U.S. Administrative Law eJournal最新文献

{"title":"The Privilege Against Self-Incrimination in Bankruptcy and the Plight of the Debtor","authors":"Timothy R. Tarvin","doi":"10.2139/SSRN.2330402","DOIUrl":"https://doi.org/10.2139/SSRN.2330402","url":null,"abstract":"An innocent debtor, who is either ignorant of her constitutional right to the privilege against self-incrimination or ineffectual in asserting it, may find herself wrongfully convicted and imprisoned in a criminal matter, due to unwitting complicity in the delivery of testimony or documents in her bankruptcy case. This lack of understanding poses a serious risk to debtors, and especially affects the increasing number of pro se debtors in bankruptcy. The privilege extends to debtors in bankruptcy proceedings. However, a debtor who fails to properly invoke the privilege waives her rights. This possibility is made more probable because there is no requirement that she be told about the privilege prior to filing or interrogation.Without any requirement of notice, there is no application of the exclusionary rule in civil proceedings. In short, the privilege must be invoked through an unambiguous assertion in bankruptcy, or it is lost. For this reason, the Court, under its rulemaking authority, should adopt a revised Official Form B201A for use in consumer bankruptcy cases, to ensure the just determination of every case and protect the debtor’s privilege. The revised form would provide pre-filing notice, in writing, of the privilege against self-incrimination. To accomplish this, the Judicial Conference of the United States should promulgate the proposed form pursuant to its rulemaking authority. This form would serve to make the debtor aware of the privilege prior to filing and the consequences of invocation and waiver, so that the privilege would not be lost through ignorance, inadvertence, or lack of competent counsel. This article has four parts. Part I analyzes the scope and application of the privilege and distinguishes the privilege in bankruptcy from its counterpart in the custodial setting. Part II examines the increased risk to the pro se debtor and the value of the privilege both to the truly innocent who are seemingly guilty and the presumptively innocent regardless of guilt. Part III explores the plight of the debtor under current law and explains the risk of nondisclosure of the privilege. Finally, Part IV proposes a change in the language of Official Form B201A to alleviate the problems caused by nondisclosure. In short, the author’s thesis is that only through the pre-filing delivery of notice will the debtor's right to the privilege be meaningful.","PeriodicalId":233762,"journal":{"name":"U.S. Administrative Law eJournal","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126649901","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":"Administrative Constitutionalism and the Re-Entrenchment of Surveillance Culture","authors":"A. Dalal","doi":"10.2139/SSRN.2236502","DOIUrl":"https://doi.org/10.2139/SSRN.2236502","url":null,"abstract":"Administrative constitutionalism is a recent theory of extra-judicial constitutionalism that studies the role of agencies on the front line of constitutional interpretation. In this role, agencies are constitutional norm entrepreneurs, suggesting constitutional norms and beginning a process of national deliberation that results in the entrenchment of norms that reflect the majority viewpoint. This Article challenges the assumption that agencies are appropriate constitutional norm entrepreneurs. Through a detailed historical study of the development and evolution of the Attorney General Guidelines, the governing document for the FBI, I demonstrate that without intervention, agencies are appropriate norm entrepreneurs only during rare constitutional moments, when the entire country is galvanized around a major reinterpretation of our framework of constitutional rights. Outside of these moments, the governmental machine is more insular than deliberative. This lack of deliberation implicitly grants agencies, the least accountable members of our tripartite government, the power to create and entrench constitutional norms that ultimately inform the development of constitutional law. However, structural interventions can be manufactured to force deliberation. In particular, stronger internal checks on the executive branch, congressional oversight, judicial intervention, and public accountability can force the deliberation necessary to ensure the legitimacy of administrative constitutionalism.","PeriodicalId":233762,"journal":{"name":"U.S. Administrative Law eJournal","volume":"255 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114363260","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":"State Level Strategies for Health Insurance and Health Care","authors":"Nachiket Mor","doi":"10.2139/SSRN.2424359","DOIUrl":"https://doi.org/10.2139/SSRN.2424359","url":null,"abstract":"Health is a State subject in India. For most States it is clear that given the level of financing that is available for the provision of healthcare, it would not be possible to offer universal healthcare no matter what method of purchasing is used or whether the private sector or the public sector emerge as the principal providers. For these States, given the fact that the resources are not immediately available, the question is how to ensure that, as they gradually acquire the financial capacity; build the political will; and begin to put in place the human resources and the physical infrastructure required for Universal Health Care (UHC), the immediate