Administrative Law Prof Blog

Chen on "creamskimming"

New on SSRN: "Creamskimming and Competition" by Jim Chen (Louisville).  Abstract:    

The concept of “creamskimming” arises with regularity in the law of regulated industries. As a rhetorical weapon, the term “creamskimming” readily conjures images of the sort of putatively destructive competition that regulatory commissions are charged with patrolling. As a result, allegations of creamskimming have become a standard weapon in the legal arsenal of incumbent firms seeking to resist competitive entry. At an extreme, incumbent firms will characterize all forms of competitive entry as creamskimming. Sound regulatory responses to these allegations therefore depend on a proper understanding of the creamskimming concept.

This article proposes a definition of creamskimming that will help state and federal regulatory agencies distinguish genuine objections to proposed competitive entry from reflexive (and often improper) efforts to shield incumbent firms from competition. “Creamskimming” should be defined as “the practice of targeting only the customers that are the least expensive and most profitable for the incumbent firm to serve, thereby undercutting the incumbent firm’s ability to provide service throughout its service area.” Moreover, regulatory approaches to this practice should make clear that creamskimming can take place only where a competitive firm proposes to serve only a portion of an incumbent firm’s service area. In other words, when a competitive entrant proposes to serve an incumbent’s entire service area, creamskimming by definition cannot occur.

EMM

Legislation to Update Government's Defenses Against Hacking

 The "U.S. Information and Communications Enhancement Act of 2009," was introduced to the Senate yesterday; this proposed legislation would update the Federal Information Security Management Act, or FISMA by proposing methods by which the federal government can update its cyber-security.  The legislation

calls for the creation of hacker squads to test the defenses of federal agency networks. In addition, agencies would be required to show that they can effectively detect and respond to the latest cyber attacks on their information systems.

The legislation also envisions the creation of a council of chief information security officers, which would call on CISOs from each federal agency to share information about threats they're facing and the best ways to combat them.

A brief article on the legislation is in the Washington Post. 

KP

Theory: Is Federal Rulemaking 'Ossified'?

From SSRN, "Administrative Procedures and Bureaucratic Performance: Is Federal Rulemaking 'Ossified'?" by Jason W. Yackee (Wisconsin) and Susan Webb Yackee (Political Science, Wisconsin-Madison). Abstract:

We provide the first empirical assessment of the ossification thesis, the widely accepted notion that procedural constraints on federal agencies have greatly hindered the ability of those agencies to formulate policy through notice and comment rulemaking. Using data that covers all active federal rule-writing agencies from 1983 to 2006, our results largely disconfirm the ossification thesis. Agencies appear readily able to issue a sizeable number of rules, and to do so relatively quickly. Indeed, our empirical results suggest that procedural constraints may actually speed up the promulgation of rules, though our model suggests that this positive effect may decline, or even reverse, as proposed rules age. We conclude that procedural constraints do not appear to unduly interfere with the ability of federal agencies to act, or in most cases, to act in a timely manner.

EMM

Model State APA delayed

From the Rulemaking blog of the Administrative Codes and Registers Section of the National Association of Secretaries of State: "Extension Granted to MSAPA Drafting Committee".

Uniform Law Commission (ULC) leadership has granted the Model State Administrative Procedure Act (MSAPA) drafting committee an extension.  The MSAPA was to have been completed and up for final approval at this summer’s ULC conference in Santa Fe, New Mexico, July 9 - 16, 2009.

In an e-mail announcing the decision, John Sebert, ULC Executive Director, said:

    This July [2009] the Committee will read the rulemaking provisions – Articles 2, 3, 7 and the relevant definitions in Article 1 – and after them as many of the judicial review provisions of Articles 4, 4A, 5 and 6 (and the related definitions in Article 1) as time permits. Consideration in July 2010 will be focused almost exclusively on the judicial review provisions. MSAPA will have its final consideration, and a vote by the states, in July 2010.

A copy of the current draft and related information is available online at http://www.nccusl.org/Update/CommitteeSearchResults.aspx?committee=234.

EMM

Followup on interpreting Medicaid regs

The 11th Circuit has handed down its opinion in the case of Moore v. Medows, described in our March 25th post, "Interpreting Medicaid regs". See "Law.com - 11th Circuit: Doctors Don't Trump State on Medicaid Care for Children With Disabilities":

A federal appeals panel has declared that treating doctors don't have the final say in how much nursing care the state must provide children with disabilities under Medicaid.

