Administrative Law Prof Blog

Research resources

From Jason Sowards at Wake Forest:

Today in my specialized legal research class, we will talk about locating administrative decisions. This gives me a chance to spotlight one of my favorite web sites.

The University of Virginia's government documents department has developed a web site that provides access to agency documents (including decisions) available on the Internet. This includes agency guidance documents, interpretation letters, as well as links to agencies' e-FOIA reading rooms.

Organized both by agency and subject this site provides a wealth of information in a cost-effective manner. The subject search is particularly helpful when you are not aware of which agency might possibly regulate in the area you're researching. Although you may run across a broken link or 2, the site still gives you enough context to locate that same information on your own (through backtracking the URL).

A disclaimer from the site:

This page is not an attempt to link to Federal Register or the Code of Federal Regulations information for each federal agency. It links to other administrative actions which are outside the scope of the CFR or the FR. What is available via the Internet varies from agency to agency.

Last year when I asked my students to locate administrative decisions on an assignment, I thought I was clever by picking decisions that I thought could only be found on Westlaw and/or LexisNexis. To my delight, every single student chose the Virginia site to answer the questions and found every decision I was looking for. Very nice indeed (and cost-effective)!

--
Posted By Jason Sowards to RIPS Law Librarian at 9/30/2009 08:50:00 AM

EMM

What happens when the government makes a mistake?

But that never happens. Yeah. Right. Sometimes, however, the mistake is in your favor. Can you take advantage of it?

The New York Public Personnel Law blog describes a case where somebody tried and failed, in "Clerical error in recording an educator’s tenure area does not vest educator with tenure in the tenure area recorded". The claimant was a special education supervisor, but when she completed her probationary period her records showed her tenure as administration rather than special education supervision. Her position was abolished, and when a vacant elementary school principal position - an administration position - was filled by someone else she objected that she had superior rights to the position under New York law.

Reality won. The Commissioner deciding the case found that

• according to a revised job description signed by the claimant some years earlier, her tenure area was changed then from a related special education area to special education supervisor;
• there was no indication in the Board’s minutes that it was consciously changing the claimant's tenure area to administration or that she was consenting to a change;
• the Board could not retroactively change the scope of the tenure area in which the claimant was serving.

The Commissioner found that the the listing of the claimant's tenure area as administration "was due to clerical error" and that her actual tenure area was special education supervisor, meaning she had no priority right to the principal's job.

Generally, government agencies have rules for dealing with "ministerial" errors in their establishing statutes or their regulations. In most instances, as in the case above, reality wins. The sword usually cuts both ways. The challenge for the practitioner, whether representing the agency or the aggrieved party, is finding the facts - usually old records - that evidence reality. I've dug in the National Archives and even used affidavits of retired officials. Sometimes you have to be creative. EMM

