Administrative Law Commons^™

Legislative Analyst's Office, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.

Senate Office Of Research, Elisa D'Angelo Weichel

California Regulatory Law Reporter

No abstract provided.

Democracy Within Federalism: An Attempt To Reestablish Middle Ground, Alexander Hanebeck

San Diego Law Review

the conflict between the two levels of government, state and federal, is a very old one. The main battleground of this debate, however, has been over states' rights and the protection of individual rights by federal courts. As John Hart Ely observed, this is not where federalism hangs in the balance. He correctly points out what is becoming obvious in recent Supreme Court decisions. For the existence of states as independent entities, it is more important where legislative competence lies. 3 This Article is concerned with the groundwork for a debate over the distribution of legislative competence, because it attempts …

Municipal Ethics Remain A Hot Topic In Litigation: A 1999 Survey Of Issues In Ethics For Municipal Lawyers, Patricia E. Salkin

Scholarly Works

No abstract provided.

The President And Choices Not To Enforce, Peter L. Strauss

Faculty Scholarship

The executive branch is often called upon to assess how a particular statute it is charged to administer fits within the larger framework of the law. Professor Dawn Johnsen's thoughtful analysis addresses an important subset of these challenges: situations in which the President believes a particular statute is inconsistent with one or another provision of the Constitution and, therefore, should not be enforced. My purpose here is to explore the context of executive non-enforcement more broadly, in a way that may help in understanding the particular problem she addresses.

Issues of constitutional structure and function are among the most daunting …

Implementing Cost-Benefit Analysis When Preferences Are Distorted, Matthew D. Adler, Eric A. Posner

Faculty Scholarship

Cost-benefit analysis is routinely used by government agencies in order to evaluate projects, but it remains controversial among academics. This paper argues that cost-benefit analysis is best understood as a welfarist decision procedure and that use of cost-benefit analysis is more likely to maximize overall well-being than is use of alternative decision-procedures. The paper focuses on the problem of distorted preference. A person's preferences are distorted when his or her satisfaction does not enhance that person's well-being. Preferences typically thought to be distorted in this sense include disinterested preferences, uninformed preferences, adaptive preferences, and objectively bad preferences; further, preferences may …

Ossification Revisited: Does Arbitrary And Capricious Review Significantly Interfere With Agency Ability To Achieve Regulatory Goals Through Informal Rulemaking?, William S. Jordan Iii

Akron Law Faculty Publications

This article revisits the longstanding debate over the "ossification" of informal rulemaking, the theory that judicial review—especially under the "arbitrary and capricious" standard—has made rulemaking so procedurally burdensome that it impedes agencies from efficiently achieving their regulatory objectives. William S. Jordan III critically evaluates both empirical data and doctrinal developments to assess whether such review genuinely causes delay or obstruction in agency rulemaking. He finds that while courts do impose significant analytical and procedural expectations, the impact may be less severe than ossification critics claim. Jordan argues that judicial scrutiny can enhance the quality of rulemaking by ensuring reasoned decision-making …

Envirocare V. Nrc Increases Agency Discretion To Deny Administrative Intervention: Right Result - Wrong Reason, William S. Jordan Iii

Akron Law Faculty Publications

In this article, William S. Jordan III critiques the D.C. Circuit's decision in Envirocare of Utah, Inc. v. NRC, which upheld the Nuclear Regulatory Commission’s (NRC) decision to deny a private competitor's request to intervene in a licensing proceeding. While Jordan agrees with the outcome—that the NRC’s discretion in managing administrative proceedings should be respected—he contends that the court’s rationale risks expanding agency discretion at the expense of public participation and transparency. The article explores the statutory and administrative law frameworks governing intervention rights, analyzing how the court’s interpretation diverges from sound procedural principles. Jordan argues for a more nuanced …

Appeal No. 0670: Kermit Harris & Pearl Hendricks V. Division Of Mineral Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Order 99-73

The Battle For Portland, Maine, L. Andrew Tollin

Federal Communications Law Journal

In 1985, when the FCC began the competitive process of deciding who would be licensed to provide cellular telephone service to Portland, Maine, chaos and irony reigned. Thirteen years later, after a bitter legal battle among local telephone companies, a provider was finally selected. At one point or another, all three branches of government became involved. The license itself changed hands three times during the case and, in essence, three different telephone systems were constructed. Ultimately, the case was decided on the basis of whether the FCC complied with a preexisting federal law, the Paperwork Reduction Act, in adopting the …

Changing The Law In Child Abuse And Neglect Proceedings: An Improvement On Improvement Periods, Morgan E. Persinger

West Virginia Law Review

No abstract provided.

