Authors:Amitai Etzioni Abstract: This article seeks to show that courts face difficulties without a principled, constitutional anchoring for the conception of the common good. Courts could divine the common good from the penumbra of the Fourth Amendment in the same way the Supreme Court created a right to privacy. In addition to creating a “common good” constitutional principle, the judicial branch should establish criteria to determine when this principle should take precedence over individual rights expressly preserved in the Constitution. PubDate: Thu, 19 May 2022 15:30:56 PDT
Authors:Seth Shepherd Abstract: This article analyzes the Biden Administration’s healthcare priorities, contrasts them with those of the Trump Administration, discusses how Presidential administrations determine whether to continue policies, and examines the proper procedures for continuing previous administration policies. This article will then examine whether the Initiative will have a place in the Biden Administration’s healthcare policy. Part II considers Biden’s overall approach to healthcare. Part III discusses what the Trump Administration’s healthcare policy accomplished. Part IV dissects the Initiative and begins a discussion regarding its effectiveness. Part V explores an administration’s decision-making process regarding retention or rejection of a previous administration’s policies and details the procedural steps an administration must take to continue a policy. Part VI concludes with an argument that the Biden Administration should continue the Initiative because kidney disease is a major health concern and the Initiative has been successful in combatting it. PubDate: Thu, 19 May 2022 15:30:56 PDT
Authors:Cara MacDonald Abstract: While the economy declined during the COVID-19 pandemic, big technology companies like Amazon and Oracle experienced unprecedented growth and influence. Critics argue big technology companies are finding this level of success in-part due to anticompetitive practices. The crux of the debate rests on whether current, traditional antitrust laws are sufficient to cope with big technology companies. Some theorists argue that current laws are adequate, while others assert that antitrust laws are insufficient to regulate big technology companies because they are so different from the types of companies antitrust laws were designed to regulate. This article concludes that big tech companies are distinguishable from the firms antitrust laws were designed to mitigate because their business models allow them to attain monopoly status, domineer marketplaces, and undercut competitors while simultaneously catering to consumer welfare. This article points to a potential solution to this problem, advocating for alterations to current antitrust laws to accommodate big technology companies rather than completely revamping the antitrust regulation system. PubDate: Thu, 19 May 2022 15:30:55 PDT
Authors:Colin Mark Abstract: On April 1, 2021, the Biden administration announced that Secretary of Education Michael Cardona will consider whether the President has legal authority to forgive up to $50,000 per debtor in student loan debt without further Congressional action. This paper interrogates the leading arguments for and against the Biden administration’s capacity to forgive this student loan debt strictly using administrative action. This article first surveys the history of federal student loan forgiveness programs in the United States. It then considers whether statutes on the books—in particular, the Higher Education Act of 1965 and the Federal Claims Collection Act of 1966—grant the executive branch the authority to effect widespread student loan forgiveness. It considers how the Department of Education might use administrative action to forgive loans and assesses the pros and cons of the Department of Education’s proceeding without notice and comment rulemaking. Finally, this article evaluates the Biden administration’s prospects in court, including whether any parties would have standing to challenge administrative student loan forgiveness and which forms of administrative action are most likely to survive judicial review. PubDate: Thu, 19 May 2022 15:30:55 PDT
Authors:Rebecca Kim Abstract: While environmentally conscious consumers may be concerned about single-use plastic packaging their produce comes in, they likely do not think of the excess of plastics farmers use just to grow that produce. The agricultural industry uses an extraordinarily high amount of plastic, notably through agricultural films, which are thin plastic membranes used for mulching. The predominant use of these films has come to be known as “Plasticulture” and, although plastic mulch has many benefits, its ubiquitous use creates substantial waste that, when broken down into micro plastics, eventually enter the human body. This article evaluates the advantages and drawbacks of plastic mulch, and looks into potential solutions to environmental and health problems associated with plastic mulch. PubDate: Thu, 19 May 2022 15:30:54 PDT
Authors:Cara M. MacDonald Abstract: Journal of the National Association of Administrative Law Judiciary, NAALJ, Contents, editorial board, Pepperdine University, Caruso School of Law PubDate: Fri, 28 Jan 2022 14:13:36 PST
