Administrative Law Commons^™

Appeal No. 0832: Meridian Energy Company, Big Sky Energy, Inc. V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Order 2011-01 (Schloss-Hans Well #1)

Summary Of State, Dep’T Of Taxation V. Masco Builder, 127 Nev. Adv. Op. 66, Rami Hernandez

Nevada Supreme Court Summaries

An appeal from a district court order granting a petition for judicial review in a tax matter.

Cityland – Vol. 8, No. 9, Center For New York City Law

CityLand - 2011

This issue of CityLand highlights significant land use and zoning developments in New York City as of October 15, 2011. The City Council approved Signature Urban Properties’ ten-building, 1,300-unit mixed-use development in Crotona Park East, Bronx, and a 181-block contextual rezoning in Williamsbridge and Baychester. The Council rejected the landmark designation of the Hardenbrook-Somarindyck House at 135 Bowery, citing economic development concerns. The Gravesend Bay shopping center proposal was approved, featuring a BJ’s Wholesale Club and waterfront esplanade. The Council also established the Chinatown BID after extensive public debate and created the new M1-6D zoning district to support mixed-use development …

Summary Of City Of North Las Vegas V. Warburton, 127 Nev. Adv. Op. No. 62, Daniella Labounty

Nevada Supreme Court Summaries

The Court considered an appeal from a district court order granting a petition for judicial review in a workers’ compensation action.

Regulations Of Hydraulic Fracturing Under The Safe Drinking Water Act, Keith B. Hall

Buffalo Environmental Law Journal

For more than 20 years after the 1974 enactment of the Safe Drinking Water Act ("SD WA ), the US. Environmental Protection Agency interpreted the SDWA as not applying to hydraulic fracturing. The United States Eleventh Circuit ruled in 1997 that the SDWTA applied to fracturing, but the EPA chose not to consent to that interpretation outside the Eleventh Circuit. Further the EPA continued to take the position that its existing SDWTA regulations did not apply to hydraulic fracturing, and it never promulgated new regulations to cover fracturing. In 2005, the Congress passed legislation that generally is read as applying …

Derivatives: A Twenty-First Century Understanding, Timothy E. Lynch

Faculty Works

Derivatives are commonly defined as some variation of the following: a financial instrument whose value is derived from the performance of a secondary source such as an underlying bond, commodity or index. But this definition is both over-inclusive and under-inclusive. Thus, not surprisingly, derivatives are largely misunderstood, including by many policy makers, regulators and legal analysts. It is important for interested parties such as policy makers to understand derivatives, because the types and uses of derivatives have exploded in the last few decades, and because these financial instruments can provide both social benefits and cause social harms. This Article presents …

Cohen: Hard Case Makes (Semi) Bad Law, Steve R. Johnson

Scholarly Publications

The first Justice Harlan famously cautioned that hard cases can lead to bad law. United States v. Clark, 96 U.S. 37, 49 (1878) (dissenting opinion). This aphorism captures the reality that, when confronted with litigating equities strongly favoring one party, judges tend to massage doctrine to support judgment for that party.

When Delegation Begets Domination: Due Process Of Administrative Lawmaking, Evan J. Criddle

Faculty Publications

No abstract provided.

Reconciling Chevron, Mead, And The Review Of Agency Discretion: Source Of Law And The Standards Of Judicial Review, Michael P. Healy

Law Faculty Scholarly Articles

Although the Supreme Court's watershed decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. has been understood by many as defining the framework for judicial review of agency legal determinations, there have been longstanding questions about the application of the standards for reviewing administrative action. These questions have become more troublesome following the Supreme Court's 2001 decision in United States v. Mead Corp. Mead established that Chevron review only applies when defined requirements are met and held that so-called Skidmore deference applies when Chevron deference does not apply. Surveying the aftermath of Mead and its effect on the …

Acting Like An Administrative Agency: The Federal Circuit En Banc, Ryan G. Vacca

Akron Law Faculty Publications

When Congress created the Federal Circuit in 1982, it thought it was creating a court of appeals. Little did it know that it was also creating a quasi-administrative agency that would engage in substantive rulemaking and set policy in a manner substantially similar to administrative agencies. In this Article, I examine the Federal Circuit's practices when it orders a case to be heard en banc and illustrate how these practices cause the Federal Circuit to look very much like an administrative agency engaging in substantive rulemaking. The number and breadth of questions the Federal Circuit agrees to hear en banc …

State Attorneys General's Use Of Concurrent Public Enforcement Authority In Federal Consumer Protection Laws, Amy Widman, Prentiss Cox

