Administrative Law Commons^™

Village League V. State Bd. Of Equalization, 133 Nev., Adv. Op. 1 (January 26, 2017), Yolanda Carapia

Nevada Supreme Court Summaries

The Court determined that (1) NRS 361.395 does not provide the State Board with authority to order reappraisals; and (2) the 2010 regulation purporting to provide the State Board with such authority does not apply retroactively to the tax years at issue in this case.

Poremba V. S. Nev. Paving, 133 Nev. Adv. Op. 2 (Jan. 26, 2017) (En Banc), Christopher Kelly

Nevada Supreme Court Summaries

The Court determined that (1) an administrative officer must first determine whether to reopen a worker’s compensation benefits claim, pursuant only to the requirements of NRS 616C.390, before considering whether the insurer is entitled to reimbursement due to a third party settlement; and (2) that insurers may be entitled to reimbursement for funds an injured party receives in third party settlements that are also covered by workers’ compensation, but are not entitled to reimbursement from the portion of the settlement designated for remedies outside the definition of “compensation” in NRS 616A.090, including pain and suffering and lost wages.

Coventry Health Care, Inc. V. Nevils: Brief Of Amici Curiae Constitutional And Administrative Law Scholars In Support Of Respondent, Nina A. Mendelson

Appellate Briefs

Amici law professors (listed in Appendix A) are leading scholars and teachers of constitutional and administrative law who submit this brief in their individual capacities, not on behalf of their institutions. They study and write on federal preemption of state law, including the ways in which courts can and should discipline agencies to consider federalism values. Amici have an interest in promoting judicial review that requires agencies to take state regulatory interests seriously when their rules would preempt state law. Amici submit this brief to demonstrate that Petitioner's view of judicial deference to agency preemption would encourage agencies to ignore …

The Ambiguity Of Redesignation: What Is 'Applicable' Under The Clean Air Act?, Andrew Miller

Catholic University Journal of Law and Technology

No abstract provided.

Flying Under The Radar: Low-Altitude Local Drone Use And The Reentry Of Property Rights, Kenneth Maher

Duke Law & Technology Review

The characteristics and capabilities of civilian drones have proliferated in recent years, giving rise to a burgeoning industry. The popular media and academic literature have predominantly focused on privacy concerns, devoting considerably less attention to the regulatory challenges created by the new technology. Congress instructed the FAA to integrate drones into the National Airspace System in 2012, but rulemaking delays and a moratorium on commercial uses hampered the industry and withheld benefits from the public. Final regulations are now in place, but the new rules revive legal uncertainty over the constitutional limits of federal authority and the ambiguous vertical bounds …

Exhausted Yet? Stephens V. Pension Benefit Guaranty Corporation And The Application Of The Exhaustion Doctrine To Statute-Based Erisa Claims, Carson D. Phillips-Spotts

Maine Law Review

By 1974, the U.S. Congress recognized that employer-provided retirement pension plans had “become an important factor affecting the stabilization of employment and the successful development of industrial relations” and enacted the Employee Retirement Income Security Act (ERISA) with the aim of protecting “the interests of participants in employee benefit plans and their beneficiaries.” In enacting ERISA, Congress established “standards of conduct, responsibility, and obligation[s] for fiduciaries of employee benefit plans” and provided for “appropriate remedies, sanctions and ready access to the Federal courts.” Apart from creating federal causes of action to ensure efficient and equitable administration of private pension plans, …

Ceri (Cornell E-Rulemaking) Moderator Protocol, Cornell Erulemaking Initiative

Cornell e-Rulemaking Initiative Publications

From 2005-2017, CeRI was a multidisciplinary group of Cornell University researchers engaged in theoretical and applied research, in partnership with government agencies and civil society groups, to discover how the design and process of online engagement can support public discussion that is informed, inclusive and insightful.

The Moderator Protocol was used by moderators (students in a Cornell Law School e-Government Clinic) to facilitate dialogue and discussion during live discussions on our RegulationRoom.org and SmartParticipation.com platforms. It is provided here as a resource and reference tool. Additional information on the project is available at SmartParticipation.com.

Technological Innovation, Data Analytics, And Environmental Enforcement, David L. Markell, Robert L. Glicksman, Claire Monteleoni

Scholarly Publications

Technical innovation is ubiquitous in contemporary society and contributes to its extraordinarily dynamic character. Sometimes these innovations have significant effects on the environment or on human health. They may also stimulate efforts to develop second-order technologies to ameliorate those effects. The development of the automobile and its impact on life in the United States and throughout the world is an example. The story of modern environmental regulation more generally includes chapters filled with examples of similar efforts to respond to an enormous array of technological advances.

This Article uses a different lens to consider the role of technological innovation. In …

#Betterrules: The Appropriate Use Of Social Media In Rulemaking, Stephen M. Johnson

Articles

In December 2015, the Government Accountability Office (GAO) concluded that the Environmental Protection Agency’s (EPA’s) use of various social media tools in a rulemaking under the Clean Water Act violated prohibitions in federal appropriations laws against publicity, propaganda, and lobbying. Although academics previously explored whether the use of technology in rulemaking might violate the Administrative Procedures Act (APA), the Paperwork Reduction Act, or the Federal Advisory Committee Act, none predicted that one of the first firestorms surrounding the use of social media in rulemaking would arise out of federal appropriations laws. ...

