Many Key Issues Still Left Unaddressed In The Securities And Exchange Commission's Attempt To Modernize Its Rules Of Practice,
2016
University of Notre Dame Law School
Many Key Issues Still Left Unaddressed In The Securities And Exchange Commission's Attempt To Modernize Its Rules Of Practice, Joseph Quincy Patterson
Notre Dame Law Review
This Note analyzes and explains the current issues and criticism regarding the SEC’s use of ALJs. In particular, this Note recommends that the SEC ratify its ALJs in accordance with constitutional requirements, create a rigid formula for its forum selection, and amend its Rules of Practice to align more closely to the procedural due process rights in federal district courts. As many of these topics are currently being discussed in federal courts of appeals and within the SEC—through its proposed amendments to the Rules of Practice—this Note intends to add to the discussion on a topic with very little scholarly …
State Standing To Challenge Federal Authority In The Modern Administrative State,
2016
University of Washington School of Law
State Standing To Challenge Federal Authority In The Modern Administrative State, Shannon M. Roesler
Washington Law Review
The modern administrative state relies on a model of shared governance. Federal regulatory regimes addressing a range of economic and social issues depend on the participation of state governments for their implementation. Although these state-federal partnerships are often cooperative, conflicts over the allocation of regulatory authority and administrative policy are inevitable. In recent years, states have sought to resolve some of these conflicts in the federal courts. Well-known state challenges to federal authority include challenges to environmental rules, health insurance legislation, and immigration policies. In these cases, courts have struggled to decide whether states have constitutional standing to bring suit …
The Judicial Role In Constraining Presidential Non-Enforcement Discretion: The Virtues Of An Apa Approach,
2016
Texas A&M University School of Law
The Judicial Role In Constraining Presidential Non-Enforcement Discretion: The Virtues Of An Apa Approach, Daniel E. Walters
Faculty Scholarship
Scholars, lawyers, and, indeed, the public at large increasingly worry about what purposive presidential inaction in enforcing statutory programs means for the rule of law and how such discretionary inaction can fit within a constitutional structure that compels Presidents to "take Care that the Laws be faithfully executed." Yet those who have recognized the problem have been hesitant to assign a role for the court in policing the constitutional limits they articulate, mostly because of the strain on judicial capacity that any formulation of Take Care Clause review would cause. In this Article, I argue that courts still can and …
Of Mice And Men: On The Seclusion Of Immigration Detainees And Hospital Patients,
2016
University of Nevada, Las Vegas -- William S. Boyd School of Law
Of Mice And Men: On The Seclusion Of Immigration Detainees And Hospital Patients, Stacey A. Tovino
Scholarly Works
With a special focus on federal provisions strictly regulating Medicare-participating hospitals' use of seclusion, this Article uses developments in health law as a lens through which the uses and abuses of seclusion in immigration detention centers might be assessed and through which the standards governing detention centers might be improved. In particular, this Article argues that the unenforceable standards governing seclusion in immigration detention, including the most recent version of ICE's Performance-Based National Detention Standards, were incorrectly modeled on correctional standards developed for use in jails and prisons with respect to convicted criminals. This Article asserts that correctional standards are …
The President's Budget As A Source Of Agency Policy Control,
2016
Georgetown University Law Center
The President's Budget As A Source Of Agency Policy Control, Eloise Pasachoff
Georgetown Law Faculty Publications and Other Works
A large body of literature in administrative law discusses presidential control of executive agencies through centralized review of regulations in the Office of Information and Regulatory Affairs (OIRA), part of the White House’s Office of Management and Budget (OMB). Largely overlooked in this literature is how the President’s budget acts as a source of agency policy control—in particular, how the White House exercises control through OMB’s authority to prepare the budget, oversee agencies’ execution of the budget, and create and implement management initiatives through the budget process. This Article identifies seven levers associated with OMB’s work on budget preparation, budget …
Improving Patent Quality Through Post-Grant Claim Amendments: A Comparison Of European Opposition Proceedings And U.S. Post-Grant Proceedings,
2016
University of Michigan Law School
Improving Patent Quality Through Post-Grant Claim Amendments: A Comparison Of European Opposition Proceedings And U.S. Post-Grant Proceedings, Jennifer Turchyn
Michigan Law Review
Congress enacted the Leahy-Smith America Invents Act to encourage innovation, strengthen U.S. patents, and achieve greater uniformity with foreign patent systems. The America Invents Act introduced two new post-grant patent validity proceedings: inter partes review and post-grant review. The new U.S. proceedings are similar to European opposition proceedings, but there are significant differences in the extent of the patent owner’s ability to amend claims, the patent’s claim construction, the patent owner’s evidentiary burden, and the procedural requirements. The U.S. proceedings result in a very limited opportunity for amendment and a high percentage of invalidated patents. In contrast, European opposition proceedings …
Generic Pharmaceuticals And The "Unfortunate Hand" Dealt To Harmed Consumers: The Emerging State Court Resistance,
2016
Indiana University
Generic Pharmaceuticals And The "Unfortunate Hand" Dealt To Harmed Consumers: The Emerging State Court Resistance, Arlen W. Langvardt
Minnesota Journal of Law, Science & Technology
No abstract provided.
