Administrative Law Prof Blog

New administrative law articles

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

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

EMM

Judulang v. Holder

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

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

Read the whole review. EMM

New SCOTUS admin law decision

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

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

More to come. EMM

New administrative law articles

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

• Baker, Jonathan B. Merger simulation in an administrative context. 77 Antitrust L.J. 451-472 (2011). [H]|[L]|[W]
• Keyte, James A. and Kenneth B. Schwartz. "Tally-ho!": UPP and the 2010 Horizontal Merger Guidelines. 77 Antitrust L.J. 587-650 (2011). [H]|[L]|[W]
• Kim, James. Comment. For a good cause: reforming the good cause exception to notice and comment rulemaking under the Administrative Procedure Act. 18 Geo. Mason L. Rev. 1045-1083 (2011). [H]|[L]|[W]
• Rompala, Joseph P. Survey of Indiana administrative law. 44 Ind. L. Rev. 1009-1032 (2011). [H]|[L]|[W]

EMM

Practice: Compliance can be a challenge

One of the tricky things about regulatory compliance is that more than one agency may be involved in regulating the same field. For example, one of the most common business compliance matters (after taxes) is work-right verification using the I-9 form. The form itself is complicated, the instructions are complicated, and it is soooooo easy to get lazy and take shortcuts. Sean G. Hanagan (Jackson Lewis, White Plains, NY) describes the problems with the I-9 form in "The Goldilocks Principle - The Dangers of Overzealous I-9 Employment Eligibility Verification" on his firm's Global Immigration Blog.

... ICE’s audit and public relations campaigns have conditioned employers to err on the side of completeness in this arena for fear of being heavily fined.

Unfortunately, rules governing I-9 form practice and fines do not focus exclusively on the issue of incompleteness. ... [The Department of Justice] has announced that a public employer has been sued for alleged Immigration–Related Employment Discrimination for too zealously checking the work authorization of foreign employees. The employer allegedly discriminated by dictating what documents a foreign employee must present at hire, contrary to the I-9 rule which mandates that the employee be given a choice of what to present. ...

The bottom line for employers is that in their management of I-9 employment eligibility verification, keeping the “Goldilocks principle” in mind and treating all employees the same regardless of their citizenship or national origin is key to avoiding liability with either ICE on the one hand, or OSC on the other hand.

EMM

New administrative law articles

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

• Freeman, Jody. The Obama Administration's national auto policy: lessons from the "car deal." 35 Harv. Envtl. L. Rev. 343-374 (2011). [H]|[L]|[W]
• Kilbert, Nathan. Case comment. (Howmet Corp. v. EPA, 614 F.3d 544, 2010.) 35 Harv. Envtl. L. Rev. 555-566 (2011). [H]|[L]|[W]
• Wilensky, Meredith. Note. The tailoring rule: exemplifying the vital role of regulatory agencies in environmental protection. 38 Ecology L.Q. 449-477 (2011). [H]|[L]|[W]

EMM

CALI fellowship opportunity for admin law profs

From Austin Groothuis at CALI:

We at CALI do regular fellowships to create CALI Lessons in certain subject areas. We're really excited about next fellowship in admin law.

The deadline for fellowship applications has been extended to January 13th, and here's a link to a PDF with more info (ignore the December 5th date in the PDF, it's really January 13th) [see] http://www.cali.org/blog/2011/12/05/cali-administrative-law-fellowship-deadline-extended. ...

A little more about the process: we get a half dozen or so faculty to write several of lessons simultaneously, all while working with our fantastic Director of Curriculum Development, Deb Quentel. We feel this really enhances the process and helps new authors effectively learn how to create quality CALI Lessons.

We even pay authors a per lesson stipend.

Let me know if you have any questions.

Thanks!

Austin

EMM

Changing regulatory policy

There are many levels of government at which regulations can be challenged by those regulated. Ultimately, you may be talking about a constitutional amendment. Farmers in North Dakota are taking it that far, getting a "right to farm" amendment to the state constitution on the ballot. See "Constitutional Protection for Right to Farm: ND Farm Bureau staying one step ahead of HSUS" by Sean Minahan (Lamson, Dugan and Murray, Omaha) on his firm's Midwest Agricultural Law Guide blog.

The North Dakota Farm Bureau is taking the “right to farm” to the state constitution.  The Farm Bureau likely has the the 27,000 signatures necessary to get a proposal on the ballot in June or November 2012 which will likely read:

“The right of farmers and ranchers to engage in modern farming and ranching practices shall be forever guaranteed in this state.  No law shall be enacted which abridges the right of farmers and ranchers to employ agricultural technology, modern livestock production and ranching practices.”

The proposal is a reaction to the recent HSUS [Humane Society of the United States] ballot measures in Ohio and California which regulate livestock care standards in addition to recent collaborations between HSUS and various ag associations ... North Dakota farmers are specifically concerned with idealistic but irrational regulations proposed by outsiders with no connection to North Dakota agriculture.

Mr. Minahan's post includes a link to a newspaper article describing the arguments for and against. EMM