Administrative Law Commons^™

To Defer Or Not To Defer: Judicial Review Of Zoning Board Decisions In New York, Elliot Gardner

Cardozo Public Law, Policy & Ethics Journal

The note examines the judicial review of zoning board decisions in New York, emphasizing the need to balance deference to local boards with ensuring fairness and transparency. It argues that excessive judicial deference can lead to arbitrary and unjust decisions, particularly in distinguishing between variances and special permits. The author advocates for clearer judicial standards, such as a higher scrutiny for special permits, and proposes reforms like specialized courts to enhance consistency and fairness in zoning decisions.

Saif V. Government Press Office, Dalia Dorner, Salim Joubran, Eliezer Rivlin

Translated Opinions

Facts: At the end of 2001, the Government Press Office decided that it would no longer give press badges to Palestinian journalists who were residents of Judaea and Samaria, because of the security risk. The petitioners in the two petitions challenged this policy.

Held: The court held that the refusal to give press badges to Palestinian journalists who were residents of Judaea and Samaria, without any consideration of the individual cases of the persons applying for a press badge, could not be justified on security grounds alone. The respondents had not considered the right of freedom of expression that conflicted …

Securing Truth For Power: Informational Strategy And Regulatory Policy Making, Cary Coglianese

ExpressO

No abstract provided.

Innovation, Regulation And The Selection Environment, Timothy F. Malloy, Peter Sinsheimer

ExpressO

This article focuses on the question of how regulation can be best designed to encourage technological innovation. Most scholarship in this area applies standard economic analysis to evaluate the impact of various forms of regulation on technological innovation. We reject that approach as too narrow, drawing instead upon principles of evolutionary economics. The basic premise of the article is that a firm’s technology choices—and its response to regulation intended to shape those choices—are influenced by other actors (such as suppliers and competitors), by external social and legal institutions (e.g., industry standards and norms) and by the firms' internal structure (such …

Administrability-Based Tax Simplification, Steve R. Johnson

Scholarly Publications

The Boyd School of Law is a vibrant place, and our trajectory continues to move strongly in the right direction. One of the things that has been so important to us is the excellent support we have received from so many in and around Nevada. An example of that support brings us together tonight. The Wiegand Foundation has endowed a professorship at the Law School to support the study of tax law. I am fortunate to be the current holder of that professorship. This address is the first formal event memorializing the Wiegand Foundation’s support for scholarship and for Law …

Law, Policy, And The Clean Water Act: The Courts, The Bush Administration, And The Statute's Uncertain Reach, Michael P. Healy

Law Faculty Scholarly Articles

The development of the jurisdictional reach of the Clean Water Act ("CWA") reflects a hybrid of the judicial determination of the clear legal requirements of the CWA and the exercise of discretionary agency policymaking in the form of legal requirements that are binding on both agency and regulated party. This distinction in the content of administrative law was not altogether clear prior to the Supreme Court's 1984 decision in Chevron U.S.A. v. Natural Resources Defense Council. Today, the distinction is fundamental to administrative law and important to assessing the evolution of the scope of CWA jurisdictional waters because the …

Securities Supervision And Judicial Review [In China], Zhongle Zhan, Fengying Li, Inseon Paik

Washington International Law Journal

Since its founding in 1992, the China Securities Regulatory Commission ("CSRC") has, by the design of the central government of China, become the primary regulator of the Chinese securities market. The CSRC has, however, made some controversial decisions in enforcing its securities regulations. In particular, this article addresses the legal implications of the CSRC's failure to comply with controlling securities regulations in rejecting the Hainan Kaili Central Construction Company's listing application and the ramifications of such selective regulatory enforcement. The article provides an analysis of the current relationship between Chinese administrative and securities law.

New Lobster Regulations Do Not Violate Atlantic Coastal Act,, Terry Boardman

Sea Grant Law Fellow Publications

No abstract provided.

Petition For The Redress Of Violations Of Human Rights Guaranteed By The American Declaration Of The Rights And Duties Of Man, Inter-American Commission On Human Rights, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Appeal No. 0721: Eric Heinselman V. Division Of Mineral Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Order 2003-54

Appeal No. 0731: Brian Mccort V. Division Of Mineral Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Order 2003-96

Appeal No. 0730: L.B.J. Drilling Co. V. Division Of Mineral Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Order 2003-90

The Continuing Showdown Over Who Should Regulate Amusement Attraction Safety: A Critical Analysis Of Why Fixed-Site Amusement Attraction Safety Should Remain State-Governed. , Chad Emerson

ExpressO

No abstract provided.

