Administrative Law Prof Blog

State APA interpretation (New York)

From the New York Public Personnel Law blog, "New York’s Administrative Procedures Act does not require a State agency to issue a declaratory ruling when requested":

The genesis of this lawsuit was the New York State’s Department of Agriculture and Markets' declining to issue a declaration that foie gras is an adulterated food product within the meaning of Agriculture and Markets Law §200. The Humane Society of the United States and various other organizations and individuals generally opposed to the production of foie gras then initiated an CPLR Article 78 action seeking a court order compelling the Commissioner to issue the requested declaration or, in the alternative, a review of his determination not to issue such declaration.

§204 of the State Administrative Procedure Act provides that, when petitioned to issue a declaratory ruling, an agency must either issue the ruling or issue a statement declining to issue such ruling. However, said the Appellate Division, “There is no requirement that the agency issue a declaratory ruling when requested and a petitioner has no rights under the statute other than a timely response by the agency.”

There was a procedural matter involved as well – did the petitioners have standing to maintain this action? The Appellate Division held that “Supreme Court properly granted [the [Commissioner’s] motion to dismiss the petition based on petitioners' lack of standing.”

EMM

Why statutory and regulatory construction is so important

Posted by James Robenalt on Williams Kastner's Northwest Indian Law & Business Advisor blog, "Washington Court Rules Tribes Are Not 'Persons' Under CERCLA":

In a June 19, 2009 ruling from the United States District Court, Eastern District of Washington, in Pakootas v. Teck Cominco, Judge Lonny Suko held that Indian Tribes were not subject to CERCLA liability because they are not “persons” as defined under the statute. ... The Tribes moved to dismiss the counterclaim, contending that they were not “person[s]” subject to liability under CERCLA, 42 U.S.C. Section 9607(a). This section imposes liability upon “person[s]” for costs incurred in responding to a release of hazardous substances. “Person[s]” is defined in Section 9601(21) as an “individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, United State Government, State, municipality, commission, political subdivision of a State, or any interstate body.”

In considering the arguments, the Court ultimately held that CERCLA’s definition of “person” is plain: it does not include “Indian tribes.” As the Court noted, CERCLA has existed for over 30 years, and Congress has had “adequate opportunity” to specifically include “Indian tribes” among the entities covered by the term “person.” The Court further noted that such an interpretation would not lead to an “absurd result.” While Teck argued that Tribes could “operate a dump for the disposal of hazardous substances, with complete impunity under CERCLA,” the Court stated that such a conclusion was of “dubious validity.” A tribe’s “disposal activities,” according to the Court, were otherwise subject to regulation under other federal environmental statutes, such as the Resource Conservation and Recovery Act (RCRA) and the Safe Drinking Water Act (SDWA).

EMM

Standing of third parties to sue in administrative matters

It's intuitive that a regulated person has standing to ask for judicial review of an adverse administrative action. However, other people may be affected by the action - when can they sue? It would be unwieldy and arguably a violation of separation of powers to let anybody sue. So where - and how - do we draw the line?  Patty Salkin (Albany) highlights a decision from the Indiana Supreme Court that addresses the issue of how to draw the line between those whose interests are affected directly enough that due process (and its state equivalents) mandates a right to demand judicial review and those who are not. In Federal courts this question goes to the courts' jurisdiction. "Property Owner Lacks Standing to Challenge CAFO Located One-Third of a Mile Away" on the Law of the Land blog.

Following approval by the board of zoning appeals of a special exception to allow for a concentrated animal feeding operation (CAFO) which would house 2,000 cows on 27 acres, Thomas, who owned property located one-third of a mile from the site appealed to the circuit court. The circuit court dismissed the matter finding that Thomas had failed to show that she was an aggrieved party for purposes of standing based on evidence at the hearing relating to the impact of the CAFO operation on the value of Thomas’s property. The appeals court reversed and remanded, finding that the trial court heard evidence outside of the pleadings and had treated the motion to dismiss as a motion for summary judgment. [T]he Indiana Supreme Court reversed, basically approving of the procedure followed by the trial court in holding an evidentiary hearing and deciding whether Thomas had standing based on the conflicting evidence presented.

