Administrative Law Prof Blog

Compliance: Mortgagee liability under "Crack House Act"

An interesting post on Shephard Mullins' White Collar Defense Blog, "Got Pot? The Feds Try to Make Mortgagee Banks Liable Under the Crack House Statute". First and last paragraphs:

Banks holding mortgages now have one more thing to worry about: potential criminal and civil liability and forfeiture under the federal “crack-house” statute. Sound crazy? Read on, because late last year the four U.S. Attorneys in California threatened banks with liability simply because mortgaged properties were being used as medical marijuana dispensaries, even though such dispensaries are legal under state law.

...

At some point, there may be a judicial pronouncement that clarifies the scope of this supposed “mortgagee” liability, probably by explaining when mortgage holders “manage and control” the property for purposes of the crack-house statute.  The immediate problem, however, is what mortgagee banks and their counsel should do in response to this situation.  Coordinated lobbying and appeals to congressional representatives seem appropriate.  Banks should also review their portfolios to identify potential problem properties and explore the possibility of drafting loan documentation giving them the ability to oust owners, tenants, and occupants more expeditiously.  And if a bank receives a “notice” letter in the meantime?  Ask the government for more time.

Wow. What about investors in mortgage-backed securities? EMM

Beck responds to Pierce on systemic bias in rulemaking

On his Federal Regulations Advisor blog, Leland E. Beck responds to Richard J. Pierce's post on RegBlog: "Opinion: Regulatory Analysis, Public Comments, and Policy Decisions". Opening paragraph:

A crop of comments have sprung up recently on whether regulatory analyses in rulemaking – economic, scientific, and otherwise –support a specific point of view.  At the same time, questions about whether public comments inherently bias a policy decision in a specific direction have arisen.  At bottom, information is the currency of the regulatory process – sticking one’s regulatory head in the sand, ostrich-like, is not an acceptable response.  If good analysis and public scrutiny informs a regulatory decision, then it is a better decision.  If that decision is not politically palatable, then policy makers need to go back to their drawing boards.

Mr. Beck suggests that what appears to be a bias towards regulated entities in notice-and-comment rulemaking actually reflects the better quality of information furnished by supporters of the regulated entities and the failure of agencies proposing rules to do their homework. I suspect that both positions are partly correct but that there are even more reasons for the results of such rulemaking:

• Perceived substantive due process constraints on regulation (whether or not Lochner is back there appears to be a perception among lawyers—including lawyers who draft proposed regulations for the government—that some kinds of regulation Just. Aren't. Done;
• A sort of common understanding among lawyers in an industry irrespective of whether they work for regulators or regulatees, less venial (but more common) than actual agency capture;
• Adoption by harried government regulators of elegant arguments made by better writers—who are more likely to work for those who can afford them.

You see these same pressures in appellate litigation, where clerks come from the same population of law review editors at top schools as "biglaw" associates who are writing for better heeled parties. I'm not judging here, it just is. I'd love to see some anthropological studies on this. EMM

Statutory interpretation by SCOTUS

Seamless web time again. On SCOTUSblog,  Steven Schwinn reviews the Supreme Court's opinions in Reynolds v. U.S., No. 106549 (Jan. 23, 2012) in "Opinion analysis: An exercise in statutory construction". The case arises in a criminal law context—sex offender registration—but it is an APA case.

In the end, Reynolds is, and maybe always was, just a narrow case about statutory construction in a rather obscure corner of the SORNA, coming to the Court merely to resolve a deep circuit split.

That obscure corner deals with the Act’s application to sex offenders who were convicted before the Act’s adoption, the so-called “pre-Act” offenders.  The Act says that the Attorney General “shall have the authority to specify the applicability of the [registration] requirements” to pre-Act offenders – that is, to say whether pre-Act offenders had to register just like post-Act offenders. ... In short, the parties disagreed about whether the phrase “to specify the applicability of” operated against a baseline that required pre-Act offenders to register, or one that didn’t.

The majority opinion (all except Scalia and Ginsburg) actually included legislative history as well as the statutory language to find that the AG had to activate the requirement against pre-Act offenders. Scalia's dissent argued the language of the statute meant that it was effective against pre-Act offenders on its terms and the AG could exempt them. Scalia thinks the language is clear when seven fairly bright people think it means something different. EMM

A SCOTUS case worth watching

Amanda Frost (American) describes the issues in a case now before the U.S. Supreme Court in today's "Academic Round-up" on SCOTUSblog.