Cardozo Law Review

Recent scholarly and legislative interest in state enforcement of federal law has led to the need for an empirical understanding of how and when these enforcement powers are used. This Article reports on an examination of the use by state attorneys general of sixteen federal consumer protection laws that expressly allow for state enforcement. The data are sorted and analyzed by both single state actions and multistate actions over time, and by the involvement of federal agencies in the state cases. The data reveal a measured use of such powers by state attorneys general and robust state and federal cooperation …

Implied Certification Under The False Claims Act, Gregory Klass, Michael Holt

Georgetown Law Faculty Publications and Other Works

The False Claims Act prohibits fraud by government contractors, including a contractor's false certification of compliance with the contract, statutes or regulations. In the early 1990s, some courts began holding that the act of requesting payment from the government implicitly represents such compliance for the purposes the FCA. Circuits are today split on the implied certification doctrine. This Article provides a theory of implied certification, suggests how the circuit split should be resolved and describes how contracting agencies should write contracts in light of the existing rule. There are good reasons for the implied certification rule: it is an information-forcing …

Summary Of City Of North Las Vegas V. State, Emrb, 127 Nev. Adv. Op. No. 57, Colin Seale

Nevada Supreme Court Summaries

An appeal of an order denying a petition for judicial review in a local government employment matter.

Cityland – Vol. 8, No. 8, Center For New York City Law

CityLand - 2011

This issue of CityLand highlights key land use and zoning developments in New York City as of September 15, 2011. The City Council approved Ocean Dreams, a 415-unit mixed-use development along Coney Island’s boardwalk, and a two-building project in Harlem that includes 100 affordable apartments. The City Planning Commission reviewed a contextual rezoning for 181 blocks in the Williamsbridge and Baychester neighborhoods of the Bronx. The Department of City Planning launched ZoLa, a new online mapping tool for zoning and land use information. The Board of Standards & Appeals granted variances for projects in the Lower East Side and Van …

Appeal No. 0834: Maverick Oil & Gas, Inc. V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Orders 2010-40 & 2011-05

Appeal No. 0833: Maverick Oil & Gas, Inc. V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Orders 2010-40 & 2011-05

A Tale Of Two Climate Cases, Jonathan H. Adler

Faculty Publications

In July 2004, eight states, the City of New York, and a number of conservation organizations filed suit against several of the nation’s largest electric power producers, alleging that the power companies’ greenhouse gas (GHG) emissions contributed to the public nuisance of global warming under federal common law. Simultaneously, several of the same states sued the U.S. Environmental Protection Agency (EPA), alleging that GHG emissions constituted “pollutants” subject to regulation under the Clean Air Act (CAA). Both cases sought to impose GHG emission controls, and both were a reaction to the federal government’s steadfast refusal to adopt such policies on …

Off-Label Promotion Reform: A Legislative Proposal Addressing Vulnerable Patient Drug Access And Limiting Inappropriate Pharmaceutical Marketing, Tim Mackey, Bryan A. Liang

University of Michigan Journal of Law Reform

Off-label promotion occurs when pharmaceutical manufacturers engage in promotion of unapproved or "off-label" uses of their drugs. These off label uses may lack adequate clinical data to substantiate marketing claims, have led to corporate investigations and penalties, and can endanger public health. However there is adequate evidence to suggest that off-label uses are entirely appropriate for some vulnerable patient populations, and that physicians have accepted such uses as standard. Historically, U.S. law has prohibited direct off-label promotion to physicians and patients. However, failed government guidance, industry-based litigation, and the diminished capacity of regulators to police illegal practices have had dire …

Zoning Finality: Reconceptualizing Res Judicata Doctrine In Land Use Cases, Stewart E. Sterk, Kimberly J. Brunelle

Articles

Zoning disputes provide many Americans with their only firsthand exposure to the workings of democratic government. Land use issues trigger participation because neighbors perceive the wrong kind of development as posing a double-barreled threat to the stability of the community in which they have chosen to live and to the economic value of their homes.

New Light On Auer/Seminole Rock Deference, Steve R. Johnson

Scholarly Publications

We have been engaged in an extended exploration of doctrines under which courts may defer to positions and interpretations by state and local tax agencies. The immediately prior installment of this column discusses such deference under state equivalents of what is known as the Auer or Seminole Rock principle, under which courts usually defer to agency interpretations of the agencies’ own ambiguous regulations.

About two weeks after the publication of that installment, the U.S. Supreme Court handed down a major new decision on the Auer principle: Talk America, Inc. v. Michigan Bell Telephone Co. Talk America bids fair to be …