Administrative Law Commons^™

Public Services In Railway Freight Transport, Stefan A. Jarecki

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

So far, practitioners and academics generally believed that in land transport, the concept of public services could only refer to passenger traffic. Recently, this approach has changed. The European Commission has stated that public services can also be provided in railway freight transport. Railway freight transport services can only be qualified as public services when the given Member State establishes that there is a genuine need for such services, a need that is not, or is not sufficiently met by the market. Currently, to provide financing of some railway freight services, Member States have to fulfil the Altmark conditions, or …

Movement For Quality Government V. Knesset, Esther Hayut, Yael Willner, Alex Stein, Gila Canfy-Steinitz, Yechiel Meir Kasher, Noam Sohlberg, David Mintz, Yosef Elron, Isaac Amit, Ruth Ronnen, Uzi Vogelman, Khaled Kabub, Anat Baron, Ofer Grosskopf, Daphne Barak-Erez

Translated Opinions

Movement for Quality Government v. Knesset concerned challenges to Amendment No. 3 to Basic Law: The Judiciary (the “reasonableness amendment”). In view of the controversy surrounding the amendment and the fundamental constitutional question it raised in regard to the Supreme Court’s jurisdiction to review Basic Laws, the Court took the unprecedented step of sitting en banc. A translation of the official abstract issued by the Court appears here.

On January 1, 2024, a majority of the Court (12 of 15 justices) held that the Court held the authority to conduct judicial review of Basic Laws and to intervene in …

Movement For Quality Government In Israel V. The Knesset, Esther Hayut, Yael Willner, Alex Stein, Gila Canfy-Steinitz, Yechiel Meir Kasher, Noam Sohlberg, David Mintz, Yosef Elron, Isaac Amit, Ruth Ronnen, Uzi Vogelman, Khaled Kabub, Anat Baron, Ofer Grosskopf, Daphne Barak-Erez

Translated Opinions

Movement for Quality Government v. Knesset concerns challenges to Amendment No. 3 to Basic Law: The Judiciary (the “reasonableness amendment”). In view of the controversy surrounding the amendment and the fundamental constitutional question it raised in regard to the Supreme Court’s jurisdiction to review Basic Laws, the Court took the unprecedented step of sitting en banc. We translate here Chief Justice Hayut's majority opinion.

On January 1, 2024, a majority of the Court (12 of 15 justices) held that the Court held the authority to conduct judicial review of Basic Laws and to intervene in exceptional, extreme cases in …

"Appropriate" Appropriations Challenges After Community Financial, Chad Squitieri

Scholarly Articles

The standard federal agency must come to Congress each year, hat in hand, and request another round of congressional funding. This annual appropriations process ensures that Congress maintains at least some influence over the vast array of rules and regulations that govern Americans' daily lives. Sure, Congress might have delegated broad authority to administrative agencies to develop national policy on Congress's behalf. But an agency reliant on annual appropriations is an agency with the financial incentive to exercise its delegated authority with an eye toward pleasing congressional appropriators. The annual appropriations process is therefore a sensible (even if insufficient) step …

Rethinking Innovation At Fda, Rachel E. Sachs, Nicholson Price, Patricia J. Zeitler

Articles

In several controversial drug approval decisions in recent years, the Food & Drug Administration (“FDA”) has publicly justified its decision partly on the ground that approving the drugs in question would support innovation in those fields going forward. To some observers, these arguments were surprising, as the Agency’s determination whether a drug is “safe” and “effective” does not seem to depend on whether its approval also supports innovation. But FDA’s use of these innovation arguments in drug approval decisions is just one example of the ways in which the Agency has come to make many innovation-related judgments as part of …

Law’S Detrimental Reliance On Intermediaries, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Emerging technology is law’s magic mirror. Even as law seeks to cabin the effects of emerging technology in society, when we hold emerging technology up to law, emerging technology often reflects flaws or gaps in legal constructs. Of course, rather than recognizing those flaws or gaps, law retorts back “mirror, mirror, on the wall, who is the fairest of them all?,” demanding that all other disciplines and constructs bow before law’s mighty, near-perfect reach. Often, no matter how strongly emerging technology demands that law bend, legal evolution only occurs after regulatory failures harm individuals on a massive scale. One emerging …

