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  Subjects -> LAW (Total: 1451 journals)
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LAW (860 journals)                  1 2 3 4 5 | Last

Showing 1 - 200 of 354 Journals sorted alphabetically
(En)clave Comahue. Revista Patagónica de Estudios Sociales     Open Access  
ABA Journal Magazine     Full-text available via subscription   (Followers: 25)
Acta Juridica     Full-text available via subscription   (Followers: 7)
Acta Politica     Hybrid Journal   (Followers: 18)
Acta Universitatis Danubius. Juridica     Open Access   (Followers: 1)
Acta Universitatis Lodziensis : Folia Iuridica     Open Access  
Actualidad Jurídica Ambiental     Open Access   (Followers: 2)
Adelaide Law Review     Full-text available via subscription   (Followers: 23)
Administrative Law Review     Open Access   (Followers: 45)
Aegean Review of the Law of the Sea and Maritime Law     Hybrid Journal   (Followers: 7)
African Journal on Conflict Resolution     Open Access   (Followers: 22)
Afrilex     Open Access   (Followers: 5)
Ahkam : Jurnal Hukum Islam     Open Access   (Followers: 1)
Ahkam : Jurnal Ilmu Syariah     Open Access  
Air and Space Law     Full-text available via subscription   (Followers: 20)
Akron Law Review     Open Access   (Followers: 4)
Al 'Adalah : Jurnal Hukum Islam     Open Access  
Al Ihkam : Jurnal Hukum & Pranata Sosial     Open Access   (Followers: 1)
Al-Ahkam     Open Access   (Followers: 1)
Al-Istinbath : Jurnal Hukum Islam     Open Access  
Alaska Law Review     Open Access   (Followers: 8)
Albany Law Review     Free   (Followers: 6)
Alberta Law Review     Full-text available via subscription   (Followers: 14)
Alternative Law Journal     Hybrid Journal   (Followers: 9)
Alternatives : Global, Local, Political     Hybrid Journal   (Followers: 12)
Amazon's Research and Environmental Law     Open Access   (Followers: 5)
American Journal of Comparative Law     Full-text available via subscription   (Followers: 58)
American Journal of Jurisprudence     Hybrid Journal   (Followers: 19)
American Journal of Law & Medicine     Full-text available via subscription   (Followers: 11)
American Journal of Legal History     Full-text available via subscription   (Followers: 9)
American Journal of Trial Advocacy     Full-text available via subscription   (Followers: 7)
American University Law Review     Open Access   (Followers: 11)
American University National Security Law Brief     Open Access   (Followers: 8)
Amicus Curiae     Open Access   (Followers: 6)
Amsterdam Law Forum     Open Access   (Followers: 8)
Anales de la Cátedra Francisco Suárez     Open Access  
Annales Canonici     Open Access  
Annales de droit     Open Access  
Annales de la Faculté de Droit d’Istanbul     Open Access  
Annales Universitatis Mariae Curie-Skłodowska, sectio G (Ius)     Open Access  
Annals of the Faculty of Law in Belgrade - Belgrade Law Review     Open Access  
Anuario da Facultade de Dereito da Universidade da Coruña     Open Access  
Anuario de Psicología Jurídica     Open Access   (Followers: 1)
ANZSLA Commentator, The     Full-text available via subscription   (Followers: 4)
Appeal : Review of Current Law and Law Reform     Open Access   (Followers: 1)
Arbeidsrett     Full-text available via subscription  
Arbitration Law Monthly     Full-text available via subscription   (Followers: 4)
Arbitration Law Reports and Review     Hybrid Journal   (Followers: 14)
Arctic Review on Law and Politics     Open Access   (Followers: 1)
Arena Hukum     Open Access  
Argumenta Journal Law     Open Access   (Followers: 1)
Arizona Law Review     Open Access   (Followers: 5)
Arizona State Law Journal     Free   (Followers: 3)
Arkansas Law Review     Free   (Followers: 6)
Ars Aequi Maandblad     Full-text available via subscription   (Followers: 3)
Art + Law     Full-text available via subscription   (Followers: 12)
Article 40     Open Access   (Followers: 3)
Artificial Intelligence and Law     Hybrid Journal   (Followers: 11)
ASAS : Jurnal Hukum dan Ekonomi Islam     Open Access   (Followers: 1)
Asia-Pacific Journal of Ocean Law and Policy     Hybrid Journal  
Asian American Law Journal     Open Access   (Followers: 3)
Asian Journal of Law and Society     Hybrid Journal   (Followers: 7)
Asian Journal of Legal Education     Full-text available via subscription   (Followers: 4)
Asian Pacific American Law Journal     Open Access   (Followers: 3)
AStA Wirtschafts- und Sozialstatistisches Archiv     Hybrid Journal   (Followers: 5)
