Administrative Law Commons^™

Potus And Pot: Why The President Could Not Legalize Marijuana Through Executive Action, Robert Mikos

University of Cincinnati Law Review

No abstract provided.

Where's The Beef?: A Guide To Judges On Preemption Of State Tort Litigation Involving Branded Drugs, Victor E. Schwartz, Christopher E. Appel

University of Cincinnati Law Review

No abstract provided.

How Federal Agencies Sue On Victims' Behalf: Parens Patriae, Equitable Remedies, And Procedure, Collin Berger

Notre Dame Law Review

This Note adds to the literature about federal agency actions on victims’ behalf by incorporating recent cases and comparing cases about courts’ power to parens patriae cases. Part I describes these two lines of cases: the parens patriae cases that define what states can do in federal court, and the cases on courts’ equitable powers in agency suits through Kokesh, Liu, and AMG Capital Management. Part II then considers potential practical issues with current agency processes, including a simple empirical analysis of the SEC’s records and how they might reflect the agency’s internal strategy and deadlines. Part III considers how …

Covid-19 Impacts: How A Global Pandemic Amid The Sunsets Of The Ptc And Itc Made The U.S. Wind And Solar Industries More Resilient, Kimberly E. Diamond

Fordham Environmental Law Review

A cataclysmic event is sometimes the necessary catalyst for companies within certain industries to re- examine, radically shift, and replace their standard practices with technologically-advanced alternatives. In the United States, the occurrence of the Coronavirus pandemic (“COVID-19”) during the sunsets of the Production Tax Credit (“PTC”) and the Investment Tax Credit (“ITC”) created a unique confluence of factors that produced a perfect storm tantamount to such a cataclysmic event for companies in the wind and solar industries, particularly developers. Over the years, the domestic utility-scale wind industry has come to rely heavily upon the PTC, while the domestic utility- scale …

Illegal Discharge: Exploring The History Of The Criminal Enforcement Of The U.S. Clean Water Act, Dr. Joshua Ozymy, Dr. Melisssa L. Jarrell

Fordham Environmental Law Review

The criminal prosecution of defendants that violate federal clean water laws has been ongoing for roughly four decades. Yet, we continue to have a poor understanding of how federal prosecutors use the U.S. Clean Water Act (“CWA”) to charge and prosecute criminals and the outcomes of those prosecutions. We use content analysis to analyze 2,588 federal criminal prosecution case summaries, 1983-2019, to gain a better historical understanding of how the CWA has been used as a prosecutorial tool, to bring out the major themes in the prosecutions, and quantify sentencing outcomes. Findings from the 828 CWA prosecutions undertaken during this …

Red Tide: A Blooming Concern For Florida Manatees, Shannon Price Esq.

Fordham Environmental Law Review

Although red tides are a common and natural occurrence around the coast of Florida, within the last few decades they have intensified and become much more deadly. Several identifiable human-caused factors exacerbate the size, concentration, and duration of the harmful algae bloom and disturb the environment’s natural balance. The Florida Gulf Coast provides all the algae’s necessary requirements for survival, the perfect storm to create a resilient super bloom that annihilates its host ecosystem.

This article explains the plight of Florida manatees who, like other marine animals and plants, are being injured or killed by this algae crisis. It also …

The Use Of Regular Militaries For Natural Disasters After A Major Event Where The Military Was Seen As A Failure - The Somalia Effect In The Age Of Black Lives Matters And Covid-19, Donald D.A. Schaefer

Fordham Environmental Law Review

This is written as a continuation of Dr. Schaefer’s recent article entitled, “The Use of the Regular Militaries for Natural Disaster Assistance: Climate Change and the Increasing Need for Changes to the Laws in the United States, China, Japan, the Philippines, and Other Countries.” 2 Perhaps few other areas have affected so many people than the Covid-19 pandemic. Coupled with this has been the struggle over the use of force by the military and police in the age of “black lives matters” and the movements that have been transpired as a result. With the increased global warming likely to continue …