West Virginia V. Epa: Maybe A Big Deal, But Maybe Not, Michael Lewyn

Scholarly Works

In West Virginia v. EPA, the Supreme Court ruled that the Environmental Protection Agency (EPA) lacked the statutory authority to implement the Clean Power Plan, a regulation designed to reduce coal-fired power plant emissions by encouraging the use of non-coal energy sources. The Court’s decision was primarily grounded in the "major questions doctrine," which asserts that courts may reject agency actions that involve significant and consequential powers not reasonably inferred from Congressional intent, even if a statute is unclear. This decision raised concerns among commentators that it might severely restrict environmental regulations and the broader administrative state. However, the …

The Federal Pregnant Workers Fairness Act: Statutory Requirements, Regulations, And Need (Especially In Post-Dobbs America), Deborah Widiss

Articles by Maurer Faculty

The federal Pregnant Workers Fairness Act, enacted in December 2022, is landmark legislation that will help ensure workers can stay healthy through a pregnancy. It responds to the reality that pregnant workers may need small changes at work, such as permission to sit periodically, carry a water bottle, relief from heavy lifting, or reduced exposure to potentially dangerous chemicals. Workers may also need schedule modifications or leave for prenatal appointments, childbirth, or post-partum recovery, or accommodations to address medical conditions related to pregnancy or childbirth.

Previously, federal sex discrimination law and federal disability law sometimes required employers to provide such …

The Sec And "Major Questions Doctrine" Questions, Donna M. Nagy

Articles by Maurer Faculty

Nearly two years ago, in the wake of the Supreme Court’s formal adoption of what it termed the “major questions doctrine,” the Wall Street Journal reported a prediction that “‘every corporate securities lawyer in America is going to now fashion their arguments against SEC rulemaking to force-fit it into [that doctrine].’” As articulated by the sharply divided 6- 3 majority in West Virginia v. EPA, major questions doctrine (MQD) analysis is warranted in certain “extraordinary cases” involving a “transformative expansion” in a federal agency’s regulatory authority that is premised on “a merely plausible textual basis for the agency action.” Extraordinariness, …

Conjuring The Flag: The Problem Of Implied Government Endorsements, Michael Mattioli

Articles by Maurer Faculty

This Article exposes a harmful form of advertising that exploits government actions like patent issuances, FDA authorizations, and trademark registrations. By calling upon the symbolic power of such regulatory approvals—i.e., “conjuring the flag”—marketers deceive consumers, distort competition, and undermine administrative agencies. Using machine-learning techniques to analyze hundreds of ads across multiple media formats, this Article offers the first comprehensive analysis of this pervasive practice. The study reveals that it is especially prevalent in industry settings where consumers are likely to seek reassurance that a product is safe and effective. Specifically, the examples examined show that patents are mentioned frequently in …

Selling Surveillance, Asaf Lubin

Articles by Maurer Faculty

Almost everything we do on the Internet is achieved through Internet-connected devices, such as smartphones and laptops. This reality has produced a new sprawling industry of commercial spyware corporations: a vast network of companies specializing in selling security vulnerabilities in the very devices we all use. These companies provide clients with tools and services for unauthorized access and surveillance. Investigative reporting has unearthed the scope and nature of the systematic abuses produced by these technologies. Around the world, government actors rely on spyware to target human rights activists, journalists, and dissidents with almost no accountability.

Spyware companies have long defended …

Regulating Driving Automation Safety, Matthew Wansley

Articles

Over forty thousand people die in motor vehicle crashes in the United States each year, and over two million are injured. The careful deployment of driving automation systems could prevent many of these deaths and injuries, but only if it is accompanied by effective regulation. Conventional vehicle safety standards are inadequate because they can only test how technology performs in a controlled environment. To assess the safety of a driving automation system, regulators must observe how it performs in a range of unpredictable, real world edge cases. The National Highway Traffic Safety Administration (NHTSA) is trying to adapt by experimenting …

Chevron And Stare Decisis, Kent H. Barnett, Christopher J. Walker

Scholarly Works

In our contribution to this Chevron on Trial Symposium, we argue that the Supreme Court should not overrule Chevron in Loper Bright Enterprises v. Raimondo and its companion case Relentless v. Department of Commerce. We based our argument largely on statutory stare decisis. In particular, Chevron deference is a bedrock precedent in administrative law, relied on by the Supreme Court and the lower federal courts thousands of times since Chevron was decided in 1984. Congress, federal agencies, and the regulated public have also structured their affairs around the precedent. Conversely, the constitutional arguments against Chevron are unpersuasive, and the debate …

