U.S. Administrative Law eJournal最新文献

{"title":"How the Trump Administration's Use of Trade Sanctions Can Harm the States","authors":"D. Chow","doi":"10.2139/SSRN.3068017","DOIUrl":"https://doi.org/10.2139/SSRN.3068017","url":null,"abstract":"The administration of President Donald J. Trump has promised to aggressively impose trade sanctions in the form of higher tariffs on imports from nations that engage in unfair trade practices against the United States. Trump argues that increased tariffs will help the states that have suffered losses from international trade and was able to propel himself to victory in the 2016 presidential election based at least in part on these claims. However, tariffs are a blunt instrument and ill-suited to achieve domestic policy goals. Imposing higher tariffs on imports can actually harm the states because (1) U.S. trading partners might impose retaliatory tariffs on U.S. imports; (2) states may rely on imports as raw materials for use in manufacturing exports; and (3) jobs lost to overseas locations will not return to the United States and more job losses may result. As the states cannot evade the harmful effects of federal trade sanctions on their own, there is the need for a federal-state consultative mechanism through which the states can provide input to the federal government. With input from the states, the federal government can adjust federal policies to mitigate the unpredictable harms that the states may suffer as a result of those policies.","PeriodicalId":233762,"journal":{"name":"U.S. Administrative Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-11-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128539444","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":"Rejecting Charity: Why the IRS Denies Tax Exemption to 501(C)(3) Applicants","authors":"T. L. Helge","doi":"10.5195/TAXREVIEW.2016.51","DOIUrl":"https://doi.org/10.5195/TAXREVIEW.2016.51","url":null,"abstract":"New charitable organizations generally must file an application for exemption (Form 1023) and await approval from the Internal Revenue Service. Unfortunately, the criteria the Internal Revenue Service uses to evaluate applications has not always been transparent. If an application is approved, the Internal Revenue Service determination letter and the application for exemption are required to be made publicly available and can be requested from the Internal Revenue Service or the organization itself. Prior to 2004, in the case of denials, neither the application nor the Internal Revenue Service’s correspondence setting forth its rationale for the denial were made publicly available. This project is the first of its kind. While others have commented on isolated denial letters, this study is the first to conduct a comprehensive analysis of the Internal Revenue Service denial letters issued from when they first became available in 2004 through January 31, 2017. In conducting this project, I examined 603 determination letters in which the Internal Revenue Service denied exemption to an applicant seeking recognition as charitable organizations described in Section 501(c)(3) of the Internal Revenue Code. This project looks in-depth at the basis on which the Internal Revenue Service denied exemption to these applicants. \u0000To provide background for the basis of on which the Internal Revenue Service reviews exemption applications for charitable applicants, Part I of this article describes the requirements to obtain federal tax exemption as a charitable organization. In Part II of this article, I explain the methodology and the process by which I arrived at the data I present. Part III presents the data from my study and my analysis of the manner in which the Internal Revenue Service applies the five-part test for exemption in its review of the applicants who were denied exemption. The data pays particularly close attention to the evidence used by the Internal Revenue Service to support its denial of tax-exempt status. In Part IV of this article, I discuss the implications of my findings on the streamlined application process implemented by the Internal Revenue Service in July 2014. My data identifies concerns with the streamlined exemption process, and I suggest revisions that should be considered to the streamlined exemption process to make it more reliable.","PeriodicalId":233762,"journal":{"name":"U.S. Administrative Law eJournal","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-09-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126750260","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 Cyclical Profit Motive","authors":"D. Russell","doi":"10.2139/SSRN.2995042","DOIUrl":"https://doi.org/10.2139/SSRN.2995042","url":null,"abstract":"Today, the American administrative state is one in which public officials carry out their day-to-day tasks in return for a salary. However, as Nicholas Parrillo argued in his well-regarded book, Against the Profit Motive, the early American administrative state functioned quite differently — “[j]udges charged fees for transactions in the cases they heard...Tax investigators received a percentage of the evasions they discovered...Clerks deciding immigrants’ applications for citizenship took a fee for every application...Even diplomats could lawfully accept a ‘gift’ from a foreign government upon finalizing a treaty.” \u0000 \u0000This prior system of compensation could be thought of as “profit seeking\" — a system of administration whereby public officials carry out their duties in return for payment on a task-by-task basis. This system assumedly contrasts with today’s salary compensating, or “nonprofit seeking” system. In fact, it is generally accepted that, as to the profit/nonprofit seeking transition, at a certain point a confluence of factors made profit seeking no longer tenable within the administrative state, ultimately securing nonprofit seeking's supremacy. But, is this assertion really true? \u0000 \u0000This paper challenges the currently accepted understanding of the administrative state’s profit/nonprofit seeking transition — as unidirectional and permanent one. Instead, clear evidence exists to prove that profit/nonprofit seeking transitions operate cyclically — it is more often the case that given areas of administrative law swing between profit seeking and nonprofit seeking based on each system’s utility. Furthermore, the cyclicality of these transitions has huge implications for how we think about statutory administration and