Friday's ruling by the 11th U.S. Circuit Court of Appeals reversed a district judge's decision that had said the state must provide the amount of nursing care that a North Georgia girl's doctor said she needs.

Despite a slew of amicus briefs by state governments and Medicaid plan administrators, the panel dispatched the case in a two-page, unpublished, unsigned opinion that came out a month after oral argument. ...

In 2006, the state informed Callie's mother that it was reducing Callie's nursing hours from 94 hours a week to 84, contrary to the recommendation of Callie's primary care physician. Callie's mother filed suit.

The Moores' lawyers convinced Thrash that the reduction was improper. After issuing multiple injunctions in Callie's favor, he denied the state's motion for summary judgment and granted the Moores' motion in part, concluding the state must provide for the amount of skilled nursing care that Callie's treating physician deems necessary. ...

The panel said both the state and Callie's physician have roles in determining what's medically necessary to correct or ameliorate Callie's medical conditions. It cited a federal regulation that says a Medicaid agency "may place appropriate limits on a service based on such criteria as medical necessity or utilization control procedures."

"A private physician's word on medical necessity is not dispositive," the panel concluded. ...

The state has limited discretion to deny a provider's request for care under the "early and periodic screening, diagnostic and treatment services" portion of the Medicaid Act, said Thrash. He added that "[t]he state's discretion is limited to a review of the request for fraud, abuse of the Medicaid system, and whether the service is within the reasonable standards of medical care."

EMM

New administrative law articles

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

• Applegate, John S. Synthesizing TSCA and REACH: practical principles for chemical regulation reform. 35 Ecology L.Q. 721-769 (2008). [L]|[W]
• Barnard, Jayne W. Corporate therapeutics at the Securities and Exchange Commission. 2008 Colum. Bus. L. Rev. 793-840. [L]|[W]
• Dantiki, Sumon. Note. Power through process: an administrative law framework for United Nations legislative resolutions. 40 Geo. J. Int'l L. 655-702 (2009). [L]|[W]
• Davis, Kevin M. The road to clean air is paved with many obstacles: the U.S. Environmental Protection Agency should grant a waiver for California to regulate automobile greenhouse gas emissions via Assembly Bill 1493. 19 Fordham Envtl. L.J. 39-99 (2009). [L]|[W]
• Ferrey, Steven. Goblets of fire: potential constitutional impediments to the regulation of global warming. 35 Ecology L.Q. 835-910 (2008). [L]|[W]
• Ferrey, Steven. Gate keeping global warming: the international role of environmental assessments and regulation in controlling choices for future power development. 19 Fordham Envtl. L.J. 101-160 (2009). [L]|[W]
• Haines, Fiona. Regulatory failures and regulatory solutions: a characteristic analysis of the aftermath of disaster. 34 Law & Soc. Inquiry 31-60 (2009). [L]|[W]
• Hayano, Delissa. Guarding the viability of coal & coal-fired power plants: a road map for Wyoming's cradle to grave regulation of geologic CO sequestration. 9 Wyoming L. Rev. 139-164 (2009). [L]|[W]
• Kalen, Sam. The transformation of modern administrative law: changing administrations and environmental guidance documents. 35 Ecology L.Q. 657- 720 (2008). [L]|[W]
• Moyes, Toni E. Greenhouse gas emissions trading in New Zealand: trailblazing comprehensive cap and trade. 35 Ecology L.Q. 911-965 (2008). [L]|[W]

EMM

Theory: Fiduciary Administration

On SSRN:  "Fiduciary Administration: Rethinking Popular Representation in Agency Rulemaking" by Evan J. Criddle (Syracuse). Abstract:

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 from the federal regulatory process prevents voters from developing coherent preferences about most questions of regulatory policy. Moreover, even if discrete preferences could be attributed to the people as a whole, the American presidency does not in practice serve as a reliable proxy for majoritarian preferences in the administrative state.

