U.S. Administrative Law eJournal最新文献

{"title":"Regulating the Energy Transition: FERC and Cost-Benefit Analysis","authors":"Avi Zevin","doi":"10.2139/ssrn.3465772","DOIUrl":"https://doi.org/10.2139/ssrn.3465772","url":null,"abstract":"The energy system is in the midst of a transition.  Technological advances and growing public concern about global climate change are leading to a substantial change in the production and use of energy resources, including from natural gas, wind turbines, solar photovoltaics, battery storage, and demand response.  The success of this transition will depend on the considered deployment of energy infrastructure and reform of the rules that govern the operation of the electric system. One federal agency—the Federal Energy Regulatory Commission (FERC)—is responsible both for approving key energy infrastructure projects and for overseeing the operation of electric markets, and so will play a critical role in guiding the transformation of the energy system while maintaining its reliability and affordability.  This Article argues that FERC’s management of this transition would be significantly enhanced if it embraced cost-benefit analysis—including accounting for important indirect costs and benefits, such as the effect on climate change—to guide its decision making.  While many other federal agencies have adopted the use of cost-benefit analysis, FERC has been a significant laggard. \u0000  \u0000This Article explains that changing course and cost-benefit analysis will allow FERC to manage the energy transition while maximizing social welfare, enhancing transparency and accountability, and mitigating legal and political risk.  The Article does so by focusing on two of FERC’s most significant responsibilities—approval of electric market rules and of natural gas infrastructure certificates.  For each, the Article evaluates FERC’s current approach to decision making, concludes that FERC has the statutory authority to use cost-benefit analysis, and identifies relevant costs and benefits that FERC can consider and the economic tools available to do so.","PeriodicalId":233762,"journal":{"name":"U.S. Administrative Law eJournal","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132285221","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Agency Pragmatism in Addressing Law's Failure: The Curious Case of Federal 'Deemed Approvals' of Tribal-State Gaming Compacts","authors":"K. Washburn","doi":"10.36646/mjlr.52.1.agency","DOIUrl":"https://doi.org/10.36646/mjlr.52.1.agency","url":null,"abstract":"In the Indian Gaming Regulatory Act of 1988 (IGRA), Congress imposed a decision-forcing mechanism on the Secretary of the Interior related to tribal-state compacts for Indian gaming. Congress authorized the Secretary to review such compacts and approve or disapprove each compact within forty-five days of submission. Under an unusual provision of law, however, if the Secretary fails to act within forty-five days, the compact is “deemed approved” by operation of law but only to the extent that it is lawful. In a curious development, this regime has been used in a different manner than Congress intended. Since the United States Supreme Court held part of IGRA unconstitutional in 1996, the Secretary declined to issue an affirmative approval or disapproval on more than seventy-five occasions—thus, allowing a compact to become approved by operation of law—but has simultaneously issued a letter setting forth legal objections to aspects of the compact. The Secretary’s creative response to a broken regulatory scheme appears to be unique, and it raises interesting questions about how the executive branch should behave in the face of legal uncertainty. It raises questions of administrative law, such as whether the Secretary’s non-action is reviewable as agency action under the Administrative Procedure Act (APA), whether the Secretary’s letter is entitled to deference, and if so, what level of deference. It also raises important questions about whether such action constitutes good policy. This Article examines some of those questions.","PeriodicalId":233762,"journal":{"name":"U.S. Administrative Law eJournal","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114993516","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Access to Judicial Review in Non-Deficiency Tax Cases","authors":"Keith Fogg","doi":"10.2139/SSRN.3316915","DOIUrl":"https://doi.org/10.2139/SSRN.3316915","url":null,"abstract":"In the case of Flora v. United States the Supreme Court determined that the jurisdictional statute governing tax refund suits did not make clear whether a taxpayer must fully pay the tax before filing suit to obtain a refund. Despite the lack of clarity in the statute, a split in the circuits and no strong reasons for its decision, a 5-4 majority of the Court decided in its second try at the case that a taxpayer who received a statutory notice of deficiency and failed to petition the Tax Court could not pay a partial amount of the tax and sue for refund. \u0000 \u0000Seventeen years later in the case of Laing v. United States, the Solicitor General argued that Flora was limited to