New administrative law articles

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

• Bernard, Chris. Note. Shifting and shrinking common ground: recalibrating the Federal Trade Commission's and Department of Justice's enforcement powers of single-firm monopoly conduct. 34 Del. J. Corp. L. 581-609 (2009). [H]|[L]|[W]
• Buccino, Sharon, et al. Expedited NEPA review for alternative energy projects. 39 Envtl. L. Rep. News & Analysis 10581-10593 (2009). [H ]|[L]|[W]
• Goldhammer, Joseph M. and Naomi Y. Perera. We never talk anymore: evaluating confidentiality rules and no-fraternization policies--Cintas Corp. v. NLRB and Guardsmark LLC v. NLRB. 24 Lab. Law. 379-398 (2009). [H]|[L]|[W]
• Herz, Michael. Law lags behind: FOIA and affirmative disclosure of information. 7 Cardozo Pub. L. Pol'y & Ethics J. 577-598 (2009). [H]|[L]|[W]
• Jones, Renee M. Legitimacy and corporate law: the case for regulatory redundancy. 86 Wash. U. L. Rev. 1273-1333 (2009). [H]|[L]|[W]
• Levitin, Adam J. Hydraulic regulation: regulating credit markets upstream. 26 Yale J. on Reg. 143-227 (2009). [H]|[L]|[W]
• Pall, Zachary. Student article. The high costs of costs: fees as barriers to access within the United States and Canadian freedom of information regimes. 7 Cardozo Pub. L. Pol'y & Ethics J. 599-632 (2009). [H]|[L]|[W]
• Pasternak, Daniel B. and Justin F. Keith. One of these things is not like the other: the continuing battle over the meaning of discrimination-- Salmon Run Shopping Center LLC v. NLRB and Guard Publishing Company v. NLRB. 24 Lab. Law. 325-338 (2009). [H]|[L]|[W]
• Rohlf, Daniel J. Avoiding the 'bare record': safeguarding meaningful judicial review of federal agency actions. 35 Ohio N.U. L. Rev. 575-617 (2009). [H]|[L]|[W]
• Romano, Roberta. Does the Sarbanes-Oxley Act have a future? 26 Yale J. on Reg. 229-341 (2009). [H]|[L]|[W]
• Rozen, Yona, Christa Boyd-Nafstad and Tiffany C. Alvoid. One of these things is not like the other: the continuing battle over the meaning of discrimination--Salmon Run Shopping Center LLC v. NLRB and Guard Publishing Company v. NLRB. 24 Lab. Law. 339-377 (2009). [H]|[L]|[W]
• Wu, Alexander. Note. Motivating disclosure by a debtor in bankruptcy: the Bankruptcy Code, intellectual property, and fiduciary duties. 26 Yale J. on Reg. 481-510 (2009). [H]|[L]|[W]
• Essays from the Weil, Gotshal & Manges Roundtable on the Future of Financial Regulation. 26 Yale J. on Reg. 343-480 (2009). [H]|[L]|[W]
  • Bebchuck, Lucian A. Buying troubled assets. 26 Yale J. on Reg. 343-358 (2009). [H]|[L]|[W]
  • Bhagat, Sanjai and Roberta Romano. Reforming executive compensation: focusing and committing to the long-term. 26 Yale J. on Reg. 359-372 (2009). [H]|[L]|[W]
  • Coates, John and David Scharfstein. Lowering the cost of bank recapitalization. 26 Yale J. on Reg. 373-389 (2009). [H]|[L]|[W]
  • Herring, Richard J. The known, the unknown, and the unknowable in financial policy: an application to the subprime crisis. 26 Yale J. on Reg. 391-404 (2009). [H]|[L]|[W]
  • Kane, Edward J. Incentive roots of the securitization crisis and its early management. 26 Yale J. on Reg. 405-416 (2009). [H]|[L]|[W]
  • Mayer, Christopher, Edward Morrison and Tomasz Piskorski. A new proposal for loan modifications. 26 Yale J. on Reg. 417-429 (2009). [H]|[L]|[W]
  • Partnoy, Frank. Historical perspectives on the financial crisis: Ivan Kreuger, the credit-rating agencies, and two theories about the function, and dysfunction, of markets. 26 Yale J. on Reg. 431-443 (2009). [H]|[L]|[W]
  • Pavlov, Andrey D. and Susan M. Wachter. Systemic risk and market institutions. 26 Yale J. on Reg. 445-455 (2009). [H]|[L]|[W]
  • Schwarcz, Steven L. Conflicts and financial collapse: the problem of secondary-management agency costs. 26 Yale J. on Reg. 457-470 (2009). [H]|[L]|[W]
  • Solender, Michael S. How the Obama Administration should regulate the financial sector. 26 Yale J. on Reg. 471-480 (2009). [H]|[L]|[W]

EMM

Newly posted on SSRN

"Strategic Statutory Interpretation by Administrative Agencies" by Yehonatan Givati, Terence M. Considine Fellow in Law and Economics at  Harvard Law School. Abstract:     

Many statutes are administered by administrative agencies. This paper shows that, when interpreting an ambiguous statute, administrative agencies choose between two strategies of statutory interpretation: the risky strategy - a relatively aggressive interpretation that provokes an appeal by the firm - and the safe strategy - a relatively non-aggressive interpretation that the firm complies with. The paper also shows that a change in the level of judicial deference may result in a shift from the risky strategy to the safe one, or vice versa. Therefore, contrary to the commonly held view, an increase in the level of judicial deference may result in agencies choosing a less aggressive statutory interpretation, and in more court decisions reversing agencies' statutory interpretation.

EMM

The Governance Journal Provides Free Access to Article in Recognition of International Right To Know Day

Monday September 28th is International Right to Know Day.  To mark the day,
Governance (International Journal of Policy, Administration, and institutions) is providing free access to Professor Cary Coglianese¹s articlefrom its new issue (22.4, October 2009).  In "The Transparency President? The Obama Administration and Open Government," Coglianese assesses the administration¹s early record on transparency and warns that high public expectations about openness may not be realized.  He also raises larger questions about ³an excessive emphasis on fishbowl governance,² aimed mainly at the disclosure of details about how officials behave.  The neglected
alternative, says Coglianese, might be a strategy of ³reasoned transparency, that demands that government officials offer explicit explanations for their actions.² 

You can download the article here.   You can also subscribe to the newsletter and learn more about International Right to Know Day.

KP

A useful if narrow precedent

In her Law of the Land blog, Patty Salkin (Albany) presents a Vermont case that was presented to the ALI-ABA Land Use Institute in August 2009, "Applicant Entitled to Project Review Under Conditional Use Permit and Site Plan Regulations in Effect at Time of Application":

Emphasizing that its holding was a “narrow one,” the court iterated: “When a town erroneously informs a landowner that a proposed use is not permitted, the landowner then submits a conditional-use application rather than a site-plan application in reliance on that representation, and the town then amends its regulations to explicitly bar the use it maintained was not permitted, the applicant has a right to apply for site-plan approval with the benefit of the original use determination.  ... .”

