Administrative Law Prof Blog

CALL FOR PAPERS from ALR

ADMINISTRATIVE LAW REVIEW 2008 SYMPOSIUM

***  CALL FOR PAPERS ***

Attn:    Interested Panelists and Speakers

On April 18, 2008, the Administrative Law Review will hold its annual symposium at American University’s Washington College of Law in Washington, D.C. 

This year’s symposium is tentatively entitled:

“Does Red Lion Still Roar? Exploring Public Interest Regulation of Media in Commemoration of the Fortieth Anniversary of Red Lion Broadcasting Co. v. FCC.” 

This symposium will include three panels: 

1.         The first panel will focus on the conceptualization of the symposium topic.  Panelists will discuss Red Lion, its history, significance, ramifications, and its effects on today’s broadcast regulation landscape (in terms of media diversity, fairness, democratic deliberation and engagement, political programming, local news and public affairs coverage, children’s educational television, etc.)

2.         The second panel will feature a discussion/debate between prominent communications industry representatives, policymakers, and theorists on the need for public interest regulation of media, the effectiveness of government efforts to articulate and enforce public interest requirements, and the success of media players in complying with their public interest mandates.  It will discuss the politicization of the topic and will explore both market and regulatory philosophies in this field.

3.         The third panel will discuss public interest regulation in regard to converged and converging 21^st century technologies.  Topics may include affirmative government regulation of the Internet, network neutrality, digital television, and the ensuing debate around the need for reinstitution of the fairness doctrine.

University of Chicago Law School Professor Cass Sunstein will be serving as our luncheon speaker.  Additional invitees include FCC Commissioner Jonathan S. Adelstein. 

The Executive Board is requesting proposals for papers, as well as talk proposals regarding any of these topic areas.  Please note that papers need not be full-length academic articles and may be specific in scope.  Please email proposals to Brian M. Stanford, Senior Symposia Editor, at: brianmstanford@gmail.com.   

Proposals are to be received no later than December 15, 2007.  Fully completed pieces will be due for submission to the Executive Board by July 1, 2008.

Virginia Tech and the University Board's Compliance Role

The New York Times has a story today about the report issued by a state panel reviewing Virginia Tech's handling of last (academic) year's campus shootings.  The story starts:

A state panel has sharply criticized decisions made by Virginia Tech before and after last April’s shooting massacre, saying university officials could have saved lives by notifying students and faculty members earlier that there had been killings on campus.

Because university officials misunderstood federal privacy laws as forbidding any exchange of a student’s mental health information, the panel’s long-awaited report concludes, they missed numerous indications of the gunman’s mental health problems.

One observation here relating to a prior post on regulation and compliance.  The panel's report will likely be must reading for anyone who serves on the board of a higher education institution.  It is an article of faith in compliance that corporate culture starts with "tone at the top," and that "top" is the board and senior administrators.  In performing their compliance role, boards members cannot ignore red flags that signal new or changed risks.  After the Virginia Tech shooting, every board member should have asked the administrators at their institution, "What are we doing to keep the same thing from happening on our campus?"  And with this report, board members will have more ammunition to question university presidents, provosts, and deans.

P.M.

More Private Data Stolen from Govt Agency

This new article reports that "[h]ackers have stolen the names, e-mail addresses and telephone numbers of about 146,000 subscribers to USAJOBS.gov..."

-D.S.

Informative.

I thought this editorial by Arthur Collins, director for contracting at the Small Business Administration, provided a succinct, clear summary of the regs that try to compel govt agencies to use small businesses for outsourcing contracts/privatization rather than the usual behemoths like Lockheed Martin - and he includes some interesting reports on compliance achievement.  A more critical view is offered here.

-Dru Stevenson

Govt Agency Computers Modifying Wikipedia?

This is interesting - a new FedSmith report that various government agency computers (at the VA, OPM, & FLRA) are being used to modify Wikipedia entries with a political slant (see also this article about a Sean Penn entry).  This after well-publicized reports last week that FBI/CIA computers were being used to modify Wikipedia.

Similar modding has been reported/documented in Australia (see here) and Canada (see here and here).  This page has a nice collection of related articles & links on the subject.

