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An Irrevocably Tainted Opinion: Zen's Threat To Public Discourse, Andrew F. Popper 2019 American University Washington College of Law

An Irrevocably Tainted Opinion: Zen's Threat To Public Discourse, Andrew F. Popper

Boston College Law Review

That agency decision-makers in enforcement actions must be objective, fair, and impartial is hardly debatable. It is equally obvious that a challenge to objectivity must be supported by actual evidence, not assumptions of prejudgment or bias. This essay criticizes Zen Magnets v. Consumer Product Safety Commission, a judicial review of an enforcement action that failed to follow the well-worn path that requires a presumption of honesty, integrity, and good faith when assessing the objectivity of administrative decisionmakers. The Zen court focused on one comment made by Consumer Product Safety Commission Chairman Robert Adler in a rulemaking, not even the enforcement ...


Too Big And Unable To Fail, Stephen J. Lubben, Arthur E. Wilmarth, Jr. 2019 University of Florida Levin College of Law

Too Big And Unable To Fail, Stephen J. Lubben, Arthur E. Wilmarth, Jr.

Florida Law Review

Financial regulation after the Dodd-Frank Act has produced a blizzard of acronyms, many of which revolve around the “too big to fail” (TBTF) problem. OLA, OLF, SPOE, and TLAC are new regulatory tools that seek to build a new regime for resolving failures of systemically important financial institutions (SIFIs). The explicit goal of this new regime is to enable a SIFI to fail, just like United Airlines or Blockbuster Video, without requiring a government bailout. This Article expresses significant doubts about the new regime’s ability to work as advertised. The “single point of entry” (SPOE) resolution strategy, which focuses ...


Inside Job: The Assault On The Structure Of The Consumer Financial Protection Bureau, Patricia A. McCoy 2019 Boston College Law School

Inside Job: The Assault On The Structure Of The Consumer Financial Protection Bureau, Patricia A. Mccoy

Patricia A. McCoy

Soon after the 2016 election of Donald Trump as President of the United States, while Republicans controlled Congress, opponents of the fledgling Consumer Financial Protection Bureau (CFPB) opened a campaign against the Bureau. Their target was less the substance of federal consumer financial protection laws than the structure of the CFPB itself. This emphasis on structure was a response to the fact that Congress in 2010 had given special thought to the design of the CFPB to safeguard the Bureau and its mission.

In 2017, after legislation to weaken the Bureau’s structure failed in Congress and constitutional challenges to ...


Whither The Regulatory “War On Coal”? Scapegoats, Saviors, And Stock Market Reactions, Cary Coglianese, Daniel E. Walters 2019 University of Pennsylvania Law School

Whither The Regulatory “War On Coal”? Scapegoats, Saviors, And Stock Market Reactions, Cary Coglianese, Daniel E. Walters

Faculty Scholarship at Penn Law

Complaints about excessive economic burdens associated with regulation abound in contemporary political and legal rhetoric. In recent years, perhaps nowhere have these complaints been heard as loudly as in the context of U.S. regulations targeting the use of coal to supply power to the nation’s electricity system, as production levels in the coal industry dropped nearly by half between 2008 and 2016. The coal industry and its political supporters, including the President of the United States, have argued that a suite of air pollution regulations imposed by the U.S. Environmental Protection Agency (EPA) during the Obama Administration ...


Tax Attorneys As Defenders Of Taxpayer Rights, Michelle Lyon Drumbl 2019 Washington and Lee University School of Law

Tax Attorneys As Defenders Of Taxpayer Rights, Michelle Lyon Drumbl

Scholarly Articles

What is the modern role of a tax practitioner, in particular a tax attorney, in the United States? In an era in which the Internal Revenue Service (IRS) is underfunded, understaffed, and struggles to address its mission, tax attorneys play an important role as advocates for taxpayer rights.