Authors:Offiong Ekah Abstract: Section I will explore how maximizing taxpayer compliance will be a crucial component of closing the tax gap, and what initiatives the IRS implements to garner compliance; Section I will also examine how past and current Tax Code affects levels of compliance—the goal always being compliance optimization. Section II will explore the CARES Act of 2020, and how the Act fared as a response to the onset of COVID-19. This section will also discuss how the concerns of the IRS are accentuated by the tax gap, and how a lack of governmental funding, particularly relating to detailed exclusions enumerating within the CARES Act itself, adds to the concern of IRS funding. Section III will explore how an underfunded IRS tires to fulfill its administrative duties. This lack of governmental funding is accentuated further during times of national crisis and subsequent economic downturn. Section III will also dive into the future of the IRS, and how the agency can best equip itself to handle public demand for its services. Finally, future implications of the tax gap will be explored—including what measures the government is currently taking to close the tax gap, and how to combat the negative effects the tax gap has on the current U.S. economic downturn. Here, this article will detail promising solutions. PubDate: Fri, 28 Jan 2022 14:13:35 PST
Authors:Andrew M.I. Lee et al. Abstract: This article is a follow-up to a triad of analyses of state law additions to the basic requirements of the Individuals with Disabilities Education Act (IDEA) for due process hearings (DPHs). The former three articles covered the pre-hearing, hearing, and post-hearing stages of IDEA DPHs. The present article focuses on expedited DPHs, canvassing state law provisions specific to this more rapid, specialized proceeding in the IDEA. This article covers IDEA foundational requirements for expedited DPHs, and then summarizes and codes the state law provisions that supplement the federal template. Additionally, this article provides a discussion of federal preemption of state laws conflicting with IDEA, as well as a summary of results and recommendations for policymakers. PubDate: Fri, 28 Jan 2022 14:13:34 PST
Authors:David C. Portillo Jr. Abstract: Under the Trump Administration, a series of Attorney General decisions increased Executive Branch scrutiny over decisions of the Board of Immigration Appeals (BIA). This scrutiny serves to advance an anti-immigration policy at the cost of denying entry of valid asylum seekers. These decisions are due to tension between the politically directed executive power of Attorneys General and the Judicial nature of the BIA. This internal contradiction results in Attorney General decisions that are arbitrary, inconsistent, employ poor reasoning, deviate from precedent, and cause inhumane effects. The structure of asylum administration, as laid out in the Immigration and Naturalization Act and its progeny, directly causes this contradiction. It therefore requires sweeping reform for redress of these harmful effects. Such reform should cleave judicial review of asylum application from the political whims of the Executive Branch. This would allow asylum law to serve the purposes it was meant to serve—to provide an avenue to safety for those fleeing persecution and violence. PubDate: Fri, 28 Jan 2022 14:13:34 PST
Authors:Zachary T. Remijas Abstract: The mounting demand for inmate firefighters in response to increased disaster relief has made such individuals an indispensable resource to the State of California. As a result, state agencies in charge of administering inmate firefighters’ services must give renewed attention to expanding efforts to protect the inmates’ livelihood both before and after a participating inmate’s release. This Comment provides an overview of California inmates undertaking prison labor as volunteer firefighters under the Conservation Camp Program. The Comment further critiques the nonreciprocal approach taken towards inmate firefighting resources, while advocating for a more intentional rehabilitationist approach that implores the California Department of Corrections and its partnering agencies to prevent inmate firefighter training from atrophying upon release. In light of federal court holdings in Chacon, Davenport, and Hillensbeck regarding the status and protection of certain fringe “public safety officers,” this Comment argues that that the function of securing certain benefits for inmate firefighters not only has the immediate impact of compensating their families for the unique service of a fallen inmate firefighter, but also serves to establish normalcy and “professionalism” for their success following release from incarceration. PubDate: Thu, 09 Sep 2021 11:50:49 PDT