It passes the common-sense test that the government can't change the rules in the middle of the game. EMM

Seamless web time

Or, why even criminal law specialists need to know administrative law. An interesting administrative law problem appears on prattvilleprogress.com, the web site of the Prattville (Alabama) Progress newspaper), "Appeal filed in voter application rejection":

An 18-year-old local woman whose voter registration application was reject­ed by county registrars because she inad­vertently listed her former address on the document, has appealed the decision to the Autauga County Judge of Probate.
...
Dent, who filed an amended applica­tion minutes after Wise pointed out the inaccuracies, expressed on paper her be­lief that the registrar could have resolved the issue by allowing her to file a cor­rected form.
...
The office of District Attorney Randall Houston conducted an investiga­tion into the legal questions posed by the appeal, and the rejection of the original application.

The DA's response to the notice of ap­peal includes determinations that the board failed to specify to Dent the basis for its decision. But the legal filing also states that Dent "cannot, without specu­lating, attack the basis of the decision of the Board," and "cannot overcome the presumption of correctness or demon­strate that the Board exceeded its statu­tory authority."
...
Houston declared in the legal response that his office, which is responsible for defending the lo­cal board's action, "is unable to effectively defend against the pe­tition if it does not know the ba­sis of the decision of the Board."
...
Houston said Thursday that his office rarely deals with such legal issues.

"You learn something every day," he said. "I had no idea we had anything to do with that. We've had one or two before, but they were different situations, where the applicant had past criminal convictions. We don't generally do much in probate court. Basically, what happened here is that the form was not filled out right. My basic motion is that they dismiss the whole thing and start over."

Thanks to Votelaw for the pointer. EMM

Dealing with poorly written regulations

On their Drug and Device Law blog, Jim Beck (Dechert LLP, Philadelphia) and Mark Herrmann (Jones Day, Chicago) have posted "New Article On Free Speech and FDA 'Intended Use' Regulations", in which they review favorably an article on FDA requirements for labeling for off-label uses of drugs and medical devices.

Such "adequate" labeling, of course, can't be added for a new use without going through the FDA's entire drug/device approval process. Given how widespread off-label use is, many manufacturers would have to be wilfully blind not to know of such use. For one thing, they have to collect and submit adverse event reports, whether or not the use involved was a labeled one.

The thesis of the article is that this is a "Catch-22 regulation" that can't possibly be (and hasn't been) enforced as written without both violating the First Amendment rights of free speech and and the statutory rights of doctors to engage in off-label use. For one thing, "objective intent" is an oxymoron, describing something unknown to the law.

Interesting. EMM

Regulation through tort litigation

On the Conglomerate Blog, David Zaring (Wharton) has posted "Greenhouse Gas Regulation Through The Nuisance Suit", a review of Connecticut, et al. v. American Electric Power Company Inc., et al., 05-5104-cv, 05-5119-cv (2d Cir., Sep. 21, 2009).

In what could be a big, big case, the 2d Circuit just permitted a federal common law nuisance suit to go forward against power companies that contribute to greenhouse gas emissions.  As you might imagine, the interplay between this and Massachusetts v. EPA, the Supreme Court's greenhouse gas case, is quite complicated. ... I can't imagine the Supreme Court won't be looking at this very closely - the implications are vast.

From the opinion summary:

In 2004, two groups of Plaintiffs, one consisting of eight States and New York City, and the other consisting of three land trusts (collectively “Plaintiffs”), separately sued the same six electric power corporations that own and operate fossil-fuel-fired power plants in twenty states (collectively “Defendants”), seeking abatement of Defendants’ ongoing contributions to the public nuisance of global warming. ...

Plaintiffs brought these actions under the federal common law of nuisance or, in the alternative, state  nuisance law, to force Defendants to cap and then reduce their carbon dioxide emissions. Defendants moved to dismiss on a number of grounds. The district court held that Plaintiffs’ claims presented a non-justiciable political question and dismissed the complaints. ...

On appeal, Plaintiffs argue that the political question doctrine does not bar adjudication of their claims; that they have standing to assert their claims; that they have properly stated claims under the federal common law of nuisance; and that their claims are not displaced by federal statutes. Defendants respond that the district court’s judgment should be upheld, either because the complaints present non-justiciable political questions or on a number of alternate grounds: lack of standing; failure to state a claim; and displacement of federal common law. In addition, Defendant Tennessee Valley Authority (“TVA”) asserts that the complaints should be dismissed against it on the basis of the discretionary function exception.

We hold that the district court erred in dismissing the complaints on political question grounds; that all of Plaintiffs have standing; that the federal common law of nuisance governs their claims; that Plaintiffs have stated claims under the federal common law of nuisance; that their claims are not displaced; and that TVA’s alternate grounds for dismissal are without merit.

EMM

Circuit split on interpreting a regulation

I suspect there is a law review article here. In the firm's Payment Matters newsletter, Thomas W. Coons and Kristin Cilento Carter of the DC area law firm Ober, Kaler, Grimes & Shriver describe a split over the interpretation of the Health and Human Services regulation governing how to count medical residents in determining the number of full-time equivalents in a hospital, in "The Divide Continues: Illinois Court Rejects Secretary's Interpretation of IME Regulation to Exclude Research Time, 9/17/09".