EMM

New administrative law articles

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

• Bryant, Beth C. Adapting to uncertainty: law, science, and management in the Steller sea lion controversy. 28 Stan. Envtl. L.J. 171-211 (2009). [H]|[L]|[W]
• Bunbury, Mark A., Jr. Recent development. "Forty acres and a mule"...not quite yet: Section 14012 of the Food, Conservation, and Energy Act of 2008 fails black farmers. 87 N.C. L. Rev. 1230-1251 (2009). [H]|[L]|[W]
• Clarke, Donald C. The private attorney-general in China: potential and pitfalls. 8 Wash. U. Global Stud. L. Rev. 241-255 (2009). [H]|[L< /A>]|[W]
• Dudley, Andrew. Comment. Opening borders: congressional delegation of discretionary authority to suspend or repeal the laws of the United States. 41 Ariz. St. L.J. 273-313 (2009). [H]|[L]|[W]
• Gray, John. Comment. Choosing the nuclear option: the case for a strong regulatory response to encourage nuclear energy development. 41 Ariz. St. L.J. 315-348 (2009). [H]|[L]|[W]
• Harris, Michael Ray. Standing in the way of judicial review: assertion of the deliberative process privilege in APA cases. 53 St. Louis U. L.J. 349-416 (2009). [H]|[L]|[W]
• Manley, Lesley. Comment. Should states serve as laboratories for mine safety regulation? 41 Ariz. St. L.J. 379-401 (2009). [H]|[L]|[W]
• Merriam, Dwight H. Regulating backyard wind turbines. 10 Vt. J. Envtl. L. 291-313 (2009). [H]|[L]|[W]
• Muys, Jerome C. Section 5 of the Boulder Canyon Project Act and 43 C.F.R. Part 417 occupy the field of determination of reasonable beneficial use of Lower Colorado River water. 15 Hastings W.-Nw. J. Envtl. L. & Pol'y 197- 214 (2009). [ H]|[L]|[W]
• Reiter, Keramet. Comment. Experimentation on prisoners: persistent dilemmas in rights and regulations. 97 Cal. L. Rev. 501-566 (2009). [H]|[L]|[W]
• Robinson, Andrew J. Comment. Language, national origin, and employment discrimination: the importance of the EEOC guidelines. 157 U. Pa. L. Rev. 1513-1539 (2009). [H]|[L]|[W]
• Seidenfeld, Mark. Why agencies act: a reassessment of the ossification critique of judicial review. 70 Ohio St. L.J. 251-321 (2009). [H]|[L]|[W]
• Spriggs, Matthew J. Note. "Don't tase me bro!" An argument for clear and effective taser regulation. 70 Ohio St. L.J. 487-518 (2009). [H]|[L]|[W]
• van der Vaart, D. R. and John C. Evans. Location, location, location: did North Carolina go far enough? 10 Vt. J. Envtl. L. 267-290 (2009). [H]|[L]|[W]

EMM

Ah, the joys of cell tower fights

Ah, the joys of cell tower fights. They happen often enough that many lawyers run into at least one during their practice careers. On her Law of the Land blog, Patty Salkin (Albany) reviews an Indiana battle in "Municipal Lease for Siting of Cell Tower Did Not Violate Zoning".

In early 2006, T-Mobile approached the Town about the possibility of locating a cell tower in the Town. In October 2006, the Town Council voted to authorize the Town to enter into a site lease. Realizing that it had not followed the statutory procedures required to lease municipal property, the Town began taking the necessary steps to comply with the statutes, and eventually approved again the construction of the cell tower. In December  2006, Scalambrino and other residents of the Town filed a complaint including four counts: (I) ... and (IV) request for a permanent injunction preventing the construction of the cell tower or any other structure that violates the Town’s municipal code. That same day, the trial court held a hearing on and denied the request for a TRO. ...

With respect to the spot zoning argument, the appeals court said, even assuming that the plaintiffs were correct that the ordinances constituted spot zoning, their argument that the amendments did not bear a rational relation to the public health, safety, morals, convenience or general welfare was unpersuasive.  Improved cellular communications in the area had a direct, positive effect on the safety and convenience of the town as well as the surrounding community.  Further, the Town’s decision to supplement its revenues by leasing municipal property was rationally related to improving the town’s general welfare.