Life After Adarand: What Happened To The Metro Broadcasting Diversity Rationale For Affirmative Action In Telecommunications Ownership?, Leonard M. Baynes

University of Michigan Journal of Law Reform

The United States Supreme Court severely restricted affirmative action policies in Adarand Constructors, Inc. v. Pena. In this opinion, a majority of the Court held that all state or federally mandated affirmative action programs are to be analyzed under strict scrutiny. This test requires affirmative action programs to meet a compelling governmental interest and be narrowly tailored.

Adarand raised issues concerning the validity of the Federal Communications Commission's affirmative action ownership policies. Previously, the Court in Metro Broadcasting, Inc. v. FCC found the FCC minority ownership policies constitutional under a lower (intermediate) standard of review. In Adarand, the Court …

Increasing Consumer Power In The Grievance And Appeal Process For Medicare Hmo Enrollees, Kenneth J. Pippin

University of Michigan Journal of Law Reform

Federal law requires that Health Maintenance Organizations (HMOs) and Managed Care Organizations (MCOs) provide Medicare beneficiaries with specific grievance and appeal rights for challenging adverse decisions of these organizations. The Health Care Financing Administration (HCFA) is charged with enforcing these regulations. Currently, however, HCFA contracts with HMOs, allowing them to enroll Medicare beneficiaries despite the fact that many of the statutory and regulatory requirements are ignored by the Medicare HMOs. This is problematic because the elderly Medicare population may not be able to independently and adequately challenge the HMO's denial of care or reimbursement. Because HCFA has been reluctant and …

Administrative Law, Mark H. Cohen, David C. Will

Mercer Law Review

This Article covers important developments in Georgia administrative law for the two-year period from June 1, 1997 through May 31, 1999. Because administrative law has been omitted from major consideration in the Annual Survey of Georgia Law since 1987, this Article is an attempt to cover an additional period of review, which, the authors hope, will be continued in future surveys. This Article includes cases as well as a discussion of two significant legislative enactments during the survey period.

Regulating Through Information: Disclosure Laws And American Health Care, William M. Sage

Faculty Scholarship

Efforts to reform the American health care system through direct government action have failed repeatedly. Nonetheless, an alternative strategy has emerged from these experiences: requiring insurance organizations and health care providers to disclose information to the public. In this Article, Professor Sage assesses the justifications for this type of regulation and its prospects. In particular, he identifies and analyzes four distinct rationales for disclosure. He finds that the most commonly articulated goal of mandatory disclosure laws-improving the efficiency of private purchasing decisions by giving purchasers complete information about price and quality- is the most complicated operationally. The other justifications-which he …

Is The Clean Air Act Unconstitutional?, Cass R. Sunstein

Michigan Law Review

This Article deals with two linked questions. The first involves the future of the Clean Air Act. The particular concern is how the Environmental Protection Agency ("EPA") might be encouraged, with help from reviewing courts, to issue better ambient air quality standards, and in the process to shift from some of the anachronisms of 1970s environmentalism to a more fruitful approach to environmental protection. The second question involves the role of the nondelegation doctrine in American public law, a doctrine that shows unmistakable signs of revival. I will suggest that improved performance by EPA and agencies in general, operating in …

Tzemach V. Minister Of Defense, Itzchak Zamir, Aharon Barak, Dov Levin, Theodor Or, Eliahu Mazza, Mishael Cheshin, Tova Strasberg-Cohen, Dalia Dorner, Jacob Turkel, Dorit Beinisch, Yaakov Kedmi

Translated Opinions

Facts: The petitioners, Members of Knesset, reserve military officers, and student organizations, challenged a practice in which the Minister of Defense routinely grants deferrals of and exemptions from required military service to ultra-Orthodox Jewish Yeshiva students who engage in full-time religious study. They claimed the exemptions, granted to an ever-growing percentage of enlistment candidates (8% in the year 1997), violate the principle of equality, exceed the zone of reasonableness, and are disproportionate. They further claimed that the Minister of Defense lacks the authority to regulate the matter and that it must be done so through legislation.