Less than a year after the United States Court of Appeals for the First Circuit issued the opinion in Rhode Island Hospital v. Leavitt, No. 07-2673 (1st Cir. Nov. 17, 2008), upholding the Secretary of the Department of Health and Human Services' ("Secretary") interpretation of the indirect medical education (IME) regulation to exclude time spent by residents engaged in research activities, the United States District Court for the Northern District of Illinois has reached the opposite conclusion. In University of Chicago Medical Center v. Sebelius, No. 1:07-cv-07016 (Aug. 3, 2009), the University of Chicago Medical Center ("Hospital") challenged the Centers for Medicare and Medicaid Services' (CMS) reduction of the Hospital's Medicare payments for fiscal year (FY) 1996 by excluding time spent be residents engaged in educational research from the IME full-time equivalent (FTE) resident count. Finding that the reduction was improper, the Court issued summary judgment in favor of the hospital finding that the IME resident count for FY 1996 should include resident time engaged in research when the requirements of the IME regulation are met.

... The debate in the University of Chicago Medical Center case was over the proper meaning of the term "portion." The Hospital argued that "portion" unambiguously refers to a geographic location within a hospital, while the Secretary contended that "portion" refers to the function that a resident is performing within a hospital, regardless of the resident's location. ...

I'm sorry, but it's difficult to assert that a word is unambiguous if people are arguing about it in federal court and other courts have already split over it. Thanks to Lexology for the pointer. EMM

Review requirement ends when the city rejects the project

The winning defenders in a suit by a developer against the City of Los Angeles describe this interesting case in "Court of Appeal Holds Developer Cannot Sue City for Violations of CEQA and Constitutional Law Where City Rejects Project Before Completing EIR".

The City had spent several years preparing an EIR [environmental impact review] under CEQA [California Environmental Quality Act] before the City made a policy decision to reject the project. The developer sued the City, alleging that the City was prohibited from making this policy determination and rejecting the project until it completed the EIR. ... [T]he Court relied on Public Resources Code section 21080, subdivision (b)(5), in holding that CEQA applies only to projects that a public agency proposes to carry out or approve, and does not apply to projects that the agency rejects or disapproves. The Court made clear that "if an agency at any time decides not to proceed with a project, CEQA is inapplicable from that time forward." The Court explained that requiring a public agency to prepare an EIR before rejecting a project "would impose a substantial burden on the agency, other agencies, organizations, and individuals commenting on the proposal, and the project applicant. Such a requirement would not produce any discernible environmental benefit and would not further the goal of environmental protection." ... The Court held that the developer could not state a claim for denial of procedural due process because it had no claim of entitlement to an EIR or the underlying development entitlements. The Court also held that the developer did not adequately allege a substantive due process claim, because it did not allege any outrageous or egregious abuse of power.

Finally, the Court held that the developer did not adequately allege an equal protection claim. The Court cited the recent U.S. Supreme Court decision Engquist v. Oregon Dept. of Agriculture (2008) __ U.S. __ [128 S.Ct. 2146] (Engquist), which held that the class of one theory of equal protection has no application in the context of public employment decisions, which involve complex, discretionary decisionmaking. The Court of Appeal applied this rule in the land use context, holding that the proposed project presented complex urban planning and land use issues. The Court observed that the decision whether to approve such a project "ordinarily would involve numerous public policy considerations and the exercise of discretion based on a subjective, individualized determination." Such a decision is the antithesis of the simple issue presented in other equal protection cases concerning the consistent imposition of a standard requirement.

EMM

Authority to apply rules is not the authority to make rules

On her Law of the Land blog, Patty Salkin (Albany) describes a recent case in "Wisconsin Appeals Court Finds Municipalities Preempted from Regulating Solar and Wind Energy Systems Where Such Actions Set Policy".

The court explained that “administrative powers involve the interpretation or application of law, and require the authority to carry a law into execution or implementation.” It further observed that the “[p]owers of an administrative character do not allow political subdivisions to make policy.”

In addition, the court noted that [the state statute] permits local regulation of a wind energy system not any wind energy system or even wind energy systems. The court explained that  “[w]hen a political subdivision creates restrictions without sufficiently developed facts about a particular wind energy system, it is impossible for it to determine if its ordinance is in conflict with the statute.” Accordingly, the court concluded that “Wis. Stat. sec. 66.0401(1) requires a case-by-case approach, such as a conditional use permit procedure, and does not allow political subdivisions to find legislative facts or make policy.”

The court found support for its conclusion in the legislative history of 66.0401. The court said the history showed that the “legislature determined it appropriate to give political subdivisions the power to assist in the creation of renewable energy systems and thus become an integral and effective factor in the State’s renewable energy goal.” However, the history did not “indicate that the State intended to delegate the power of policymaking.” Rather, the court observed “the evidence is that the State delegated the authority to execute and administer its established policy of favoring wind energy systems, and the statutory scheme was intended to create avenues for political subdivisions to assist the State.” The Court said that, “(L)ocalities may restrict a wind energy system only where necessary to preserve or protect the public health or safety, or where the restriction does not significantly increase the cost of the system or significally decrease its efficiency, or where the locality allows for an alternative system of comparable cost and efficiency.”

