Administrative Law Commons^™

A Survey Of Federal Agency Rulemakers’ Attitudes About E-Rulemaking, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

Drawing on a survey of U.S. civil servants engaged in developing regulations across a wide variety of agencies, this chapter analyzes how bureaucrats in key positions view the impact on their work of “electronic rulemaking” – that is, the creation of online opportunities for members of the public to comment on proposed administrative regulations. There is strong evidence that rulemakers appreciate the value of new technologies for public participation purposes and for internal administration and coordination functions, but less evidence that they see the utility of e-rulemaking for improving the quality of administrative rules.

It Is Time: Why The Fda Should Start Disclosing Drug Trial Data, Mustafa Ünlü

Michigan Telecommunications & Technology Law Review

Although [drug] manufacturers bear the cost of research data generation, it is oftentimes a worthwhile investment that also confers significant commercial advantages. Consequently, they have argued that research data should be considered a trade secret and kept confidential. The FDA's longstanding position has been to accept this proposition. Even when Congress appeared to mandate disclosure or weaken the underlying rationale for secrecy, the FDA has continued to treat research data as confidential. A strong argument against a default posture of confidentiality is that research data disclosure would promote broad public interests by eliminating the societal costs brought about by keeping …

Rainwater Recapture: Development Regulations Promoting Water Conservation, Julian C. Juergensmeyer

Faculty Publications By Year

The increasing need for water conservation in the eastern as well as western parts of the United States is focusing attention on rainwater recapture. The technology available is effective and relatively inexpensive. Using land development regulations to require or encourage new development to incorporate rainwater recapture facilities is one approach to alleviation of local water shortages.

Gaming The Past: The Theory And Practice Of Historic Baselines In The Administrative State, James Salzman, J.B. Ruhl

Faculty Scholarship

Goals based on absolute targets, risk, technology, or cost are found throughout the administrative state. “Historic baselines,” a point in the past used to ground a policy goal, are just as commonplace, yet remain unexamined. Whether in budgeting or tax, criminal sentencing or environmental protection, historic baselines direct a wide range of agency activities. Their ubiquity begs some important questions. What makes baselines more attractive than other approaches for implementing regulatory goals? Conversely, when are other standard setting methods such as absolute targets and risk-based, technology-based, and cost-based standards more useful to policy makers than historic baselines? Unless one believes …

Office Politics: Hiring And Firing Government Lawyers, Gilda R. Daniels

All Faculty Scholarship

In September of 2009, the U.S. Department of Justice (DOJ) announced that it would not prosecute former DOJ Civil Rights Division official Bradley Schlozman for alleged false statements made during his congressional testimony about personnel actions at DOJ. As many government lawyers will remember, a July 2, 2008, report of the DOJ Office of Professional Responsibility and Office of the Inspector General (hereinafter, the IG's report) found that Schlozman had violated the Civil Service Reform Act when he "considered political and ideological affiliations in hiring career attorneys and other personnel actions affecting career attorneys in the Civil Rights Division." Often …

Climate Change, Dead Zones, And Massive Problems In The Administrative State: A Guide For Whittling Away, James Salzman, J.B. Ruhl

Faculty Scholarship

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 …

Book Review, Matthew D. Adler

Faculty Scholarship

Reviewing, N. Scott Arnold, Imposing Values: An Essay on Liberalism and Regulation (2009)

A Practitioner's Guide To The Oklahoma Groundwater Act: How To Dip Your Bread Into The Gravy While It Is Still Hot, L. Paul Goeringer

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Jockey Advertising Regulations In Horseracing, Natasha C. Farmer

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Informed Consent: No Longer Just What The Doctor Ordered - The Contributions Of Medical Associations And Courts To A More Patient Friendly Doctrine, 15 Mich. St. U. J. Med. & L. 17 (2010), Marc Ginsberg

UIC Law Open Access Faculty Scholarship

No abstract provided.

Federal Child Welfare Legislation., Frank Vandervort

Book Chapters

This chapter provides a brief overview of federal statutes that impact the practice of child welfare law. Since the enactment of the Child Abuse Prevention and Treatment Act in 1974 (CAPTA), the federal government has played an ever increasing role in handling child maltreatment cases.

