Administrative Law Commons^™

Responsible Regulation: A Sensible Cost-Benefit, Risk Versus Risk Approach To Federal Health And Safety Regulation, Steve Calandrillo

Articles

Federal health and safety regulations have saved or improved the lives of thousands of Americans, but protecting our citizens from risk entails significant costs. In a world of limited resources, we must spend our regulatory dollars responsibly in order to do the most we can with the money we have. Given the infeasibility of creating a risk-free society, this paper argues that a sensible cost-benefit, risk versus risk approach be taken in the design of U.S. regulatory oversight policy. The goal should always be to further the best interests of the nation, rather than to satisfy the narrow agenda of …

Property Rights And Competition On The Internet: In Search Of An Appropriate Analogy, Maureen A. O'Rourke

Faculty Scholarship

Reasoning by analogy is a time-honored method of legal development. However, recent litigation exposes the weakness of applying legal principles developed in the "bricks and mortar" world by analogy to cyberspace. Using recent court decisions that discuss who may access a website and by what means, this Article illustrates how results can change depending on the analogy the court adopts. The Article argues that rather than searching for analogies, courts and legislators could more profitably devote their energies to understanding how the Internet differs from physical space, evaluating whether those differences call for new legal rules, and considering the conflicting …

Rulemaking's Promise: Administrative Law And Legal Culture In The 1960s And 1970s, Reuel E. Schiller

Faculty Scholarship

No abstract provided.

The History Of The Judicial Review Of Administrative Power And The Future Of Regulatory Governance, John J. Coughlin

Journal Articles

Traditionally, judicial review has afforded an important check on the exercise of administrative power. First, judicial review functions to protect the legislative intent behind the statutory authorization of the exercise of administrative power. Pursuant to the conventional model, an administrative agency exercises restricted legislative and judicial functions under judicial scrutiny to insure compliance with congressional intent. Judicial review insures that "a congressional delegation of power . . . must be accompanied by discernible standards, so that the delegatee's action can be measured for its fidelity to the legislative will." Additionally, the opportunity for judicial review of administrative action corrects and …

The Changing Nature Of Federal Regulation - Dedications, Joel Seligman

Scholarship@WashULaw

In 1911 the failure of state corporation statutes to prevent securities fraud gave rise to the first significant legislative response when Kansas enacted the first well known state securities law. The law was popularly known as a “blue sky” law, because its intention was to check stock swindlers so barefaced that they “would sell building lots in the blue sky.”

After the U.S. Supreme court held that the blue sky law was constitutional in 1917, the blue sky movement swept the country. By 1933 every state except Nevada had a state securities law in effect.

Board Of Behavioral Sciences, Stacy Baker, Tasha Soroosh, Collette C. Galvez

California Regulatory Law Reporter

No abstract provided.

Board Of Psychology, Jessica A. Neyman, Mary J. Rocco, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.

Respiratory Care Board, Paul T. Greco, Jessica A. Neyman, Collette C. Galvez

California Regulatory Law Reporter

No abstract provided.

Department Of Alcoholic Beverage Control, Collette C. Galvez, Peter Sansom

California Regulatory Law Reporter

No abstract provided.

The Changing Shape Of Government, Alfred C. Aman, Steve Savas, Elliott Sclar, Lester Salamon, Charles Sabel

Articles by Maurer Faculty

Gillian E. Metzger, Alfred C. Aman Jr., Charles F. Sabel, Lester M. Salamon, E.S. Savas and Elliot D. Sclar participate in panel discussions focusing on the question of how to secure government accountability in the context of the expansion of privatization in government? This panel discusses some of the changes we are seeing in government institutions and in the ways government operates. The panelists describe ways in which the move toward privatization and the expansion of the gray area between public and private is occurring, but also will talk about changes we may see as being particularly useful in dealing …

Privatization And The Democracy Problem In Globalization: Making Markets More Accountable Through Administrative Law, Alfred C. Aman

Articles by Maurer Faculty

No abstract provided.

Rulemaking, Michael Herz

Articles

No abstract provided.