As an alternative to presidential "proxy representation," this Article argues that federal administrative law should seek to promote popular representation in agency rulemaking through "fiduciary representation." Like fiduciaries in private law, all federal officers exercise discretionary administrative authority for the benefit of those subject to their power, and all are bound by duties of purposefulness, fairness, integrity, solicitude, reasonableness, and transparency. Rather than focus on a representative's obedience to the ephemeral public will, fiduciary representation emphasizes agencies' responsibilities to act deliberatively and reasonably in promoting the public welfare. On this account, presidential administration is one plausible strategy for reconciling administrative lawmaking with popular sovereignty, but it is not necessarily the most promising strategy. Congress may counter-intuitively promote popular representation in the administrative state by vesting final rulemaking authority in unelected agency administrators rather than the popularly elected President.

EMM

Substantive due process in a public employment reinstatement case?

The Adjunct Law Prof Blog ("Sanitation Worker Reinstated as AWOL Status Due to Arrest, Acquittal Is Not Misconduct") and the New York Public Personnel Law blog ("Sanitation worker reinstated as AWOL status due to arrest, acquittal is not misconduct") discuss Silberzweig v Doherty, No. 105107/08, 2009 NY Slip Op 29061 (N.Y. App. Div., Feb. 2, 2009). 

Mr. Silberzweig was terminated from his employment with the New York City Department of Sanitation for AWOL (being absent without leave) after he was arrested and held without bail.  At trial he was acquitted, and then asked for his job back.  The Department of Sanitation refused to reinstate him.  The Department argued that it had the discretion to reinstate former employees or not, and as Mr. Silbersweig had been a less than satisfactory employee before he was arrested the Department had a rational basis for not reinstating him. The Court disagreed in this case. As New York statutory law states that public employee can not be terminated except for misconduct and misconduct (in this context) requires intentional and willful disobedience, the Court reasoned that with his acquittal there was no misconduct by Mr. Silberzweig in the record.  It appears that the Court interpreted the decision not to reinstate Mr. Silberzweig as a constructive termination, so the Department's decision not to reinstate him was wrong. 

While Silberzweig's absence without leave due to his arrest may have justified the termination of his employment, no misconduct existed which justified the denial of reinstatement once Silberzweig had been acquitted of the charges which had led to his arrest. The Third Department has ruled to this effect in the context of unemployment insurance benefits. For example, in Matter of Hartnett, 175 AD2d 936, 937 (1991), the court held as follows:

Nor can claimant's arrest on the drug possession charge support a finding of misconduct, because that charge was ultimately dismissed and there is no evidence in the record to suggest that claimant was in fact involved in any drug-related activity. To hold otherwise would give rise to an implication that willfulness has come to mean being in the wrong place at the wrong time. Indeed, such a holding would establish a dangerous precedent, i.e., that disqualifying conduct may be predicated on a mere arrest unsupported by a conviction.

I commend to you the two discussions mentioned above.  Harvey Randall on the New York Public Personnel Law blog suggests that "[i]t could be argued that it would be arbitrary and capricious for the appointing authority not to provide an administrative hearing in situations such as described in the Silbverzweig case. However, providing such a hearing does not imply that the individual is entitled to reinstatement as there could be viable reasons supporting the appointing authority's decision not to reinstate the individual to his or her former position set out in the record of such a hearing."  Mitchell H. Rubinstein on the Adjunct Law Prof Blog suggests that this case may be appealed.  We will watch for it.  EMM

An 'accidental' waiver isn't a waiver

In Meadow v NYC Dept. of Fin., Motor Vehicles, 2009 NY Slip Op 03048 (App. Div. April 21, 2009), the appellant got a parking ticket.

After receiving notice of violation for illegally parking within five feet of a fire hydrant, petitioner timely mailed the ticket back to the Parking Violations Bureau (PVB), entering a plea of not guilty in the manner prescribed by applicable regulations (see 19 RCNY 39-04[b]). Expecting to receive a hearing date (see Vehicle and Traffic Law § 240[1]; NYC Admin Code § 19-206[a]), petitioner instead received a determination by an administrative law judge finding her guilty of the charged violation. Petitioner's husband promptly wrote to the PVB, explaining that they had expected an opportunity to present evidence at a hearing and requesting that the determination be vacated and either set down for a hearing or, alternatively, dismissed upon consideration of the accompanying factual statement detailing their defense. The PVB denied the request by letter, stating that "only one hearing is granted per summons," and the PVB Appeals Board subsequently denied petitioner's appeal, finding no error of fact or law.