EMM

Theory: Judicial unripeness as incentive for regulator rent-seeking

Recently posted on SSRN: "Ripe Standing Vines and the Jurisprudential Tasting of Matured Legal Wines: Property and Public Choice in the Permitting Process" by Donald J. Kochan (Chapman). Abstract:    

From produce to wine, we only consume things when they are ready. The courts are no different. That concept of “readiness” is how courts address cases and controversies as well. Justiciability doctrines, particularly ripeness, have a particularly important role in takings challenges to permitting decisions. The courts largely hold that a single permit denial does not give them enough information to evaluate whether the denial is in violation of law. As a result of this jurisprudential reality, regulators with discretion have an incentive to use their power to extract rents from those that need their permission. Non-justiciability of permit denials creates perverse incentives for regulators. This Article examines that phenomena.

While regulators may have this incentive, I have observed that it is usually not enough to cause them to exercise rent-seeking behaviors in professional civil services. We are fortunate that it is a temptation most seem to resist even when they have ideological or pecuniary reasons to succumb. EMM

Exhaustion of administrative remedy

From the New York Public Personnel Law blog, "The doctrine of the exhaustion of administrative remedy":

Matter of Mirenberg v Lynbrook Union Free School Dist. Bd. of Educ., 2009 NY Slip Op 05138, decided on June 16, 2009, Appellate Division, Second Department. In this decision the Appellate Division set out a synopsis of the doctrine of the exhaustion of administrative remedy.

A clear and concise summary. EMM

Aribitrary and capricious

From Patty Salkin (Albany) on her Law of the Land blog: "Imposition of Scenic and Conservation Easement on Issuance of Natural Resources Permit Invalidated".

A New York appeals court upheld the invalidation of a scenic and conservation easement imposed by a Town as a condition to the issuance of a natural resources special permit. In annulling the condition, the Court agreed with the trial court that it was arbitrary and capricious, and the zoning board of appeals was ordered to issue the special permit without the subject condition. Girard v. Town of East Hampton, 2009 WL 1636359 (N.Y.A.D. 2 Dept. 6/9/2009). The opinion can be accessed at: http://www.nycourts.gov/reporter/3dseries/2009/2009_04901.htm.

The opinion doesn't offer much more information. EMM

Research: OpenRegs.com

From Jason Sowards on the RIPS Law Librarian blog, published by the Research Instruction & Patron Services Special Interest Section of the American Association of Law Libraries:

My inner administrative law geek has found a new site that it cannot get enough of: OpenRegs.com. Why do I love this site? Because it makes formulating a research assignment I give every year that much easier to write.

The assignment: I find a regulation that has recently been proposed (and if it’s on a particularly controversial topic, all the better). I then ask students enrolled in my specialized legal research class on administrative law to (a) prepare a research log of the resources they consulted to learn about the agency and the subject matter of the proposed regulation; and (b) draft a comment based on their research from an assigned viewpoint.

OpenRegs.com provides the same information that one can find in the Federal Register (and to some extent on Regulations.gov, another favorite site of mine), but in a much more user-friendly format. The most important feature I find for purposes of my assignment is that it tells me, to the day, when comment periods for regulations will close. This is vital as I try to choose regulations that are open at the time the class is in session to make the exercise seem more real. The site also incorporates Web 2.0 technologies in the form of blogs and discussion forums, but so far very few people have taken advantage of these features.