Asy-Syir'ah : Jurnal Ilmu Syari'ah dan Hukum     Open Access  
Australasian Law Management Journal     Full-text available via subscription   (Followers: 7)
Australian and New Zealand Sports Law Journal     Full-text available via subscription   (Followers: 9)
Australian Feminist Law Journal     Hybrid Journal   (Followers: 12)
Australian Indigenous Law Review     Full-text available via subscription   (Followers: 21)
Australian Journal of Legal History     Full-text available via subscription   (Followers: 15)
Ave Maria Law Review     Free   (Followers: 4)
Badamai Law Journal     Open Access   (Followers: 2)
Ballot     Open Access  
Baltic Journal of Law & Politics     Open Access   (Followers: 6)
Bar News: The Journal of the NSW Bar Association     Full-text available via subscription   (Followers: 7)
Behavioral Sciences & the Law     Hybrid Journal   (Followers: 28)
Beijing Law Review     Open Access   (Followers: 5)
Berkeley Journal of Entertainment and Sports Law     Open Access   (Followers: 6)
Berkeley Technology Law Journal     Free   (Followers: 14)
Bioethics Research Notes     Full-text available via subscription   (Followers: 14)
Boletín de la Asociación Internacional de Derecho Cooperativo     Open Access  
Boletín Instituto de Derecho Ambiental y de los Recursos Naturales     Open Access  
Bond Law Review     Open Access   (Followers: 18)
Boston College Environmental Affairs Law Review     Open Access   (Followers: 7)
Boston College Journal of Law & Social Justice     Open Access   (Followers: 11)
Boston College Law Review     Open Access   (Followers: 16)
Boston University Law Review     Free   (Followers: 11)
BRICS Law Journal     Open Access   (Followers: 1)
Brigham Young University Journal of Public Law     Open Access   (Followers: 8)
Brigham Young University Law Review     Full-text available via subscription   (Followers: 7)
British Journal of American Legal Studies     Open Access   (Followers: 1)
Brooklyn Law Review     Open Access   (Followers: 4)
Bulletin of Legal Medicine     Open Access  
Bulletin of Medieval Canon Law     Full-text available via subscription   (Followers: 3)
Bulletin of Yaroslav Mudryi NLU : Series : Philosophy, philosophy of law, political science, sociology     Open Access  
Business and Human Rights Journal     Full-text available via subscription   (Followers: 4)
C@hiers du CRHIDI     Open Access  
Cadernos de Dereito Actual     Open Access   (Followers: 1)
Cadernos de Informação Jurídica     Open Access  
Cadernos do Programa de Pós-Graduação em Direito - PPGDir./UFRGS     Open Access   (Followers: 1)
Cahiers Droit, Sciences & Technologies     Open Access  
California Law Review     Open Access   (Followers: 20)
California Lawyer     Free  
California Western Law Review     Open Access   (Followers: 3)
Cambridge Law Journal     Hybrid Journal   (Followers: 194)
Campbell Law Review     Open Access   (Followers: 4)
Campus Legal Advisor     Hybrid Journal   (Followers: 2)
Canadian Journal of Law & Jurisprudence     Full-text available via subscription   (Followers: 11)
Canadian Journal of Law and Society     Hybrid Journal   (Followers: 20)
Case Western Reserve Law Review     Open Access   (Followers: 2)
Časopis pro právní vědu a praxi     Open Access  
Catalyst : A Social Justice Forum     Open Access   (Followers: 9)
Catholic University Law Review     Open Access   (Followers: 3)
Chicago-Kent Law Review     Full-text available via subscription   (Followers: 4)
Chicana/o-Latina/o Law Review     Open Access   (Followers: 2)
China : An International Journal     Full-text available via subscription   (Followers: 20)
China-EU Law Journal     Hybrid Journal   (Followers: 5)
Chinese Journal of Comparative Law     Hybrid Journal   (Followers: 5)
Chinese Law & Government     Full-text available via subscription   (Followers: 9)
Cleveland State Law Review     Free   (Followers: 2)
College Athletics and The Law     Hybrid Journal   (Followers: 1)
Colombia Forense     Open Access  
Columbia Journal of Environmental Law     Free   (Followers: 11)
Columbia Journal of Law and Social Problems     Full-text available via subscription   (Followers: 16)
Columbia Law Review (Sidebar)     Open Access   (Followers: 20)
Commercial Law Quarterly: The Journal of the Commercial Law Association of Australia     Full-text available via subscription   (Followers: 5)
Comparative Law Review     Open Access   (Followers: 40)
Comparative Legal History     Full-text available via subscription   (Followers: 8)
