Administrative Law Commons^™

Internet Governance And Democratic Legitimacy, Oliver Sylvain

Federal Communications Law Journal

Even as the Internet goes pop, federal policymakers continue to surrender their statutory obligation to regulate communications in the first instance to extralegal nongovernmental organizations comprised of technical experts. The FCC's adjudication of a dispute concerning a major broadband service provider's network management practices is a case in point. There, in the absence of any enforceable legislative or regulatory rule, the FCC turned principally to the transmission principles of the Internet Engineering Taskforce, the preeminent nongovernmental Internet engineering standard-setting organization. This impulse to defer as a matter of course to such an organization without any legal mechanism requiring as much …

Protecting The Cloak And Dagger With An Illusory Shield: How The Proposed Free Flow Of Information Act Falls Short, Jill Laptosky

Federal Communications Law Journal

Journalists who use secret sources may be presented with a staggering dilemma-disclose the source to comply with a subpoena or go to jail to protect the source. Despite the U.S. Supreme Court's holding in Branzburg v. Hayes (1972), most jurisdictions now recognize that journalists have a privilege not to disclose their confidential sources when compelled to do so by the government. While the degree of the privilege's protection varies across jurisdictions, the fact that such a privilege exists at all may surprise anyone who has read Branzburg, which held that the First Amendment cannot support the existence of the privilege. …

Behavioral Advertisement Regulation: How The Negative Perception Of Deep Packet Inspection Technology May Be Limiting The Online Experience, Andrea N. Person

Federal Communications Law Journal

Privacy concerns associated with information available on the Internet has become a central focus for policymakers in Washington, D.C., and around the world. Specifically, the use of deep packet inspection (DPI) technology to offer behavioral advertising on the Internet has become the focus of policy discussions. While there are legitimate concerns related to improper use of this technology, the benefits of the proper use of DPI should not be overlooked. This Note asks how increasing regulatory barriers to limit online behavioral advertising could affect the consumer's experience online. To answer this question, this Note first looks at what DPI is, …

Future Imperfect: Googling For Principles In Online Behavioral Advertising, Brian Stallworth

Federal Communications Law Journal

In a remarkably short time, Google, Inc. has grown from two people working in a rented garage to a pervasive Internet force. Much of Google's unprecedented success stems from online advertising sales which employ behavioral advertising techniques-techniques that track consumer behavior--thereby increasing relevance and decreasing the cost of reaching a targeted audience. In the same span that saw Google's inception and explosive online dominance, the Federal Trade Commission has struggled to define not only the privacy issues involved in online behavioral advertising, but also the practice of behavioral advertising itself. Freed from the restraints of comprehensive federal laws and restrictive …

An Irs Duty Of Consistency: The Failure Of Common Law Making And A Proposed Statutory Solution, Steve R. Johnson

Scholarly Publications

The IRS should endeavor to treat similarly-situated taxpayers similarly, but does this aspiration rise to the level of a judicially enforceable duty? If the IRS takes a position on Taxpayer B that is correct under the law but is inconsistent with a position the IRS took on similarly-situated Taxpayer A, should the IRS’s position on Taxpayer B fail simply because of the inconsistency? These questions implicate important themes, such as fairness, the rule of law, separation of powers, administrative exigencies, the role of common law making in a highly positivistic system, and the sustainability of legal regimes.

A constitutional standard …

The Social Construction Of Regulation: Lessons From The War Against Command And Control, Timothy F. Malloy

Buffalo Law Review

No abstract provided.

Section 2(B) Advertising Rights On Government Property: Greater Vancouver Transportation Authority, Anew Can Of Worms And The Liberty Two Step?, Elaine Craig

Dalhousie Law Journal

The Supreme Court's recent decision inVancouver Transportation is problematic for two reasons. First, the majority adopts an analytical framework for determining whether a claim triggers the positive rights Dunmore/Baier analysis, which means that policies restricting expressive rights based on groups rather than content could be less likely to fall within the scope of section 2(b). A better approach would be to characterize section 2(b) cases based on the nature of the claim rather than the nature of the restriction and to apply the positive rights Dunmorel Baier criteria only where the claim is for an audience with the government or …

The Future Of Agency Independence, Lisa S. Bressman, Robert B. Thompson

Vanderbilt Law Review

Independent agencies have long been viewed as different from executive-branch agencies because the President lacks authority to fire their leaders for political reasons, such as failure to follow administration policy. In this Article, we identify mechanisms that make independent agencies increasingly responsive to presidential preferences. We find these mechanisms in a context where independent agencies traditionally have dominated: financial policy. In legislative proposals for securing market stability, we point to statutorily mandated collaboration on policy between the Federal Reserve Board and the Secretary of the Treasury. In administration practices for improving securities regulation, we focus on White House coordination of, …

Aldous Huxley's Brave New World - Still A Chilling Vision After All These Years, Bob Barr

Michigan Law Review

In Part I of this Review, I provide an overview of Brave New World and place it in its proper historical context. In Part II, I explore the parallels between Huxley's World State and post-9/11 America. In Part III, I argue that Brave New World provides prescient warning signs about the dangers of excessive government interference in the economy-warning signs that are of particular importance in the face of the recent economic crisis.