The Court recently granted cert. in Christopher v. SmithKline Beecham Corp., a case which may lead the Court to revisit whether an agency’s interpretation of its own regulations merit deference. ...

At issue in Christopher is whether pharmaceutical sales representatives fall within the Fair Labor Standards Act’s exemption from overtime pay. In trying to answer that question, the lower courts have split on whether to give deference to the Department of Labor’s view that pharmaceutical sales reprentatives do not qualify for the FLSA exemption, and thus must be paid overtime. According to respondent SmithKline Beecham, the Department’s position, taken in amicus briefs filed in these cases, is an about-face by the agency and merits no deference — a conclusion with which the Ninth Circuit agreed. But the Second Circuit relied on the agency’s amicus brief to guide its decision, citing the Supreme Court’s decision in Auer v. Robbins requiring courts to defer to agency interpretations of their own rules.

The case raises at least two interesting questions regarding the interplay between courts and agencies.  First, the court may use this case to address whether an agency’s change in position merits deference. ... Also lurking in this case is the threshold question of whether agencies should ever get deference for interpretation of their own regulations, whether consistent or not. The Supreme Court has granted such deference ever since its 1945 decision in Bowles v. Seminole Rock, and it reaffirmed that position more recently in Auer v. Robbins. But there are some interesting arguments against doing so.

More discussion and links in the post. Might be a good intro to the whole deference issue. EMM

Pierce on systemic bias in rulemaking

Prof. Richard J. Pierce, Jr. (GWU) discusses his upcoming article in the G.W.U.L. REV. on RegBlog in "Judicially Enforced Notice-and-Comment Rulemaking Systematically Biases Results in Favor of Regulated Firms". Opening paragraph:

Many proponents of effective government regulation have lavished praise on the judicially enforced notice-and-comment rulemaking process that is required by section 553 of the Administrative Procedure Act and that dominates regulatory decision making by federal agencies.  In theory, the notice-and-comment process provides a judicially enforced means through which all individuals and groups that have an interest in the outcome of a major regulatory decision making process, including beneficiaries, have an effective means of influencing its outcome.  Recent empirical research exposes this widespread belief as completely fictional.

EMM

New administrative law articles

From the University of Washington's Current Index to Legal Periodicals:

• Craig, Robin Kundis. Agencies interpreting courts interpreting statutes: the deference conundrum of a divided Supreme Court. 61 Emory L.J. 1-68 (2011). [H]|[L]|[W]
• Harmon, Roy F. An assessment of new appeals and external review processes -- ERISA claimants get "some kind of hearing." 56 S.D. L. Rev. 408-455 (2011). [H]|[L]|[W]
• Johnson, Stephen M. Disclosing the President's role in rulemaking: a critique of the reform proposals. 60 Cath. U. L. Rev. 1003-1044 (2011). [H]|[L]|[W]
• Morrison, John and Jonathan McDonald. Exorcising discretion: the death of caprice in ERISA claims handling. 56 S.D. L. Rev. 482-499 (2011). [H]|[L]|[W]
• O'Connell, Anne Joseph. Agency rulemaking and political transitions. 105 Nw. U. L. Rev. 471-534 (2011). [H]|[L]|[W]

EMM

New administrative law article

New on SSRN, "The Freedom of Information Act Trial" by Margaret B. Kwoka (John Marshall, Chicago). Abstract:

This Article examines the paucity of Freedom of Information Act (FOIA) cases that go to trial and courts’ preference for resolving these disputes at the summary judgment stage. Using traditional legal analysis and empirical evidence, this Article explores whether we should expect FOIA cases to go to trial and how the scarcity of FOIA trials compares to the trial rate in civil litigation generally. It concludes that the unusual use of summary judgment in FOIA cases has unjustifiably all but eliminated FOIA trials, which occur in less than 1% of FOIA cases. It further examines how conducting FOIA trials in appropriate cases might increase the frequency of pro-transparency case outcomes as intended under the Act, using both empirical analysis and qualitative conclusions from interviews with attorneys who have litigated FOIA trials.

An interesting combination of research techniques that might be of use in other contexts. EMM

Seidenfeld on review of guidance documents

"Substituting Substantive for Procedural Review of Guidance Documents" by Mark Seidenfeld (Florida State), 90 TEXAS L. REV. 331 (2011), is available here.