situations in which the taxpayer had received a notice of deficiency and failed to petition the Tax Court and did not create a bar to partial payment in other situations. Despite its weak foundation and its narrow scope, the Flora decision now stands as a broad bar to taxpayers seeking a refund who do not fully pay the tax before bring the suit. The IRS and the Department of Justice have completely reversed course from the argument made by the Solicitor General in Laing. \u0000 \u0000The result of the current interpretation of Flora by the lower courts is that for taxpayers who never have the opportunity to petition the Tax Court prior to assessment or who missed the opportunity to go to Tax Court but can never scape together enough money to fully pay the tax the opportunity for judicial review of the actions of the IRS may be lost. The recent case of Larson v. United States brings this home in stark fashion. Mr. Stark promoted tax shelters. The IRS assessed against him, and others, a tax shelter promotion penalty of approximately $160 million. Because the penalty was an assessable penalty which did not exist when Flora was decided and because he does not have $160 million with which to satisfy the assessment, Mr. Larson is barred from judicially contesting this assessment. \u0000 \u0000This paper analyzes how we reached the situation that certain taxpayers have no opportunity for judicial review of the actions of the IRS and suggests a path that would allow ever taxpayer the opportunity for judicial review of their tax assessment. \u0000 \u0000It appeared that Congress attempted to provide an opportunity for judicial review when it passed the Collection Due Process provisions in 1998; however, the regulations written by the IRS have the effect of cutting off judicial review in situations in which the taxpayer has the opportunity for administrative review. The paper suggests that relatively small changes to the Collection Due Process provisions could provide the opportunity for judicial review of tax assessments to everyone. It also explores other avenues that could provide this opportunity.","PeriodicalId":233762,"journal":{"name":"U.S. Administrative Law eJournal","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127882988","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Federalism, Entitlement, and Punishment across the U.S. Social Welfare State","authors":"W. Bach","doi":"10.1017/9781108631662.002","DOIUrl":"https://doi.org/10.1017/9781108631662.002","url":null,"abstract":"In a 2018 letter the Trump Administration announced that it was open to proposals to include work requirements and other changes in state Medicaid programs. These proposals came in the form of administrative waiver requests that would allow particular states the flexibility to change the rules of Medicaid eligibility in their state. They were seeking permission to condition the receipt of Medicaid on compliance with work requirements and to “align” the Medicaid program with programs like Temporary Assistance to Needy Families. The Obama administration had consistently rejected such requests on the grounds that work requirements did not further the aims of the Medicaid program, but the Trump administration felt no such qualms, likening Medicaid to Temporary Assistance to Needy Families (colloquially welfare) and arguing that, just like welfare recipients, Medicaid recipients needed to be incentivized to work in order to “build” their dignity. This contest, like many others in the field of social welfare policy, plays out on the terrain of federalism. It is, on the surface, a battle over control among levels of government and over the appropriate rules and structures for particular programs. This chapter argues that these controversies over legal structures, legal rules, and the location of governance, are better understood as arguments about both deservingness and control played out through controversies about administrative structure. In short, programs are called “welfare,” or are urged by some to be more like “welfare,” when what is really meant is that we wish to use the administrative mechanisms of federalism to control, stigmatize, punish, and deter recipients. In contrast, when we perceive recipients as entitled, these mechanisms fall away to be replaced by federally-controlled, far less visible and far more inviting, administrative structures. To make this process visible, this chapter describes the administrative tools of benefit programs as well as the corresponding cultural assumptions tied to each program and then contextualizes a debate like the one over Medicaid work rules using this context.","PeriodicalId":233762,"journal":{"name":"U.S. Administrative Law eJournal","volume":"14 8","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132390277","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Reporting Transfers From Us Taxpayers to Foreign Corporations – IRS Form 926","authors":"Frank Agostino, Victor Nazario","doi":"10.2139/ssrn.3256874","DOIUrl":"https://doi.org/10.2139/ssrn.3256874","url":null,"abstract":"Driven by international trade and investment, and connected by family and