Comparative Legilinguistics     Open Access   (Followers: 1)
Con-texto     Open Access  
Conflict Resolution Quarterly     Hybrid Journal   (Followers: 44)
Conflict Trends     Full-text available via subscription   (Followers: 13)
Cornell Law Review     Open Access   (Followers: 12)
Criterio Jurídico     Open Access  
Critical Analysis of Law : An International & Interdisciplinary Law Review     Open Access   (Followers: 6)
Cuadernos de Historia del Derecho     Open Access   (Followers: 7)
Cuestiones Juridicas     Open Access   (Followers: 2)
Current Legal Problems     Hybrid Journal   (Followers: 29)
Danube     Open Access   (Followers: 2)
De Jure     Open Access   (Followers: 1)
De Rebus     Full-text available via subscription   (Followers: 1)
Deakin Law Review     Full-text available via subscription   (Followers: 15)
Debater a Europa     Open Access  
Defense Counsel Journal     Full-text available via subscription   (Followers: 1)
Democrazia e diritto     Full-text available via subscription   (Followers: 2)
Denning Law Journal     Full-text available via subscription   (Followers: 6)
DePaul Journal of Women, Gender and the Law     Open Access   (Followers: 3)
DePaul Law Review     Open Access   (Followers: 3)
Derecho Animal. Forum of Animal Law Studies     Open Access   (Followers: 1)
Derecho PUCP     Open Access   (Followers: 4)
Derecho y Ciencias Sociales     Open Access   (Followers: 3)
Derechos en Acción     Open Access  
Deusto Journal of Human Rights     Open Access  
Dicle Üniversitesi Hukuk Fakültesi Dergisi     Open Access  
Dikaion     Open Access   (Followers: 1)
Dike     Open Access  
Dikê : Revista de Investigación en Derecho, Criminología y Consultoría Jurídica     Open Access   (Followers: 1)
Diké : Revista Jurídica     Open Access  
Direito e Desenvolvimento     Open Access   (Followers: 1)
Diritto penale contemporaneo     Free   (Followers: 2)
Diritto, immigrazione e cittadinanza     Open Access   (Followers: 4)
Dixi     Open Access  
Doxa : Cuadernos de Filosofía del Derecho     Open Access  
Droit et Cultures     Open Access   (Followers: 7)
Droit et Médecine Bucco-Dentaire     Full-text available via subscription   (Followers: 1)
Droit, Déontologie & Soin     Full-text available via subscription   (Followers: 2)
Drug Science, Policy and Law     Full-text available via subscription  
Duke Environmental Law & Policy Forum     Open Access   (Followers: 5)
Duke Forum for Law & Social Change     Open Access   (Followers: 5)
Duke Journal of Gender Law & Policy     Open Access   (Followers: 18)
Duke Law & Technology Review     Open Access   (Followers: 10)
Duke Law Journal     Open Access   (Followers: 26)
DULR Online     Open Access   (Followers: 1)
East Asia Law Review     Open Access   (Followers: 2)
ECI Interdisciplinary Journal for Legal and Social Policy     Open Access   (Followers: 2)
Economics and Law     Open Access   (Followers: 1)
Edinburgh Law Review     Hybrid Journal   (Followers: 19)
Education and the Law     Hybrid Journal   (Followers: 13)
El Cotidiano     Open Access   (Followers: 1)
Election Law Journal     Hybrid Journal   (Followers: 25)
Energy Law Journal     Full-text available via subscription   (Followers: 5)
Environmental Justice     Hybrid Journal   (Followers: 10)
Environmental Law Review     Full-text available via subscription   (Followers: 22)
Environmental Policy and Law     Hybrid Journal   (Followers: 13)
ERA-Forum     Hybrid Journal   (Followers: 5)
Erasmus Law Review     Open Access  
Erciyes Üniversitesi Hukuk Fakültesi Dergisi     Open Access  
Espaço Jurídico : Journal of Law     Open Access   (Followers: 1)
ESR Review : Economic and Social Rights in South Africa     Open Access   (Followers: 3)
Ethnopolitics     Hybrid Journal   (Followers: 3)
Ethos: Official Publication of the Law Society of the Australian Capital Territory     Full-text available via subscription   (Followers: 5)
EU Agrarian Law     Open Access   (Followers: 4)
Europaisches Journal fur Minderheitenfragen     Hybrid Journal   (Followers: 2)
European Energy and Environmental Law Review     Full-text available via subscription   (Followers: 13)
European Journal for Education Law and Policy     Hybrid Journal   (Followers: 9)
European Journal of Comparative Law and Governance     Hybrid Journal   (Followers: 10)
European Journal of Law and Technology     Open Access   (Followers: 18)
European Journal of Psychology Applied to Legal Context     Open Access   (Followers: 6)
European Law Journal     Hybrid Journal   (Followers: 178)