Regtech And Predictive Lawmaking: Closing The Reglag Between Prospective Regulated Activity And Regulation, John W. Bagby, Nizan G. Packin

Michigan Business & Entrepreneurial Law Review

Regulation chronically suffers significant delay starting at the detectable initiation of a “regulable activity” and culminating at effective regulatory response. Regulator reaction is impeded by various obstacles: (i) confusion in optimal level, form and choice of regulatory agency, (ii) political resistance to creating new regulatory agencies, (iii) lack of statutory authorization to address particular novel problems, (iv) jurisdictional competition among regulators, (v) Congressional disinclination to regulate given political conditions, and (vi) a lack of expertise, both substantive and procedural, to deploy successful counter-measures. Delay is rooted in several stubborn institutions, including libertarian ideals permeating both the U.S. legal system and …

"Eco" Your Own Way: An Argument For State-Specific Climate Change Legislation, Amanda Voeller

Fordham Environmental Law Review

The consequences of climate change seriously and immediately threaten the American way of life, but proposed federal legislation like the Green New Deal is overly broad, unrealistic, and inefficient. The most effective way for the United States to combat climate change is not with a one-size-fits-all plan like the Green New Deal, but with federal legislation that incentivizes states and cities to enact and enforce individualized, local climate legislation. Different states and cities have different climates, available energy sources, and transportation needs, so the federal government should use financial incentives to encourage states and cities to pass tailor-made bills and …

Unrules, Cary Coglianese, Gabriel Scheffler, Daniel E. Walters

Faculty Scholarship

At the center of contemporary debates over public law lies administrative agencies’ discretion to impose rules. Yet for every one of these rules, there are also unrules nearby. Often overlooked and sometimes barely visible, unrules are the decisions that regulators make to lift or limit the scope of a regulatory obligation through, for instance, waivers, exemptions, or exceptions. In some cases, unrules enable regulators to reduce burdens on regulated entities or to conserve valuable government resources in ways that make law more efficient. However, too much discretion to create unrules can facilitate undue business influence over the law, weaken regulatory …

Leaving Judicial Review With The Judiciary: The Misplaced Role Of Agency Deference In Tunney Act Public Interest Review, Alexandra P. Clark

Washington and Lee Law Review

This Note explores the Tunney Act’s mechanism for judicial review of consent decrees negotiated by the U.S. Department of Justice and merging parties to remedy alleged antitrust issues. The Tunney Act requires that the reviewing court only approve a consent decree if it is “in the public interest.” This Note argues, however, that courts have improperly circumscribed their review by affording too much deference to the Department of Justice when reviewing these consent decrees. This deference subverts Congress’s intent in imposing judicial review and allows the government and merging parties the opportunity to skirt meaningful judicial review. As such, this …

Fiscal Waivers And State "Innovation" In Health Care, Matthew B. Lawrence

William & Mary Law Review

This Article describes how the Department of Health and Human Services (HHS) has used fiscal waiver authorities—delegated power to alter federal payments to states under Medicaid and the Affordable Care Act (ACA)—to influence state health policy choices. It highlights how the agency uses its fiscal waiver authorities to shape which reforms states choose to pursue, in some cases inspiring genuine state innovation and in others encouraging states to adopt reforms favored by HHS or discouraging states from adopting disfavored reforms. Moreover, while HHS has sometimes influenced state policy making in ways that further the substantive goals of the ACA and …

Fraudulent Transfers And Juries: Was Granfinanciera Rightly Decided?, David G. Carlson

Articles

In 1989, the Supreme Court ruled that a third party recipient of a fraudulent conveyance had a Seventh Amendment right to a jury trial when a bankruptcy trustee brought suit for a money judgment under Bankruptcy Code section 550(a). This was because, in 1791, an English bankruptcy trustee would have brought fraudulent transfer litigation in a court of law (not a court of equity) and would have obtained a money judgment. I maintain that the Supreme Court committed the classical logical error of Quaternio Terminorum—a false analogy. The analogy was that American bankruptcy trustees are like 18th century English bankruptcy …