-Dru Stevenson

NOAA Blames Greenhouse Gases for Warmer Year

This article from WIRED reports on the National Oceanic and Atmospheric Administration's anouncement yesterday that greenhouse gas emissions caused last year's unusually warm temperatures:

Warming caused by human activity was the biggest factor in the high temperatures recorded in 2006, according to a report by researchers at the National Oceanic and Atmospheric Administration.

The analysis, released Tuesday, is being published in the September issue of Geophysical Research Letters, published by the American Geophysical Union.

-Dru Stevenson

Why Compliance? Part I

A prior post noted that statutes and regulations are increasingly encouraging or requiring private businesses to implement and maintain corporate compliance and ethics programs. One important (and unasked) question is why do so? There at least three rationales regulators give for mandating or encouraging compliance. I’ll address one here, and devote my next two posts to two others.

The first rationale is often offered as a justification for regulatory or prosecutorial leniency. That is, the government offers to go easy on an organization that runs afoul of the law if the organization has operated an effective compliance and ethic program. For example, the United States Sentencing Guidelines provide a sentencing credit for organizations with a compliance and ethics program, and the U.S. Department of Justice guidelines for charging organizations (aka, the McNulty Memorandum, nee Thompson memorandum, nee Holder Memorandum) urge leniency for organizations with an effective compliance program. (In some instances, U.S. Attorneys have referenced this factor in announcing a decision to decline prosecution. See here and here.)

So, why hold this carrot out for compliance and ethics? The rationale is that the existence of a compliance and ethics program tells us something about the organization’s culpability. If the organization had an effective, credible compliance and ethics program, then any legal violation was likely the act of a rogue employee. No compliance program, however, and the inference may be that we have unethical organization that is rotten to its corporate core. Regulators often refer to this as asking whether the organization’s “culture” encourage or discourages wrongdoing. The compliance and ethics program, then, is a proxy for the organization’s culture. (Ironically, the recent amendments to the Sentencing Guidelines add “culture that encourages ethical conduct” as an element of an effective compliance program. A variation on the theme of using a word to define itself.)

The obvious problem with this argument is that it can elevate form over substance. In obsessing over every jot and tittle in the formal compliance and ethics program, one can lose sight of why the program exists in the first place. But this problem exists because regulators lack a reliable measure of corporate culture. And without an objective measure of culture, we fear “culture” will serve as a cover for some other regulatory agenda. We are left with the compliance and ethics program as an imperfect measure. 

This all begs a question, to be discussed in a later post, why we don’t just leave it to the market to encourage organizations to implement compliance and ethics measures. If such programs add value, then won’t the market value a company more if it has one? And won’t a company spend money on compliance and ethics up to the point that the next dollar spent equals a dollar in reduction of expected avoided loss? If so, why are we even bothering with mandating compliance? But that’s for another post.

P.M.

Attorney General Gonzales Resigns

The Washington Post reports here that Alberto Gonzales, embattled AG, has announced his resignation.  I don't see the value in speculating about reasons (which the article seems to be straining to do).  This is just part of the wave of departures (including Karl Rove) that Bush requested of his team if they could not commit to remaining for the duration of his term (he did the same thing, if I remember, at this point in his first term, when Christie Todd Whitman left).  And the removal of controversial figures like Rove and Gonzalez from the media spolight can only help their party in the primaries next Spring and elections after that.  I assume they are thinking about the good of their party and deciding to step aside gracefully now instead of continuing a somewhat-pointless fight.

More Special Solicitude for State AG's?

This Times-Picayune article reports that a federal judge in New Orleans has appointed the state AG to bring Katrina-related claims on behalf the the plaintiffs who are at risk of missing their deadlines.  It follows the pattern that I predicted here of the state AGs having an enhanced role in the post-Massachusetts era.

Here's an excerpt:

Taking a step he called unprecedented but necessary to preserve the rights of thousands of lawyerless Hurricane Katrina flood victims who have until Wednesday -- the storm's second anniversary -- to sue the government, a New Orleans federal judge Friday appointed state Attorney General Charles Foti Jr. to bring a case on their behalf .

"The situation before the court is unique," U.S. District Judge Stanwood Duval said in his seven-page ruling. "The claimants who filed Form 95s were victims of the most massive natural and man-made disaster in this country's history. Hundreds of thousands of residents were compelled to leave the New Orleans metropolitan area and vicinity in Katrina's immediate aftermath, and many thousands have not returned."