As the Administrative Conference of the United States …

Pre-Enforcement Litigation Needed For Taxing Procedures, Stephanie Mcmahon

Faculty Articles and Other Publications

Courts have opened tax guidance to procedural attack. Consequently, taxpayers who are found to owe tax may challenge the validity of the guidance implementing the tax if the procedure used by the Treasury Department in adopting the guidance failed to comply with the Administrative Procedure Act, in particular, with notice-and-comment. This increased willingness to consider tax guidance's procedural defects offers little to most taxpayers unless they are also given a better means to raise procedural challenges. Under current law and in most circumstances, generally, taxpayers can bring a challenge only after they have been found to owe taxes in an …

Florida's Workers Compensation Law: The Pendulum Swings, Ursula Hirsch

Honors Undergraduate Theses

The intent of this paper is to discuss how the recent court rulings on the current workers compensation statutes will impact the rules to Florida’s workers compensation laws.

Workers Compensation system is a social justice system that protects both the employer and employee. Employees that are injured while in the course and scope of their employment give up the right to sue, making workers compensation an exclusive remedy. In exchange for giving up that right, the injured worker receives statutory benefits in a no-fault system.

This paper covers the legislative changes over the years that have impacted the constitutionality of …

The Twin Demons Of The Trump-Bannon Assault On Democracy, Joseph P. Tomain

Faculty Articles and Other Publications

On January 30, 2017, President Donald Trump signed an executive order "Reducing Regulation and Controlling Regulatory Costs." Then, on February 24, he signed an executive order on “Enforcing the Regulatory Reform Agenda.” Together these two executive orders constitute a severe threat to American society and the American economy. In the words of Stephen Bannon, Trump’s chief strategist, they represent a plan for “the deconstruction of the administrative state.”

The purpose of the administrative state can be most simply stated this way: Unless otherwise stated in the enabling legislation, government regulation makes sense when the benefits of regulation outweigh the costs …

Regulation Of Teacher Certification In Idaho: Proceedings Before Idaho's Professional Standards Commission Covering The Denial Of An Application For Or Action Against A Teaching Certificate, John E. Rumel

Articles

No abstract provided.

The Law Of Rules, Cory Marsolek

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Leidos And The Roberts Court's Improvident Securities Law Docket, Matthew C. Turk, Karen E. Woody

Scholarly Articles

For its October 2017 term, the U.S. Supreme Court took up a noteworthy securities law case, Leidos, Inc. v. Indiana Public Retirement System. The legal question presented in Leidos was whether a failure to comply with a regulation issued by the Securities and Exchange Commission (SEC), Item 303 of Regulation S-K (Item 303), can be grounds for a securities fraud claim pursuant to Rule 10b-5 and the related Section 10(b) of the 1934 Securities Exchange Act. Leidos teed up a significant set of issues because Item 303 concerns one of the more controversial corporate disclosures mandated by the SEC—an …

Should Regulatory Compliance Be A Goal Or A Constraint For Health Care Companies? Finding Effective Methods To Assure Compliance With The Federal Anti-Kickback Statute And The False Claims Act, Roni A. Elias

Florida A & M University Law Review

The stereotypical conception of compliance is reinforced by some of the fundamental assumptions about what the primary objectives of a corporation should be and about how a corporation should accomplish those objectives. According to the prevailing theory of corporate structure, a corporation exists for the sole purpose of earning profits for its shareholders, and all of its actions are to be directed toward that end. If compliance with the law is not an inherently profit making activity, it is to be treated as a constraint on the corporation's efficient operation. According to this view, compliance will generally be considered a …

Restoring Chevron's Domain, Jonathan Adler

Faculty Publications

For some three decades, Chevron USA v. Natural Resources Defense Council has stood at the center of administrative law. Today, however, there are doubts about the doctrine’s continued vitality, and perhaps even its ultimate desirability. This brief article, based upon remarks delivered at Missouri Law Review symposium, suggests the scope of Chevron’s domain should be determined by its doctrinal grounding. Specifically, insofar as the Court’s subsequent application and elucidation of Chevron have indicated that the doctrine is predicated on a theory of delegation, courts should only provide such deference when the relevant power has been delegated by Congress. Correspondingly, …

The Shadow Of Free Enterprise: The Unconstitutionality Of The Securities & Exchange Commission's Administrative Law Judges, Linda D. Jellum, Moses M. Tincher

Articles

Six years ago, Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), for the first time giving the Securities and Exchange Commission (SEC) the power to seek monetary penalties through its in-house adjudication. The SEC already had the power to seek such penalties in federal court. With the Dodd-Frank Act, the SEC’s enforcement division could now choose between an adjudication before an SEC Administrative Law Judge (ALJ) or a civil action before an Article III judge. With this new choice, litigants contended that the SEC realized a significant home-court advantage. For example, the Wall Street Journal …

Make-Whole Or Make-Short? How Courts Have Misread Title Vii's Limitations Period To Truncate Relief In Eeoc Pattern-Or-Practice Cases, Sara A. Fairchild

American University Law Review

No abstract provided.

Constitutionally Conforming Agency Adjudication, Jennifer L. Mascott

Scholarly Articles

In June 2017 the D.C. Circuit issued a judgment that essentially reaffirms the constitutionality of current appointments procedures for administrative law judges (ALJs) in the Securities and Exchange Commission (SEC). After conducting an en banc hearing in the case, the en banc court split evenly over whether the ALJs are “Officers of the United States” subject to the constitutional requirement of appointment by the president, a department head, or a court of law. The evenly divided vote resulted in the affirmance of the D.C. Circuit’s earlier panel decision finding that the ALJs are not “officers”—continuing the court’s split with the …