Administrative Law Commons^™

Dioxin: Reassessing The Risk, Linda-Jo Schierow

RISK: Health, Safety & Environment (1990-2002)

Dr. Schierow briefly summarizes the status of a draft Environmental Protection Agency report reassessing the appropriate treatment of dioxin and describes ongoing intra- and extramural reviews of the reassessment.

Judicial Review Of Informal Agency Action On The Fiftieth Anniversary Of The Apa: The Alleged Demise And Actual Status Of Overton Park's Requirement Of Judicial Review "On The Record", Gordon G. Young

Faculty Scholarship

No abstract provided.

Is A Textualist Approach To Statutory Interpretation Pro-Environmentalist?: Why Pragmatic Agency Decisionmaking Is Better Than Judicial Literalism, Bradford Mank

Faculty Articles and Other Publications

This Article provides both anecdotal evidence and a more theoretical argument for why textualist statutory interpretation is not the best approach to address environmental. issues.

The Third House Of Congress Versus The Fourth Branch Of Government: The Impact Of Congressional Committee Staff On Agency Regulatory Decision-Making, 19 J. Marshall L. Rev. 247 (1986), James P. Hill

UIC Law Review

No abstract provided.

Regulatory Flexibility And The Administrative State, Marshall J. Breger

Scholarly Articles

This essay attempts to examine some evolving notions of regulatory flexibility and show how, if at all, they fit in with the existing framework of the administrative state. It is a preliminary effort to suggest the kinds of flexibility that should be encouraged and discouraged. It will highlight as well, the effect of increased administrative flexibility on the structure of administrative law and the APA thereby raising the question whether the APA - a document written to structure both adjudication and rulemaking - is, in fact, well suited to regulate cooperation between industry and government.

In The Matter Of Bell Petroleum Services, Inc.: Reviewing Removal Actions Under The Arbitrary And Capricious Standard Of Review, Robert Loefflad

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Amazon Burning And The World Bank: Lessons From The Second World Bank Inspection Panel Claim, David Hunter

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Apa-Adjudication: Is The Quest For Uniformity Faltering, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Government Accountability In The Twenty-First Century, Marshall J. Breger

Scholarly Articles

In this short paper I hope to point out two aspects of twenty-first century political life that relate to the challenge of ensuring government accountability. The first point relates to how advances in computer and media technology increase the potential of government accountability and how these technological developments will increase implementation of the principle of subsidiarity, or, in the American context, devolution of political power to state and local governments. Second, I will address the impact of these developments on administrative law in the next century.

A Proposal To Abolish The Office Of United States Trustee, Peter C. Alexander

University of Michigan Journal of Law Reform

In this Article, Professor Alexander reviews the creation and development of the Office of U.S. Trustee, an agency within the executive branch of the federal government, authorized to oversee the administration of all bankruptcy estates. Alexander asserts that the agency has expanded its scope beyond its original mission, becoming a huge bureaucracy that is widely criticized. By contrast, Alexander also discusses the Bankruptcy Administrator Program, a bankruptcy oversight system that exists within the federal districts in Alabama and North Carolina. He presents the positive and negative comments about that program and concludes that it is a more efficient system than …

Essay: Torquemada And Unemployment Compensation Appeals, William W. Milligan

University of Michigan Journal of Law Reform

The premise of this Essay is that unemployment compensation appeals hearings take the form of inquests rather than follow the traditional adversarial model. Given this, the hearing officer carries a special burden of ensuring that due process is afforded. State review systems should structure the process so that the difference, along with the unique burden, is made explicit.

Due Process Implications Of Telephone Hearings: The Case For An Individualized Approach To Scheduling Telephone Hearings, Allan A. Toubman, Tim Mcardle, Linda Rogers-Tomer

University of Michigan Journal of Law Reform

As the executive branch shrinks and reduces expenditures, its adjudicative functions adjust to the new fiscal reality. Telephone hearings are, therefore, increasingly being used in order to control costs. This Article examines the impact of telephone hearings on the due process elements of unemployment compensation 'fair" hearings. The Authors review the applicable federal and state law and find that there is no absolute bar to using the telephone to conduct administrative hearings. They test the empirical effect of the telephone on hearings in California and Maine. Their analysis of hundreds of hearings indicates that parties to telephone hearings are less …

Discretionary Adjudicatory Rulemaking: Due Process Of Lawmaking And Immigration Law, 11 Geo. Immigr. L.J. 83 (1996), Michael G. Heyman

UIC Law Open Access Faculty Scholarship

No abstract provided.

Jurisdiction To Review Agency Inaction Under Federal Environmental Law, Daniel P. Selmi

Indiana Law Journal

No abstract provided.