In this Article, Professor Seidenfeld looks at issues concerning how federal agencies issue interpretive rules and policies and how courts respond to such documents. Seidenfeld looks at how scholarship has focused on procedural impediments to the issuance of guidance documents. While he concludes that those who favor giving agencies more leeway to use them have the better argument, this argument is incomplete. While a number of scholars have attempted to transcend the debate and have suggested solutions to agency abuse that do not depend on courts finding defects in agency procedures, Professor Seidenfeld argues that these solutions are also imperfect.

Instead, Seidenfeld proposes to shift the debate from one of procedural requirements to one of substantive review, concluding that this approach preserves agency flexibility and encourages agencies to still solicit outside input.

A hot topic. EMM

Theory: New ideas for agency design

On Jotwell: Administrative Law, Edward Rubin (Vanderbilt) reviews Rachel Barkow's (NYU) article, "Insulating Agencies: Avoiding Capture Through Institutional Design". He goes beyond Prof. Barkow's article to identify other recent research on the design of administrative agencies. See also, here and here. EMM

SCOTUS: Exhaustion of administrative remedies - a case to watch

William Funk (Lewis & Clark) reviews (and takes a position on) Sackett v. EPA, presently before the U.S. Supreme Court in "The Need for a Judicial Check on Regulatory Compliance Orders" on RegBlog:

Commentators in the media have characterized this case, depending upon their orientation, either as one involving an overbearing government agency threatening a family for trying to build a house on slightly more than a half-acre of its property, or as a threat to the ability of the Environmental Protection Agency (EPA) to take necessary action to protect the environment. Unfortunately, for those of us who prefer truth to propaganda, neither of these descriptions accurately states what is before the Court.

The Sacketts want to build a house on their 0.6 acre property, and in preparation for that construction they filled an area that EPA believes is a wetland. While they might have qualified for a permit for this activity, they did not seek one, and when informed by EPA that it appeared they were violating the Clean Water Act, they did not desist from their activity. EPA consequently issued a “compliance order,” as authorized by the Clean Water Act, ordering the Sacketts to cease and desist from their filling activities and to remove the fill material and restore the area to its original condition. The order included the warning that violation of the order might subject the Sacketts to substantial civil or administrative penalties. The Sacketts then brought suit in federal court alleging, among other things, that the compliance order was arbitrary and capricious.

Whether the Sacketts or EPA officials are correct is not the issue before the Court. The issue is simply whether the Sacketts may seek a judicial determination of the correctness of EPA’s order without having to violate that order and risk large civil or administrative penalties in order to obtain a judicial determination of the legality of EPA’s order as a defense to that enforcement action. EPA, understandably, would like to avoid judicial review until it brings an enforcement action in court. The threat of huge penalties if EPA is correct often is enough to force compliance even if a defendant strongly believes that EPA is wrong. ...
 
Many environmentalists fear that a decision by the Court in favor of the Sacketts would hamstring environmental enforcement, on the theory that if defendants may delay compliance during lengthy judicial review proceedings, substantial harm to the environment may occur even if EPA eventually prevails. Moreover, if obtaining judicial review would delay compliance, then defendants might be induced to seek judicial review simply to put off the cost of compliance, even if the defendants knew they were likely to lose in the end. However, this fear is unfounded. ...

EMM

ACUS recommendations

The Administrative Conference of the United States adopted four recommendations at its 55th Plenary Session last month.

• Recommendation 2011-5: Incorporation by Reference
• Recommendation 2011-6: International Regulatory Cooperation
• Recommendation 2011-7: Federal Advisory Committee Act - Issues and Proposed Reforms
• Recommendation 2011-8: Agency Innovations in e-Rulemaking

Thanks to Rulemaking for the pointer. EMM

Policy: Review of Congressional reform efforts on RegBlog

For those of you interested in administrative law policy issues, RegBlog (Penn) started a review of recent Congressional activities today in "Regulatory Reform in Congress: Part I". EMM

New administrative law articles

From the University of Washington's Current Index to Legal Periodicals:

• ABA Section of Administrative Law and Regulatory Practice. Report. Lobbying law in the spotlight: challenges and proposed improvements. 63 Admin. L. Rev. 419-465 (2011). [H]|[L]|[W]
• Beermann, Jack M. An inductive understanding of separation of powers. 63 Admin. L. Rev. 467-514 (2011). [H]|[L]|[W]
• Bellamy, Richard. Political constitutionalism and the Human Rights Act. 9 I.Con: Int'l J. Const. L. 86-111 (2011). [H]|[L]|[W]
• Craig, Paul. Political constitutionalism and the judicial role: a response. 9 I.Con: Int'l J. Const. L. 112-131 (2011). [H]|[L]|[W]
• Duff, Michael C. Union salts as administrative private attorneys general. 32 Berkeley J. Emp. & Lab. L. 1-43 (2011). [H]|[L]|[W]
• Edwards, Stacy L.Z. Comment. The Department of Veterans Affairs' entitlement complex: attorney fees and administrative offset after ... (Astrue v. Ratliff, 130 S. Ct. 2521, 2010.) 63 Admin. L. Rev. 561-597 (2011). [H]|[L]|[W]
• Fleurantin, Larry R. Exhaustion of administrative remedies in immigration cases: finding jurisdiction to review unexhausted claims the Board of Immigration Appeals considers sua sponte on the merits. 34 Am. J. Trial Advoc. 301-333 (2010). [H]|[L]|[W]
• Goodman, Scott. Recent development. Department of Homeland Security's Chemical Facility Anti-Terrorism Standards and the program's immediate effect on American industry. 6 Envtl. & Energy L. & Pol'y J. 103-124 (2011). [H]|[L]|[W]
• Kalen, Sam. Federal Administrative Procedure Act claims: the Tenth Circuit and the Wyoming District Court should fix the confusion attendant with Local Rule 83.7.2. 11 Wyoming L. Rev. 513-523 (2011). [H]|[L]|[W]
• Lutch, Alexander. Recent development. Fees from Mars: why the FTC needs to regulate mortgage assistance relief services (MARS) fees. 63 Admin. L. Rev. 645-666 (2011). [H]|[L]|[W]
• Pierce, Richard J., Jr. and Joshua Weiss. An empirical study of judicial review of agency interpretations of agency rules. 63 Admin. L. Rev. 515-523 (2011). [H]|[L]|[W]
• Stroud, Jonathan. Comment. The illusion of interchangeability: the benefits and dangers of guidance-plus rulemaking in the FDA's biosimilar approval process. 63 Admin. L. Rev. 599-644 (2011). [H]|[L]|[W]
• Zaring, David. Rule by reasonableness. 63 Admin. L. Rev. 525-560 (2011). [H]|[L]|[W]

EMM

Regulatory construction

I've always assumed believed that the canons of construction that apply to statutes also apply to regulations. However, I recently received an email from Don Mansfield, professor of contract management at the Defense Acquisition University:

I came across the Administrative Law Prof Blog while researching the use of a principle of statutory construction called “Expressio Unius Est Exclusio Alterius” ("the express mention of one thing excludes all others").  I’m trying to determine if the principle is applicable to the interpretation of federal regulations. ...  Having said that, would you be able to direct me to any cases where the principle has been used to interpret federal regulations?  Or, would you or one of your editors be able to provide an opinion on the applicability of the principle to the interpretation of federal regulations?

This caught me off balance, because the more I thought about it the more I realized that I had never actually seen any authority for applying the canons of statutory interpretation to regulations. I teach the canons, using Karl Llewellyn's infamous "Remarks", 3 VAND. L. REV. 395, 401-406 (1950) (HeinOnline link). To quote Jack Benny, "Well".

I did some digging and found the following treasures (your milage may vary):

• Two cases supporting the general proposition that the canons apply to regulations in the same way they apply to statutes:
  • Williams v. Chu, 641 F.Supp.2d 31, 38 (D.D.C. 2009)
  • Rucker v. Wabash RR Co., 418 F.2d 146, 149 (7th Cir. 1969)
• Two cases supporting the specific proposition:
  • Coalition for a Sustainable Delta v. FEMA, No. 1:09-cv-02024 OWW GSA, slip op. at 39, 2011 WL 3665108 (E.D. Cal. Aug. 19, 2011)
  • Scott v. City of New York, 592 F.Supp.2d 501, 506-507 (S.D.N.Y. 2008)
• But see these cases criticising the Expressio Unius canon in the administrative context:
  • Whetsel v. Network Property Services, LLC, 246 F.3d 897, 902 (7th Cir. 2001) ("has reduced force in the context of interpreting agency administered regulations")
  • In re Verburg, 159 Vt. 161, 165, 616 A.2d 237, 239 (1992) ("fails to view the regulation as a whole")
  • Caylor-Nickel Clinic, P.C. v. Indiana Dept. of State Revenue, 569 N.E.2d 765, 772 (Ind. Tax 1991) ("merely an aid to construction not a rule of law")
  • Cheney RR Co., Inc. v. ICC, 902 F.2d 66, 68-69 (D.C. Cir. 1990) (blasting the canon in statutory context)

I suggest that the most effective use of the canons of construction in the context of contruing regulations is the same as it is when construing statutes and constitutions — you need to examine the principles and policies behind a canon before applying it. We need to have something to help resolve ambiguities in regulations other than just an agency ipse dixit.