technology, New York and New Jersey small businesses are expanding their businesses offshore. Entrepreneurs transfer property, cash, and other assets overseas or to foreign holding corporations to conduct everyday business transactions. Most tax professionals have taken continuing education courses on the Form 5471, Information Return of U.S. Persons With respect To Certain Foreign Corporations. However, the audits of entrepreneurs have revealed a filing requirement being overlooked - when a U.S. Person transfers property to a foreign corporation, he or she may need to file Form 926, Return by a U.S. Transferor of Property to a Foreign Corporation. This Article explains the basics of Form 926.","PeriodicalId":233762,"journal":{"name":"U.S. Administrative Law eJournal","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121148549","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Non-Doctrine of Redundancy","authors":"Saurabh Vishnubhakat","doi":"10.15779/Z38ZG6G73P","DOIUrl":"https://doi.org/10.15779/Z38ZG6G73P","url":null,"abstract":"This Article explores and evaluates a controversial practice that the Patent Office undertook beginning early in the post-AIA regime, the practice of denying otherwise meritorious requests for review because of what the Office termed \"redundant\" grounds. The controversy over redundancy-based rejections had several sources. One was that making such rejections required the Patent Office to decide petitions piecemeal—and, indeed, the agency claimed that power for itself—even though it was not clear that this power lay within the statute. Another source was that the Patent Office persistently declined to explain what, in the agency's view, did or did not constitute redundancy. Still another was that the Patent Office resisted Federal Circuit oversight of this practice by claiming unreviewable discretion as part of a larger campaign of self-immunization. This confluence of problematic agency choices has generated other, related controversies with AIA review as well, with a mixed record of success for the Patent Office. Yet while redundancy-based rejection now seems to be ebbing as a matter of agency policy, the underlying structural conditions that gave rise to the practice still persist and repay closer analytical and doctrinal scrutiny. This Article offers that scrutiny and discusses ways forward for AIA review.","PeriodicalId":233762,"journal":{"name":"U.S. Administrative Law eJournal","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-06-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115852020","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Reviewing Procedure vs. Judging Substance: The Scope of Review and Bureaucratic Policymaking","authors":"Ian R Turner","doi":"10.2139/ssrn.3019371","DOIUrl":"https://doi.org/10.2139/ssrn.3019371","url":null,"abstract":"How does the scope of review affect bureaucratic policymaking incentives? To explore this ques- tion, I consider a simple policymaking environment in which an expert agency develops policy that is upheld or overturned by an overseer who may have different policy goals. The agency can affect the quality of implementation through effort investments in addition to choosing the substantive content of policy. Under procedural review the overseer only reviews the agencys effort, which allows the agency to fully utilize its expertise, but may harm effort incentives. Sub- stantive review also tasks the overseer with judging agencies substantive policy choices, which introduces a fundamental trade-off between agency utilization of expertise and effort investment due to pathological policy choices made by the agency. The theory characterizes when less trans- parent oversight, procedural review, is optimal relative to more transparent, substantive review. The results speak to when agencies should be insulated from substantive review.","PeriodicalId":233762,"journal":{"name":"U.S. Administrative Law eJournal","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-05-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131849452","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"'Good Cause' Is Cause for Concern","authors":"James Yates","doi":"10.2139/SSRN.3089469","DOIUrl":"https://doi.org/10.2139/SSRN.3089469","url":null,"abstract":"Presidential transitions routinely engage in elaborate games of “administrative ping-pong.” The outgoing administration rushes to promulgate rules that align with its party before leaving office — known as midnight rules. Successors quickly attempt to unwind those rules and policies, only to adopt their predecessor’s strategy and rush to promulgate rules before the end of their term. Both pass on an administrative state stuffed with last-minute rules and no good way to undo them, metaphorically hitting the ball back over the net. This game, while comical in theory, is controversial in practice. And it is even more controversial when “major” rules are involved. \u0000President Obama’s administration promulgated over 3,600 rules in 2016 — a nearly 13% increase over 2015. 