United Nations inspectors who had a mandate to verify the complete destruction of Iraq's WMD capability. Facts were …

Statutes That Are Not Static – The Case Of The Apa, Peter L. Strauss

Faculty Scholarship

...[T]he lesson of the past two hundred years is that we will do well to be on our guard against all-purpose theoretical solutions to our problems. As lawyers we will do well to be on our guard against any suggestion that, through law, our society can be reformed, purified, or saved. The function of law, in a society like our own, is altogether more modest and less apocalyptic. It is to provide a mechanism for the settlement of disputes in the light of broadly conceived principles on whose soundness, it must be assumed, there is a general consensus among us. …

Global Democracy, Joshua Cohen, Charles F. Sabel

Faculty Scholarship

In this Article, we describe an emerging arena of global administration. We claim that this arena, not bounded by a state, raises accountability problems of a kind different from those addressed by conventional administrative law. And we argue that measures designed to address these problems will have potentially large implications for democratic theory and practice.

Our argument starts from the premise – stated here without nuance – that something new is happening politically beyond the borders of individual states and irreducible to their voluntary interactions. To distinguish these developments from what is commonly called "international law and politics," we use …

The Story Of Vermont Yankee: A Cautionary Tale Of Judicial Review And Nuclear Waste, Gillian E. Metzger

Faculty Scholarship

This Essay explores the puzzle of Vermont Yankee v. NRDC. Vermont Yankee stands as a definitive rejection of judicial efforts to control burgeoning informal rulemaking by adding to the procedural requirements contained in the Administrative Procedure Act. Yet judicial expansion of the APA's procedural requirements has continued apace, and the Court's simultaneous sanction of searching substantive scrutiny sits oddly with its excoriation of the D.C. Circuit for that court's perceived procedural excesses. To understand Vermont Yankee, the Essay puts the decision in its administrative and judicial context, exploring the case law and practical dilemmas facing administrators, advocates, and judges as …

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

CityLand - 2004

The December 2004 issue of CityLand covers major land use developments across New York City, including the approval of the Watchtower complex in DUMBO and the expansive Hudson Yards rezoning and redevelopment plan. It features updates on senior housing in Queens, rezonings in Clinton and Midtown South, and the creation of a new Business Improvement District near Yankee Stadium. Landmark decisions include the approval of a modern residential building in the Flatiron District, a new hotel in Tribeca backed by Robert De Niro, and the redesign of the Brooklyn Public Library plaza. The issue also includes court rulings on community …

Agenda: Introduction To The Legal Foundation Of Federal Land Management, University Of Colorado Boulder. Natural Resources Law Center

Introduction to the Legal Foundation of Federal Land Management (December 1-3)

Materials prepared for the course held at the National Center for Atmospheric Research in Boulder, Colorado on December 1-3, 2004

Course instructors: Charles Wilkinson; Sarah Krakoff; Kathryn Mutz; Ann Morgan; Maggie Fox

Contents:

Introduction -- Agenda -- Summaries of laws -- Case studies. Travel management; Oil and gas development; Timber/fuels reduction -- How to influence agency decision makers -- Natural resource related legal and policy resources for the non-legal professional