Thanks, Jason. EMM

New administrative law articles

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

• Avery, W. Barron A. Disenfranchising the non-riparian: Alabama's water resource management program. 39 Cumb. L. Rev. 437-455 (2008-2009). [H]|[L]|[W]
• Kingsbury, Benedict. The concept of 'law' in global administrative law. 20 Eur. J. Int'l L. 23-57 (2009). [H]|[L]|[W]
• Lee, Ruby L. Note. New trends in global outsourcing of commercial surrogacy: a call for regulation. 20 Hastings Women's L.J. 275-300 (2009). [H]|[L]|[W]
• Moland, Jessica. Student article. Robbing Peter to pay Paul: why ethanol production must be regulated and how to do it. 16 U. Balt. J. Envtl. L. 53-82 (2008). [H]|[L]|[W]
• Neal, Geoffrey D. Note. State government--the Arkansas Freedom of Information Act--public or private record: a simple distinction threatens the future of open government in Arkansas. (Pulaski County v. Arkansas Democrat-Gazette, Inc., 264 S.W.3d 465, 2007.) 31 U. Ark. Little Rock L. Rev. 351-393 (2009). [H]|[L]|[W]
• Ochs, Ashley. Comment. A study in futility: Abigail Alliance for Better Access to Developmental Drugs will not expand access to experimental drugs for the terminally ill. (Abigail Alliance for Better Access to Developmental Drugs v. Von Eschenbach, 495 F.3d 695, 2007.) 39 Seton Hall L. Rev. 559-603 (2009). [H]|[L]|[W]
• Purvis, Nigel. The case for climate protection authority. 49 Va. J. Int'l L. 1007-1062 (2009). [H]|[L]|[W]
• Rozga, Kaj. Note. Retail health clinics: how the next innovation in market-driven health care is testing state and federal law. 35 Am. J.L. & Med. 205-231 (2009). [H]|[L]|[W]
• Schwartz, Jeff. Reconceptualizing investment management regulation. 16 Geo. Mason L. Rev. 521-586 (2009). [H]|[L]|[W]
• Solberg, Lauren B. Note. Over the counter but under the radar: direct- to-consumer genetics tests and FDA regulation of medical devices. 11 Vand. J. Ent. & Tech. L. 711-742 (2009). [H]|[L]|[W]
• Weinstock, Robert A. Note. The Lorax state: parens patriae and the provision of public goods. (Massachusetts v. EPA, 127 S. Ct. 1438, 2007.) 109 Colum. L. Rev. 798-843 (2009). [H]|[L]|[W]
• Demisesquicentennial. Articles by Richard A. Nagareda, Jesse Rothstein, Albert H. Yoon, Max M. Schanzenbach, Emerson H. Tiller, Thomas J. Miles, Cass R. Sunstein, Peter L. Strauss and Eric A. Posner. 75 U. Chi. L. Rev. 603-883 (2008). [H]|[L]|[W]
  • Nagareda, Richard A. Class actions in the administrative state: Kalven and Rosenfield revisited. 75 U. Chi. L. Rev. 603-648 (2008). [H]|[L]|[W]
  • Rothstein, Jesse and Albert H. Yoon. Affirmative action in law school admissions: what do racial preferences do? 75 U. Chi. L. Rev. 649-714 (2008). [H]|[L]|[W]
  • Schanzenbach, Max M. and Emerson H. Tiller. Reviewing the Sentencing Guidelines: judicial politics, empirical evidence, and reform. 75 U. Chi. L. Rev. 715-760 (2008). [H]|[L]|[W]
  • Miles, Thomas J. and Cass R. Sunstein. The real world of arbitrariness review. 75 U. Chi. L. Rev. 761-814 (2008). [H]|[L]|[W]
  • Strauss, Peter L. Overseers or the deciders--the courts in administrative law. 75 U. Chi. L. Rev. 815-829 (2008). [H]|[L]|[W]
  • Miles, Thomas J. and Cass R. Sunstein. The new legal realism. 75 U. Chi. L. Rev. 831-851 (2008). [H]|[L]|[W]
  • Posner, Eric A. Does political bias in the judiciary matter?: implications of judicial bias studies for legal and constitutional reform. 75 U. Chi. L. Rev. 853-883 (2008). [H]|[L]|[W]
  • Linford, Jake. Comment. The right ones for the job: divining the correct standard of review for curtilage determinations in the aftermath of Ornelas v. United States. 75 U. Chi. L. Rev. 885-910 (2008). [H]|[L]|[W]
  • Yoo, David S. Comment. Rule 33(a)'s interrogatory limitation: by party or by side? 75 U. Chi. L. Rev. 911-940 (2008). [H]|[L]|[W]
  • Cuellar, Mariano-Florentino. The political economies of criminal justice. (Reviewing Jonathan Simon, Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear.) 75 U. Chi. L. Rev. 941-983 (2008). [H]|[L]|[W]

EMM

Theory: Sometimes the technology gets ahead of the law

Sometimes the world leaves regulators behind in the dust. Paul L. Caron (Cincinnati) on the TaxProf Blog highlights an announcement by one of our favorite agencies: "IRS Bails on Proposal to Tax Employee Cell Phone Use".