Lawyering At The Intersection Of Public Law And Legal Ethics: Government Lawyers As Custodians Of The Rule Of Law, Adam M. Dodek

Dalhousie Law Journal

Government lawyers are significant actors in the Canadian legal profession, yet they are largely ignored by regulators and by academic scholarship. The dominant view of lawyering fails to adequately capture the unique role of government lawyers. Government lawyers are different from other lawyers by virtue of their role in creating and upholding the rule of law Most accounts of government lawyers separate public law duties of government from ethical duties of lawyers; for example, acknowledging the "public interest" role ofgovernment lawyers but asserting that this has no impact on their ethical duties as lawyers. Instead of this compartmentalized approach, this …

Rationalism In Regulation, Christopher C. Demuth, Douglas H. Ginsburg

Michigan Law Review

Retaking Rationality: How Cost-Benefit Analysis Can Better Protect the Environment and Our Health, by Richard L. Revesz and Michael A. Livermore, aims to convince those who favor more government regulation-in particular environmental groups-that they should embrace cost-benefit analysis and turn it to their purposes. Coauthored by a prominent law school dean and a recent student with a background in environmental advocacy, the book is a jarring combination of roundhouse political polemics and careful academic argument. Sweeping pronouncements are followed by qualifications that leave the sweep of the pronouncements in doubt- rather like the give-and-take of the law school classroom …

Nudge, Choice Architecture, And Libertarian Paternalism, Pierre Schlag

Michigan Law Review

By all external appearances, Nudge is a single book-two covers, a single spine, one title. But put these deceptive appearances aside, read the thing, and you will actually find two books-Book One and Book Two. Book One begins with the behavioral economist's view that sometimes individuals are not the best judges of their own welfare. Indeed, given the propensity of human beings for cognitive errors (e.g., the availability bias) and the complexity of decisions that need to be made (e.g., choosing prescription plans), individuals often make mistakes. Enter here the idea of the nudge-the deliberate effort to channel people into …

Remote Access To Immigration Cases: Should The Rules Be Changed?, Daniel Kanstroom

Daniel Kanstroom

No abstract provided.

Transferencia De Fondos, Alejandro Faya Rodriguez

Alejandro Faya Rodriguez

No abstract provided.

Waiting For Leadership: President Obama's Record In Staffing Key Agency Positions And How To Improve The Appointments Process, Anne Joseph O'Connell

Anne Joseph O'Connell

No abstract provided.

Organos Reguladores En México: Fragilidades Y Áreas De Oportunidad, Alejandro Faya Rodriguez

Alejandro Faya Rodriguez

No abstract provided.

Transparencia En La Cfc, Alejandro Faya Rodriguez

Alejandro Faya Rodriguez

No abstract provided.

¿Qué Reformas Son Necesarias Para Combatir A Los Monopolios En México? Modelos Más Adecuados De Autonomía Para Los Reguladores, Alejandro Faya Rodriguez

Alejandro Faya Rodriguez

No abstract provided.

Competencia Económica: ¿Qué Reformas Son Necesarias Para Combatir A Los Monopolios En México?, Unam, Relatoría De Discusiones, Alejandro Faya Rodriguez

Alejandro Faya Rodriguez

No abstract provided.

Mending Holes In The Rule Of (Administrative) Law, Evan J. Criddle

NULR Online

The past decade has witnessed a surge of interest in Carl Schmitt’s controversial assertion that the rule of law inevitably bends under the demands of state necessity during national emergencies. According to Schmitt, legal norms cannot constrain sovereign discretion during emergencies because “the precise details of an emergency cannot be anticipated” in advance. The sovereign must therefore possess unfettered discretion to determine both “whether there is an extreme emergency” and “what must be done to eliminate it.”

Few legal scholars have embraced Schmitt’s theory of emergencies with the enthusiasm and sophistication of Adrian Vermeule, the John H. Watson, Jr. Professor …