Tax attorneys act as advocates who represent ordinary individual taxpayers in controversies with the IRS. These controversies include post-filing disputes, such as audits, as well as issues arising with the collection of assessed taxes. Many of these cases are resolved at the administrative level; those that cannot be resolved are litigated, most ...


State Net Neutrality, Daniel A. Lyons 2019 Boston College Law School

State Net Neutrality, Daniel A. Lyons

Boston College Law School Faculty Papers

For nearly a century, state regulators played an important role in telecommunications regulation. The 1934 Communications Act gave the Federal Communications Commission authority to regulate interstate telephone service, but explicitly left intrastate calls—which comprised 98% of Depression-era telephone traffic—to state public utility commissions. By the late 2000s, however, as landline telephony faded to obscurity, scholars and policymakers alike recognized that the era of comprehensive state telecommunications regulation had largely come to an end.

Perhaps surprisingly, however, the first years of the Trump Administration have seen a resurgence in state telecommunications regulation—driven not by state institutional concerns, but ...


Table Of Contents, Seattle University Law Review 2019 Seattle University School of Law

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


Our Administered Constitution: Administrative Constitutionalism From The Founding To The Present, Sophia Z. Lee 2019 University of Pennsylvania Law School

Our Administered Constitution: Administrative Constitutionalism From The Founding To The Present, Sophia Z. Lee

Faculty Scholarship at Penn Law

This article argues that administrative agencies have been primary interpreters and implementers of the federal Constitution throughout the history of the United States, although the scale and scope of this "administrative constitutionalism" has changed significantly over time as the balance of opportunities and constraints has shifted. Courts have nonetheless cast an increasingly long shadow over the administered Constitution. In part, this is because of the well-known expansion of judicial review in the 20th century. But the shift has as much to do with changes in the legal profession, legal theory, and lawyers’ roles in agency administration. The result is that ...


The Battle That Never Was: Congress, The White House, And Agency Litigation Authority, Neal Devins, Michael Herz 2019 William & Mary Law School

The Battle That Never Was: Congress, The White House, And Agency Litigation Authority, Neal Devins, Michael Herz

Neal E. Devins

No abstract provided.


The Consequences Of Doj Control Of Litigation Authority On Agency Programs, Michael Herz, Neal Devins 2019 William & Mary Law School

The Consequences Of Doj Control Of Litigation Authority On Agency Programs, Michael Herz, Neal Devins

Neal E. Devins

No abstract provided.


Regulation Of Government Agencies Through Limitation Riders, Neal Devins 2019 William & Mary Law School

Regulation Of Government Agencies Through Limitation Riders, Neal Devins

Neal E. Devins

Congress often attaches limitation riders to appropriations bills to establish its policy directives. Professor Devins argues that the appropriations process is not the proper vehicle for substantive policymaking. In this article, he analyzes institutional characteristics that prevent the full consideration or articulation of policy in appropriations bills. Professor Devins also considers the extent to which Congress's use of limitation riders inhibits the effectiveness of the other branches of the federal government. Professor Devins concludes that, while Congress's use of limitation riders is sometimes necessary, Congress should be aware of the significant risks associated with policymaking through the appropriations ...


Not-So-Independent Agencies: Party Polarization And The Limits Of Institutional Design, Neal Devins, David E. Lewis 2019 William & Mary Law School

Not-So-Independent Agencies: Party Polarization And The Limits Of Institutional Design, Neal Devins, David E. Lewis

Neal E. Devins

No abstract provided.


Foreword: Government Lawyering, Neal Devins 2019 William & Mary Law School

Foreword: Government Lawyering, Neal Devins

Neal E. Devins

No abstract provided.