EMM

New administrative law articles

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

• Ceresney, Andrew J., Gordon Eng and Sean R. Nuttall. Regulatory investigations and the credit crisis: the search for villains. 46 Am. Crim. L. Rev. 225-273 (2009). [H]|[L]|[W]
• Hughes, Owen C.B., Alan L. Jakimo and Michael J. Malinowski. United States regulation of stem cell research: recasting government's role and questions to be resolved. 37 Hofstra L. Rev. 383-445 (2009). [H]|[L]|[W]
• Kuo, Ming-Sung. Between fragmentation and unity: the uneasy relationship between global administrative law and global constitutionalism. 10 San Diego Int'l L.J. 439-467 (2009). [H]|[L]|[W]
• Wuertenberger, Thomas D. and Maximilian C. Karacz. Using an evaluative comparative law analysis to develop global administrative law principles. 17 Mich. St. J. Int'l L. 567-599 (2008-2009). [H]|[L]|[W]
• Fifth Administrative Law Discussion Forum, Montpellier, France, May 29- 31, 2008. 61 Admin. L. Rev. 1-277 (2009). [H]|[L]|[W]
  • The Editors. Foreword. 61 Admin. L. Rev. unpaged (2009).
  • Weaver, Russell L., Herwig C.H. Hofmann, Michael Asimow and Francois Lichere. Introduction to the Fifth Administrative Law Discussion Forum. 61 Admin. L. Rev. 1-3 (2009). [H]|[L]|[W]
  • Shapiro, Sidney A. and Richard W. Murphy. Eight things Americans can't figure out about controlling administrative power. 61 Admin. L. Rev. 5- 28 (2009). [H]|[L]|[W]
  • Schneider, Jens-Peter. A common framework for decentralized EU agencies and the Meroni doctrine. 61 Admin. L. Rev. 29-44 (2009). [H]|[L]|[W]
  • Weisz, Wolfgang. Agencies versus networks: from divide to convergence in the administrative governance in the EU. 61 Admin. L. Rev. 45-70 (2009). [H]|[L]|[W]
  • Koch, Charles H., Jr. Collaborative governance: lessons for Europe from U.S. electricity restructuring. 61 Admin. L. Rev. 71-103 (2009). [H]|[L]|[W]
  • Weaver, Russell L., Udo Fink and Francois Lichere. Protecting consumers in an era of world trade. 61 Admin. L. Rev. 105-114 (2009). [H]|[L]|[W]
  • Lemieux, Denis. Fair procedures and the contracting state. 61 Admin. L. Rev. 115-130 (2009). [H]|[L]|[W]
  • Asimow, Michael and Lisl Dunlop. The many faces of administrative adjudication in the European Union. 61 Admin. L. Rev. 131-169 (2009). [H]|[L]|[W]
  • Funk, William. Public participation and transparency in administrative law--three examples as an object lesson. 61 Admin. L. Rev. 171-198 (2009). [H]|[L]|[W]
  • Hofmann, Herwig C.H. Decisionmaking in EU administrative law--the problem of composite procedures. 61 Admin. L. Rev. 199-221 (2009). [H]|[L]|[W]
  • Rowe, Gerard C. Controlling administrative action: internal administrative supervision in the European Union. 61 Admin. L. Rev. 223- 257 (2009). [H]|[L]|[W]
  • Strauss, Peter L. On capturing the possible significance of institutional design and ethos. 61 Admin. L. Rev. 259-277 (2009). [H]|[L]|[W]
• The 75th Anniversary of the Securities and Exchange Commission. Articles by Joel Seligman, Frank H. Easterbrook, John C. Coffee, Jr., Hillary A. Sale, Jill E. Fisch, Steven M.H. Wallman, A.C. Pritchard, Robert B. Thompson, Barry Cushman, James D. Cox, William W. Bratton, Lawrence A. Cunningham, Donald C. Langevoort, Brian G. Cartwright and Alicia Davis Evans. 95 Va. L. Rev. 667-1129 (2009). [H]|[L]|[W]
  • Seligman, Joel. The SEC in a time of discontinuity. 95 Va. L. Rev. 667- 683 (2009). [H]|[L]|[W]
  • Easterbrook, Frank H. The race for the bottom in corporate governance. 95 Va. L. Rev. 685-706 (2009). [H]|[L]|[W]
  • Coffee, John C., Jr. and Hillary A. Sale. Redesigning the SEC: does the Treasury have a better idea? 95 Va. L. Rev. 707-783 (2009). [H]|[L]|[W]
  • Fisch, Jill E. Top cop or regulatory flop? The SEC at 75. 95 Va. L. Rev. 785-823 (2009). [H]|[L]|[W]
  • Wallman, Steven M.H. Commentary on Redesigning the SEC: Does the Treasury Have a Better Idea? 95 Va. L. Rev. 825-839 (2009). [H]|[L]|[W]
  • Pritchard, A.C. and Robert B. Thompson. Securities law and the New Deal justices. 95 Va. L. Rev. 841-926 (2009). [H]|[L]|[W]
  • Cushman, Barry. The securities laws and the mechanics of legal change. 95 Va. L. Rev. 927-939 (2009). [H]|[L]|[W]
  • Cox, James D. Coping in a global marketplace: survival strategies for a 75-year-old SEC. 95 Va. L. Rev. 941-987 (2009). [H]|[L]|[W]
  • Bratton, William W. and Lawrence A. Cunningham. Treatment differences and political realities in the GAAP-IFRS debate. 95 Va. L. Rev. 989- 1023 (2009). [H]|[L]|[W]
  • Langevoort, Donald C. The SEC, retail investors, and the institutionalization of the securities markets. 95 Va. L. Rev. 1025- 1083 (2009). [H]|[L]|[W]
  • Cartwright, Brian G. Whither the SEC now? 95 Va. L. Rev. 1085-1104 (2009). [H]|[L]|[W]
  • Evans, Alicia Davis. A requiem for the retail investor? 95 Va. L. Rev. 1105-1129 (2009). [H]|[L]|[W]
• Symposium: Environmental Sustainability. Foreword by J.B. Ruhl; articles by John Mixon, Gregory Todd Jones, Christopher L. Lant, Bruce Pardy, John C. Dernbach, Irma S. Russell, Robert L. Glicksman, Anna T. Moritz, Kassie R. Siegel, Brendan R. Cummings, William H. Rodgers, Jr., Alexandra B. Klass, Sara E. Bergan, Alfred R. Light and Oliver A. Houck. 44 Tulsa L. Rev. 1-316 (2008). [H]|[L]|[W]
  • Marshall, Samanthia Sierakowski. Editor's note. 44 Tulsa L. Rev. iii (2008).
  • Symposium: Environmental Sustainability. 44 Tulsa L. Rev. 1-316 (2008). [H]|[L]|[W]
  • Ruhl, J.B. Symposium foreword. 44 Tulsa L. Rev. 1-6 (2008). [H]|[L]|[W]
  • Mixon, John. Linguistic silos as barriers to sustainable environment. 44 Tulsa L. Rev. 7-28 (2008). [H]|[L]|[W]
  • Jones, Gregory Todd. Sustainability, complexity, and the negotiation of constraint. 44 Tulsa L. Rev. 29-50 (2008). [H]|[L]|[W]
  • Lant, Christopher L. Natural resource sustainability from the geographical side of ecological economics. 44 Tulsa L. Rev. 51-66 (2008). [H]|[L]|[W]
  • Pardy, Bruce. The hand is invisible, nature knows best, and justice is blind: market, ecosystems, legal instrumentalism, and the natural law of systems. 44 Tulsa L. Rev. 67-92 (2008). [H]|[L]|[W]
  • Dernbach, John C. Navigating the U.S. transition to sustainability: matching national governance challenges with appropriate legal tools. 44 Tulsa L. Rev. 93-120 (2008). [H]|[L]|[W]
  • Russell, Irma S. The sustainability principle in sustainable energy. 44 Tulsa L. Rev. 121-146 (2008). [H]|[L]|[W]
  • Glicksman, Robert L. Sustainable federal land management: protecting ecological integrity and preserving environmental principal. 44 Tulsa L. Rev. 147-203 (2008). [H]|[L]|[W]
  • Moritz, Anna T., Kassie R. Siegel, Brendan R. Cummings and William H. Rodgers, Jr. Biodiversity baking and boiling: Endangered Species Act turning down the heat. 44 Tulsa L. Rev. 205-235 (2008). [H]|[L]|[W]
  • Klass, Alexandra B. and Sara E. Bergan. Carbon sequestration and sustainability. 44 Tulsa L. Rev. 237-251 (2008). [H]|[L]|[W]
  • Light, Alfred R. Beyond the myth of Everglades settlement: the need for a sustainability jurisprudence. 44 Tulsa L. Rev. 253-274 (2008). [H]|[L]|[W]
  • Houck, Oliver A. A case of sustainable development: the river god and the forest at the end of the world. 44 Tulsa L. Rev. 275-316 (2008). [H]|[L]|[W]

