Administrative Law Commons^™

End The Failed Chevron Experiment Now: How Chevron Has Failed And Why It Can And Should Be Overruled, Jack M. Beermann

Faculty Scholarship

In Chevron U.S.A., Inc. v. NRDC, decided in 1984, the Supreme Court announced a startling new approach to judicial review of statutory interpretation by administrative agencies, which requires courts to defer to agency interpretations of ambiguous statutes. Although it was perhaps hoped that Chevron would simplify judicial review and increase deference to agency interpretation, the opposite has occurred. Chevron has complicated judicial review and at best it is uncertain whether it has resulted in increased deference to agency interpretation. In fact, for numerous reasons, Chevron has been a failure on any reasonable measure and should be overruled. Further, overruling Chevron …

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 …

Fiduciary Administration: Rethinking Popular Representation In Agency Rulemaking, Evan J. Criddle

Faculty Publications

Do administrative agencies undermine popular sovereignty when they make federal law? Over the last several decades, some scholars have argued that rulemaking by unelected agency officials imperils popular sovereignty and that federal law should resolve the apparent tension between regulatory practice and democratic principle by allowing the President to serve as a proxy for the "will of the people" in the administrative state. According to this view, placing federal rulemaking power firmly within the President's managerial control would advance popular preferences throughout the federal system.

This conventional wisdom is misguided. As political scientists have long recognized, the electorate's relative disengagement …

Appeal No. 0815: Bass Energy, Inc. V. Division Of Oil & Gas Resources Management And Duck Creek Energy, Inc., Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Order 2009-29 (Beta Drive Unit #1 Well)

Evolutionary Due Process, Louis J. Virelli Iii

NULR Online

The issue of evolution instruction in American public schools is becoming increasingly complex, both legally and politically. Until recently, the controversy over whether and how to teach evolution in public school science classes has been singularly focused on the constitutional limits of government support for religion under the First Amendment’s Establishment Clause. Current measures in Louisiana and Texas, however, represent a shift toward a new “adjudicative model” for addressing questions of evolution instruction. This adjudicative model permits individual educators to treat evolution issues on a case-by-case basis, which, in turn, implicates a new constitutional issue in the evolution education debate: …

Can The Law Track Scientific Risk And Technological Innovation?: The Problem Of Regulatory Definitions And Nanotechnology, David A. Dana

Faculty Working Papers

The functioning of a regulatory regime often turns on what is defined to be included in the scope of regulation and what is defined to be outside. In constructing the definitions of what is regulated, two key challenges are to align the defintions with the risks that motivated the establishment of the regulatory regime and to build in dynamism into the defintions so that they adapt to changes in scientific understanding and technology. This Chapter of a forthcoming book from Cambridge University Press (David Dana, ed., The Nanotechnology Challenge), explores these challnegs in the context of nanotechnology.

Fulfilling Government 2.0'S Promise With Robust Privacy Protections, Danielle Keats Citron

Faculty Scholarship

The public can now “friend” the White House and scores of agencies on social networks, virtual worlds, and video-sharing sites. The Obama Administration sees this trend as crucial to enhancing governmental transparency, public participation, and collaboration. As the President has underscored, government needs to tap into the public’s expertise because it doesn’t have all of the answers. To be sure, Government 2.0 might improve civic engagement. But it also might produce privacy vulnerabilities because agencies often gain access to individuals’ social network profiles, photographs, videos, and contact lists when interacting with individuals online. Little would prevent agencies from using and …

Beyond Innovation And Competition: The Need For Qualified Transparency In Internet Intermediaries, Frank Pasquale

Faculty Scholarship

Internet service providers and search engines have mapped the web, accelerated e-commerce, and empowered new communities. They also pose new challenges for law. Individuals are rapidly losing the ability to affect their own image on the web - or even to know what data are presented about them. When web users attempt to find information or entertainment, they have little assurance that a carrier or search engine is not biasing the presentation of results in accordance with its own commercial interests.