Preemption, I Think Not: Evaluating California’S Stored Energy Procurement Law Against Ferc Order 841, Raymond Richards 2019 Pace University

Preemption, I Think Not: Evaluating California’S Stored Energy Procurement Law Against Ferc Order 841, Raymond Richards

Pace Environmental Law Review

California’s Energy Storage Systems procurement mandate is a groundbreaking measure designed to supply more clean and reliable energy to the state by allowing the capture of power produced now to be used later. While this technology is still developing, a ready market for such resources will help advance capabilities and bring down cost. Federal Energy Regulatory Commission (“FERC”) Order 841 will springboard storage technology in regions covered by Regional Transmission Organizations (“RTOs”) by allowing storage providers non-discriminatory and accommodating access to the FERC wholesale markets. Although FERC’s new Order speaks directly to the issue of storage technology, it ...


The Federal-Aid Highway Construction Process: Procedures, Cases, And Plaintiff Strategies, Ronald H. Rosenberg, Allen H. Olson 2019 William & Mary Law School

The Federal-Aid Highway Construction Process: Procedures, Cases, And Plaintiff Strategies, Ronald H. Rosenberg, Allen H. Olson

Ronald H. Rosenberg

No abstract provided.


Doing More Or Doing Less For The Environment: Shedding Light On Epa's "Stealth" Method Of Environmental Enforcement, Ronald H. Rosenberg 2019 William & Mary Law School

Doing More Or Doing Less For The Environment: Shedding Light On Epa's "Stealth" Method Of Environmental Enforcement, Ronald H. Rosenberg

Ronald H. Rosenberg

Since the 1970s, environmental protection goals have gone from general statements of political desire to highly articulated systems of environmental regulation implemented by federal, state, and local governments. Environmental statutes have been enacted giving administrative agencies such as the U.S. Environmental Protection Agency (EPA) the responsibility for translating broad policy goals into specific regulatory requirements. Through its enforcement program, EPA seeks to assure that these general goals are achieved by individual actors. This Article examines a recent trend in EPA's practices, increased reliance on internal agency methods of enforcement. The study analyzes EPA's administrative enforcement system with ...


What Do Snowmobiles, Mercury Emissions, Greenhouse Gases, And Runoff Have In Common?: The Controversy Over "Junk Science", Linda A. Malone 2019 William & Mary Law School

What Do Snowmobiles, Mercury Emissions, Greenhouse Gases, And Runoff Have In Common?: The Controversy Over "Junk Science", Linda A. Malone

Linda A. Malone

No abstract provided.


Law Professor Comment Letter On Harmonization Of Private Offering Rules, Elisabeth D. de Fontenay, Erik F. Gerding, John Coffee, Jr., James D. Cox, Stephen F. Diamond, Merritt B. Fox, Michael Guttentag, Colleen Honigsberg, Renee M. Jones, Donald Langevoort, Saule T. Omarova, James Park, Jeff Schwartz, Andrew F. Tuch, Urska Velikonja 2019 Duke University School of Law

Law Professor Comment Letter On Harmonization Of Private Offering Rules, Elisabeth D. De Fontenay, Erik F. Gerding, John Coffee, Jr., James D. Cox, Stephen F. Diamond, Merritt B. Fox, Michael Guttentag, Colleen Honigsberg, Renee M. Jones, Donald Langevoort, Saule T. Omarova, James Park, Jeff Schwartz, Andrew F. Tuch, Urska Velikonja

Research Data

Comment letter filed on Sept. 24, 2019.

"File No. S7-08-19"

"We are fifteen law professors whose scholarship and teaching focuses on securities regulation. We appreciate the opportunity to comment on the U.S. Securities and Exchange Commission’s (“SEC” or the “Commission”) Concept Release on Harmonization of Securities Offering Exemptions (the “Concept Release”)."


When Delegation Begets Domination: Due Process Of Administrative Lawmaking, Evan J. Criddle 2019 William & Mary Law School

When Delegation Begets Domination: Due Process Of Administrative Lawmaking, Evan J. Criddle

Evan J. Criddle

No abstract provided.


Mending Holes In The Rule Of (Administrative) Law, Evan J. Criddle 2019 William & Mary Law School

Mending Holes In The Rule Of (Administrative) Law, Evan J. Criddle

Evan J. Criddle

No abstract provided.


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