Administrative Law Commons^™

We Need Protection From Our Protectors: The Nature, Issues, And Future Of The Federal Trust Responsibility To Indians, Daniel I.S.J. Rey-Bear, Matthew L.M. Fletcher

Michigan Journal of Environmental & Administrative Law

The federal trust responsibility to Indians essentially entails duties of good faith, loyalty, and protection. While often thought of as unique to federal Indian policy, it developed from and reflects common law principles of contracts, property, trusts, foreign relations/international law, and constitutional law. However, several issues preclude a greater understanding and implementation of the federal trust responsibility. These include Executive Branch efforts to avoid liability, neocolonial judicial activism, and episodic congressional attention. Enactment of legislation to reaffirm and modernize the federal trust responsibility through greater self-determination, integration, elevation, oversight, and funding should help overcome these issues to improve federal Indian …

San Manuel'S Second Exception: Identifying Treaty Provisions That Support Tribal Labor Sovereignty, Briana Green

Michigan Journal of Environmental & Administrative Law

Inspired by the holding in WinStar World Casino, this Note considers the potential for tribes to make treaty-based arguments when facing the threat of National Labor Relations Board jurisdiction. This Note presents the results of a survey of U.S. government treaties with Native Americans to identify those treaties with language similar to that interpreted by the Board in WinStar World Casino. The survey identified four treaties and four tribes that could make treaty-based arguments like those made in Winstar World Casino: the Confederated Tribes of the Umatilla Indian Reservation, the Muscogee (Creek) Nation, the Seminole Nation of …

Exploring Alternatives To The "Consultation Or Consent" Paradigm, Jason Searle

Michigan Journal of Environmental & Administrative Law

The Dakota Access Pipeline brought the question of what adequate tribal consultation requires to the forefront. Some would argue that consultation is a weak standard and that only adopting a new standard of free, prior, and informed consent can guarantee tribes greater control and respect. However, the “consultation or consent” paradigm does not take into account important sources of law that do not fit under “consultation” or “consent” and yet could be valuable in strengthening tribes’ claims in the absence of a consent standard.

Whose Standards Control? Maine V. Mccanhy And The Federal, State, And Tribal Battle Over Water Quality Regulation, Joseph Paul Mortelliti

Michigan Journal of Environmental & Administrative Law

This Note considers the longstanding clash between the United States government and state governments over the management of intrastate waters through the lens of Maine v. McCarthy, an ongoing federal lawsuit. McCarthy confronts whether the United States Environmental Protection Agency can require state water quality standards to specifically safeguard the health and cultural practices of Maine’s Indian tribes, particularly sustenance fishing. A panoply of legal and political factors gave rise to and shaped the course of the litigation, ranging from tribal sovereignty to agency discretion and political gamesmanship. After evaluating the litigants’ arguments and examining previous regulatory collisions between …

An Examination Of Trans Fat Labeling: Splitting The Third & Ninth Circuit, Jack Gainey

Washington and Lee Journal of Civil Rights and Social Justice

At first glance, consumer claims alleging misleading labeling would seem to find a simple resolution. Under 21 U.S.C. § 343, which governs misbranded food, a food product is misbranded if “its labeling is false or misleading.” However, controversial interpretation of seemingly straightforward statutory language, together with evolving case law, have blurred a once clear picture. Disagreement over the federal preemption of consumer claims regarding trans fat, underscored by a dispute regarding standing, have combined to create a divergence of opinions between courts across the country.

In 2011, the United States District Court for the Northern District of California considered a …

Dictation And Delegation In Securities Regulation, Usha Rodrigues

Indiana Law Journal

When Congress undertakes major financial reform, either it dictates the precise con-tours of the law itself or it delegates the bulk of the rule making to an administrative agency. This choice has critical consequences. Making the law self-executing in federal legislation is swift, not subject to administrative tinkering, and less vulnerable than rule making to judicial second-guessing. Agency action is, in contrast, deliberate, subject to ongoing bureaucratic fiddling, and more vulnerable than statutes to judicial challenge.

This Article offers the first empirical analysis of the extent of congressional delegation in securities law from 1970 to the present day, examining nine …

Bureaucracy As Violence, Jonathan Weinberg

Michigan Law Review

Review of The Utopia of Rules: On Technology, Stupidity, and the Secret Joys of Bureaucracy by David Graeber.

Jaminan Dan Agunan Dalam Pembiayaan Bank Syariah Dan Kredit Bank Konvensional, Ifa Latifa Fitriani

Jurnal Hukum & Pembangunan

If we look into the collateral and additional collateral concept in conventional banking and Islamic banking, it has different fundamental background and principle. Collateral in conventional banking system appears due to the position and condition of the creditor-debitor relationship. The relationship has implicedto present the legal obligation of collateral things according to Article 1131 Book of Civil Law in every credit transaction. Islamic banking system has taken the consept of collateral from Rahn and kafalah, eventhough the reality shows the practice of collateral and additional collateral still using legal collateral norm of Indonesia’s positive law sistem that based on Westren …

Penguatan Peran Majelis Permusyawaratan Rakyat Dalam Struktur Ketatanegaraan Indonesia, R. Nazriyah

Jurnal Hukum & Pembangunan

Nevertheless, the amendment (fifth) should be done with wisdom, sincerity, deliberation, and After the constitutional amendment the Assembly's role was limited only on disseminate the results of the 1945 amendment and appoint President and Vice President. Strengthening the role of the Assembly now has begun to appear with the revival of the tradition of the annual session of the Assembly, with less in this way the performance of the President and other state institutions can be controlled and serve as checks and balances. Discourse to reuse the guidelines need to consider the following matters: first, it should be clearly who …

Menolak Mafia Peradilan: Menjaga Integritas Hakim-Menyelaraskan Perbuatan Dan Nuraninya, Eman Suparman Prof.