Cutting Through The Forest Of The Standing Doctrine: Challenging Resource Management Plans In The Eighth And Ninth Circuits, Kelly Murphy

University of Arkansas at Little Rock Law Review

No abstract provided.

Welfare Reform Within A Changing Context: Redifining The Terms Of The Debate, Mary Brynar Sanger

Fordham Urban Law Journal

This Essay explains the evolution of various approaches to welfare, assesses the efforts under the Family Support Act and reviews the principal findings of welfare research to evaluate the success of alternative program strategies. It explains the evolution of various approaches toward welfare before the mid-1990s. It then describes reforms instituted 1988 and reviews the dynamics of welfare caseloads and benefits of those programs. This Essay reviews the research findings in welfare reform's critical areas: those that seek to alter benefit structures and eligibility, and those that seek to alter fertility behavior through both incentive and punitive models. The Essay …

Modifying The Escalera Consent Decree: A Case Study On The Application Of The Rufo Test, Valerie D. White

Fordham Urban Law Journal

This Note argues that modifying the Escalera degree is appropriate under Rufo and would allow NYCHA to maintain a safe environment for its residents. It expains the standard used in modifying a consent decree, pre- and post-Rufo, as well as the difficulties in applying the Rufo test. It traces the history of the Escalera Consent Decree, outlines the arguments for and against modification, and applies Rufo to the proposed modification of Escalera, arguing that modification is appropriate because the facts have changed significantly since the Decree was signed, and the modification sought is appropriately tailored to those changed circumstances.

The Brown V. Giuliani Injunction: Combating Bureaucratic Disentitlement, Maria Fazzolari

Fordham Urban Law Journal

This Comment supports the preliminary injunction decision in Brown v. Giuliani, and demonstrates why judicial intervention is appropriate in welfare litigation to protect the constitutional rights of welfare recipients. It describes the New York City welfare administration system and its statutory framework, detailing the bureaucratic problems facing the system. It also describes "bureaucratic disentitlement," whereby largely obscure administrative proceedings function to effectively delay of deny welfare payments to eligible recipients. It examines the traditional judicial remedies and their general impotence in combating bureaucratic disentitlement, and the preliminary injunction decision granted in Brown and the justiciability of separation of powers issues …

Comments On "The Telecommunications Act Of 1966," By Thomas G. Krattenmaker, Loftus Becker

Faculty Articles and Papers

No abstract provided.

Standards Of Judicial Review In The Virginia Administrative Process Act, Mary Renae Carter

University of Richmond Law Review

Section 9-6.14:17 of the Virginia Administrative Process Act sets forth two standards by which courts may review the validity of a state agency's decisions. In formal rulemaking and adjudicatory proceedings, the statute requires an agency to keep a record of all evidence it receives and to make decisions based on this record. Upon review, a court will look to see if there is "substantial evidence" in the record to support the agency's findings of fact. In informal rulemaking and adjudicatory proceedings, the statute does not require an agency to keep an evidentiary record. If the agency has not voluntarily made …

Representation Of Claimants At Unemployment Compensation Proceedings: Identifying Models And Proposed Solutions, Maurice Emsellem, Monica Halas

University of Michigan Journal of Law Reform

Emsellem and Halas posit that claimants need representation at unemployment compensation proceedings. Evaluating statistical and survey data, the authors find that representation significantly improves a claimant's chance of receiving unemployment compensation. Improved recovery rates, they argue, benefit not only claimants but also society. The authors analyze the factors inducing employer appeals of compensation awards. They also review the systemic issues that accompany the provision of representation to those unable to afford it or to those unfamiliar with the unemployment compensation process. Finally, the authors present models of expanding claimant representation.

Regulating Indecent Broadcasting: Setting Sail From Harbors Or Sunk By The V-Chip?, Brett Ferenchak

University of Richmond Law Review

"Family values" has become a familiar phrase in all arenas of American life. As a result of the increasing concern over family values in broadcasting, the religious right, as well as the liberal left, have tried to stay the progression of moral decadence in our youth. The concerns have been directed towards violent, sexual and vulgar content in radio, television, and films.