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 …

Creating Effective Broadband Network Regulation, Daniel L. Brenner

Federal Communications Law Journal

The Internet is central to the business and pastimes of Americans. Calls for increased regulation are ongoing, inevitable, and often justified. But calls for "network neutrality" or "nondiscrimination" assume with little hesitation federal agency competence to give predictable and accurate meaning to these terms and create regulations to implement them. This Article's chief contribution to Internet policy debate is to focus attention on the likelihood of successful FCC Internet regulation-a key assumption of some advocates.

The Article analyzes three characteristics that hobble the FCC, which is the likeliest federal agency to provide prescriptive rules. First, the record for the agency …

Network Neutrality Between False Positives And False Negatives: Introducing A European Approach To American Broadband Markets, Jasper P. Sluijs

Federal Communications Law Journal

Network neutrality has become a contentious issue both in Europe and the United States. Regulators on both sides of the Atlantic face digital divides in their society, and are confronted with potentially conflicting policy goals-to incentivize private investment in next-generation broadband while maintaining "neutral" and competitive broadband networks.

This Article compares nascent American and European network neutrality policy in terms of regulatory error costs. Emerging markets, such as broadband, are more likely to be affected by regulatory errors, and these errors have graver consequences in emerging markets than in regular markets. U.S. telecommunications policy traditionally has advanced a trial-and-error approach …

Universal Service In The United States: A Focus On Mobile Communications, Steven G. Parsons, James Bixby

Federal Communications Law Journal

The concept of universal service, providing affordable telecommunications to all citizens, has a long and changing history in the United States. Prior to the Telecommunications Act of 1996, efforts to achieve universal service were largely based on a complex web of implicit subsidies to basic landline local exchange residential service. The Act expanded and codified the concept of universal service and made the subsidies largely explicit. This Article evaluates the possible economic rationales for subsidizing voice communications and find them lacking. This Article argues that the weak rationale for subsidizing basic voice communications makes it critical that U.S. universal-service policy …

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 …

From A Constitutional Right To A Policy Of Exceptions: Abigail Alliance And The Future Of Access To Experimental Therapy, Patricia J. Zettler, Seema K. Shah

Faculty Publications By Year

Although there has been considerable attention to the plight of terminally ill patients with highly sympathetic constitutional and contractual claims that they should be permitted access to unapproved drugs, courts have been appropriately reluctant to grant such claims. Congress and administrative agencies have the requisite institutional competence to decide complex policy issues related to science and health care such as those involved in establishing an expanded access program. Congress and FDA should allow only limited access to unapproved therapies because there are significant concerns about the safety and efficacy of unapproved drugs. Moreover, many of the proposals to widen access …

Regulatory Adjudication, Marcia L. Mccormick

All Faculty Scholarship

Calls for increased regulation are flying fast and furious these days. We use regulation in the United States to prevent harm that various kinds of activities might cause and also to create positive external benefits that those activities could yield, but might not without incentives. Most regulatory programs in the United States provide a blend of measures designed to create these positive external benefits, promote good practices in the industry, prevent harms, and provide those harmed with remedies. At a time in which we contemplate new ways to regulate to deal with the crises of the day and prevent the …

Understanding And Regulating The Sport Of Mixed Martial Arts, Brendan Maher

Faculty Articles and Papers

The past fifteen years have seen the emergence of a new sport in America and around the world: mixed martial arts (“MMA”). MMA is an interdisciplinary combat sport whose participants engage in and combine a variety of fighting disciplines (e.g., kickboxing, wrestling, karate, jiu-jitsu, and so on) within one match. In this Article, I examine and analyze the sport’s evolution, articulate a theory of sporting legitimacy, supply a conceptual taxonomy of regulation, and highlight potential reform. More specifically, my foundational treatment proceeds as follows. I first explain the modern history and development of MMA, tracing it from its shaggy, brutish …

Preemption In Green Marketing: The Case For Uniform Federal Marketing Definitions, Robert B. White

Indiana Law Journal

No abstract provided.