Like grammar, the canons of construction can be arbitrary, but they need not be capricious. EMM

The government has to follow its own rules

The government has almost all the power in regulatory matters. Too often, representing regulated entities against government action boils down to educated whining. You feel like the mouse flipping off the hawk in one last valiant gesture of defiance. But where the rule of law still lives, there is one power left to the regulated: The government has to follow its own rules. A demonstration of this power is described on the CommLawBlog in "FCC to Convenience Stores: Oops!" by Donald Evans (Fletcher, Heald & Hildreth, Arlington, VA). Subtitle: "Procedural stumble results in withdrawal of citations and proposed fines".

... We don’t usually think of convenience stores as being subject to FCC regulation. But because the stores stocked prepaid cell-phone handsets, the FCC designated them “resellers of wireless services,” and went on to fault them for failing to file certain reports relating to compatibility of the handsets with hearing aids.

The FCC has now withdrawn those citations along with eight others, plus nine proposed fines.

When the FCC or any federal agency adopts a rule that imposes new paperwork burdens, the hilariously-named Paperwork Reduction Act requires the rule to be approved by the Office of Management and Budget (OMB) before it can go into effect. The FCC ships the newly-adopted rule over to OMB for review, a process which normally takes just a few weeks. OMB almost always approves the rule, even if it triggers staggering amounts of new paperwork, and gives the rule a “control” number. The FCC then puts a notice in the Federal Register saying the rule is effective. ...

OMB had approved the rule back in July 2008, but the FCC neglected to publish the necessary notice of its effectiveness. (The FCC did publish the fact of the OMB approval on July 21, 2008, but forgot to say that the rule was effective.) In any event, since the FCC cannot issue citations and other punitive actions based on supposed violations of the then-not-yet-in-effect reporting rule, the citations and proposed fines had to be quietly withdrawn.

Some journalists might call this a "technicality". But given the disparity of power between a regulated entity and the government due process gives regulated entities the right to insist that the government follow its own rules. Those rules are there to protect people, in this case by giving regulated entities at least a chance of knowing what regulations they are subject to. (Not that the convenience stores had the slightest idea they had come under FCC regulation by selling prepaid phones — another problem for other posts.) Whether you are dealing with a homeowners' association or the federal government, checking if the rule was properly promulgated is right up there with checking the enabling statute. EMM

New administrative law articles

From the University of Washington's Current Index to Legal Periodicals:

• Birdsong, Melany C. Reforming regulation: no time like the present. 32 Hamline J. Pub. L. & Pol'y 371-409 (2011). [H]|[L]|[W]
• Holper, Mary. The new moral turpitude test: failing Chevron step zero. 76 Brook. L. Rev. 1241-1307 (2011). [H]|[L]|[W]
• Lundblad, Jennifer P. Rethinking patient safety regulation: a framework for evaluating regulatory tools. 32 Hamline J. Pub. L. & Pol'y 437-448 (2011). [H]|[L]|[W]
• Madison, Kristin. Rethinking fraud regulation by rethinking the health care system. 32 Hamline J. Pub. L. & Pol'y 411-427 (2011). [H]|[L]|[W]

EMM

Explicit preemption language

For decades scholars and practitioners have been asking Congress and administrative rulemakers to write explicit preemption language into statutes and regulations, avoiding battles over implied preemption. Well, sometimes even explicit language isn't enough. A new Arizona case, BNSF Railway Company v. Arizona Corporation Commission, No. 1 CA-CV 11-0002 (Jan. 3, 2012), shows why.

¶1  BNSF Railway Company (“BNSF”) appeals the judgment entered by the superior court affirming an October 21, 2009 order of the Arizona Corporation Commission (“Commission”). BNSF argues the superior court erred because the Commission’s authority to approve or deny the installation of  railroad wayside horns was preempted by federal law regulating the use of audible warnings at railroad crossings. For the following reasons, we agree with the superior court’s determination and affirm.

BNSF was not objecting to the installation of the horns themselves.

¶14   The reason BNSF is dissatisfied with the Commission’s order is that it objected to any  jurisdiction being exercised by the Commission. BNSF’s argument before the Commission and in the trial court, as it is now, is that the Commission was preempted from any action. BNSF has been harmed, from its perspective, by having to engage in lengthy and expensive Commission hearings it considered both unnecessary and unlawful.

