From Chevron To Massachusetts: Justice Stevens's Approach To Securing The Public Interest, 2010 University of Washington School of Law
From Chevron To Massachusetts: Justice Stevens's Approach To Securing The Public Interest, Kathryn A. Watts
Articles
During the past three decades, one Supreme Court justice— John Paul Stevens—has authored two of the most significant administrative law decisions that speak to the judiciary’s role in checking agency interpretations of the statutes that they administer. In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., Justice Stevens’s landmark 1984 decision unanimously upheld the EPA’s construction of a term found in the Clean Air Act. Subsequently, in Massachusetts v. EPA, Justice Stevens’s 2007 opinion for a five-justice majority handed a major win to global environmental security by ordering the EPA to reconsider its refusal to regulate greenhouse …
Disclosing 'Political' Oversight Of Agency Decision Making, 2010 University of Michigan Law School
Disclosing 'Political' Oversight Of Agency Decision Making, Nina A. Mendelson
Articles
Scholars and courts have divided views on whether presidential supervision enhances the legitimacy of the administrative state. For some, that the President can supervise administrative agencies is key to seeing agency action as legitimate, because of the President's accountability to the electorate. Others, however, have argued that such supervision may simply taint, rather than legitimate, an agency action. The reality is that presidential supervision of agency rulemaking, at least, appears to be both significant and opaque. This Article presents evidence from multiple presidential administrations suggesting that regulatory review conducted by the White House's Office of Management and Budget is associated …
Coordinating Sanctions In Torts, 2010 University of Michigan Law School
Coordinating Sanctions In Torts, Kyle D. Logue
Articles
This Article begins with the standard Law and Economics account of tort law as a regulatory tool or system of deterrence, that is, as a means of giving regulated parties the optimal ex ante incentives to minimize the costs of accidents. Building on this fairly standard (albeit not universally accepted) picture of tort law, the Article asks the question how tort law should adjust, if at all, to coordinate with already existing non-tort systems of regulation. Thus, if a particular activity is already subject to extensive agency-based regulation (whether in the form of command-and-control requirements or in the form of …
Two Masters, 2010 University of Michigan Law School
Two Masters, Carl E. Schneider
Articles
American government rests on the principle of distrust of government. Not only is power within the federal government checked and balanced. Power is divided between the federal government and the state governments. So what if a state law conflicts with a federal law? The Constitution says that the "Constitution, and the Laws of the United States ... shall be the supreme Law of the Land; ... any Thing in the ... Laws of any State to the Contrary notwithstanding." Sometimes the conflict between federal and state law is obvious and the Supremacy Clause is easily applied. But sometimes ...
Preemption In Green Marketing: The Case For Uniform Federal Marketing Definitions, 2010 Indiana University Maurer School of Law
Preemption In Green Marketing: The Case For Uniform Federal Marketing Definitions, Robert B. White
Indiana Law Journal
No abstract provided.
Virtually Enabled: How Title Iii Of The Americans With Disabilities Act Might Be Applied To Online Virtual Worlds, 2010 Indiana University Maurer School of Law
Virtually Enabled: How Title Iii Of The Americans With Disabilities Act Might Be Applied To Online Virtual Worlds, Joshua Newton
Federal Communications Law Journal
The rise and popularity of online virtual worlds, such as World of Warcraft and Second Life, holds significant promise for people with disabilities. For people who are unable to easily leave home or travel, virtual worlds provide a public venue, wherein people may interact freely without the social stigma that accompanies disability. However, access to these virtual worlds may be inhibited by physical, visual, or aural impairments, and virtual-world developers can be hostile to modifying their products to mitigate these difficulties. Thus, some disability advocates have turned to Title III of the Americans with Disabilities Act, arguing that places of …
Fcc Regulation And Increased Ownership Concentration In The Radio Industry, 2010 Northwestern University School of Law
Fcc Regulation And Increased Ownership Concentration In The Radio Industry, Peter Dicola
Faculty Working Papers
In 1996, Congress increased the limits on how many radio stations one firm can own within a single "radio market." To enforce these limits, the FCC used an idiosyncratic method of defining radio markets, based on the complex geometry of the signal contour patterns of radio stations' broadcasts. Using a unique geographic data set, this paper provides the first calculations of the pre- and post-1996 limits on local radio ownership as actually implemented by the FCC. The limits are surprisingly permissive and vary considerably from city to city. While the limits were seldom binding on radio firms, I find a …
Public Wrongs And Private Bills: Indemnification And Government Accountability In The Early Republic, 2010 Northwestern University School of Law
Public Wrongs And Private Bills: Indemnification And Government Accountability In The Early Republic, James E. Pfander, Jonathan L. Hunt
Faculty Working Papers
Students of the history of administrative law in the United States regard the antebellum era as one in which strict common law rules of official liability prevailed. Yet conventional accounts of the antebellum period often omit a key institutional feature. Under the system of private legislation in place at the time, federal government officers were free to petition Congress for the passage of a private bill appropriating money to reimburse the officer for personal liability imposed on the basis of actions taken in the line of duty. Captain Little, the officer involved in one oft-cited case, Little v. Barreme, pursued …
Jockey Advertising Regulations In Horseracing, 2010 University of Kentucky
Jockey Advertising Regulations In Horseracing, Natasha C. Farmer
Kentucky Journal of Equine, Agriculture, & Natural Resources Law
No abstract provided.