        1 2 3 4 5 | Last

Similar Journals
Journal Cover
Administrative Law Review
Number of Followers: 45  

  This is an Open Access Journal Open Access journal
ISSN (Print) 0001-8368
Published by WCL Homepage  [11 journals]
  • Partial Valuation in Cost-Benefit Analysis

    • PubDate: Mon, 15 Oct 2012 15:10:40 PDT
       
  • Dismantling a Dual-Headed System of Governance: How a Regulatory Overlap
           Undercuts the Security of Student Health Information in Public Schools

    • PubDate: Mon, 15 Oct 2012 15:10:39 PDT
       
  • Comments on H.R. 3010, The Regulatory Accountability Act of 2011

    • PubDate: Mon, 15 Oct 2012 15:10:38 PDT
       
  • Piercing Glomar: Using the Freedom of Information Act and the Official
           Acknowledgment Doctrine to Keep Government Secrecy in Check

    • PubDate: Mon, 15 Oct 2012 15:10:38 PDT
       
  • Administrative Law Through the Lens of Immigration Law

    • Abstract: Immigration law does lag behind in the advancement of public law, but not in all respects. While immigration law is idiosyncratic in many ways, this Article finds immigration law in the administrative law mainstream when it comes to its troubles with nonlegislative rules (sometimes called guidance documents). There are concerns throughout administrative law that agencies use such rules to bind regulated parties practically, even if not legally, without the procedural protections of notice and comment.This Article analyzes immigration troubles with nonlegislative rules and makes three main contributions. First, it casts new light on the negative effects of guidance documents by viewing administrative law through the lens of immigration law. In immigration law, the cons of guidance documents play out in the context of some of life’s most fundamental questions: where and with whom to live and to work. Second, by showing how administrative law manifests in immigration law, this Article concludes that immigration law’s troubles cannot be divorced from the mainstream administrative law debate over nonlegislative rules. Third, this Article also evaluates a procedure new to immigration law: the draft memorandum for comment. Through the draft memorandum for comment procedure, the public may comment on draft guidance documents, but is not afforded the full protections of notice-and-comment rulemaking. While the new procedure is a pragmatic and positive step for immigration law, this Article highlights that nonlegislative rules are not the only administrative tool available and argues for greater priority for notice-and-comment rulemaking in immigration law.
      PubDate: Mon, 15 Oct 2012 15:10:37 PDT
       
  • Mr. Justice Marshall Rothstein, Supreme Court of Canada, Address to the
           American Bar Association, Section of Administrative Law and Regulatory
           Practice

    • Authors: Justice Marshall Rothstein
      Abstract: So, today, I am going to speak to you about justiciability—what government decisions can be subject to review by the courts. In particular, the role of Canadian courts in reviewing the power exercised by the Executive Branch of government. And I am very confident in the accuracy of my remarks today because I have cribbed shamelessly from Professor [David] Mullan’s work.The principle of the Judiciary having the power to review the actions of the Executive or Legislative Branches of government is well established in American, as well as Canadian, law. Where I’ll start is with Marbury v. Madison. As you all know better than I do, there, in 1803, your Supreme Court established the basis for the exercise of judicial review in the United States. Chief Justice Marshall held that your courts could oversee and review the actions of other branches of the government and in doing so declare statutes unconstitutional.Chief Justice Marshall also dealt with the question of justiciability. He wrote that “the question [of] whether the legality of an act of the head of a department be examinable in a court of justice or not, must always depend on the nature of that act.” He indicated that for some acts, which are political in nature and do not concern individual rights, that the decision of the Executive is conclusive and, in his words “can never be examinable by the Courts.” While for other acts, again in his words, “where a specific duty is assigned by law, and individual rights depend upon the performance of that duty . . . the individual who considers himself injured, has a right to resort to the laws of his country for a remedy.”There are interesting parallels between the American approach and the Canadian approach to justiciability, which I hope will become clear as I further discuss the Canadian attitude towards the subject.
      PubDate: Tue, 06 Mar 2012 11:51:09 PST
       
  • A Regulatory Quick Fix for Carcieri v. Salazar: How the Department of
           Interior Can Invoke an Alternative Source of Existing Statutory Authority
           to Overcome an Adverse Judgment Under the Chevron Doctrine

    • Authors: Howard L. Highland
      Abstract: At the Solicitor’s Indian Law Practitioner’s Conference on March 3, 2011, Secretary of the Interior Ken Salazar reiterated his desire for a “legislative fix” for the Supreme Court opinion in Carcieri v. Salazar. In Carcieri, the Court interpreted the Indian Reorganization Act of 1934 (IRA) to effectuate a perverse distinction between Indian tribes under federal jurisdiction in June 1934 and Indian tribes whose relationship with the federal government was not established until after June 1934. Applying step one of the doctrine articulated in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., which inquires “whether Congress has directly spoken to the precise question at issue,” the majority opinion of Justice Thomas declared that “the term ‘now under Federal jurisdiction’ in [the IRA] unambiguously refers to those tribes that were under the federal jurisdiction of the United States when the IRA was enacted in 1934.” As a result, § 5 of the IRA, codified at 25 U.S.C. § 465, only authorizes the Secretary of the Interior to “provid[e] land for Indians” whose tribe fits within the IRA’s definition of an “Indian,” codified at 25 U.S.C. § 479: “The term ‘Indian’ as used in this Act shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction.” A cloud now hangs over any land-into-trust transactions that the Secretary has made for Indian tribes which were not federally recognized until after 1934, and which are now unable to prove that their “post-1934 recognition [was granted] on grounds that implied a 1934 relationship between the tribe and Federal Government that could be described as jurisdictional.”The cries for a legislative fix began to pour out as soon as the Carcieri decision was delivered. A slew of proposed reform bills have made their way into the public discussion of federal land-into-trust policies. And yet, because the Department of the Interior’s land-into-trust acquisitions for Indian tribes are “not without passionate opposition,” Congress is wading slowly into this potentially explosive controversy. While Congress hesitates to fix Carcieri, the Secretary continues to contemplate whether to promulgate a new regulation to mitigate the decision’s harshness. Unfortunately, “a proposed regulation being considered by the Obama administration . . . is generally disfavored by tribal leadership, owing largely to the perception that a regulatory fix will delay, or even halt, progress towards a legislative remedy, which is regarded as a more permanent measure.”Unlike older proposals, which presume the need for new legislation or regulations to fix Carcieri, this Recent Development argues that existing statutes and regulations already authorize the Secretary to overcome the effects of Carcieri. Even though the IRA no longer authorizes the Secretary to take land into trust for Indian tribes not under federal jurisdiction in June 1934, the Secretary’s fee-into-trust regulations under 25 C.F.R. Part 151 rest on several other pillars of statutory authority. 25 U.S.C. §§ 2 and 9 are the strongest alternative sources of statutory authority under which the Secretary may claim delegated authority for fee-into-trust acquisitions on behalf of Indian tribes not under federal jurisdiction in June 1934. The Supreme Court has already recognized that 25 U.S.C. §§ 2 and 9 vest the Secretary with the power toformulat[e] policy and [to make] rules to fill any gap left, implicitly or explicitly, by Congress. In the area of Indian affairs, the Executive has long been empowered to promulgate rules and policies, and the power has been given explicitly to the Secretary and his delegates at the [Bureau of Indian Affairs (BIA)].Under the Chevron doctrine, 25 U.S.C. §§ 2 and 9 constitute an explicit delegation of authority to the Secretary to promulgate “legislative regulations [which] are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Such legislative regulations are thus entitled to the maximum amount of Chevron deference.25 U.S.C. §§ 2 and 9 also form the statutory basis for 25 C.F.R. Part 83, which codifies the federal administrative process for the acknowledgment of Indian tribes previously lacking federal recognition. Because 25 C.F.R. § 83.12(a) entitles acknowledged tribes “the privileges and immunities available to other federally recognized historic tribes,” and renders them “eligible for the services and benefits from the Federal government that are available to other federally recognized tribes,” federal acknowledgment under 25 C.F.R. Part 83 ought to include the benefits available to tribes under 25 C.F.R. Part 151. Accordingly, this Recent Development urges that the ruling in Carcieri does not prohibit the Secretary from asserting that he has always held statutory authority under 25 U.S.C. §§ 2 and 9 to transfer land into trust for Indian tribes acknowledged under 25 C.F.R. Part 83. Although not every tribe federally recognized after 1934 was given status under 25 C.F.R. Part 83, the regulatory quick fix proposed in this paper would minimize the devastating consequences of Carcieri while a legislative fix stalls in Congress.
      PubDate: Tue, 06 Mar 2012 11:51:08 PST
       