The PVB abused its discretion in denying the request to vacate. Since petitioner showed she had inadvertently invoked the adjudication-by-mail procedure without intending to waive her right to a hearing, the determination was reached in violation of lawful procedure (see CPLR 7803[3]; Matter of Pollock v Kiryas Joel Union Free School Dist., 52 AD3d 722, 724 [2008]). The notice on the back of the ticket indicates three ways "TO PLEAD NOT GUILTY' AND REQUEST A HEARING": adjudication by mail, on-line adjudication, or an in-person hearing at any hearing center without an appointment. This notice does not clearly state that by mailing the ticket back with a not-guilty plea, the person charged thereby consents to adjudication solely on the basis of the summons and any documents submitted by mail, without the "hearing" provided for in Admin Code § 19-206 and 19 RCNY 39-08. Given the credible assertion that petitioner misunderstood the procedure for entering a not-guilty plea as described on the ticket, and was thus deprived of an opportunity to be heard, she should have been granted a hearing.

[Emphasis added.] The case cited, Matter of Pollock, affirmed the trial court's decision overturning the discharge of a tenured teacher because "the evidence did not establish that the petitioner's purported waiver of his rights under Education Law § 3020-a was voluntary and noncoerced."  The Appellate Division panel ported this basic principle to the parking ticket:  A waiver of rights is not voluntary when the information provided by the government is misleading.

It may seem intuitively obvious, but sometimes governments need to be reminded.  I wonder how many thousand people just went ahead and paid rather than fight for a hearing the way that Ms. Meadow did - and she did it pro se all the way.  Thanks to the New York Public Personnel Blog for the pointer.  EMM

Failure to exercise discretion is abuse of discretion

A recent opinion from the Washington Court of Appeals provides an interesting teaching point.  In Brunson v. Pierce County, No.  37094-8-II (Wash. App. Apr. 21, 2009), the Court of Appeals overturned three occupational license suspensions.  Facts:

On January 20, 2006, three Pierce County detectives participated in an undercover sting operation at Fox’s Adult Nightclub. Brunson, Johnson, and Tucker performed lap dances for the detectives, touched the detectives, and received money from the detectives. Two of the dancers allowed the detectives to touch them. After the detectives received their dances, several police officers entered Fox’s and arrested Brunson, Johnson, and Tucker for violations of the county code.

The county code prohibited, inter alia, dancing within ten feet of a patron.  The penalty was:

The Auditor shall revoke or suspend, for a specified period of not more than one year, any dancer [...] license if he/she determines that the licensee or applicant has:  [...] violated or permitted violation of any provisions of this Chapter. 

[Ellipsis in original.] The ladies' occupational licenses were suspended for one year, the maximum allowed.  On appeal, the suspensions were upheld by a hearing examiner and the county Superior Court.  Here was the problem:

The recording licensing lead at the Auditor's office, Jill Munns, testified that it was her decision to issue the one-year suspensions. She testified that the [county code] provided the sole basis for her decision. Munns stated that she understood that the [county code] allowed her to impose a sentence of less than one year, but that in these cases, she based her decision on the fact that the dancers had multiple code violations, including dancing away from the stage, having physical contact with patrons, and accepting money from patrons. She did not consider any of the women’s personal situations or prior criminal history. Munns stated that she could not think of a situation where a violation of less than a year would be appropriate because any violation of the ordinance is a serious matter. When asked if she considered a suspension of less than a year, she stated, "any violation of the code is serious." ...  When asked again, Munns could not describe a situation that, in her opinion, would warrant a suspension of less than one year. 

The Court of Appeals points out that when the law grants discretion, it must be exercised.  The decision maker cannot set a flat policy of maximum sentences without considering the facts of each case.  In this case, the dancers testified as to the need to support their families, that they didn't know what they did violated the law, and other mitigating facts.  The county code, as written, provided for a range of suspensions reflecting a range of circumstances.  It was necessary for the decision maker to evaluate the facts of each case to arrive at the appropriate length of suspension for that case.