Interior Landmark Designation And Regulation: Should Government Regulate Publicity Inaccessible Interior Landmarks, Victoria Tesone

Cardozo International & Comparative Law Review

The note argues that government regulation of interior landmarks should be contingent upon public access, as such regulation otherwise fails to serve its intended public benefit and unjustly burdens property owners. It proposes that without public access, landmark designation should not impose regulatory obligations on property owners, and suggests that the financial burden of preservation should shift to taxpayers rather than private owners.

Compensation, Commodification, And Disablement: How Law Has Dehumanized Laboring Bodies And Excluded Nonlaboring Humans, Karen M. Tani

Michigan Law Review

A Review of Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era. by Nate Holdren.

Rwu Law News: The Newsletter Of Roger Williams University School Of Law 04-2021, Michael M. Bowden, Barry Bridges, Political Roundtable

Life of the Law School (1993- )

No abstract provided.

The Recent Federal Withdrawal Of Limitations On Supplemental Environmental Projects And Importance To Environmental Justice Initiatives, Christina Giordanella

Cardozo Journal of Equal Rights & Social Justice

The note discusses the significance of Supplemental Environmental Projects (SEPs) in advancing environmental justice, particularly benefiting low-income and minority communities. It highlights the Biden administration's reversal of Trump-era restrictions on SEPs, which previously limited their use. The article argues that SEPs are legally valid tools supported by Congress through various environmental statutes and court rulings, despite challenges from the Trump administration. It emphasizes the need for explicit Congressional authorization to secure the future of SEPs and expand their use in settlements.

Contemporary Issues In Administrative Law, Amy L. Moore

Law Faculty Scholarship

This symposium panel discussion, published in the Belmont Law Review, examines contemporary issues in Tennessee administrative law through the perspectives of an administrative law judge, a state agency general counsel, and an attorney from the Tennessee Attorney General’s Office

8BelmontLRev581 . The panel explores the evolving scope of judicial review, statutory deference to agency decision-making under the Tennessee Uniform Administrative Procedures Act (UAPA), and the practical implications of recent legislative changes expanding venue for judicial review. Panelists analyze the mechanics and challenges of state rulemaking, including executive oversight, Attorney General review for legality and constitutionality, legislative approval through the …

The Rule Of Five Guys, Lisa Heinzerling

Michigan Law Review

A Review of The Rule of Five: Making Climate History at the Supreme Court. by Richard J. Lazarus.

Akibat Hukum Terhadap Akta Perjanjian Pengikatan Jual Beli Yang Dinyatakan Prematur Berdasarkan Putusan Mahkamah Agung Nomor 680 K/Pdt/2017, Desy Haryani

Indonesian Notary

Perjanjian pengikatan jual beli lahir karena adanya asas kebebasan berkontrak sebagaimana diatur dalam Pasal 1838 KUH Perdata. Walaupun didasari dengan kebebasan berkontrak perjanjian tersebut tetap mempunyai batasan yaitu tidak bertentangan dengan peraturan perundang- undangan, kesusilaan, dan ketertiban umum. Kaitannya dalam perjanjian pengikatan jual beli tanah maka harus diperhatikan ketentuan yang berkaitan terhadap objek perjanjian tersebut. Dalam putusan Mahkamah Agung Nomor 680 K/PDT/2017 perjanjian pengikatan jual beli dinyatakan batal demi hukum dikarenakan perjanjian bersifat prematur. Sehingga permasalahan yang diangkat dalam penelitian ini adalah perjanjian pengikatan jual beli yang dinyatakan prematur menurut pertimbangan hakim dalam putusan Mahkamah Agung Nomor 680 K/PDT/2017; tanggungjawab …