  • Legal Issues in E-Rulemaking

    • Authors: Bridget C.E. Dooling
      Abstract: Since the enactment of the Administrative Procedure Act (APA) in 1946, the technological landscape has changed dramatically while the basic framework for notice-and-comment rulemaking has largely gone unchanged. Federal regulators, looking to embrace the benefits of electronic rulemaking, face considerable ambiguity about how established, procedural legal requirements apply to the web. For example, does the APA permit agencies to require comments to be submitted online' Are agencies required to screen the content of public comments before they are placed on Regulations.gov' Are electronic dockets a legally sufficient means of preserving the rulemaking record' Many of these issues and others have been swirling around electronic rulemaking (e-Rulemaking) since its inception, and exist whether rulemaking is accomplished entirely on paper or using more electronic means. This Article focuses on the legal issues that present themselves entirely, or more prominently, when agencies engage in e-Rulemaking.Following a short background section on e-Rulemaking, Part I explains why updating the APA to address e-Rulemaking is unnecessary. Part II explores whether and how agencies should screen public comments before sharing them online and suggests a fundamental change to the way comments are posted on the biggest online rulemaking website, Regulations.gov. Part III analyzes the legal issues associated with using an electronic docket to compile the rulemaking record, finding that well-designed electronic dockets pose no significant legal risks but that the courts could probably do more to embrace electronic filing. Part IV shows that the most basic of federal requirements, the recordkeeping requirements of the Federal Records Act, apply to e-Rulemaking and suggests ways to ensure compliance. The Article concludes with a recap of the Article’s recommendations.
      PubDate: Tue, 06 Mar 2012 11:51:07 PST
       