Climate Change, Dead Zones, And Massive Problems In The Administrative State: A Guide For Whittling Away, 2010 Vanderbilt University Law School
Climate Change, Dead Zones, And Massive Problems In The Administrative State: A Guide For Whittling Away, J.B. Ruhl, James Salzman
Vanderbilt Law School Faculty Publications
Mandates that agencies solve massive problems such as sprawl and climate change roll easily out of the halls of legislatures, but as a practical matter what can any one agency do about them? Serious policy challenges such as these have dimensions far beyond the capacity of any single agency to manage effectively. Rather, as the Supreme Court recently observed in Massachusetts v. Environmental Protection Agency, agencies, like legislatures, do not generally resolve massive problems in one fell swoop, but instead whittle away over time, refining their approach as circumstances change and they develop a more nuanced understanding of how best …
Leaps And Bounds, 2010 University of Colorado Law School
Leaps And Bounds, Nestor M. Davidson
Michigan Law Review
Imagine how stunted our understanding of the federal government would be without any detailed scholarly examination of the U.S. Constitution itself. As remarkable as that sounds, that is essentially the problem that Gerald Frug and David Barron have set out to remedy for local governments in their superb City Bound. In the book, Frug and Barron take a comprehensive, empirical look at the legal frameworks under which cities and other local governments operate, providing an invaluable roadmap for understanding the hidden architecture of legal constraints that-largely without notice-are shaping America's urban future. Why this kind of analysis has rarely been …
Lifting Burdens: Proof, Social Justice, And Public Assistance Administrative Hearings, 2010 Seattle University School of Law
Lifting Burdens: Proof, Social Justice, And Public Assistance Administrative Hearings, Lisa Brodoff
Faculty Articles
In "Lifting Burdens: Proof, Social Justice, and Public Assistance Administrative Hearings," Lisa Brodoff describes the administrative hearing system for public assistance recipients and applicants, and asserts that it is the primary social justice system for the poor. She discusses why public assistance appellants are always placed at a significant disadvantage in this system. The article proposes that the best way to even out the inequities in adjudications is to always place the burdens of production and persuasion by clear and convincing evidence on the government in these hearings. She argues that policy, efficiency, and fairness require a consistent and heavy …
Whose Burden Is It Anyway? Addressing The Needs Of Content Owners In Dmca Safe Harbors, 2010 Indiana University Maurer School of Law
Whose Burden Is It Anyway? Addressing The Needs Of Content Owners In Dmca Safe Harbors, Greg Janson
Federal Communications Law Journal
Much of today's network neutrality debate addresses concerns that cable providers will limit access to competing Web-based services delivering multimedia content. While proposals to mandate nondiscrimination for all Internet traffic surely will help create a competitive environment where online entertainment providers can prosper, ISP interference is not the only threat. Online entertainment sites that relay user-generated content are threatened by crippling litigation brought by copyright holders for actions taken by third parties using their services. Reliance on the safe harbors provided in the Digital Millennium Copyright Act has, in most cases, proved unsuccessful. This Note addresses the concerns of both …
Legal Transitions And The Problem Of Reliance, 2010 Santa Clara University School of Law
Legal Transitions And The Problem Of Reliance, David M. Hasen
Faculty Publications
This Article analyzes the literature on legal transitions. The principal focus is taxation, but the analysis generalizes to other areas. I argue that the theoretical apparatus developed by scholars active in the legal transitions area suffers from significant conceptual shortcomings. These shortcomings include the unwarranted assimilation of legal to factual change, the naturalization of conventional arrangements, and the disregard of the distinction between making law and finding it. As a consequence, the recent literature offers an analysis that is unable either to explain actual transitions or to provide an adequate theory of how legal change should take place. In the …
Recent French Legal Developments Concerning A War-Time Arrest And Imprisonment Case, 2010 University of Maryland Francis King Carey School of Law
Recent French Legal Developments Concerning A War-Time Arrest And Imprisonment Case, Vivian Grosswald Curran
Maryland Journal of International Law
No abstract provided.