that the private sector's role in it is significantly larger that currently understood.","PeriodicalId":233762,"journal":{"name":"U.S. Administrative Law eJournal","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129709797","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 Unvanquished: The Administrative State and the Federal Communications Commission","authors":"Harold W. Furchtgott-Roth","doi":"10.2139/ssrn.3127005","DOIUrl":"https://doi.org/10.2139/ssrn.3127005","url":null,"abstract":"In this paper, I examine how far deregulation might go at one independent agency, the FCC. The FCC is a small agency that regulates a large and important part of the U.S. economy with rapidly changing technology. FCC Chairman Ajit has spoken articulately about the need for a greater use of economics at the FCC, and that in turn should lead to greater deregulation. The FCC staff is filled with talented people who can and do migrate to higher-paying jobs in the private sector. If deregulation can work anywhere, it should be at the FCC. On the other hand, if deregulation is difficult to impose at the FCC, how much harder it must be at other larger, more bureaucratic agencies.","PeriodicalId":233762,"journal":{"name":"U.S. Administrative Law eJournal","volume":"210 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115769205","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":"Innovation Snowballing and Climate Law","authors":"Zachary D. Liscow, Quentin C Karpilow","doi":"10.2139/ssrn.2927441","DOIUrl":"https://doi.org/10.2139/ssrn.2927441","url":null,"abstract":"Findings at the frontier of economics suggest startling implications of an under-appreciated fact about technological development: innovation builds on itself, developing path dependencies in which past innovations attract similar, but more advanced, innovations. Innovation snowballs. The world economy is poised to undergo a dramatic transformation to avoid the potentially catastrophic effects of climate change. Policy to encourage this transformation should be sensitive to innovation snowballing. \u0000The conventional policy view has long been that, to address a social harm like pollution, the right response is simply to tax the behavior causing the harm, leading to a variety of responses including induced technological change. The Article shows that this view is incomplete. Rather, the most efficient response to climate change — and likely other social harms — requires a combination of taxes and a big push of government support to specifically redirect innovation toward technologies that alleviate social harm. Without a big push in cleantech innovation to change the trajectory of innovation, energy technology will tend to stay stuck in its high-pollution path. \u0000For climate policy and likely other pressing policy issues, the Article suggests a paradigm shift in the role of innovation policy: from broad to targeted. Otherwise, the transition to clean energy will be longer, more expensive, and riskier for the global climate. The Article shows how to efficiently deploy innovation policy to meet this challenge.","PeriodicalId":233762,"journal":{"name":"U.S. Administrative Law eJournal","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127883781","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":"Judicial Review of Regulatory Impact Analysis: Why Not the Best?","authors":"Reeve T. Bull, J. Ellig","doi":"10.2139/ssrn.3191363","DOIUrl":"https://doi.org/10.2139/ssrn.3191363","url":null,"abstract":"Regulatory agencies often produce mediocre economic analysis to inform their decisions about major regulations. For this reason, Congress is considering proposals that would require regulatory agencies to conduct regulatory impact analysis and subject it to judicial review. For judicial review to work, judges must be able to verify agency compliance with quality standards even if they are not experts in the subject matter the agencies deal with. This article demonstrates that courts could effectively review the quality of agencies’ regulatory impact analysis if they were given more concrete statutory guidance on what a regulatory impact analysis must include and the stringency with which a court will review that analysis. We propose a regulatory reform that would accomplish this goal: amend the Administrative Procedure Act to specify the main elements a regulatory impact analysis must include and clarify the standard of review by implementing a requirement that agencies use the best available evidence in their analysis.","PeriodicalId":233762,"journal":{"name":"U.S. Administrative Law eJournal","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132671638","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":"Judge Richard A. Posner's Critique of Testimony by Vocational Experts at Social Security Disability Hearings and How It Affects Disability Claimants in Illinois, Indiana, and Wisconsin","authors":"H. Rose","doi":"10.2139/SSRN.2926581","DOIUrl":"https://doi.org/10.2139/SSRN.2926581","url":null,"abstract":"Millions of persons annually file claims for disability benefits from the Social Security Administration. If their claims are denied, the claimants can pursue appeal hearings before administrative law judges. The key issue before the administrative law judges is frequently whether there are a significant number of jobs in the national economy that the claimants can perform, despite their medical problems. To answer this question in an individual case, the administrative law judge often elicits testimony from a vocational expert who, inter alia, estimates the numbers of particular jobs that exist in the economy. If an ALJ determines that there are a significant number of jobs that the claimant can perform, the denial of the disability claim will be affirmed. The claimant can ultimately appeal the denial of the disability claim by the administrative law judge in the federal court system. \u0000Judge Richard A. Posner is a judge on the United States Court of Appeals for the Seventh Circuit which hears appeals from federal district courts in Illinois, Indiana and Wisconsin. In a series of appeals decisions involving Social Security disability claims from 2014 through 2016, Judge Posner criticized the reliability of the testimony of vocational experts when they estimate the numbers of particular jobs that exist in the economy. However, federal district court judges and magistrate judges in Illinois, Indiana and Wisconsin have generally