  • Setting Labor Policy Prospectively: Rulemaking, Adjudicating, and What the
           

    • Authors: Emily Baver
      Abstract: For years, scholars have criticized the National Labor Relations Board’s (NLRB’s or Board’s) reliance on adjudication rather than rulemaking. The use of adjudication rather than rulemaking is problematic for the NLRB because of continued “policy oscillation”—frequent changes in agency policy between presidential appointments—in Board adjudications, which “sows disrespect for the agency.” Additionally, the NLRB’s sole use of adjudication precludes public participation, encourages fact‑specific policymaking, and fosters the problem of agency nonacquiescence. Scholars argue that by rulemaking, the NLRB could ameliorate the appearance of political bias, articulate clear precedents, and encourage public participation in policymaking.Despite the promise of clearer precedents and a more politically neutral appearance, the NLRB has largely refrained from notice‑and‑comment rulemaking. The NLRB claims that rulemaking procedures are too rigid for union policymaking, which must be quick to respond to specific fact patterns. This raises ossification of rulemaking issues, including problems posed by the Regulatory Flexibility Act (RFA) and the Congressional Review Acts (CRA), and the threat of judicial review. The threat of congressional intervention also influences the NLRB's decision to refrain from rulemaking.There has been renewed scholarship criticizing the NLRB’s avoidance of rulemaking and suggesting that the current Board is in a good position to begin rulemaking. Heeding scholars’ pleas, on December 22, 2010, the NLRB issued its first notice of proposed rulemaking since its only recent successful rule in 1989 defining bargaining units in healthcare facilities.In light of this renewed discussion about the benefits of rulemaking in the inherently political unionization context, this Comment will examine the recent and controversial representation election procedure rulemaking by the National Mediation Board (NMB)—the federal agency charged with overseeing labor relations in the railway and airline industries—as a point of comparison for the NLRB. Both agencies are bipartisan, independent, and facing the challenge of regulating in a highly political industry. In November 2009, the NMB proposed a change in the way it counts union election ballots. For seventy‑five years, the NMB’s election procedure required that a majority of all eligible voters in the voting class cast valid ballots in favor of representation to certify the union. Under the new rule, the NMB counts a majority of the valid ballots actually cast to determine if the class has elected a representative, a process which conforms to NLRB voting procedures. The NMB engaged in notice‑and‑comment rulemaking under the Administrative Procedure Act (APA), invited written submissions, and even held a public hearing on the issue before adopting the final rule on May 11, 2010.Controversy surrounded the rule change—the agency received almost 25,000 comments during its sixty‑day comment period and heard thirty‑one witnesses at the open hearing. Those who opposed the rule argued that the NMB rushed through the notice‑and‑comment process just before Delta, whose employees were traditionally anti-union, merged with Northwest, a traditionally pro‑union organization. Additionally, NMB Chairman Elizabeth Dougherty dissented from both the proposed and final rules, complaining that as the minority Republican member of the NMB she was given insufficient time to review the rule before its publication. Ultimately, the NMB successfully defended itself in the U.S. District Court for the District of Columbia against arguments that it lacked statutory support to alter election procedures, that the majority prejudged the issues involved, and that it lacked factual support to justify the policy change. Although the Air Transport Association (ATA) has appealed the decision, the rule has also withstood a Senate joint resolution vote to return to the old election procedures.Given the similarities between the NMB and the NLRB, the NMB’s successful rulemaking attempt demonstrates that the NLRB has the wherewithal to engage in notice‑and‑comment rulemaking, and it should look to the NMB’s procedures as a guideline for conducting rulemaking in the future. This Comment analyzes the predictive and instructive value of the NMB’s representation election procedure rulemaking for the NLRB.
      PubDate: Tue, 06 Mar 2012 11:51:05 PST
       
  • Fixing the Flaws in the Federal Vaccine Injury Compensation Program

    • Authors: Peter H. Meyers
      Abstract: Hannah Bruesewitz was born on October 20, 1991. Her pediatrician administered doses of the [diphtheria, pertussis, and tetanus (DTP)] vaccine according to the Center for Disease Control’s recommended childhood immunization schedule. Within 24 hours of her April 1992 vaccination, Hannah started to experience seizures. She suffered over 100 seizures during the next month, and her doctors eventually diagnosed her with “residual seizure disorder” and “developmental delay.” Hannah, now a teenager, is still diagnosed with both conditions.In 1995, Hannah Bruesewitz’s parents embarked on an unsuccessful fifteen-year odyssey through the courts. Claiming that Hannah suffered vaccine-related injuries for which she was entitled to compensation, her parents litigated her case in every available forum, culminating in their recent loss in the U.S. Supreme Court. Hannah’s parents first sought compensation, as they were required to do, under the National Childhood Vaccine Injury Act (Vaccine Act), a pioneering no-fault federal tort reform law that took effect two decades ago. The statute, preempting state product liability laws, mandates that all claims for compensation for injuries caused by the vaccines routinely given in the United States must first be brought and litigated in the U.S. Court of Federal Claims, with the Secretary of Health and Human Services (HHS) as the respondent. After exhausting this remedy, petitioners have the option of filing a civil action in state or federal court, on grounds not foreclosed by the Vaccine Act, against the manufacturer of the vaccine or the healthcare provider who administered it.After the Court of Federal Claims rejected Hannah’s parents’ petition for compensation, her parents filed a civil tort suit against the vaccine’s manufacturer. The complaint was dismissed in large part by the District Court, which held that the Vaccine Act’s preemption clause forbids a claim against a vaccine manufacturer based upon a design defect, which was Hannah’s parents’ most promising remaining ground for relief. On February 22, 2011, the U.S. Supreme Court affirmed the dismissal.Hannah’s case highlights a number of problems with the National Vaccine Injury Compensation Program (Vaccine Program or Vaccine Compensation Program) today. The program represented a legislative compromise involving the major interest groups working in the vaccine area, including vaccine manufacturers, physicians’ groups, healthcare providers, federal health agencies, and parent groups advocating on behalf of injured children. Now that the Vaccine Program has been operating for more than twenty years, we can reach several broad conclusions about its successes and failures in satisfying the objectives of these groups and the objectives of the legislation. First, it appears that the Program has been largely successful in providing excellent liability protection for the pharmaceutical industry that makes vaccines, as well as for the doctors and other healthcare providers who administer them. These groups have been extremely concerned about possible tort liability for alleged vaccine-related injuries. While the Vaccine Act has not entirely eliminated all potential tort liability for manufacturers and healthcare providers, it has significantly minimized such liability, particularly after Bruesewitz v. Wyeth. The interests of the federal health agencies involved in the vaccine area, including HHS, the Centers for Disease Control (CDC), the Food and Drug Administration (FDA), and several other agencies, have also been largely satisfied by ensuring a relatively constant supply of vaccines to the public and ensuring that a high number of Americans receive inoculations. However, the objectives of parents’ groups and other advocates for children and adults who have suffered serious injuries after receiving vaccines have not been satisfied. For persons who may have been injured by vaccinations, the need for expeditious, generous, and predictable compensation remains unmet. Moreover, the process of adjudicating vaccine cases today is seriously flawed and in need of repair.In this Article, I will examine the process of litigating vaccine injury claims in the Vaccine Compensation Program. The adjudicative process has changed over time, such that the program has become much different today than it was when the law was first enacted. The Vaccine Compensation Program is also very different from the program that the Supreme Court described in Bruesewitz. In the Bruesewitz opinion, the Supreme Court characterized the underlying proceedings before the special masters as involving “informal adjudication” which moves quickly to final resolution within 240 days of filing “except for two limited exceptions.” The Court added: “Fast, informal adjudication is made possible by the Act’s Vaccine Injury Table . . . .”These descriptions of the Vaccine Program would have been largely accurate when the Act was initially passed, but they are substantially inaccurate in describing how the program actually operates today. The adjudications today are typically not informal at all, virtually no cases are concluded within the 240-day deadline, and the Vaccine Injury Table, which was originally a central feature of the Vaccine Act and a key innovative provision of the Act, has been significantly changed and narrowed over the years so that today it plays only a limited role in Vaccine Act cases.The Vaccine Injury Table lists the specific injuries that the court recognizes as presumptively caused by a vaccine and the specified time limit for the occurrence of the onset of each listed injury. When the Vaccine Program began, the overwhelming majority of cases that were litigated in the program involved the relatively simple question of whether the Table r...
      PubDate: Tue, 06 Mar 2012 11:51:04 PST
       