Brief For American Public Health Association Et Al. As Amici Curiae Supporting Respondents, Department Of Transportation V. Public Citizen, No. 03-358 (U.S. Mar. 12, 2004), Hope M. Babcock, Lisa Goldman

U.S. Supreme Court Briefs

No abstract provided.

The Myth Of The Software Patent Thicket, Ronald J. Mann

ExpressO

No abstract provided.

Hass V. Idf Commander In West Bank, Ayala Procaccia, Aharon Barak, Mishael Cheshin

Translated Opinions

Facts: The Machpela Cave is believed to be the burial site of Abraham and Sarah, Isaac and Rebecca, Jacob and Leah. As such, it is holy to Jews and Moslems. Over the years, the site has seen acts of violence by members of one religion against the other, resulting in casualties.

On Sabbaths and festivals, large numbers of Jews, sometimes in the thousands, go from the nearby town of Kiryat Arba to the Machpela Cave on foot, since the use of vehicles is prohibited by Judaism on these days. They go to the Cave  by means of the ‘worshippers’ route,’ …

Fairness Versus Efficiency In Environmental Law, Shi-Ling Hsu

Scholarly Publications

Like many other areas of law, the development of environmental law has been strongly influenced by notions of fairness. This should not be surprising, since environmental law has been developed by lawyers, who are self-selected to be fairness-oriented and trained to think in terms of fairness. While large environmental gains have been achieved in the thirtyyear history of environmental law, progress seems to have reached a plateau. Partisanship has poisoned the debate on how best to proceed in making further environmental progress. I attribute the failings and the current stalemate in environmental law to our obsession with fairness. Fairness-thinking has …

Antitrust Immunity And Standard Setting Organizations: A Case Study In The Public-Private Distinction, Chris Sagers

Law Faculty Articles and Essays

This paper uses an ongoing issue of local legal doctrine as a case study to provide insights into a problem of larger political philosophy: the problem whether the difference between "public" and "private" should be made to matter and, indeed, whether there is a difference at all. The case study is as follows: In our system, state governments are free to fashion their own trade policies in virtually any manner they choose. During the past century there has evolved a complex range of relationships between government and the businesses regulated by those policies, the result often being that businesses themselves …

Rehearsal For Media Regulation: Congress Versus The Telegraph-News Monopoly, 1866-1900, Menahem Blondheim

Federal Communications Law Journal

In this Article, Menahem Blondheim presents a critical historical analysis of the dawn of communications regulation as it began with the evolution of domestic telegraphy and developed into a coherent link between 19th century technological, business, and social developments and twentieth century First Amendment thought. First, the Article examines the political and economic environment which led to the development of national telegraph and news networks, like Western Union and the Associated Press. The Author then proceeds to assess the role of the mid-to-late nineteenth century American legislature, and how the debate over telegraph and wire service regulation realigned the powers …

Unmasking Hidden Commercials In Broadcasting: Origins Of The Sponsorship Identification Regulations, 1927-1963, Richard Kielbowicz, Linda Lawson

Federal Communications Law Journal

This Article by Richard Kielbowicz and Linda Lawson is an exploration of the origins of sponsorship identification regulations as they pertained to early radio and television programming. Beginning with the statutory sponsorship identification requirement enacted in 1927, the Authors trace the development of sponsorship identification rules in the communications industry. By arguing that such rules express a basic goal of American communication law and policy, Kielbowicz and Lawson analyze trends and developments in sponsorship regulation that did not materialize in the 1930s and 1940s because of the nature of early broadcast sponsorship. The Authors then assert that those same early …

Finding Substance In The Fcc's Policy Of "Substantial Service", Jennifer Prime

Federal Communications Law Journal

An FCC license for the use of the electromagnetic spectrum is a valuable asset, but it exists only for a limited duration. Therefore, obtaining a license renewal is vital to a licensee, especially one who has participated in an auction and made substantial investments in order to obtain the rights the license confers. This Note describes the mechanisms by which licensees obtain greater certainty that their licenses will be renewed, including the concept of renewal expectancy. One form of such expectancy is the ambiguous "substantial service" requirement. This Note explains the origins of the term, discusses its current uses, and …

Why The World Radiocommunication Conference Continues To Be Relevant Today, Kathleen Q. Abernathy