...[T]he IRS today issued a statement bailing on last week's issuance of Notice 2009-46, which proposed three alternative methods for taxing an employee's personal use of an  employer-provided cell phone:

    This month, the IRS asked for comments on ways to simplify compliance with rules related to employer-provided cellular telephones. The current law, which has been on the books for many years, is burdensome, poorly understood by taxpayers, and difficult for the IRS to administer consistently. Some have incorrectly implied that the IRS is "cracking down" on employee use of employer-provided cell phones. To the contrary, the IRS is attempting to simplify the rules and eliminate uncertainty for businesses and individuals.

    Although some of the proposed changes would add clarity, the current law will inevitably leave widespread confusion among employees and businesses. Therefore, Secretary Geithner and I ask that Congress act to make clear that there will be no tax consequence to employers or employees for personal use of work-related devices such as cell phones provided by employers. The passage of time, advances in technology, and the nature of communication in the modern workplace have rendered this law obsolete.

Nice to see they got one right. EMM

Interpreting one word

While this might belong in Dave Hricik's Statutory Construction Blog, it's interesting from an administrative law angle: From Lawrence Friedman's Customs Law blog, "Questions Predominate in HTSUS Classification". Mr. Friedman (a partner in Barnes/Richardson in Chicago) describes a recent case from the Court of Appeals for the Federal Circuit on the meaning of the word "predominate" in one definition in the Harmonized Tariff Schedule of the United States (a federal statute). It's complicated enough that there was a dissenting opinion, and the majority opinion had to go back to a previous version of the tariff schedule to put the expression into context.

Specifically, item 3921.90.11 of the Harmonized Tariff Schedule of the United states covers products "with textile components in which man-made fibers predominate by weight over any other single textile fiber." The problem for the Court of Appeals for the Federal Circuit is that the merchandise contains only man-made fibers. Can man-made fibers predominate in a sea of man-made fibers? Is there a majority where there is no minority?

The post also discusses some the the procedural peculiarities of customs law. If you include interpretation in your administrative law syllabus, this might be an interesting case for discussion. EMM

Administrative law at its most intimate level

If the highest level of administrative law is the U.S. government (or perhaps the U.N. or some NGOs), then the lowest, most personal level is the homeowners association. Yes, this is all among private parties and not government in the common sense of the word, but among HOA statutes, local ordinances, and the usual structure of HOA regulations, HOAs have become regulatory agencies in substance and procedure. We use parallel concepts and tools when enforcing or fighting HOA actions. So, from the Arizona Republic I present to you "Couple win lawsuit vs. HOA over remodeling". This is local for me - about three miles from our School, which is almost next-door in Phoenix. It's a civil rights case, although it didn't end up in federal court under 1983. You can see the administrative law issues: The HOA didn't follow its own rules, violated higher-level rules, and failed to justify treating one case differently from other similar cases. And the "taxpayers" - the HOA members - end up paying the bill. EMM

Theory: The government suing itself to enforce its rules

From Jonathan Adler (Case-Western Reserve) in The Volokh Conspiracy, "When One Federal Agency Sues Another":

The U.S. Court of Appeals for the D.C. Circuit issued an interesting opinion today in Securities Exchange Commission v. Fair Labor Standards Authority, a case in which one agency sued another. In ruling for the government against the government, the opinion for the court by Judge Brown begins:

    This is the sort of dispute that could only arise between public employees and a governmental agency. The Securities and Exchange Commission (SEC or Agency) was eager to pay its employees more money. The National Treasury Employees Union (NTEU or Union) complains the SEC implemented the raises too quickly. The Federal Labor Relations Authority (FLRA or Authority) agrees with the Union and has ordered the SEC to provide back pay to atone for the affront. Counterintuitive though it may be, we agree the FLRA has properly resolved this odd controversy so we deny the petition for review and grant the Authority’s crossapplication for enforcement.

A concurring opinion raises the unitary executive issue. I wonder what the unitary executive supporters say about the Library of Congress, which is part of Congress yet executes the copyright laws of the U.S.? EMM

Supreme Court Grants Cert on Regulatory Takings Case

From the PropertyProf Blog: "Supreme Court Grants Cert on Regulatory Takings Case".

The Supreme Court today granted cert in Stop the Beach Renourishment v. Florida Department of Environmental Protection. (HT: Jonathan Adler at the VC).  The Florida Supreme Court's decision is available here.