interpreted Judge Posner’s critique to be non-precedential and have not relied on it to reverse the denial of disability claims before them. \u0000The purpose of this article is to describe Judge Posner’s critique of the testimony of vocational experts at Social Security disability hearings and to examine why this critique has had a limited effect on the decisions on disability claims in district courts in Illinois, Indiana and Wisconsin.","PeriodicalId":233762,"journal":{"name":"U.S. Administrative Law eJournal","volume":"254 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-03-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123246077","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":"Regulation and the Courts: Judicial Review in Comparative Perspective","authors":"Francesca. Bignami","doi":"10.2139/ssrn.2845912","DOIUrl":"https://doi.org/10.2139/ssrn.2845912","url":null,"abstract":"After a historical survey of the literature, this chapter puts forward a new analytical scheme to capture variation in comparative judicial review. The earliest, and still relevant, classification developed in the scholarly literature turns on the difference between judicial review of administrative action by the ordinary courts in the English common law and by a special body (Conseil d’Etat) connected to the executive branch in the French droit administratif. This is followed chronologically by the contrast that has been drawn by Robert Kagan and public-choice scholars between the litigious and formal American system of law and public policy and the informal and discretionary European model. The chapter then proposes a new classification based on two competing theories that are deployed by courts: in European jurisdictions, judicial review to safeguard fundamental economic and social rights (the fundamental rights model) and, in the United States, judicial review to safeguard procedural democracy (the ballot-box democracy model). In Europe, the courts employ doctrines such as proportionality and equality to protect economic and social rights in government policy-making; in the United States, the courts impose extensive procedural requirements on public administration to promote democracy when the bureaucracy undertakes policy-making. After considering the historical reasons for these two models of judicial review, the chapter argues that it will be important to investigate them empirically in light of their potential for diffusion to domestic and international jurisdictions.","PeriodicalId":233762,"journal":{"name":"U.S. Administrative Law eJournal","volume":"67 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125904439","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":"Final Agency Action after Hawkes","authors":"W. Funk","doi":"10.2139/SSRN.2825443","DOIUrl":"https://doi.org/10.2139/SSRN.2825443","url":null,"abstract":"On May 31, 2016, the Supreme Court decided United States Army Corps of Engineers v. Hawkes Co. (Hawkes), holding that Jurisdictional Determinations (JDs) made by the Corps are final agency actions subject to judicial review under the Administrative Procedure Act. Following the Court’s decision in Sackett v. EPA (Sackett) in 2012, also involving a dispute as to whether certain lands were wetlands subject to Clean Water Act jurisdiction, this outcome was not surprising, but the Court’s opinion and the accompanying concurring opinions still leave much open to question regarding how the term “final agency action” in the APA is to be interpreted. This article will discuss first what the Court has decided and what it has suggested, and then it will discuss the questions left open and suggest how they might be answered.","PeriodicalId":233762,"journal":{"name":"U.S. Administrative Law eJournal","volume":"86 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-08-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124750813","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":"Beyond Seminole Rock","authors":"Aaron L. Nielson","doi":"10.2139/SSRN.2821341","DOIUrl":"https://doi.org/10.2139/SSRN.2821341","url":null,"abstract":"Seminole Rock deference — which requires courts to defer to an agency’s interpretation of its own ambiguous regulations — may be living on borrowed time. Although it might seem harmless, many worry that Seminole Rock violates the maxim that the same hands should not both make and interpret the law. Indeed, the fear is that this combination of powers may create incentives for agencies that value flexibility to promulgate ambiguous rules whose meaning they can later clarify retroactively, to the detriment of regulated parties who lack notice regarding their legal obligations. The upshot is that several Justices of the Supreme Court have called for Seminole Rock to be revisited.What has been overlooked, however, is that overruling Seminole Rock would have unintended consequences. This is so because another case, Chenery II, enables agencies to put parties in a similar bind simply by not promulgating rules at all. Under Chenery II, an agency has discretion whether to promulgate industry-wide rules or instead to give meaning to statutes by case-by-case adjudication. Because the doctrines are substitutes for each other, albeit imperfect substitutes, if the Court were to overrule Seminole Rock, agencies that place a high value on their own future flexibility could achieve it by pivoting to Chenery II. Yet for regulated parties, this could be worse than the status quo because even an ambiguous rule generally provides more notice than an open-ended statute. Equally troublesome, because overruling Seminole Rock would discourage rulemaking, it would reduce public participation in the regulatory process.The insight that Seminole Rock and Chenery II are interconnected — meaning what happens to one affects the other — counsels in favor of stare decisis. Importantly, however, if the Supreme Court is inclined to overrule Seminole Rock, it should also revisit aspects of Chenery II to prevent problematic substitution. For instance, the Court could begin affording Skidmore rather than Chevron deference to statutory interpretations announced in adjudications and could also bolster fair notice. Absent such revisions, overruling Seminole Rock may harm the very people the Justices hope to help.","PeriodicalId":233762,"journal":{"name":"U.S. Administrative Law eJournal","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122112176","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}