  • A Cost-Benefit Interpretation of the "Substantially Similar" Hurdle in the
           Congressional Review Act: Can OSHA Ever Utter the E-Word (Ergonomics)
           Again'

    • Authors: Adam M. Finkel et al.
      Abstract: Congress has always had the power to overturn a specific regulation promulgated by an executive branch agency and, as the author of the underlying statutes under which the agencies regulate, has also always been able to amend those statutes so as to thwart entire lines of regulatory activity before they begin. But in 1996, Congress carved out for itself a shortcut path to regulatory oversight with the passage of the Congressional Review Act (CRA), and can now veto a regulation by passing a joint resolution rather than by passing a law. There is no question that Congress can now kill a regulation with relative ease, although it has only exercised that ability once in the fifteen years since the passage of the CRA. It remains ambiguous, however, whether Congress can use this new mechanism to, in effect, do to a regulation what the Russian nobles reputedly did to Rasputin—poison it, shoot it, stab it, and throw its weighted body into a river—that is, to veto not only the instant rule it objects to, but forever bar an agency from regulating in that area. From the point of view of the agency, the question is, “What kind of phoenix, if any, is allowed to rise from the ashes of a dead regulation'” This subject has, in our view, been surrounded by mystery and misinterpretations, and is the area we hope to clarify via this Article.A coherent and correct interpretation of the key clause in the CRA, which bars an agency from issuing a new rule that is “substantially the same” as one vetoed under the CRA, matters most generally as a verdict on the precise demarcation of the relative power of Congress and the Executive. It matters broadly for the administrative state, as all agencies puzzle out what danger they court by issuing a rule that Congress might veto (can they and their affected constituents be worse off for having awakened the sleeping giant than had they issued no rule at all'). And it matters most specifically for the U.S. Occupational Safety and Health Administration (OSHA), whose new Assistant Secretary is almost certainly concerned whether any attempt by the agency to regulate musculoskeletal disorders (“ergonomic” hazards) in any fashion would run afoul of the “substantially the same” prohibition in the CRA.The prohibition is a crucial component of the CRA, as without it the CRA is merely a reassertion of authority Congress always had, albeit with a streamlined process. But whereas prior to the CRA Congress would have had to pass a law invalidating a rule and specifically state exactly what the agency could not do to reissue it, Congress can now kill certain future rules semiautomatically and perhaps render them unenforceable in court. This judicial component is vital to an understanding of the “substantially the same” prohibition as a legal question, in addition to a political one: whereas Congress can choose whether to void a subsequent rule that is substantially similar to an earlier vetoed rule (either for violation of the “substantially the same” prohibition or on a new substantive basis), if a court rules that a reissued rule is in fact “substantially the same” it would be obligated to treat the new rule as void ab initio even if Congress had failed to enact a new veto.In this Article, we offer the most reasonable interpretation of the three murky words “substantially the same” in the CRA. Because neither Congress nor any reviewing court has yet been faced with the need to consider a reissued regulation for substantial similarity to a vetoed one, this is “uncharted legal territory.” The range of plausible interpretations runs the gamut from the least daunting to the most ominous (from the perspective of the agencies). To foreshadow the extreme cases briefly, it is conceivable that even a verbatim identical rule might not be “substantially similar” if scientific understanding of the hazard or the technology to control it had changed radically over time. At the other extreme, it is also conceivable that any subsequent attempt to regulate in any way whatsoever in the same broad topical area would be barred. We will show, however, that considering the legislative history of the CRA, the subsequent expressions of congressional intent issued during the one legislative veto of an agency rule to date, and the bedrock principles of good government in the administrative state, an interpretation of “substantially similar” much closer to the former than the latter end of this spectrum is most reasonable and correct. We conclude that the CRA permits an agency to reissue a rule that is very similar in content to a vetoed rule, so long as it produces a rule with a significantly more favorable balance of costs and benefits than the vetoed rule.We will assert that our interpretation of “substantially similar” is not only legally appropriate, but arises naturally when one grounds the interpretation in the broader context that motivated the passage of the CRA and that has come to dominate both legislative and executive branch oversight of the regulatory agencies: the insistence that regulations should generate benefits in excess of their costs. We assert that even if the hazards addressed match exactly those covered in the vetoed rule, if a reissued rule has a substantially different cost–benefit equation than the vetoed rule, then it cannot be regarded as “substantially similar” in the sense in which those words were (and also should have been) intended.
      PubDate: Tue, 06 Mar 2012 11:51:03 PST
       