Thin Rationality Review,
2016
Harvard Law School
Thin Rationality Review, Jacob Gersen, Adrian Vermeule
Michigan Law Review
Under the Administrative Procedure Act, courts review and set aside agency action that is “arbitrary [and] capricious.” In a common formulation of rationality review, courts must either take a “hard look” at the rationality of agency decisionmaking, or at least ensure that agencies themselves have taken a hard look. We will propose a much less demanding and intrusive interpretation of rationality review—a thin version. Under a robust range of conditions, rational agencies have good reason to decide in a manner that is inaccurate, nonrational, or arbitrary. Although this claim is seemingly paradoxical or internally inconsistent, it simply rests on an …
Possession Is 99% Of The Law: 3d Printing, Public Domain Cultural Artifacts And Copyright,
2016
USC Gould School of Law
Possession Is 99% Of The Law: 3d Printing, Public Domain Cultural Artifacts And Copyright, Charles Cronin
Minnesota Journal of Law, Science & Technology
No abstract provided.
3d-Printed Food,
2016
George Mason University
3d-Printed Food, Jasper L. Tran
Minnesota Journal of Law, Science & Technology
No abstract provided.
Intellectual Property And Additive Manufacturing / 3d Printing: Strategies And Challenges Of Applying Traditional Ip Laws To A Transformative Technology,
2016
University of Minnesota Law School
Intellectual Property And Additive Manufacturing / 3d Printing: Strategies And Challenges Of Applying Traditional Ip Laws To A Transformative Technology, Bryan J. Vogel
Minnesota Journal of Law, Science & Technology
No abstract provided.
An Unconstitutional Work Of Art: Discussing Where The Federal Government's Discrete Intrusions Into One's Privacy Become An Unconstitutional Search Through Mosaic Theory,
2016
University of Minnesota Law School
An Unconstitutional Work Of Art: Discussing Where The Federal Government's Discrete Intrusions Into One's Privacy Become An Unconstitutional Search Through Mosaic Theory, Steven Graziano
Minnesota Journal of Law, Science & Technology
No abstract provided.
Guns, Limbs, And Toys: What Future For 3d Printing?,
2016
University of Minnesota Law School
Guns, Limbs, And Toys: What Future For 3d Printing?, Adam D. Thierer, Adam Marcus
Minnesota Journal of Law, Science & Technology
No abstract provided.