Authors:Dustin Rabi Abstract: The inevitable transition to an automation-driven workforce, economy, and society is generating excitement in some and discomfort in others. Researchers have estimated that anywhere between 10—50% of today’s jobs are susceptible to automation. Furthermore, private firms are highly incentivized to adopt new technologies as a way to remain competitive in their respective markets. In anticipation of this potential economic paradigm shift, Congress requested the U.S. Government Accountability Office (GAO) to obtain more ascertainable data as to what is currently understood about how the adoption of advanced technologies will affect the U.S. workforce. Nine months after the report was published, on December 12, 2019, Senate Bill S. 3034, “Trade Adjustment Assistance for Automation Act of 2019,” was introduced and referred to the Committee on Finance. This article will analyze the findings published by GAO and evaluate how S. 3034 and other strategies such as collective bargaining will measure against the growing backdrop of economist’s uncertainties and concerns relating widespread job displacement with automation. PubDate: Thu, 09 Sep 2021 11:50:48 PDT
Authors:Leslie Birnbaum Abstract: The COVID-19 pandemic has caused the reinvention of the administrative hearing process in a virtual or hybrid setting. Since March 2020, administrative forums have experienced continuances, backlogs, and the digital divide. The purpose of this paper is to examine the effects of COVID-19 on procedural due process and administrative hearings, and to address some of the problems and unanswered questions about the new normal. Part I presents background information about the virus and a brief history of pandemics. Part II examines past and present case law, and the NAALJ and National Conference of Administrative Law Judges' national survey. Part III provides a discussion about the lessons learned and recommendations for moving forward in post-pandemic administrative proceedings. PubDate: Thu, 09 Sep 2021 11:50:48 PDT
Authors:Melissa Lin Jones Abstract: In recognition of the humanitarian purpose of the District of Columbia Workers’ Compensation Act of 1979, D.C. Code as amended, §32-1501 et seq. and the legislative policy favoring awards even in arguable cases, a claimant is entitled to a presumption of compensability (“Presumption”) when applying for workers’ compensation benefits. By establishing a causal connection between the injured worker’s disability and a work-related event, the Presumption enables a claimant to establish entitlement to benefits more easily; however, an analysis of decisions issued by the Compensation Review Board from 2005 – 2019 reveals the Presumption frequently is misapplied. Moreover, contrary to Marc Galanter’s position in Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change, in District of Columbia private sector workers’ compensation cases, One-Shotter-Claimants (Have-Nots) have distinct advantages built into the architecture of the system, not the least of which is the Presumption, yet despite the advantages, because misapplication of the Presumption has little effect on the outcome of remanded cases, the Repeat-Player-Employers (the Haves) continue to come out ahead. PubDate: Thu, 09 Sep 2021 11:50:47 PDT
Authors:Melissa Lin Jones Abstract: In recognition of the humanitarian purpose of the District of Columbia Workers’ Compensation Act of 1979, D.C. Code as amended, §32-1501 et seq. and the legislative policy favoring awards even in arguable cases, a claimant is entitled to a presumption of compensability (“Presumption”) when applying for workers’ compensation benefits. By establishing a causal connection between the injured worker’s disability and a work-related event, the Presumption enables a claimant to establish entitlement to benefits more easily; however, misapplication of the Presumption makes it more difficult for claimants to prove work-related psychological injuries because they must satisfy additional requirements (including a credibility requirement) not imposed on claimants who sustain physical injuries even though when invoking the Presumption any suspicion of deception should apply equally to both types of injuries. PubDate: Thu, 09 Sep 2021 11:50:47 PDT
Authors:Brittaney N. Edwards Abstract: The 21st Century Cures Act is designed to expedite the FDA’s approval of pharmaceutical and medical device applications in order to increase patient access to innovative therapies. However, many experts claim that the Act’s Title III provisions promote evidentiary “‘shortcuts’” that eviscerate the safety and efficacy standards of the FDA approval process. For new drugs, Title III permits surrogate endpoints and real-world evidence in lieu of more rigorous scientific data. For new medical devices, Title III requires the FDA to exempt certain Class I and II devices from any kind of safety or efficacy evaluation. Moreover, Title III forces the FDA to implement the least burdensome review approach across all medical device applications. While it is incontrovertible that the 21st Century Cures Act may deliver benefits, many experts believe that grave harms could offset those benefits. As a result, regulators and stakeholders must vigilantly monitor the government’s implementation of Title III to ensure that safe and effective products are entering the healthcare market. This article analyzes the 21st Century Cures Act regarding its origin, clinical trial impact, and potential harms. PubDate: Tue, 23 Mar 2021 13:12:56 PDT
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