Chevron's Domain, Thomas W. Merrill, Kristin E. Hickman

Faculty Scholarship

The Supreme Court's decision in Chevron U.S.A. Inc. v. Natural Resources Defense Counsel, Inc. dramatically expanded the circumstances in which courts must defer to agency interpretations of statutes. The idea that deference on questions of law is sometimes required was not new. Prior to Chevron, however, courts were said to have such a duty only when Congress expressly delegates authority to an agency "to define a statutory term or prescribe a method of executing a statutory provision.^" Outside this narrow context, whether courts would defer to an agency's legal interpretation depended upon multiple factors that courts evaluated in …

Publication Rules In The Rulemaking Spectrum: Assuring Proper Respect For An Essential Element, Peter L. Strauss

Faculty Scholarship

Imagine a visitor who seeks to catalog the variety of written texts American government uses to communicate its powers and its citizens' rights and obligations. She might organize those texts into the following pyramid:

• A Constitution, adopted by "the people"

• Hundreds of statutes, adopted by an elected Congress

• Thousands of regulations, adopted by politically responsible executive officials

• Tens of thousands of interpretations and other guidance documents, issued by responsible bureaus

• Countless advice letters, press releases, and other statements of understanding, generated by individual bureaucrats

On inquiry she would find that we understand passably well the …

The Fcc’S Implementation Of The 1996 Act: Agency Litigation Strategies And Delay, Rebecca Beynon

Federal Communications Law Journal

Since it began promulgating rules to implement the local competition provisions of the Telecommunications Act of 1996, the FCC has been under attack in the courts. The road has been a rough one, and the Commission has lost on a good many issues. The Commission has regularly accused its opponents in these legal battles-chiefly the incumbent local exchange carriers-of using litigation to impede the implementation of the 1996 Act’s local competition provisions. As discussed in this Article, if litigation has in fact slowed the introduction of competition in the local exchange markets, the Commission itself must share some of the …

The Fcc’S Financial Qualification Requirements: Economic Evaluation Of A Barrier To Entry For Minority Broadcasters, Yale M. Braunstein

Federal Communications Law Journal

When analyzing issues surrounding minority ownership of media, scholars have often noted that policy discussions in the area suffer from the linked problems of inadequate data and a lack of tools with which to analyze the data that do exist and might be collected. In Issue Three of Volume 51, several authors made this particular observation. To address this problem, This Article shows how one may use economic analysis and a financial model of a "typical" radio broadcaster to quantify the effects of specific policies. Specifically, the Article focuses on barriers to entry imposed by the FCC’s financial qualification requirements …

The Rights Of Common Carriers And The Decision Whether To Be A Common Carrier Or A Non-Regulated Communications Provider, James H. Lister

Federal Communications Law Journal

The decision whether to be a regulated common carrier or a non-regulated communications provider carries with it numerous benefits and burdens that must be weighed. Although one may automatically assume that non-regulation is preferable, that may not always be the case. This Article directly addresses the decision of whether to be a lightly-regulated non-dominant common carrier or a non-regulated private carrier. The Article argues that certain statutory and regulatory rights enjoyed by common carriers are more important than the minimal regulatory burdens associated with non-dominant common carrier regulation.

Too Much Power, Too Little Restraint: How The Fcc Expands Its Reach Through Unenforceable And Unwieldy “Voluntary” Agreements, Bryan N. Tramont

Federal Communications Law Journal

The character of a regulatory agency is most severely tested at the zenith of its power. When the Federal Communications Commission ("FCC" or "Commission") breaks free of the limitations imposed by the law, the Commission’s leadership sets its own course. It is at these times, when legal oversight is at a minimum, that it becomes most important for the agency to "pay more attention to justice." Unfortunately, as outlined in this Article, the FCC has often failed this test of institutional character. In at least three contexts, the Commission has proven to be something less than a benevolent master. In …

Deference And Disability Discrimination, Rebecca Hanner White

Michigan Law Review

For thirty-five years, the civil rights community has paid scant attention to administrative law principles. Those interested in advancing on-the-job equality for this country's working men and women (or in preserving employer autonomy vis-a-vis federal encroachment) have all but ignored what many consider the arcane technicalities of administrative law. This state of affairs is strange when one considers that administration and enforcement of each of our major federal laws outlawing employment discrimination have been confided to an administrative agency, the Equal Employment Opportunity Commission ("EEOC"). The EEOC, however, has historically been given short shrift by litigants and by the judiciary. …

Reducing The Overburden: The Doris Coal Presumption And Administrative Efficiency Under The Black Lung Benefits Act, Eric R. Olson

Michigan Law Review

Coal dust build-up prevents many coal miners' lungs from functioning properly. This condition, commonly referred to as black lung or pneumoconiosis, can make common activities nearly impossible. The Black Lung Benefits Act covers the cost of medical treatment for many affected miners, though procedural impediments often prevent miners from receiving care. The miner's current or former employer, when identifiable, must pay for medical care relating to the miner's black lung. Most disputes over miners' claims for medical care arise when the miner has a history of cigarette smoking and the need for medical care could arise from either coal dust …

State Of Israel V. Jabarin, Theodor Or, Aharon Barak, Dalia Dorner, Jacob Turkel, Dov Levin, Yaakov Kedmi, Eliahu Mazza