Argh!  My summer is already booked.  I don't have time for this.

UPDATE:  I read the Florida Supreme Court decision and couldn't figure out why they granted cert.  The case is all about state law issues.  Then I looked at the cert petitions, which focused on the judicial takings issue.  If the grant does raise judicial takings, then this has the potential to be a very important case.  For those new to the issue, check out the best article on the subject, Barton H. Thompson, Jr., Judicial Takings, 76 Virginia Law Review 1449 (1990).

Ben Barros

Many thanks. EMM

Following the rules about making rules

Another 'why didn't they just follow their own rules' case, from Patty Salkin on her Law of the Land blog: "Failure to Follow Statutory Procedures Invalidates Countywide Zoning Ordinance".

However, the Appeals Court reversed the trial court’s grant of summary judgment.  The Court determined that the ordinance substantially affected Lott’s use of its property, and that the County had to comply with the statutory notice requirements.  Lastly, the Court noted that the County failed to comply with the statutory requirements for submitting zoning maps to the planning board where there has been an amendment. Since the ordinance was not passed in accordance with the statutory requirements, nor did the County follow its own rules of procedure, the law was invalidated.

EMM

You can't get a vested right in something that's illegal

A frequent issue in administrative law matters is determining if a right has vested - whether it rises to the level of property that is protected by the Fifth and Fourteenth Amendments to the U.S. Constitution and their state equivalents. A regulator's tolerance of an activity or thing over a long enough period may create such a vested right. However, as Patty Salkin (Albany) shows in "No Vested Rights in Electronic Sign Where Stipulated Judgment Prohibited Construction Eight Years Earlier" on her Law of the Land blog, a right or thing cannot vest if it was illegal (and not just nonconforming) in the first place. This case looks like a great fact situation, a battle over signs extending over 15 years. EMM

New administrative law articles

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

• Bamberger, Kenneth A. and Peter L. Strauss. Chevron's two steps. 95 Va. L. Rev. 611-625 (2009). [H]|[L]|[W]
• Bitas, Basil C. and Pedro P. Barros. Tobacco control and the role of litigation: a survey of issues in law, policy, and economics. 16 Int'l & Comp. L. Rev. 1-41 (2008). [H]|[L]|[W]
• Cramer, Benjamin W. 'The nation's broadband success story': the secrecy of FCC broadband infrastructure statistics. 31 Hastings Comm. & Ent. L.J. 339-368 (2009). [H]|[L]|[W]
• Croze, Jessica. Note. How hands-on will regulation of hands-free be? An analysis of SB 1613 and the effectiveness of its proposed regulation. 31 Hastings Comm. & Ent. L.J. 463-478 (2009). [H]|[L]|[W]
• Desmet, Thierry Olivier. Understanding hedge fund adviser regulation. 4 Hastings Bus. L.J. 1-36 (2008). [H]|[L]|[W]
• Goodell, Nelson. Comment. Making the "intangibles" tangible: the need to use the contingent valuation methodology in environmental impact statements. 22 Tul. Envtl. L.J. 441-459 (2009). [H]|[L]|[W]
• Gorman, S. Wesley. Comment. Sex outside of the therapy hour: practical and constitutional limits on therapist sexual misconduct regulations. 56 UCLA L. Rev. 983-1039 (2009). [H]|[L]|[W]
• Jones, Rick K. The gift of life and "diseases of language": recovering a lost distinction of effectuating the purpose of the National Organ Transplant Act's prohibition on the transfer of human organs for valuable consideration. 80 Temp. L. Rev. 1067-1091 (2007). [H]|[L]|[W]
• List, Allison. Note. The lax enforcement of Section 304 of Sarbanes- Oxley: why is the SEC ignoring its greatest asset in the fight against corporate misconduct? 70 Ohio St. L.J. 195-249 (2009). [H]|[L]|[W]
• McPherson, Edwin M. Did Marathon and Preston kill the Talent Agencies Act? 38 Sw. L. Rev. 443-463 (2009). [H]|[L]|[W]
• Ng, Heather Osborn. Targeting bad behavior: why federal regulators must treat online behavioral marketing as spyware. 31 Hastings Comm. & Ent. L.J. 369-394 (2009). [H]|[L]|[W]
• Opderbeck, David W. Deconstructing Jefferson's candle: towards a critical realist approach to cultural environmentalism and information policy. 49 Jurimetrics J. 203-243 (2009). [H]|[L]|[W]
• Richardson, Molly. Note. Increasing microlending potential in the United States through a strategic approach to regulatory reform. 34 J. Corp. L. 923-942 (2009). [H]|[L]|[W]
• Simson, Sylvia E. Note. Breaking barriers, pushing promise: America's need for an embryonic stem cell regulatory scheme. 34 Brook. J. Int'l L. 531-558 (2009). [H]|[L]|[W]
• Stephenson, Matthew C. and Adrian Vermeule. Chevron has only one step. 95 Va. L. Rev. 597-609 (2009). [H]|[L]|[W]
• Tomkins, Sharon, Lisa Wing Stone and Melissa Onken. Litigating global warming: likely legal challenges to emerging greenhouse gas cap-and-trade programs in the United States. 39 Envtl. L. Rep. News & Analysis 10389- 10412 (2009). [H ]|[L]|[W]
• Turnipseed, Mary, et al. The silver anniversary of the United States' Exclusive Economic Zone: twenty-five years of ocean use and abuse, and the possibility of a blue water public trust doctrine. 36 Ecology L.Q. 1- 70 (2009). [H]|[L]|[W]
• Weaver, Susannah Landes. Setting air quality standards: science and the crisis of accountability. 22 Tul. Envtl. L.J. 379-402 (2009). [H]|[L]|[W]
• Whisner, Mary. Mattress tags and pillow cases. 101 Law Lib. J. 235-247 (2009). [H]|[L]|[W]
• Note. Rationalizing hard look review after the fact. 122 Harv. L. Rev. 1909-1930 (2009). [H]|[L]|[W]