EMM

Forthcoming article on judicial review of agency decisions

Professor Slocum has written an article entitled The Importance of Being Ambiguous: Substantive Canons, Stare Decisis and the Central Role of Ambiguity Determinations in the Administrative State that will appear in the Spring edition of the Maryland Law Review.  The article examines the concept of ambiguity in judicial review of agency statutory interpretation.

Abstract:     
The concept of ambiguity plays an underappreciated and undertheorized role in the judicial review of agency statutory interpretations. Its importance is difficult to exaggerate. Ambiguity functions as the determiner of whether an agency’s statutory interpretation will receive deference, as well as whether the stare decisis standard for statutory interpretation cases will apply instead of the recent principle that agencies can freely change their interpretations even in the face of a previous conflicting judicial interpretation. As well, the prominence of ambiguity has caused many commentators and courts to proclaim a bright line distinction between interpretive tools that help evaluate statutory clarity and those that resolve statutory uncertainty. Although linguists would agree that ambiguity is unexceptional in normative legal texts due to its ubiquity, the judiciary, which has created a highly idiosyncratic definition, is far more selective about declaring language to be ambiguous. The judiciary’s selectivity regarding ambiguity is driven by its conflation of ambiguity identification with ambiguity resolution, which allows courts to arbitrarily determine the context for resolving statutory meaning through the discretionary selection of judicially created, but untested, interpretive tools.