Thanks to the Legal Profession Blog for the pointer.  EMM

Exam question patterns

For two recent cases that might make good exam questions, see "Requiring a lifeguard applicant to take a swim test using a State issued 'Speedo' swimsuit is not an act of unlawful discrimination because of age" on the New York Public Personnel Law blog, and "No Fair Housing Act Amendment Violation Where Township Did Not Discriminate and Applicant Failed to Prove Accommodation was Reasonable and Necessary" on the Law of the Land blog.  EMM

New administrative law articles

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

Biber, Eric. Too many things to do: how to deal with the dysfunctions of multiple-goal agencies. 33 Harv. Envtl. L. Rev. 1-63 (2009). [L]|[W]

Driesen, David M. and Amy Sinden. The missing instrument: dirty input limits. 33 Harv. Envtl. L. Rev. 65-116 (2009). [L]|[W]

Kruse, Elizabeth. Case comment. (North Carolina v. EPA, 531 F.3d 896, 2008.) 33 Harv. Envtl. L. Rev. 283-296 (2009). [L]|[W]

Partridge, Wyatt. Case note. Civil procedure: reviving mutuality: restricting the application of defensive collateral estoppel in Minnesota DWI proceedings. (State v. Lemmer, 736 N.W.2d 650, 2007.) 35 Wm. Mitchell L. Rev. 684-713 (2009). [L]|[W]

Spivey, Crystal. Student article. Breathing new life into HIPAA's UHID-- is the FDA's green light to the Verichip the Prince Charming Sleeping Beauty has been waiting for? 9 DePaul J. Health Care L. 1317-1342 (2006). [L]|[W]

Breaking the Logjam: Environmental Reform for the New Congress and Administration. Student articles by Soo-Yeun Lim, Kimberley Ong, Nicholas Smallwood, Sumit Som, Shelley Welton and Lauren Wishnie; note by Peter Schikler. 17 N.Y.U. Envtl. L.J. 854-1061 (2008). [L]|[W]

• Lim, Soo-Yeun. Student article. Mandatory corporate greenhouse emissions disclosure to encourage corporate self-regulation of emissions reduction. 17 N.Y.U. Envtl. L.J. 854-882 (2008). [L]|[W]
• Ong, Kimberly. Student article. A new standard: finding a way to go beyond organic. 17 N.Y.U. Envtl. L.J. 883-907 (2008). [L]|[W]
• Schikler, Peter. Note. Has Congress made it harder to save the fish? An analysis of the Limited Access Program (LAPP) provisions of the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006. 17 N.Y.U. Envtl. L.J. 908-935 (2008). [L]|[W]
• Smallwood, Nicholas. Student article. The role of U.S. agriculture in a comprehensive greenhouse gas emissions trading scheme. 17 N.Y.U. Envtl. L.J. 936-960 (2008). [L]|[W]
• Som, Sumit. Student article. Creating a safe and effective carbon sequestration. 17 N.Y.U. Envtl. L.J. 961-986 (2008). [L]|[W]
• Welton, Shelley. Student article. From the states up: building a national renewable energy policy. 17 N.Y.U. Envtl. L.J. 987-1005 (2008). [L]|[W]
• Wishnie, Lauren. Student article. Fire and federalism: a forest fire is always an emergency. 17 N.Y.U. Envtl. L.J. 1006-1046 (2008). [L]|[W]
• Symposium agenda. 17 N.Y.U. Envtl. L.J. 1047-1061 (2008). [L]|[W]

Hurricane Katrina. Articles by Mark S. Markuly, Barbara J. Fleischer, Jane Parker, Davida Finger, Thomas F. Ryan, Kevin Wm. Wildes, Michael A. Cowan, Hazel S. Parker and Edward B. Arroyo. 7 Seattle J. for Soc. Just. 1-234 (2008). [L]|[W]