EMM

Theory: Executive accountability through judicial review

Newly published on SSRN: "Justiciable Generalized Grievances" by Kimberly Brown (Baltimore and George Washington). Abstract:    

The Supreme Court's prevailing test for Article III standing - injury-in-fact, causation, and redressability - generally restricts suits to remedy injuries affecting broad segments of the public in substantially equal measure. In Massachusetts v. EPA, the Supreme Court appeared to depart from this proposition in holding that the Commonwealth of Massachusetts has standing to sue the EPA to prompt it to slow global warming, a harm that affects everyone on Earth. The dissenting Justices assailed the majority for finding justiciable a so-called “generalized grievance” in contravention of prior standing precedent that is based on the notion that if parties seek to redress public harms, they must do so via the political branches and not the courts.

Scholarly reflections on the case have addressed the Court's idiosyncratic anointing of Massachusetts with something it called “special solicitude” in standing analysis, occasioned by its status as a state. In this Article, I discuss a more subtle aspect of Massachusetts: how the majority wrestled with the controversial injury-in-fact test, which is ill-suited for analyzing standing in public law disputes. Implicit in Massachusetts is a paradigm for resolving statutory enforcement cases brought to vindicate public harms indistinguishably suffered by the masses. It is animated by three characteristics: (1) the plaintiff's invocation of “procedural rights” established by statute; (2) a “concrete” and “personal” stake that distinguishes the plaintiff from the pure ideologue; and (3) a congressional authorization of the suit. I suggest that the Court should draw upon this reconceptualized framework in future statutory enforcement cases, as it offers several advantages for suits brought to remedy commonly-shared public harms. First, it is more attuned to the realities of public law litigation. Next, it is based on premises that a majority of the current Justices - including an architect of modern injury-in-fact, Justice Scalia - already embrace. Moreover, it cabins the muddied generalized grievance bar to its original purpose - preventing citizens from suing on purely ideological grounds. Furthermore, it gives appropriate weight to congressional judgments about required procedure. Finally, it enforces formal separation of the executive and judicial branches while recognizing that the separation of powers operates to ensure executive accountability through judicial review.

EMM

Regulatory exclusions in E&O insurance

The Bank Lawyer's Blog has an interesting post from a practitioner's perspective, "Regulatory Exclusion", discussing the effect of such an exclusion found in director and officer errors and omissions policies. While this is most visible in the context of failed financial institutions, where government insurers (e.g., FDIC) are reportedly considering going after executives for aggravated stupidity, the coverage of regulatory matters in E&O policies is a concern in all regulated industries. EMM