This Article addresses the concept of ambiguity from a linguistic perspective and argues that the Supreme Court’s Chevron doctrine has fostered an unfortunate emphasis on ambiguity. Instead of Chevron’s misguided elevation of the explicit ambiguity determination, judicial review should focus on other considerations. Such a commitment would mean the end of the bifurcated review process that distinguishes between ambiguity identification and ambiguity resolution. It would also allow for the consideration of substantive canons of statutory construction equally in agency and non-agency cases. Finally, it would view Chevron’s contribution to statutory interpretation as a softening of the strict stare decisis standard that would no longer depend on a previous explicit ambiguity determination.

You can find the article on ssrn.

KP

"Hornbook law" - exhaustion of administrative remedies

"It is hornbook law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law.”

Jardim v. New York State Public Employment Relations Bd., 177 Misc.2d 528, 677 N.Y.S.2d 693 (Sup. Ct.,1998), aff'd 265 A.D.2d 329, 696 N.Y.S.2d 483 (A.D.,1999). This oldie-but-goodie is reviewed on the New York Public Personnel Law blog, "Processing PERB appeals". EMM

Interesting fact pattern with multiple issues

On her Law of the Land blog, Patty Salkin (Albany) describes an interesting fact situation in "ZBA Had Authority to Grant Variance to Permit Driveway for Landlocked Parcel Regardless of Whether it was a Zoning Matter or a Land Use Matter".  The land owner (defendant) has a 20-foot wide strip connecting his property to the outside world, but the zoning ordinance requires a 12-foot wide driveway with 5-foot setbacks on both sides. The Zoning Board of Appeals gives him a variance for hardship reasons - the property is not worth much without a driveway - and a neighbor challenges the Board's decision. Issues include standing, the Board's authority, exhaustion of administrative remedies, how much return is a 'reasonable' return, and integrating references from local ordinances to state statutes. It's in a recent Maine Supreme Judicial Court opinion. EMM

The duck rule

An important rule of interpretation in administrative law is the 'duck rule' - if it walks like a duck and quacks like a duck, it's probably a duck. Abraham Lincoln reportedly explained a stronger version of this rule in his answer to the question, "If you call a dog's tail a leg, how many legs does a dog have? Four. Just because you call the tail a leg doesn't make it one."

In Sheppard Mullin's Real Estate, Land Use and Environmental Law Blog, Jeffrey W. Forrest and David P. Lanferman describe a recent California decision illustrating this point in "Administrative Fee for Tax Collection is an Unconstitutional Hidden Tax".

The issue was whether the City of San Diego’s “Tax Collection Fee” charged to landowners to cover the expense of collecting and administering the City’s rental unit business tax was, in fact, a general tax.

If it was a general tax, then the California Constitution required approval of a majority of qualified voters in the City, and it had never been submitted to the voters. Here's the rule:

In 1997, in an attempt to clarify the sometimes blurry distinction between a government “fee” and a government “tax,” the California Supreme Court explained that “taxes are imposed for revenue purposes, rather than in return for a specific benefit conferred or a privilege granted.” ... The court held that it was a general tax because the purpose of the Tax Collection Fee was not to provide a government service to landlords (such as building inspection), but rather to facilitate the City’s general tax collection efforts (processing rental tax applications, answering taxpayer questions, and generating and mailing out billing statements to collect the rental tax).

The Court disagreed with three arguments put forward by the City:

First, the City claimed that the Tax Collection Fee afforded a specific benefit to landlords because it funded a courtesy billing notice that helped landlords avoid penalties for failure to timely register their rental businesses. The court disagreed finding that the central purpose of such notices was to facilitate collection of the rental unit business tax. Assisting landlords in avoiding penalties was only an incidental benefit. The court looked to the City’s resolution approving the Tax Collection Fee, which stated that its purpose was “to recover costs associated with processing applications and renewals for [rental unit business tax certificates].”

It is awkward when your own words defeat you.

Second, the City claimed the Tax Collection Fee funded regulatory activities, noting the Supreme Court’s pronouncement that “all regulatory fees are necessarily aimed at raising ‘revenue’ to defray the cost of the regulatory program in question, but that fact does not automatically render those fees ‘taxes.’” ... However, the Court of Appeals disagreed, noting the Supreme Court’s “primary purpose” test for determining whether a regulatory fee should be deemed a tax:

[I]f revenue is the primary purpose, and regulation is merely incidental, the imposition is a tax, but if regulation is the primary purpose, the mere fact that revenue is also obtained does not make the imposition a tax. ...

Here, the court found that the City provided no details about how its services regulated the conduct of any person. Furthermore, the City staff report recommended the City Council adopt the fee “as one of the solutions to offset the $17.3 million State budget reduction.” As such, the Court of Appeals found that the primary purpose was to raise revenue, not to regulate.