• About the authors. 7 Seattle J. for Soc. Just. i-vii (2008).
• Markuly, Mark S. A terrible grace: building a just society on the rubble of New Orleans. 7 Seattle J. for Soc. Just. 1-9 (2008). [L] |[W]
• Fleischer, Barbara J. Katrina stories: windows into religious meaning, pathways to social justice. 7 Seattle J. for Soc. Just. 11-36 (2008). [L ]|[W]
• Parker, Jane. Mending our nets: psychosocial care in post-Katrina New Orleans. 7 Seattle J. for Soc. Just. 37-58 (2008). [L ]|[W]
• Finger, Davida. Stranded and squandered: lost on the road home. 7 Seattle J. for Soc. Just. 59-100 (2008). [L ]|[W]
• Ryan, Thomas F. Vision and spirituality in post-Katrina New Orleans. 7 Seattle J. for Soc. Just. 101-125 (2008). [L]|[W]
• Wildes, Kevin Wm. The rebirth of a city: birth and achievement of the Ethics Review Board. 7 Seattle J. for Soc. Just. 127-138 (2008). [L]|[W]
• Cowan, Michael A. and Hazel S. Parker. We believe in one New Orleans: embracing diversity post-Katrina. 7 Seattle J. for Soc. Just. 139-161 (2008). [L]|[W]
• Arroyo, Edward B. Contemplating the Katrina whirlwind: from Apocalypse Now to solidarity for the common good. 7 Seattle J. for Soc. Just. 163-203 (2008). [L]|[W]
• Cowan, Michael A. Elbows together, hearts apart: institutional reform, economic opportunity, and social trust in post-Katrina New Orleans. 7 Seattle J. for Soc. Just. 205-234 (2008). [L]|[W]

EMM

Does a particular regulation have the force of law?

From SSRN:  "IRB Guidance: The No Man's Land of Tax Code Interpretation" by Kristin E. Hickman (Minnesota - Twin Cities).  Abstract:

This Symposium Essay compares current patterns and practices surrounding IRS utilization of IRB guidance (revenue rulings, revenue procedures, and notices) with administrative law doctrine concerning informal agency guidance documents. In administrative law jurisprudence, the distinction between legislative and interpretative rules (and thus whether the Administrative Procedure Act requires public notice and comment procedures) and the determination of whether Chevron or Skidmore provides the appropriate evaluative standard on judicial review both ultimately turn on whether the agency legal interpretation at issue carries the force and effect of law. The precise contours of the force of law concept are unclear, as is whether the force of law means the same thing for APA procedural challenges as it does for judicial deference. Although there seems to be an emerging consensus in the tax community that IRB guidance documents contain interpretative rules eligible only for Skidmore deference, this consensus seems premised on longstanding assumptions about IRB guidance that are not entirely consistent with the contemporary reality of IRB guidance. Current IRS practices, government litigating positions in tax cases, Code provisions and regulations imposing penalties for noncompliance, and retroactive application of regulations based on IRS notice publication individually and collectively situate IRB guidance squarely in the gray area of the force of law concept, raising important issues of whether IRB guidance is entitled to Chevron deference but also subject to APA notice-and-comment rulemaking requirements.

EMM

New article on admnistrative searches

New on SSRN:  "Wyman v. James Revisited: Judicial Oversight, Constitutional Rights, and Social Services Investigations" by Thomas R. Young (Staff Attorney, Alexander County (North Carolina) Department of Social Services).  Abstract:

This article is focused upon administrative searches and seizures undertaken by social services agencies with respect to child welfare complaints. In addition to articulating the past and current state of the law, the article proposes changes to bring about a greater consistency among the federal and state courts in the United States.

The U.S. Supreme Court, in Wyman v. James, 400 U.S. 309 (1971), for the first time considered the issue of the applicability of the Constitution to social services investigations, though it has continued to explore the constitutional implications of the administrative search or seizure. It has not sought to address the issue since that time. Nevertheless, in the intervening thirty-six years, a large number of federal and a handful of state courts have reviewed the constitutionality of social services investigations and, in the process, have tackled the issue of the continued viability of Wyman: whether social workers are state actors for the purpose of the applicability of the Fourth Amendment, whether child welfare investigations constitute a search or seizure, whether a warrant and probable cause is required to conduct a search and whether a social worker special need exception exists to Fourth and Fourteenth Amendment scrutiny.

Given the on-going occurrence of the social services home investigation since Wyman, the need for an articulation of the current state of the law is great. Part One of this article attempts to provide such an articulation, giving an overview of both Fourth and Fourteenth Amendment protections as they apply to all governmental searches. Part Two undertakes a review of the Pre-Wyman case law regarding administrative searches, as well as Wyman itself, reviewing finally the post-Wyman case law from both the federal and state courts regarding administrative social services investigations and the applicability of the Fourth and Fourteenth amendments. Part Three of this article reconsiders Wyman in light of the most recent judicial developments and asks the question as to whether the requirement of a warrant and probable cause is appropriate for social services child welfare investigations or whether the Supreme Court's totality of the circumstances rationality test or its Special Needs doctrine may justify the creation of a social worker exception to the general warrant and probable cause requirements incumbent upon most searches and seizures.