Review Of Genevra Richardson And Hazel Genn, Eds., Administrative Law And Government Action : The Courts And Alternative Mechanisms Of Review, William S. Jordan Iii

Akron Law Faculty Publications

In this insightful and analytically rigorous book review, William S. Jordan III evaluates Administrative Law and Government Action, a comparative law volume exploring judicial and non-judicial oversight of administrative decisions across common law jurisdictions. Jordan commends the editors and contributors for offering a rich, multi-perspective approach to reviewing administrative power, particularly their treatment of ombudsman systems, tribunals, and internal agency review mechanisms as complements or alternatives to judicial review. Jordan contrasts the UK's evolving administrative frameworks with the U.S. model, emphasizing the U.S. focus on judicial review under the Administrative Procedure Act (APA) and the increasingly prominent role of Chevron …

Nicotine Withdrawal: Assessing The Fda's Effort To Regulate Tobacco Products, Lars Noah, Barbara A. Noah

Faculty Scholarship

At a press conference held on August 23, 1996, just one year after initially revealing his plans, President Clinton announced sweeping federal regulations to combat the underage use of tobacco products. The Food and Drug Administration (FDA) subsequently published a lengthy preamble to accompany the final regulations, detailing the Agency's assessment of the problem and responding to numerous public comments to its notice of proposed rulemaking (NPRM). Characterizing the growing use of tobacco products as a "pediatric disease," FDA Commissioner David Kessler previously had vowed to alter the smoking habits of the newest generation of tobacco users in order to …

Tax Transitions, Opportunistic Retroactivity, And The Benefits Of Government Precommitment, Kyle D. Logue

Articles

What if the current federal income tax laws were repealed and replaced with a simple flat tax? What if the entire Internal Revenue Code (with its graduated rates and countless deductions, exclusions, and credits) were scuttled in favor of a broad-based consumption tax? Only a few years ago, such proposals would have seemed radical and extremely unlikely to be adopted. But times are changing. Calls for a drastic overhaul of the Internal Revenue Code have become commonplace, even at the highest levels in the tax-policy community. In addition, proposals that would replace the income tax with a flat-rate broad-based consumption …

Introduction, Harold H. Bruff

Publications

As citizens, we ought to ensure that our criticisms of Congress are constructive, lest we damage ourselves. In that spirit, the American Bar Association's Section of Administrative Law and Regulatory Practice created a special Congressional Process Committee to study selected aspects of congressional procedures and to recommend appropriate reforms. The Committee, which I chair, is composed of administrative lawyers who are experienced in legislative practice, or who have worked in Congress. We decided to address selected aspects of congressional structure and procedure for which we believe administrative lawyers possess relevant expertise.

The articles that form this Symposium grew out of …

From Expertise To Politics: The Transformation Of American Rulemaking, Peter L. Strauss

Faculty Scholarship

In this speech to be given on November 15, 1996, as the American contribution to the week-long conference on administrative law sponsored by the Fundaci6n Estudios de Derecho Administrativo in Caracas, Venezuela, Professor Peter L. Strauss addresses the history and developing political character of rulemaking in federal law over the fifty years since enactment of the Administrative Procedure Act. As a framework, Professor Strauss sets forth a hierarchy of institutional rulemaking, from constitution through informal advising. He then develops his discussion of rulemaking by tracing the federal process of rulemaking through time, beginning with the enactment of the Administrative Procedure …

Changing Times: The Apa At Fifty, Peter L. Strauss

Faculty Scholarship

In early October 1995, Walter Gellhorn helped to open a National Archives display commemorating the fiftieth birthday of the Administrative Procedure Act ("APA"). That Act had begun to take shape just prior to World War II, when Gellhorn had directed the Attorney General's Committee on Administrative Procedure. Created in response to a political spasm of legislative activity that produced a "reform" bill President Roosevelt vetoed, Gellhorn's committee engaged in a thorough and careful survey of administrative agencies and their procedures. In the end, the committee produced twenty-seven monographs describing the variety of decision-making processes employed by the agencies and a …

Administrative Law: The Hidden Comparative Law Course, Peter L. Strauss

Faculty Scholarship

What does today's Administrative Law course give your students that you might not be aware of and might be helped by knowing? That, as I understand it, is the question I am to answer. But we may also want to think about the overall shape of the curriculum: it may be useful to ask about fundamental issues our students may not be aware of, that may not be dealt with elsewhere in the law school curriculum. I'll spend most of my time on the question I've been asked to address, but I hope you will accept a few sentences on …

Risk Assessment Perspectives, Peter L. Strauss

Faculty Scholarship

I have a slightly different subtitle for our session today, which I hope our panelists may consider in addressing the many challenges before them: Cost-Benefit Analysis and Risk Assessment under Diminished Resources. Allan Morrison introduced the resource problem at the end of yesterday's session. It is an important element of the problems we face.

I think another element of those problems is finding a reasoned way of addressing these issues. The contrast between reasoned decisionmaking and political football was also nicely in evidence yesterday, perhaps especially strongly for those of us who have been responsible for putting together these presentations. …