Ouch. The third argument referred to a statutory provision similar to the second argument and fell the same way. The authors offer a great conclusion:

To the extent local governments believe they are not collecting fees that fully recover the cost of services they provide to a discrete group, [this case] highlights the importance of identifying the primary purpose of imposing a fee, the specific benefit provided to the group, and some details on the group’s exact conduct the fee proposes to regulate. California’s courts are increasingly looking past the label given a fee or tax to determine the true nature of revenue-raising measures. Due to the fact that valid fees, special taxes or general taxes are each established through different procedures, understanding the nature of the revenue-raiser at the outset is critical. ... The pressure to raise revenue to cover budget gaps without evoking a new tax revolt is growing in these economic times, which creates a strong incentive to label every revenue increase a fee regardless of its true nature. Traps abound for unwary local governments and taxpayers alike.

Thanks to Lexology for the pointer. EMM

New administrative law articles

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

• Kulander, Christopher S. Surface damages, site-remediation and well bonding in Wyoming--results and analysis of recent regulations. 9 Wyoming L. Rev. 413-453 (2009). [H]|[L]|[W]
• Leatherwood, Sarah E. Note. States take the wheel--Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie gives states a chance to choose the direction of their automobile emissions regulation. (Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, 508 F. Supp. 2d 295, 2007.) 61 Okla. L. Rev. 669-694 (2008). [H]|[L]|[W]
• Pulley, Michelle Kay. Comment. Government tan lines: examining the reach and effectiveness of federal and state efforts to protect consumers from the dangers of indoor tanning. 36 Pepp. L. Rev. 1161-1224 (2009). [H]|[L]|[W]

EMM

Ultra vires and judicial deference, with a side order of plain meaning

On her Law of the Land blog, Patty Salkin (Albany) reviews a New York case with two interesting lessons turning on statutory interpretation and interpretation policy in "Farm Worker Dwellings are Within the Definition of 'Agricultural Use Structures' and Therefore Exempt from Adirondack Park Agency Jurisdiction".

The owner-operators of an organic farm located with the Adirondack Park Agency  (APA) and an agricultural district therein obtained a building permit from the town of Essex to construct three single-family dwellings on the farm for purposes of providing housing for farm workers.  A long and protracted disagreement between the owner-operators and the APA ensued ... At issue is whether the dwellings constructed on the farm for purposes of farmworker housing are exempt because they are agricultural uses, or not exempt because they do not meet the definition of agricultural uses.

Looking at whether the agency had jurisdiction over the dwellings,

The Court looked to the plain meaning of the statute, examining the definition section which defines a “single family dwelling” as “any detached building containing one dwelling unit, not including a mobile home.” ... The statute defines an “agricultural use structure” as “any barn, stable, shed, silo, garage, fruit and vegetable stand, or other building or structure directly and customarily associated with agricultural use.” ... The Court explained that since a “single family dwelling” is including within the statutory definition of “structure” and since an “agricultural use structure” includes any building primarily associated with agricultural use, it was rational to conclude that a dingle family dwelling that is directly and customarily associated with agricultural use fits the statutory definition of agricultural use structure and is therefore exempt from regulation by the APA.

But the second, more subtle lesson was about deference to the agency's interpretation of the statute.

The appeals court agreed with the court below that the Court is not required to the defer to the APA’s interpretation of the APA Act or of the River Systems Act since pure legal interpretation of clear and unambiguous statutory terms requires no reliance on any special expertise on the Agency’s part.

I confess that I have a naive reservation about the concept of "plain meaning" in statutory and contract interpretation: If the meaning was so plain, why are (presumably smart) people spending so much time, energy, and money arguing over it? Admittedly, I have seen cases where one or more of the parties was stupid or stiff-necked, or had so much invested that the cost of litigation in the off chance that they might get lucky was tiny. It's clients like these that earn lawyers good fees and the profession a bad reputation. However, from a jurisprudential perspective I'm not sure "plain meaning" is really material. I'd be happy to hear from somebody smarter than me on this issue.  EMM

Aribitrary and capricious

From the National Eminent Domain Blog, "Court Determines Governmental Decision Making Process Is Unacceptable in Pinon Canyon". The post refers to an Associated Press story reporting that:

U.S. District Judge Richard Matsch in Denver issued a ruling Tuesday overturning a 2007 environmental analysis of stepping up training at its Pinon Canyon Maneuver Site. The ruling says the Army didn’t adequately assess the environmental impacts of the increased intensity and duration of training. ... But the environmental impact statement addressed just the proposed increase in training and facilities at the existing site. Matsch said the analysis didn’t adequately explore the potential impacts [off the Site], making the Army’s decision “arbitrary and capricious.”

Author Alan Ackerman (Ackerman Ackerman & Dynkowski, Bloomfield Hills, Michigan) comments:

This opinion should be a fascinating read for those interested in challenging the government environmental assessment process.  Rarely can one find a court making a determination that the government’s decision is “arbitrary and capricious”.

The case is Not 1 More Acre! et al v. United States Department of the Army et al, No. 1:08-cv-00828-RPM (D. Colo.) EMM