Against Self-Defeating Climate Policy, Michael Buschbacher

FIU Law Review

This paper contends that the narrow Overton window on climate policy is self-defeating to the goals of many climate activists and policymakers. It gives three examples of policies that do little to address carbon emissions and are likely to fail: (1) how decarbonization policies are destroying electric grid reliability; (2) how the attempt to eliminate the internal combustion engine is leading to the “Cuba-fication” of the automotive fleet; and (3) how the focus on reducing domestic carbon emissions leads to regulatory arbitrage. The paper provides three corresponding recommendations, contending (1) that states should eliminate RTOs and ISOs in favor of …

From The Great Recession To The Covid-19 Pandemic: A Financial History Of The United States 2010-2020—A Comparison Of The Government’S Response To The Two Financial Crises That Bookended The 2010 To 2020 Decade, Lissa Lamkin Broome

FIU Law Review

This article compares the government's legislative and regulatory response to each of the two financial crises that bookended the 2010-2020 decade and how the response to the COVID-19 crisis was affected by various provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act enacted in 2010 in response to the 2008 financial crisis. The article concludes with six lessons we learned from these two financial crises experienced in relatively short order: act fast, act with force, act on multiple fronts, regain or retain citizens' confidence in the financial system, ensure access to liquidity, and aid those who are struggling.

Hidden In Plain Sight: Redefining The Field Of National Security, Aziza Ahmed

Faculty Scholarship

Throughout his campaign for presidency, Trump called for a ban on Muslims entering the United States. As President, he kept his word. Only days after he took office, the new administration released the first version of the Executive Order: Protecting the Nation From Foreign Terrorist Entry Into the United States. The first Executive Order, however, did not say the word Muslim. Instead, it listed only Muslim-majority countries as necessary for restrictions on entry. The Executive Order also trafficked in stereotypes about Muslims, such as the need to ban people who engage in acts of "bigotry or hatred," including honor killings. …

Konstitusionalitas Proses Pemilihan Kepala Otorita Ibu Kota Nusantara Berdasarkan Undang-Undang Nomor 3 Tahun 2022 Tengan Ibu Kota Negara, Riskayati Subandi

Jurnal Konstitusi & Demokrasi

The establishment of the Government of the Special Territory of the Capital of Nusantara (Special Regional Government of IKN) as the location of the new capital of Indonesia has raised controversy, especially as regards its position as the special regional government held by the Nusantara Capital Authority Institution (IKN Authority), as well as the differences in the process for selecting government heads. The research was conducted using a normative jurisprudence method that focuses on the analysis of secondary data to determine the constitutionality of regulations relating to the position and process of election of the head of government in the …

Analysis Of Marine Zone Management In Disputed Island Territories, Khomsin Khomsin, Danar Guruh Pratomo, Ayu Isnania Zahra

Journal of Environmental Science and Sustainable Development

Indonesia has 17,204 islands registered, named, and coordinated by Geospatial Information Agency (BIG). The number of islands can threaten maritime boundary disputes between provinces, districts, and cities. One of the disputes is the claim over Pulau Tujuh, which is mutually contested for ownership by the Province of Bangka Belitung and the Province of Riau Islands. This study aims to analyze the marine management zone of the Pulau Tujuh claim. It is carried out using the cartometric method. This study of regional boundaries refers to the Regulation of The Minister of Home Affairs of The Republic of Indonesia 141 of 2017, …

How (Not) To Deal With The Bubble Effect In Cyberspace: The Case Of The Eu And Digital Services Act, João Tornada

Brooklyn Journal of International Law

Deliberative democracies are based on an ideal process of speech and dialogue that fosters an “uninhibited, robust, and wide-open” public discourse sphere. In cyberspace, social networks and search engine platforms largely operate with recommender systems that tailor content according to the users' interests and online behavior (“profiling”), thus segregating them from different points of view (“bubble effect”). While this personalization of content is particularly efficient to promote commercial goods and services, when it comes to information of common interest, especially on political matters, it undermines consensus-building dialogue and threatens democratic ideals. The theory of a free “marketplace of ideas” justifies …

Enough Excuses On Drug Importation: A New Transnational Paradigm For Fda Regulation And Lower Us Drug Prices, Gabriel Levitt

Brooklyn Journal of International Law

The US Food and Drug Administration (FDA), which enforces drug safety laws, asserts that under most circumstances the importation of prescription drugs is illegal. Yet because of high drug prices in the United States, over the past couple of decades, tens of millions of Americans have imported prescription drugs for personal use. For many, this was their only way to afford them. A unique array of federal laws, regulations, and policies, including the de facto decriminalization of the practice of personal drug importation, have in effect permitted personal drug importation. The same exceptions, however, are not available for commercial drug …