Against Administrative Judges,
2016
University of Georgia School of Law
Against Administrative Judges, Kent H. Barnett
Scholarly Works
The single largest cadre of federal adjudicators goes largely ignored by scholars, policymakers, courts, and even litigating parties. These Administrative Judges or “AJs,” often confused with well-known federal Administrative Law Judges or “ALJs,” operate by the thousands in numerous federal agencies. Yet unlike ALJs, the significantly more numerous AJs preside over less formal hearings and have no significant statutory protections to preserve their impartiality. The national press has recently called attention to the alleged unfairness of certain ALJ proceedings, and regulated parties have successfully enjoined agencies’ use of ALJs. While fixes are necessary for ALJ adjudication, any solution that ignores …
Major Questions About The "Major Questions" Doctrine,
2016
Barry University School of Law
Major Questions About The "Major Questions" Doctrine, Kevin O. Leske
Michigan Journal of Environmental & Administrative Law
After over a decade of hibernation, the United States Supreme Court has awoken the “major questions” doctrine, which has re-emerged in an expanded form. Under the doctrine, a court will not defer to an agency’s interpretation of a statutory provision in circumstances where the case involves an issue of deep economic or political significance or where the interpretive question could effectuate an enormous and transformative expansion of the agency’s regulatory authority. While the doctrine’s re-emergence in recent Supreme Court cases has already raised concerns, a subtle shift in its application has gone unnoticed. Unlike in earlier cases, where the Court …
Economic Solutions To Nuclear Energy's Financial Challenges,
2016
University of Michigan Law School
Economic Solutions To Nuclear Energy's Financial Challenges, Zachary Robock
Michigan Journal of Environmental & Administrative Law
This Note presents a legal, economic, and regulatory roadmap to drive long-term innovation in sustainable energy generation. Next-generation nuclear power, which fundamentally mitigates many safety and nuclear waste issues, is the focus of this Note; however, the economic concepts can be applied to encourage solar, wind, advanced battery, and other sustainable technologies with high upfront costs and low long-term variable costs. Advanced nuclear energy generation is economically competitive on a long-term levelized cost basis, but suffers from a timing issue—a large amount of capital is needed upfront, with repayment over several decades, during which time significant capital costs can accrue …
Kiryat Ata Municipality V. Koren,
2016
Supreme Court of Israel
Kiryat Ata Municipality V. Koren, Uzi Vogelman, Miriam Naor, Anat Baron
Translated Opinions
A person who has a debt to a local authority requests that it issue a certificate that is necessary in order to transfer land rights, however the latter refuses to do so until the old debt is paid. When will it be ruled that the debt expired by virtue of prescription, or that the authority so delayed in collecting the debt that it can no longer demand payment as a condition to granting the certificate? This is the question raised in this appeal of the decision of the Administrative Affairs Court ordering the cessation of collection proceedings initiated by the …
What Should Tribes Expect From Federal Regulations? The Bureau Of Land Management’S Fracking Rule And The Problems With Treating Indian And Federal Lands Identically,
2016
Alexander Blewett III School of Law at the University of Montana
What Should Tribes Expect From Federal Regulations? The Bureau Of Land Management’S Fracking Rule And The Problems With Treating Indian And Federal Lands Identically, Monte Mills
Public Land & Resources Law Review
The federal government’s various Indian policies create a number of boundaries across which Indian tribes must negotiate to ensure successful management of their natural resources. For example, the removal, reservation, and treaty-making period of the late 18th and early 19th Centuries created territorial boundaries that, for many tribes, did not align with their traditional homelands. Thereafter, allotment of many of the resulting tribal reservations decimated the tribal land base and left a checkerboard ownership pattern of land within many reservations. More recent decisions of the United States Supreme Court have limited tribal authority over the non-Indian owned squares on the …
Tribal Management Under The Mmpa: A Way Forward For Local Control,
2016
University of Alaska Fairbanks
Tribal Management Under The Mmpa: A Way Forward For Local Control, Julie Lurman Joly
American Indian Law Journal
No abstract provided.
Movement For Quality Government In Israel V. Prime Minister,
2016
Supreme Court of Israel
Movement For Quality Government In Israel V. Prime Minister, Salim Joubran, Yoram Danziger, Neal Hendel
Translated Opinions
This was a petition challenging the decision to appoint Knesset Member Rabbi Aryeh Machlouf Deri (hereinafter: Deri) to the office of Minister of the Interior in the Israeli Government. The petition was submitted against the background of Deri’s conviction of corruption offences, among them offenses of bribe taking and breach of trust, committed in the period during which he held several senior positions in the Ministry of the Interior at the end of the 1980s. It should be noted that pursuant to Deri’s appointment as Minister of the Economy and Minister for the Development of the Negev and the Galilee, …