EMM

Governments must follow their own rules

From the Law of the Land blog of Patty Salkin (Albany) comes a tale of a Virginia county board of supervisors that failed to follow its own ordinances.  It granted a rezoning request from agricultural to single family residential, then granted the developer a special use permit for condo apartments.

Subsequently, the zoning administrator disapproved the submitted site plan on the ground that newly constructed apartment buildings were prohibited in the “CD-R1” district. The Board of Zoning Appeals affirmed the decision of the zoning administrator. The Circuit Court reversed, finding that under the Ordinance, apartments/condominiums of the type proposed by the developer were permitted by grant of special use permit by the Board.

The Virginia Supreme Court reversed, finding that the trial court erred in reversing the board’s decision. The Court determined that the zoning ordinance unconditionally prohibited new construction of apartment building, regardless of the type of ownership proposed, and the board of zoning appeals correctly so ruled. Although the county board of supervisors might have amended the zoning ordinance to permit the proposed construction after following the proper procedure, it was not at liberty to disregard it. Acts of a local governing body that are in conflict with its own ordinances exceed its authority and are void and of no effect.

(Emphasis added.)  EMM

2009 Founders' Celebration symposium at American University

The Administrative Law Review at American University, Washington College of Law, presents a symposium "Is Chevron Out of Gas?  The State of Judicial Review 25 Years After Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc." on April 24, 2009, 2:30 pm - 5:30 pm, at 4801 Massachusetts Avenue, NW, Room 603, Washington, DC.  From the flyer: 

2:00 pm   Registration
 
2:30 pm  Welcome / Introduction by Claudio Grossman, Dean, Washington College of Law and Daniel Marcus, Fellow in Law and Government, Washington College of Law 
 
2:45 pm   Keynote Address by The Honorable Antonin Scalia, Associate Justice, Supreme Court of the United States
 
3:45 pm   Panel Discussion 

Moderator: Mark Niles, Professor and Associate Dean for Faculty and Academic Affairs, Washington College of Law

Speakers: 

• J. Peter Coll, Partner, Orrick, Herrington & Sutcliffe, LLP (Counsel for Mead Corp.) 
• David Frederick, Partner, Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC
• Ron Levin, Professor, Washington University (St. Louis) School of Law
• Richard Murphy, Professor, William Mitchell College of Law 

 
5:00 pm   Reception 
 
On June 25, 1984, the Supreme Court's landmark decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. created a two-part inquiry to guide judicial review of a federal agency's interpretation of its own statute.  Where a statute is ambiguous, the Chevron test calls for deference by the reviewing court to the agency's interpretation.  In 2001, the Court attempted  to clarify the reach of the Chevron test in United States v. Mead Corp., which explained  that Chevron deference would normally apply to agency interpretations made in notice-and-comment  rulemakings or in formal adjudications, but would apply to other agency interpretations only where Congress intended such interpretations to "carry the force of law."  Where Chevron deference did not apply, the Mead Court indicated, the agency interpretation would only receive the usual "respect" accorded to it under the Court's 1944 decision in Skidmore v. Swift. 

Justice Scalia dissented strongly in Mead, calling it "an avulsive change in judicial review,"  and  stating,  "We will be sorting out the consequences of the Mead doctrine, which has today replaced the Chevron doctrine ... for years to come." In the aftermath of Mead, debate has grown over  the clarity of  the Chevron/Skidmore dividing line drawn in Mead, how much difference it makes in practice, whether the amount of judicial ink spilled on this issue is worth the trouble, and how the doctrine might affect the actions of federal agencies.  We mark the silver anniversary of Chevron by asking:  What is the state of Chevron law today? Has Mead provided more or less clarity to the courts and affected parties?  And where will judicial review go from here?
 