healthcare and financial protection needs of the population are addressed in such a manner that in trying to address immediate needs it does not start to move in a direction opposite to the one that is best suited for the achievement of the UHC goal even in the longer term. The current fragmented approaches being followed State governments present a number of urgent challenges that need to be addressed and have the real danger that they will make the goal of UHC unattainable even in the longer run because of the creation of excess and concentrated hospital capacity, populations getting accustomed to free-market choice structure for seeking health services, and continued relative under-funding of primary healthcare leading to larger and larger unaddressed burdens of disease. Following a hybrid approach that combines insurance with strong state financed/provided primary care may provide a potential solution that is also politically viable.","PeriodicalId":233762,"journal":{"name":"U.S. Administrative Law eJournal","volume":"119 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133138706","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":"Paved with Good Intentions: The Social Security Disability and Supplemental Security Insurance Appeals Process, Due Process, and the Broken System that Faces Disabled Citizens in Modern America","authors":"Brent Steven Liner","doi":"10.2139/SSRN.2215943","DOIUrl":"https://doi.org/10.2139/SSRN.2215943","url":null,"abstract":"An informational paper on the history and procedure of Social Security Disability and Supplemental Security Insurance. Inefficiencies and flaws in the application and appeals system are highlighted, an overview of past suggestions for reform of these system is given, and author suggestions are put forth.","PeriodicalId":233762,"journal":{"name":"U.S. Administrative Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-02-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130746565","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":"Buy America Requirements for Federally Funded Airports","authors":"T. Wyatt","doi":"10.2139/SSRN.2180122","DOIUrl":"https://doi.org/10.2139/SSRN.2180122","url":null,"abstract":"Federal airport development grant programs include statutory preferences for domestic goods, commonly known as Buy America, Buy American, or Buy National provisions. These provisions have evolved from the 1933 Buy American Act (\"BAA\"), which applied to direct procurements of goods by federal government agencies such as the Federal Aviation Administration (\"FAA\"). Buy America provisions in transportation grant programs, on the other hand, apply to procurements made by recipients of federal grants, including state and local governments and airport authorities. The Buy America provision in the Airport Improvement Program (“AIP”), enacted in 1990, appears to have been designed as a particularly strict domestic preference requirement. However, there is no requirement in the AIP Buy America provision (as there is in other transportation grant provisions) for the FAA to publish the Buy America waivers that it grants. As a result, until recent years, the AIP Buy America provision has been the subject of very little scrutiny, guidance, or enforcement. Congressional oversight was expanded with passage of the American Reinvestment and Recovery Act (\"ARRA\") economic stimulus program in 2009, which required the FAA to publish Buy America waivers for projects that received ARRA funds. Consequently, the FAA has published some waivers of the Buy America requirements, and has also published expanded guidance to help AIP grant recipients comply with the requirements. Although guidance and enforcement of the AIP Buy America provision is still evolving, there is now sufficient information publicly available to provide compliance guidance for most situations encountered by AIP grant recipients. This paper synthesizes all available information, including statutory and regulatory language, legislative history, administrative and judicial opinions, and agency guidance, to help airport sponsors and their contractors understand and comply with the Buy America requirements. The paper identifies areas where the FAA has directly adopted compliance tests used by other federal agencies in enforcing the BAA or other transportation grant Buy America provisions. The paper also identifies ways in which the AIP Buy America provision differs from its predecessors, where the FAA and its grant recipients should not rely on guidance provided by other agencies (involving similar but different statutes). Finally, the paper identifies areas where the FAA’s interpretation of airport Buy America requirements may deviate from the Congressional intent or from the interpretation of nearly identical statutory language by other federal agencies.","PeriodicalId":233762,"journal":{"name":"U.S. Administrative Law eJournal","volume":"R-29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126628988","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":"Competition Agencies with Complex Policy Portfolios: Divide or Conquer?","authors":"D. Hyman, William E. Kovacic","doi":"10.2139/SSRN.2110351","DOIUrl":"https://doi.org/10.2139/SSRN.2110351","url":null,"abstract":"Competition Agencies with Complex Policy Portfolios : Divide or Conquer ? David A. Hyman & William E. Kovacic The worldwide adoption of competition law is a remarkable development in…","PeriodicalId":233762,"journal":{"name":"U.S. Administrative Law eJournal","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127269626","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":"Credit