  • Calibrating Chevron for Preemption

    • Authors: Gregory M. Dickinson
      Abstract: For years now, courts and commentators have struggled to reconcile the presumption against preemption—the interpretive canon that presumes against federal incursion into areas of traditional state sovereignty—with the Court’s Chevron doctrine, which instructs courts to defer to reasonable agency interpretations of ambiguous federal statutes. Where Congress’s preemptive intent is ambiguous, should courts defer to agency interpretations under Chevron, or do preemption’s federalism implications demand a less deferential approach' Despite numerous opportunities, the Supreme Court has failed to clearly define the level of deference due to preemptive agency interpretations. In some cases the Court appears quite deferential and in others almost entirely nondeferential.Academic treatment of the Court’s jurisprudence has been rightly critical. The Court’s unpredictable approach sows uncertainty among regulated parties, the lower courts, and the agencies themselves. As alternatives to the Court’s current case-by-case approach, commentators have advocated a variety of more rule-like regimes: universal nondeference, universal Chevron deference, and, most commonly, universal Skidmore deference. Advocates of across-the-board nondeference point to the lack of political and procedural safeguards protecting states from agency-initiated preemption. Those advocating across-the-board Chevron deference, on the other hand, point to agencies’ technical expertise on preemption questions and the availability of the Mead doctrine as a screen to protect the values of federalism where agencies act other than with the force of law. Finally, a third set of commentators attempts to reconcile these competing approaches by adopting a middling standard of Skidmore deference based on the thoroughness and persuasiveness of an agency’s judgment in a particular case.Thus far, none of these approaches have tempted the Court. Instead, the Court continues to apply deference haphazardly from case to case with no clearly articulated reason for its variation. A close study of the cases, however, reveals both why the Court has been reluctant to adopt any of the proposed across-the-board standards of deference and what an appropriate framework for agency deference might look like. The Court’s inconsistent decisionmaking stems from its high regard for congressional intent when considering questions that implicate federalism. Chevron and the presumption against preemption provide conflicting indicia of congressional intent, and rather than universalize one principle at the expense of the other, the Court has applied deference selectively depending on its case-specific analysis of congressional intent. When the Court thinks it reasonable to presume delegation of preemptive authority, it is quite deferential to agency views. But, when it thinks congressional intent to delegate is unlikely, it accords little deference to preemptive agency interpretations.Critics of the Court’s Chevron–preemption jurisprudence correctly note its major flaw—its inconsistency—but they fail to recognize its purpose and benefits. By looking to congressional intent rather than universalizing a sometimes-inapplicable, across-the-board rule, the Court respects congressional intent where it intends to delegate preemptive authority, while protecting state sovereignty where it does not. Of course, the Court’s good intentions do not excuse the approach’s unpredictability. A superior approach would package the Court’s concern for state sovereignty and congressional intent into a predictable and easily administrable bright-line rule.The Court’s existing doctrinal distinction between express and implied preemption points to a possible solution. In express preemption cases, the Court does not need to enforce federalism values through the presumption against preemption because Congress has spoken clearly in favor of displacing state law. And if the scope of preemption is ambiguous, Chevron’s presumption of delegation through ambiguity to agency expertise is entirely reasonable. Agencies are quite competent to decide the proper scope of preemption once Congress has duly authorized it. On the other hand, where Congress has not spoken clearly through an express preemption clause, and the question is whether there is to be any preemption at all, Chevron’s rationale is particularly weak. Agencies are least competent when considering unbounded questions of federal–state power allocation, and Congress is unlikely to delegate authority of this sort.Given the waxing and waning force of Chevron’s rationale across cases, the Court should adopt a rule of variable deference that accords full Chevron-style deference to agency interpretations of ambiguously broad express preemption clauses and withholds deference altogether where Congress is silent regarding preemption. Such a rule, unlike any of the proposed across-the-board regimes, would recognize the factors that underlie the Court’s unpredictable case-by-case approach—respect for state sovereignty and congressional intent—while providing the rule-like certainty demanded by the Court’s critics.
      PubDate: Tue, 06 Mar 2012 11:51:01 PST
       
 
 
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