General Registration - no charge

To register, please go to http://www.wcl.american.edu/secle/registration. For further information, please contact:  Office of Special Events & Continuing Legal Education, 202.274.4075 or secle@wcl.american.edu

(Emphasis added.)  Also, the latest edition of the Administrative Law Review (Volume 61 Number 1) has hit the streets.  It features the following articles:

• Anthony E. Varona, "Toward a Broadband Public Interest Standard"
• Verity Winship, "Public Agencies and Investor Compensation: Examples from the SEC and CFTC"
• Jerry Brito & Veronique de Rugy, "Midnight Regulations and Regulatory Review"
• Kevin Gauntt Barker, "Thank You for Regulating: Why Philip Morris's Embrace of FDA Regulation Helps the Company but Harms the Agency" (student comment)
• Douglas C. Michael, "Prejudgment Rejudgment: The True Story of Antoniu v. SEC"
• The ABA Section of Administrative Law & Regulatory Practice's Report to the President-Elect

EMM

Vague laws and the non-delegation doctrine

A paper attributed to DLA Piper by Lexology reviews a recent Illinois appellate case, Hanna v. City of Chicago, No. 1-07-3548 (Ill. App. 5th Div., March 6, 2009).

First, the Appellate Court analyzed the criteria in the Landmarks Ordinance that the Commission on Chicago Landmarks considers when deciding whether to recommend an area for landmark status. The criteria include such terms as “value,” “important,” “significant” and “unique,” which the Appellate Court said are unconstitutionally “vague, ambiguous and overly broad.” The Appellate Court then addressed the second question. A Commission recommendation for landmark designation becomes law if the City Council fails to act on the recommendation within 365 days. This, the Appellate Court found, means that the Commission performs a “declaratory” rather than an “advisory” function. The Appellate Court explained that, because the Commission has the authority to designate landmarks in this manner, the Commission must have intelligible standards to guide its exercise of authority. Such standards, the Appellate Court found, were lacking.

The City has appealed to the Illinois Supreme Court, arguing that the criteria are adequately defined in the context of the Ordinance as a whole, and that the apparent delegation as actually applied is unimportant because every existing landmark under the Ordinance has been declared by the City Council. 

If the Illinois Supreme Court chooses to hear this case, it will face the issue of how much guidance is adequate to quell constitutional objections to legislative delegation of authority to executive agencies.  In the riptides of competing principles, here be dragons.  EMM

Regulate yourself or the government will do it for you

A recent article on law.com, "Targeted Ads on FTC Radar" by David Bender, recounts recent events in targeted online advertising and a recent FTC staff report on the subject.  His conclusions:

Targeted advertising has now become so prominent that it is no longer able to fly below government radar. The admonition of the FTC's commissioner seems accurate: either the industry will impose reasonable self-regulation, or the government will impose law. The industry gets first crack.

But if the industry fails to self-regulate - and soon - Congress may enact legislation, and the FTC will probably embed its principles in a regulation. Accordingly, this could indeed be the industry's "last clear chance."

Companies contemplating targeted advertising would do well to build their models around the FTC's principles.

EMM

Theory: Nongovernmental regulatory networks

On the Conglomerate Blog, David Zaring (Wharton) points out a debate between himself and Pierre-Hugues Verdier (soon - Virginia) on the effectiveness of international regulatory networks.  I suggest that some of the same arguments applied here to international regulation by specialized networks also apply to the issues surrounding non-government regulation within the United States (or otherwise intra-nationally).  EMM

New administrative law articles

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

• Banaei, B. Salman. Book review. (Reviewing Kern Alexander, Rahul Dhumale and John Eatwell, Global Governance of Financial Systems: The International Regulation of Systemic Risk.) 35 Denv. J. Intl'l L. & Pol'y 547-557 (2007). [L]|[W]
• Camp, Bryan T. The failure of adversarial process in the administrative state. 84 Ind. L.J. 57-134 (2009). [L]|[W]
• Clements, Catherine A. Note. What about the children? A call for regulation of assisted reproductive technology. 84 Ind. L.J. 331-352 (2009). [L]|[W]
• Greenlee, Mark B. Historical review of "umbrella supervision" by the Board of Governors of the Federal Reserve System. 27 Rev. Banking & Fin. L. 407-459 (2007-2008). [L]|[W]
• Sneeringer, Jeffrey M. Note. The lessons of Goldstein v. SEC: if at first you do not succeed, regulate again? (Goldstein v. SEC, 451 F.3d 873, 2006.) 36 Cap. U. L. Rev. 1173-1223 (2008). [L]|[W]
• Spar, Debora and Anna M. Harrington. Building a better baby business. 10 Minn. J. L. Sci. & Tech. 41-69 (2009). [L ]|[W]

EMM