Federal Communications Law Journal

This Article by FCC Commissioner Kathleen Q. Abernathy critiques the continued importance of the World Radiocommunication Conference ("WRC"), and its role in international communications affairs. The Article analyzes the most recent WRC in Geneva, Switzerland from a critical modem perspective. Abernathy explores the accomplishments of the most recent WRCs, while addressing concerns that the WRC process is slow and outdated. First, the Author argues that the WRC provides an international forum to maximize the global harmonization of the radiocommunications spectrum resource. Second, the Author posits that the WRC decision-making process creates technical and operational certainty for new and existing users. …

Legislating The Tower Of Babel: International Restrictions On Internet Content And The Marketplace Of Ideas, Michael F. Sutton

Federal Communications Law Journal

The First Amendment to the U.S. Constitution protects the expression of diverse viewpoints in virtually any medium. Nevertheless, the modern novelty of "borderless" communication via the Internet strains our ideal of keeping government out of the business of regulating speech. This Note reveals the conflict between the First Amendment's national protections and the Internet's lack of national boundaries, while also arguing for international intervention for the protection of free speech. This Author articulates the real danger of "watered-down speech" unless both the FCC and the international community provide regulations and harmonized international standards for online content that reflect First Amendment …

Applications For Benefits: Due Process, Equal Protection, And The Right To Be Free From Arbitrary Procedures, Virginia T. Vance

Washington and Lee Law Review

No abstract provided.

Beit Sourik Village Council V. Government Of Israel, Aharon Barak, Eliahu Mazza, Mishael Cheshin

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.]

According to government decisions as to constructing the borderline barrier, the Second Respondent (hereinafter: the Respondent) issued orders for the seizure of land, some privately owned, in the West Bank in order to build the barrier fence. The Petitioners, landowners and residents of villages in the borderline area, challenge the legality of the orders. They claim the Respondent lacks authority, under international law, to …

Procedural Justice, Lawrence B. Solum

University of San Diego Public Law and Legal Theory Research Paper Series

Procedural Justice offers a theory of procedural fairness for civil dispute resolution.

The Article begins in Part I, Introduction, with two observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, the hard problem of procedural justice corresponds to the following question: How can we regard ourselves as obligated by legitimate authority to comply with a judgment that we believe (or even know) to be in error with respect to the substantive merits? This Article responds to the challenge posed by the hard question of procedural justice.

That theory is developed …

Procedural Justice, Lawrence B. Solum

ExpressO

The real work of procedure is to guide conduct. It is sometimes said that the regulation of primary conduct is the work of the general and abstract norms of substantive law—clauses of the constitution, statutes, regulations, and common law rules of tort, property, and contract. But substance cannot effectively guide primary conduct without the aid of procedure. This is true because of three problems: (1) the problem of imperfect knowledge of law and fact, (2) the problem of incomplete specification of legal norms, and (3) the problem of partiality. The solution to these problems is particularization by a system of …

Mixed Signals: Reconsidering The Political Economy Of Judicial Deference To Administrative Agencies, Matthew C. Stephenson

ExpressO

This paper investigates rational choice explanations for patterns of Supreme Court decision-making with respect to the appropriate level of judicial deference to administrative agency decisions. In particular, I assess empirically the thesis that the Supreme Court expands deference when the Supreme Court is ideologically closer to the executive than to the circuit courts, and contracts deference when the opposite is true. I find little to no evidence supporting this "rational choice" theory of judicial deference. Given this surprising null finding, I offer alternative explanations for the data and suggest directions for future research.

Technology And The Washington State Administrative Process—Some Preliminary Notes, William R. Andersen

Washington Law Review

This brief report summarizes information obtained by a preliminary survey in the spring of 2003 of what some Washington state agencies are doing with technology. The agencies surveyed included the Utilities and Transportation Commission and the Departments of Ecology, Revenue, Social and Health Services, and Labor and Industries. To keep the subject within bounds—and within the central focus of the Access to Justice Technology Bill of Rights project—the survey inquired into the use of technology in those parts of the administrative process that are similar to legal process generally—i.e., those components of the administrative process through which binding general principles …

Government-To-Citizen Online Dispute Resolution: A Preliminary Inquiry, Anita Ramasastry

Washington Law Review

This Article first examines the use of ODR [online dispute resolution] as a tool for private sector dispute resolution. It explores some of the reasons for a slower rate of uptake in business-to-consumer e-commerce disputes. The Article then suggests that a new and innovative use for ODR may be for public sector dispute resolution—between governments and citizens. The use of technology for public dispute resolution may promote access to justice in the administrative context.