Reform and the States: The Vital Role of Attorneys General after Dodd-Frank","authors":"Mark D. Totten","doi":"10.2139/SSRN.2207726","DOIUrl":"https://doi.org/10.2139/SSRN.2207726","url":null,"abstract":"Congress employed multiple strategies in the wake of the Great Recession to provide greater protections for consumers in the financial marketplace. One strategy aimed at agency design and resulted in creation of the Consumer Financial Protection Bureau. Another strategy created new substantive prohibitions and corresponding rulemaking powers. A third strategy channeled the forces of federalism, placing a limit on agency preemption and empowering state attorneys general to enforce federal law. Scholars have focused on the first two strategies, plus the new constraints on preemption, but so far have not given sustained attention to the role of states as co-enforcers of federal consumer financial protection law. This Article seeks to fill that void, focusing on implementation and charting a path for normative assessment.I begin by placing this dual enforcement scheme within the context of recent history and the evolving infrastructure for consumer financial protection in the United States. I then consider several interpretive issues to account for the substantive, procedural, and remedial powers Congress placed in the hands of state attorneys general. Recognizing that the success of this concurrent enforcement regime will depend in part on early coordination, I next identify several implementation priorities necessary to create a scheme that is both effective and efficient. Finally, I identify key questions and offer preliminary observations toward a normative assessment of this scheme and its implications both for consumer finance and American federalism.","PeriodicalId":233762,"journal":{"name":"U.S. Administrative Law eJournal","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-01-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132516366","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 Influence of the Taylor Rule on US Monetary Policy","authors":"P. Ilbas, Øistein Røisland, Tommy Sveen","doi":"10.2139/ssrn.2353351","DOIUrl":"https://doi.org/10.2139/ssrn.2353351","url":null,"abstract":"We analyze the influence of the Taylor rule on US monetary policy by estimating the policy preferences of the Fed within a DSGE framework. The policy preferences are represented by a standard loss function, extended with a term that represents the degree of reluctance to letting the interest rate deviate from the Taylor rule. The empirical support for the presence of a Taylor rule term in the policy preferences is strong and robust to alternative specifications of the loss function. Analyzing the Fed's monetary policy in the period 2001-2006, we find no support for a decreased weight on the Taylor rule, contrary to what has been argued in the literature. The large deviations from the Taylor rule in this period are due to large, negative demand-side shocks, and represent optimal deviations for a given weight on the Taylor rule.","PeriodicalId":233762,"journal":{"name":"U.S. Administrative Law eJournal","volume":"89 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-01-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133773964","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":"Flooding Its Banks: An Argument for Jurisdictional Limits and Certainty in Clean Water Act Regulations","authors":"A. Gryska","doi":"10.2139/SSRN.2226145","DOIUrl":"https://doi.org/10.2139/SSRN.2226145","url":null,"abstract":"In 2011, the Environmental Protection Agency and Army Corps of Engineers introduced a draft version of a guidance document that purported to clarify the jurisdiction of the Clean Water Act in accordance with recent Supreme Court Cases. Shortly thereafter, it became clear that the Draft Guidance was a reinterpretation of Supreme Court precedent, and was meant to expand federal jurisdiction. An even greater problem, mentioned repeatedly in official comments submitted to the agencies, is that the Draft Guidance lacks the force of law, but will be enforced by the agencies. Consequently, a divide has formed between the agencies, courts, and the regulated community, creating great uncertainty for businesses and state governments. This article sets forth the background of the Clean Water Act and relevant Supreme Court decisions, reviews reactions to the Draft Guidance, and proposes a solution to clarify the extent of federal jurisdiction in the future.","PeriodicalId":233762,"journal":{"name":"U.S. Administrative Law eJournal","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-01-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122544362","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":"Joshua Wright: An Annotated Bibliography","authors":"Garry A. Gabison","doi":"10.2139/ssrn.2165433","DOIUrl":"https://doi.org/10.2139/ssrn.2165433","url":null,"abstract":"The annotated bibliography of selected articles by Professor Joshua Wright was compiled by AAI Research Fellow Garry Gabison. Professor Wright has been nominated to serve as a Commissioner on the Federal Trade Commission. This bibliography attempts to give some insight into Professor Wright’s thought process and his possible future policies as a Commissioner.","PeriodicalId":233762,"journal":{"name":"U.S. Administrative Law eJournal","volume":"85 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-10-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126234239","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}