Translated Opinions

Facts: A further hearing on the judgment of the Supreme Court in CrimA 4147/95 Muhammad Yousef Jabarin v. State of Israel in which the appellant was convicted of an offense under section 4(a) of the Prevention of Terrorism Ordinance 5798-1948 for an article he had published.  This further hearing addresses the question whether the construction of section 4(a) of the Prevention of Terrorism Ordinance requires a causal connection   between the publication of the words of praise, sympathy, or encouragement and the risk of the occurrence of acts of violence pursuant to the publication, for a conviction.  The court further …

State Of Israel V. Kahane, Theodor Or, Aharon Barak, Shlomo Levin, Yaakov Kedmi, Dalia Dorner, Jacob Turkel, Eliahu Mazza

Translated Opinions

Facts: Further hearing in the judgment of the Supreme Court (President A.  Barak and Justices A. Goldberg and E. Mazza) dated March 2, 1998 in CA 6696/96 Benyamin Kahane v. State of Israel, in which Benyamin Kahane was acquitted of offenses based on sections 133 and 134(c) of the Penal Code 5737-1977.  The acquittal overturned a conviction in the District Court which in turn had overturned an acquittal in the Magistrate’s Court.  Two main issues were under consideration in the further hearing.  The first dealt with the characteristics of the protected value or values in the offense of sedition …

The Exclusion Of Hiv-Positive Immigrants Under The Nicaraguan Adjustment And Central American Relief Act And The Haitian Refugee Immigration Fairness Act, Statutory Interpretation, Communicable Disease, Public Health, Legislative Intent, Shayna S. Cook

Michigan Law Review

The United States has turned away immigrants infected with the human immunodeficiency virus ("HIV") under the public health exclusion of the Immigration and Nationality Act ("INA") since the mid-1980's. Since Congress codified the HIV exclusion in 1993, any alien applying for an immigrant or nonimmigrant visa, adjustment of status to lawful permanent resident, or refugee status must first have a blood test for HIV. The HIV exclusion is not absolute, however. Each HIV-positive alien can apply for one of two waivers of the HIV exclusion that are available in the INA. When an alien applies for immigrant or permanent resident …

Petition For A Writ Of Certiorari, Arons V. Office Of Disciplinary Counsel Of The Supreme Court Of De, No. 00-509 (U.S. Oct 02, 2000), David C. Vladeck

U.S. Supreme Court Briefs

No abstract provided.

New Source Review Under The Clean Air Act: Time For More Market-Based Incentives?, Todd B. Adams

Buffalo Environmental Law Journal

No abstract provided.

Faith, Hope, And Rationality Or Public Choice And The Perils Of Occam's Razor, Cynthia R. Farina

Cornell Law Faculty Publications

Rethinking Patent Law In The Administrative State, Orin S. Kerr

William & Mary Law Review

This Article challenges the Supreme Court's recent holding that administrative law doctrines should apply to the patent system. The Article contends that the dynamics ofpatent law derive not from public law regulation, but rather from the private law doctrines of contract, property, and tort. Based on this insight, the Article argues that administrative law doctrines such as Chevron and the Administrative Procedure Act should not apply within patent law, and that such doctrines in fact pose a serious threat to the proper functioning of the patent system.

The Devil, The Details, And The Dawn Of The 21st Century Administrative State: Beyond The New Deal, Sandra B. Zellmer

Faculty Law Review Articles

No abstract provided.

Schechter Poultry At The Millennium: A Delegation Doctrine For The Administrative State, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

The new delegation doctrine might seem perplexing to both sides of the current delegation debate. Either it is too intrusive on administrative prerogatives or it is not nearly intrusive enough. The new delegation doctrine is difficult to comprehend only because it evinces a different focus. While the debate concentrates primarily on the legitimacy of lawmaking by administrative agencies, the new doctrine speaks more to the goal of promoting the legitimacy of law made by administrative agencies. It might even be fair to say that, in this regard, the new doctrine moves beyond the academic debate. Moreover, the new doctrine neither …

Does The Solicitor General Advantage Thwart The Rule Of Law In The Administrative State?, Jim A. Rossi

Vanderbilt Law School Faculty Publications

Linda Cohen and Matthew Spitzer's study, "The Government Litigant Advantage," sheds important light on how the Solicitor General's litigation behavior may impact the Supreme Court's decision making agenda and outcomes for regulatory and administrative law cases. By emphasizing how the Solicitor General affects cases that the Supreme Court decides, Cohen and Spitzer's findings confirm that administrative law's emphasis on lower appellate court decisions is not misplaced. Some say that D.C. Circuit cases carry equal-if not more-precedential weight than Supreme Court decisions in resolving administrative law issues. Cohen and Spitzer use positive political theory to provide a novel explanation for some …