(Emphasis in original.)

¶15   BNSF argues that the Commission did not have jurisdiction to enter its order because federal law concerning matters of railroad safety regulation expressly preempts the Commission.  To achieve national uniformity of regulation, Congress has directed that “[l]aws, regulations, and orders related to railroad safety and . . . security shall be nationally uniform to the extent practicable.”

However, in addition to express preemption the federal regulations expressly say that some related state actions are not preempted.

But the regulations expressly provide that their issuance “does not constitute federal pre emption of administrative procedures required under State law regarding the modification or installation of engineering improvements at highway-rail grade crossings."  49 C.F.R. § 222.7(e) (emphasis added).

¶16. BNSF argued that the Commission's action was not an "administrative procedure" and that the horns were not "engineering improvements".

The Arizona Corporation Commission is an unusual agency in that it is created by Arizona's Constitution and not its legislature. It has authority over a range of business and commercial matters independent of the governor. Because in this case the Commission held hearings and took evidence before making its decision, BNSF argued that this was a judicial or quasi-judicial action and not an "administrative procedure". The Commission and the Court looked to the federal APA and said that it didn't matter that it was quasi-judicial, it was still an administrative procedure. The Court cited to http://dictionary.reference.com/browse/improvement to determine that

Clearly, applying any common-sense definition, the installation of a wayside horn constitutes the installation of an “engineering improvement.”

¶31. From the practitioner's perspective, I suggest it is important to note that this case is one of a regulated entity subject to substantial federal regulation objecting to the jurisdiction of a state agency. One might suspect that there are other issues where states want to regulate railroads and the railroads do not want to have to deal with 50+ local agencies. EMM

New administrative law articles

From the University of Washington's Current Index to Legal Periodicals:

• Citron, Danielle Keats and Frank Pasquale. Network accountability for the domestic intelligence apparatus. 62 Hastings L.J. 1441-1494 (2011). [H]|[L]|[W]
• Symposium: New Governance and the Business Organization. Introduction by Cristie Ford and Mary Condon; articles by Bridget M. Hutter, Kenneth A. Bamberger, Deirdre K. Mulligan, Cristie Ford, David Hess, John M. Conley, Cynthia A. Williams and Janis Sarra. 33 Law & Pol'y 449-602 (2011). [H]|[L]|[W]
  • Ford, Cristie and Mary Condon. Introduction to "New Governance and the Business Organization" special issue of Law and Policy. 33 Law & Pol'y 449-458 (2011). [H]|[L]|[W]
  • Hutter, Bridget M. Understanding the new regulatory governance: business perspectives. 33 Law & Pol'y 459-476 (2011). [H]|[L]|[W]
  • Bamberger, Kenneth A. and Deirdre K. Mulligan. New governance, chief privacy officers, and the corporate management of information privacy in the United States: an initial inquiry. 33 Law & Pol'y 477-508 (2011). [H]|[L]|[W]
  • Ford, Cristie and David Hess. Corporate monitorships and new governance regulation: in theory, in practice, and in context. 33 Law & Pol'y 509-541 (2011). [H]|[L]|[W]
  • Conley, John M. and Cynthia A. Williams. Global banks as global sustainability regulators?: the Equator Principles. 33 Law & Pol'y 542-575 (2011). [H]|[L]|[W]
  • Sarra, Janis. New governance, old norms, and the potential for corporate governance reform. 33 Law & Pol'y 576-602 (2011). [H]|[L]|[W]

EMM

Judulang v. Holder

Commentary from Kevin Johnson (UC Davis) on SCOTUSblog, "Opinion analysis: Judulang v. Holder".

The Court proceeded to reject the textual, historical, and cost-based arguments of the U.S. government.  In conclusion, the Court emphasized that “[w]e must reverse an agency policy when we cannot discern a reason for it.  That is the trouble in this case.”

Read the whole review. EMM

New SCOTUS admin law decision

From BNA U.S. Law Week - Supreme Court Today:

• Judulang v. Holder, No. 10-694. The Bureau of Immigration Appeals's policy under a pre-1996 version of the Immigration and Nationality Act for applying discretionary relief from removal standards to an alien who was convicted by a guilty plea of an offense than rendered him deportable and excludable under differently phrased statutory sections was arbitrary and capricious. The BIA's approach to the immigration law provisions at issue "is unmoored from the purposes and concerns of the immigration laws," and "is not supported by text or practice or cost considerations," and therefore "cannot pass muster under ordinary principles of administrative law."

More to come. EMM