The French Administrative Court's Rulings On Compensation Claims Brought By Jewish Survivors Of World War Ii, 2010 University of Maryland Francis King Carey School of Law
The French Administrative Court's Rulings On Compensation Claims Brought By Jewish Survivors Of World War Ii, Rémi Rouquette
Maryland Journal of International Law
No abstract provided.
Betting On Dog Racing. The Next Legalised Gambling Opportunity In South Africa? A Cautionary Note From The Regulation Of Greyhound Racing In Great Britain, 2010 University of Nevada, Las Vegas -- William S. Boyd School of Law
Betting On Dog Racing. The Next Legalised Gambling Opportunity In South Africa? A Cautionary Note From The Regulation Of Greyhound Racing In Great Britain, Marita Carnelley
UNLV Gaming Law Journal
This article commences with a brief overview of the history of dog racing in South Africa. It provides a synopsis of South Africa’s current legal position on dog racing and the betting thereon. The main question this article addresses is whether there is any policy reason why dog racing and wagering should not be legalised and regulated. Furthermore, some comments are included discussing how such regulation should fit into the broader existing gambling regulatory framework should the legislature make the decision to legalise dog racing and wagering.
The article concludes with a discussion of the greyhound racing industry in Britain …
Sparks Nugget. State Tax Exemption Of Food Used By Casinos For Comped Meals, 2010 University of Nevada, Las Vegas -- William S. Boyd School of Law
Sparks Nugget. State Tax Exemption Of Food Used By Casinos For Comped Meals, Steve Johnson
UNLV Gaming Law Journal
In their search for new sources of revenue, states have legalized and sought to tax many kinds of gaming. Forty-eight of the fifty states of the United States permit one or more types of legal gaming. An important technique in casino and some other types of gaming is giving “comps” – complimentary goods or services – to player-customers. A frequent type of comp is free meals on the casino premises or elsewhere. Gaming establishments also often give free meals to their employees.
Comps have been controversial for federal income tax purposes. A recent Nevada case, Sparks Nugget, and related cases …
Who Decides Who Decides: Federal Regulatory Preemption Of State Tort Law, 2010 Florida State University College of Law
Who Decides Who Decides: Federal Regulatory Preemption Of State Tort Law, Mark Seidenfeld
Scholarly Publications
No abstract provided.
The Ncaa Rules Adoption, Interpretation, Enforcement, And Infractions Processes: The Laws That Regulate Them And The Nature Of Court Review, 2010 Vanderbilt University Law School
The Ncaa Rules Adoption, Interpretation, Enforcement, And Infractions Processes: The Laws That Regulate Them And The Nature Of Court Review, Josephine (Jo) R. Potuto
Vanderbilt Journal of Entertainment & Technology Law
This article takes a comprehensive look at how the NCAA is organized, describes the NCAA committee structure, and explains how the NCAA in its multitude of roles does its work. The article focuses particularly on the NCAA by law interpretation process and the policies, procedures, and scope of authority of the enforcement, infractions, and student-athlete reinstatement processes. In its description of the division of responsibility among enforcement, infractions and student-athlete reinstatement, the article emphasizes the independence of each. The article then assesses the functions and structure of the NCAA in light of the preogatives of a private, multi-state association and …