Jurnal Hukum & Pembangunan

The terminology is not only just a figment or slander. In fact, its present has been confirmed by the establishment of the Judicial Mafia Eradication Task Force by President Susilo Bambang Yudhoyono. Lately, some important events have occurred in Indonesian judiciary organs. The welfare improvement program for judges, which was manifested by the Judicial Commission, Government and Parliament of the Republic of Indonesia in the form of increased allowances of judges, has not been able to significantly erode the corrupt behavior of some unscrupulousgreedy judges.Therefore, in order to respond to the objective conditions that occur lately, the President of the …

Putusan Pengadilan Pidana Sebagai Dasar Pengajuan Gugatan Perbuatan Melawan Hukum Terkait Pelaksanaan Uang Pengganti, Sri Laksmi Anindita, Lazuardi Adnan

Jurnal Hukum & Pembangunan

Since Indonesia has known and enforced the concept of tort, an act regarded as tort is not only actions contrary to the law, but an act that violates the principles of propriety, the principles of thoroughness and cautionary principle also included in tort. Around 2010, it was found that the act of not fulfilling the decision of court which has binding power associated for compensatory money in cases of corruption becomes the basis of a tort lawsuit, where the problem is that court verdict is not a main legal source for countries which adopt civil law such as Indonesia. Therefore, …

Great Basin Resource Watch V. Bureau Of Land Management, Jody D. Lowenstein

Public Land & Resources Law Review

In Great Basin Resource Watch v. Bureau of Land Management, the Ninth Circuit invalidated the BLM’s environmental review, finding that the agency based its approval of a mining project on unsupported reasoning, inaccurate information, and deficient analysis. In negating the action, the court held that the BLM failed to take the hard look required by the National Environmental Policy Act.

Appeal No. 0927: M-Il.L.C. Dba M_I Swaco, V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Order 2016-158 (modifying Chief's Order 2016-121); M-I SWACO Facility

The Surprising Origins Of The Interstate Commerce Commission, Jack M. Beermann

Shorter Faculty Works

Many law review articles fail to live up to the promise of their titles or abstracts, leaving disappointed readers in their wake. Others have titles that hide the ball. Behind the wordy and somewhat bland title of Jed Shugerman’s 2015 article—The Dependent Origins of Independent Agencies: The Interstate Commerce Commission, the Tenure of Office Act, and the Rise of Modern Campaign Finance—lies a fascinating new take on the origins of independent agencies.

The identification of the Interstate Commerce Commission (ICC) as the first modern independent regulatory agency is familiar to scholars of American administrative law. The ICC, created …

The Crushing Of A Dream: Daca, Dapa And The Politics Of Immigration Law Under President Obama, Robert H. Wood

Barry Law Review

No abstract provided.

Disability Rights In The Age Of Uber: Applying The Americans With Disabilities Act Of 1990 To Transportation Network Companies, Rachel Reed

Georgia State University Law Review

Within the past year, individual plaintiffs and disability rights organizations have initiated a number of lawsuits against Uber, and similar companies like Lyft, alleging violations of Title III of the Americans with Disabilities Act of 1990 (Title III). In each of these cases, the plaintiffs’ success turns on affirmatively answering one significant threshold question: Whether Uber, or a similar entity, falls within the scope of Title III. Traditional taxi companies fall squarely within the Americans with Disabilities Act of 1990’s (ADA) coverage under 42 U.S.C. § 12184 (§ 12184), which governs private companies that provide transportation services. Given the similarities …

Appeal No. 0931: M-Il.L.C. Dba M_I Swaco, V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Termination Letter; Strasburg Facility

Simmons V. Briones, 133 Nev. Adv. Op. 9, Annie Avery

Nevada Supreme Court Summaries

A judgment for penalty attorney fees and costs against a driver in an action that arises out of a motor vehicle accident is not a “judgment . . . upon a cause of action” arising out of the use of a motor vehicle such that its nonpayment may result in the suspension of driving privileges under NRS § 485.302.

Defining Fair Notice: Logical Outgrowth Doctrine Applied To The Waters Of The United States, Henry L. Lifton

Notre Dame Law Review

In 2014, the Corps of Engineers and Environmental Protection Agency sought to bring clarity to the scope of “waters of the United States” through notice-and-comment rulemaking. On June 29, 2015, the agencies published a joint final rule that immediately prompted lawsuits across the entire country.

This current legal controversy provides a convenient backdrop to propose a new method to analyze logical outgrowth. This Note will use the Proposed and Final Rule as an administrative law case study. It argues that the Final Rule is substantively within the authority Congress delegated to the Corps of Engineers and the EPA.

The Privacy Policymaking Of State Attorneys General, Danielle Keats Citron

Notre Dame Law Review

Much as Justice Louis Brandeis imagined states as laboratories of the law, offices of state attorneys general have been laboratories of privacy enforcement. State attorneys general have been nimble privacy enforcers whereas federal agencies have been more constrained by politics. Local knowledge, specialization, multistate coordination, and broad legal authority have allowed AG offices to fill in gaps in the law. State attorneys general have established baseline fair-information protections and expanded the frontiers of privacy law to cover sexual intimacy and youth. Their efforts have reinforced and strengthened federal norms, further harmonizing certain aspects of privacy and data security policy.

Although …