Held: The Knesset, not …

The Challenge Of Administration By Regulation: Preliminary Findings Regarding The U.S. Government's Venture Capital Funds, Jonathan G.S. Koppell

Publications from President Jonathan G.S. Koppell

This article assesses the ability of elected officials to control public policy as implemented by public/private hybrid organizations, specifically, government venture capital funds. The study reveals greater control over OPIC investment funds than Enterprise Funds despite the existence of more traditional administrative tools of control for Enterprise Funds. This finding suggests that the regulatory infrastructure for hybrid organizations is more determinative of control than the existence (or lack) of traditional administrative control tools. Thus the challenge of hybrid government centers on the development of regulation as a substitute for administration.

Appeal No. 0667: Century Well Service V. Division Of Mineral Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Order 99-64

Appeal No. 0668: Dr. James Papitran V. Division Of Mineral Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Order 99-69

Appeal No. 0663: Halwell Company, Inc. V. Division Of Oil & Gas, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Review of Chief's Order 99-20

Alj Final Orders On Appeal: Balancing Independence With Accountability, Jim Rossi

Vanderbilt Law School Faculty Publications

This essay addresses how ALJ final order authority in many state systems of administrative governance (among them Florida, Louisiana, Missouri, and South Carolina) poses a tension between independence and accountability. It is argued that political accountability is sacrificed where reviewing courts defer to ALJ final orders on issues of law and policy. Standards of review provide state courts with a way of restoring the balance between independence and accountability, but reviewing courts should heighten the deference they give to the agency's legal and policy positions -- giving little or no deference to the ALJ on these issues -- even where …

Institutional Design And The Lingering Legacy Of Antifederalist Separation Of Powers Ideals In The States, Jim A. Rossi

Vanderbilt Law School Faculty Publications

This Article applies comparative institutional analysis to separation of powers under state constitutions, with a particular focus on the nondelegation doctrine and states' acceptance of Chadha-like restrictions on legislative oversight. The Article begins by contrasting state and federal doctrine and enforcement levels in each of these separation of powers contexts. Most state courts, unlike their federal counterparts, adhere to a strong nondelegation doctrine. In addition, many states accept (de facto if not de jure) even more explicit and sweeping legislative vetoes than the federal system. The Article highlights the contrast of federal and state approaches by identifying their similarity with …

Unreviewability In State Administrative Law, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

Appeal No. 0589: Estate Of M. Morrison V. Donald L. Mason, Chief, Division Of Oil & Gas, Ohio Oil & Gas Board Of Review

Ohio Oil & Gas Commission Decisions

Chief's Order 96-161

Appeal No. 0669: Dr. James Papritan V. Division Of Oil & Gas & Belden & Blake, Et Al.,, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Review of Chief's Order 99-70

Appeal No. 0661: Halwell Company V. Division Of Oil & Gas, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Review of Chief's Order 99-24

Appeal No. 0671: Art & Carol Crann V. Division Of Mineral Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Order 99-103

Lam V. Dal, Dalia Dorner, Aharon Barak, Dorit Beinisch

Translated Opinions

Facts: Diagnosticians of children’s learning disabilities and a nonprofit organization representing them challenged a decision by the Ministry of Education to cease recognizing diagnoses of learning disabilities, generally conducted for students seeking eligibility for special governmental conditions and services, unless the diagnoses are conducted by educational psychologists. Petitioners alleged that the decision violated the Basic Law: Freedom of Occupation.

Held: The decision to cease recognizing diagnoses conducted by the petitioners violates the freedom of occupation and does so neither by force of a statute nor or in accordance with any statute, by virtue of express authorization therein, as required by …

Appeal No. 0662: William C. Barteles, Et Al V. Division Of Mineral Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Order 99-11 (Energy Resources of America)