Technology’s impact on privacy and democratic culture needs to be at the center of internet policy-making. Yet before they …

Advancing Consumer Interests Through Ubiquitous Broadband: The Need For A New Spectrum, Meredith Attwell Baker

Federal Communications Law Journal

Comprehensive and long-term spectrum reform can play a critical role in the FCC's development of a National Broadband Plan and in its consideration of Open Internet rules. More efficient and intensive use of the nation's spectrum resources would help provide a path to greater broadband deployment, competition and innovation for all consumers. Wireless and mobile technologies hold great promise to offer consumers new services to complement, extend, or even replace existing broadband offerings. A comprehensive review of the nation's spectrum policy is, therefore, necessary to ensure that wireless and mobile broadband services are not hamstrung by outdated rules or command-and-control …

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, 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 …

An Overview Of Tsca, Its History And Key Underlying Assumptions, And Its Place In Environmental Regulation, David Markell

Scholarly Publications

No abstract provided.

Introduction: The Sec At 75, Barbara Black

Faculty Articles and Other Publications

This Introduction begins with a brief look back at the creation of the SEC and then examines the present-day agency's expression of its mission. It next reviews the Blueprint's assessment of the agency and its proposal for reform and then turns to the Obama Administration's Financial Regulatory Reform and its proposals relating to the SEC. Finally, this Introduction describes five issues to which the panelists paid particular attention: the SEC's mission, competition among financial markets, the proposal to merge the SEC and the Commodity Futures Trading Commission (CFTC), the role of financial market networks in systemic risk regulation, and the …

Who Decides Who Decides: Federal Regulatory Preemption Of State Tort Law, Mark Seidenfeld

Scholarly Publications

No abstract provided.

Commentary: Environmental Justice And The Bp Oil Spill: Does Anyone Care About The "Small People" Of Color?, Perry Wallace

The Modern American

No abstract provided.

Leverhulme Lecture: The Global Financial Crisis And Systemic Risk, Steven L. Schwarcz

Faculty Scholarship

Lecture given November 9, 2010, is the first of three delivered by Prof. Schwarcz as Leverhulme Visiting Professor of Law, Oxford University. Prof. Schwarz examines the causes of the global financial crisis, showing it was triggered by market failures, not by financial institution failures, and arguing that any regulatory framework for managing systemic risk must address markets as well as institutions. The lecture also analyzes how regulation should be designed under that broader framework to mitigate systemic risk and its consequences. Finally, the lecture examines the potential systemic effects of sovereign debt crises, demonstrating how regulation can mitigate those effects.

How To Avoid The Constraints Of Rule 10b-5(B): A First Circuit Guide For Underwriters, 43 J. Marshall L. Rev. 931 (2010), Eric H. Franklin

UIC Law Review

No abstract provided.

Thoughts On Preemption In The Wake Of The Levine Decision, Erika Lietzan, Sarah E. Pitlyk

Faculty Publications

This article discusses the prospects for preemption doctrine in the wake of the Supreme Court’s decision in Wyeth v. Levine. Part I describes the Levine decision. Part II examines the majority’s holding as it relates to impossibility preemption and considers the future of the doctrine in failure-to-warn suits after Levine. We argue that the announced standard for impossibility preemption — the clear evidence standard — should be interpreted reasonably and not in a manner that effectively eviscerates the doctrine. We also describe other instances of impossibility in the food and drug regulatory context that were not presented to the Court. …

Mr. S. Lipietz Et Al. V. The Prefect Of The Haute-Garonne Department And The Sncf (Advisory Opinion), Jean-Christophe Truilhé

Maryland Journal of International Law

Advisory Opinion by Jean-Christophe Truilhé, Government Commissioner. Translated by Juliana Galan and Alisha L. Jacobsen, as revised by Vivian Grosswald Curran. All footnotes not designated as "Translator's note" were supplied by Vivian Grosswald Curran.

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.