118 of these rules were “major” rules with an economic impact of at least $100,000,000. Many rules, major or nonmajor, were promulgated without using the Administrative Procedure Act’s (APA) notice and comment (N&C) requirements. And many were “midnight rules” promulgated in Obama’s final months. One popular justification for exempting rules from N&C during Obama’s presidency was the “good cause” exception. \u0000President Trump is now tasked with recalibrating the administrative state to fit his policy goals. Upon taking office, Trump’s chief of staff issued a memorandum to all executive agencies requesting that they delay or revoke various regulations. The D.C. Circuit shined a light on Trump’s delay efforts when it struck down an EPA stay of an Obama-era regulation. Trump is now simultaneously instructing his agencies to adhere to the APA’s procedures and delaying rules by means familiar to his predecessor: the good cause exception. Along with the D.C. Circuit’s decision, this application of good cause has triggered a needed review of the exception and its use to excuse major and nonmajor rules from N&C. \u0000This Essay argues that the risk of foregoing prepromulgation N&C is simply too great when dealing with major rules. Major rules are singled out for increased oversight and as such deserve the full extent of available procedures.","PeriodicalId":233762,"journal":{"name":"U.S. Administrative Law eJournal","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122067987","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Facilitating University Compliance Using Regulatory Policy Incentives","authors":"J. Koebel","doi":"10.2139/ssrn.3094497","DOIUrl":"https://doi.org/10.2139/ssrn.3094497","url":null,"abstract":"Internal compliance programs have proliferated at colleges and universities in response to the federal government’s regulatory expansion within higher education. Institutions increasingly utilize these programs in order to manage their myriad compliance obligations and the attendant increase in risk. Yet, even properly designed programs possess many areas of potential weakness that hinder their effectiveness. Concurrently, calls for regulatory reform have grown louder. Although several viable options have been proposed and should be taken seriously, none adequately leverage the compliance function so many universities have recently adopted. <br><br>Institutional policies are an inseparable component of an effective compliance program and their status as such justifies their inclusion as a central feature of higher education regulatory reform. In lieu of issuing mere affirmative or prohibitive compliance obligations, Congress and the Department of Education should strategically incentivize the development of university-level policies that address regulated issues in order to encourage the internal collaborative processes that lead to effective compliance outcomes. <br><br>In addition to examining the practical aspects and effects of compliance programs and institutional policies, this Article draws from institutional theory to demonstrate that the higher education sector benefits from the open exchange of policies and best practices among peer institutions. The federal government’s use of regulatory policy incentives or mandates can facilitate this exchange and similar modeling behaviors, which in turn can increase efficiencies at the institutional level. In sum, this Article contends that a legal compliance mandate is more likely to be included within the scope of a university’s compliance program (formal or informal as it may be) and implemented effectively if it takes the form of a policy disclosure obligation originating in statute or regulation.","PeriodicalId":233762,"journal":{"name":"U.S. Administrative Law eJournal","volume":"51 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121653800","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Behind the Annual SEC Enforcement Report: 2017 and Beyond","authors":"Urska Velikonja","doi":"10.2139/SSRN.3074073","DOIUrl":"https://doi.org/10.2139/SSRN.3074073","url":null,"abstract":"The SEC's enforcement report for fiscal year 2017 reports moderate declines in the number of filed enforcement actions, 754 compared with 868 in fiscal year 2016, and in the total monetary penalties ordered, $3.8 billion compared with $4.1 billion in fiscal 2016. The narrative accompanying the release suggests that despite the change in SEC leadership, nothing has really changed in enforcement. \u0000This review looks behind reported numbers. By comparing enforcement with prior years, and during the first and second half of the fiscal year 2017, the review reports on changes that have taken place, in particular in enforcement against Wall Street firms and public companies. In addition to offering data on settlements and fines, the review also offers statistics on where the SEC chooses to file cases - in court or in administrative proceedings - and recent data on admissions in enforcement actions.","PeriodicalId":233762,"journal":{"name":"U.S. Administrative Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-11-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130315713","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}