-Dru Stevenson

Medicaid: States' Control of Drug Coverage Rules

This article describes an important new precedent in Florida regarding the states' control of Medicaid payouts for prescriptions of off-label uses for medicines.  Some excerpts:

Lawyers who won a ruling blocking the Florida Medicaid program from restricting coverage of a popular prescription drug say the state's recent decision to drop its appeal sets an important precedent for what Florida and other states can and cannot do on drug coverage rules. A key dispute in the case was over whether Congress intended Medicaid programs to cover all prescription drug uses listed in three congressionally approved drug compendia whether they're FDA-approved or not. Or, did the lawmakers designate only those drugs listed in the compendia as being supported by research as effective? The issue remains disputed by both sides...

Federal law requires states to provide coverage for drugs that are either approved under the Federal Food, Drug and Cosmetic Act, or under three congressionally approved drug compendia. State Medicaid programs follow those compendia to determine which drugs and their FDA and non-FDA approved uses are to be covered.  In July 2004, AHCA began requiring physicians to contact the agency for prior authorization to prescribe Neurontin and Gabapentin for Medicaid recipients for most uses that weren't approved by the FDA. But AHCA began denying coverage of every Neurontin and Gabapentin prescription that wasn't for one of two FDA-approved uses, or the two off-label uses the agency decided to cover...

In response to AHCA's Neurontin policy, Florida Legal Services, the Legal Aid Society of the Orange County Bar Association, Legal Aid Service of Broward County and the National Health Law Program filed a class action lawsuit in May 2005 in U.S. District Court in Miami...

Klein ruled that Congress intended state Medicaid programs to cover both FDA-approved and non-FDA-approved uses cited in the three compendia. He said Congress did not intend for prescription drugs and their uses to be rated by the compendia according to efficacy...

...Following Klein's ruling, the Centers for Medicare and Medicaid Services issued a letter stating the federal Medicaid statute "requires coverage of off-label uses of FDA-approved drugs for indications that are supported (as opposed to listed) in the compendia specified in section 1927 (g) (1) (B)(II). Prior approval policies may be put in place, the letter said, but prior authorization cannot be used to deny the off-label indications supported by citations included or approved for inclusion in the above-referenced compendia."

-Dru Stevenson

Head of DOJ/Civil Rights Resigning

This Washington Post article describes how Wan Kim, who is the first immigrant to head the civil rights division of the DOJ, is resigning after a year of Congressional criticism that he staffed his office with too many party loyalists.

-D.S.

Does Govt Weather Forecasting Endager Lives?

This editorial says yes - but it is not clear to me why this would necessarily be the case as a rule.  Could it simply be the current state of affairs?

-D.S.

Indian Casinos, Standing, The Nondelegation Doctrine, and Chevron - All in One Case!

I really enjoyed reading the new Fifth Circuit opinion in Texas v. United States, __ F.3d __, 2007 WL 2340781 (5th Cir. Aug 17, 2007); it is rich with issues relevant for several different areas of law.  The majority opinion provides a thought-provoking discussion of whether a state should have standing to sue when the requisite "injury in fact" is merely being dragged into an unwanted administrative proceeding with an Indian Tribe, and the fact that the state has less bargaining power as a result of losing the right to give ultimatums (i.e., walking away from negotiations with tribes). The majority (Chief Justice Edith Jones writing) says that both of these harms provide a sufficient basis for standing. This seemed like a somewhat new development in the rules for standing.

Although the decision nowhere cites Massachusetts v. EPA, it seems to follow that case's approach of "special solicitude for states" (at least regarding standing to sue the federal government).  The majority opinion in Texas v. U,S. seems to incorporate a lot of arguments about Eleventh Amendment state sovereignty creating unique circumstances where courts could find an injury-in-fact that would not apply to private parties (or tribes, for that matter).  In that sense, it is a victory for federalists. 

The Chevron analysis in the case is also interesting, because it turns on whether regulatory "gaps" created by courts invalidating certain portions of the enabling statutes can imply a legitimate delegation (warranting Chevron-style judicial deference). The majority says no, and I think the Court got this right. The Chevron doctrine is more properly about agency interpretations of statutory verbiage (a linguistic issue, really), not about agencies' implied authority. This is the main issue the dissenting opinion attacks, citing contrary decisions from two or three other Circuit courts - indicating there is a growing split of circuit authority on this nuance of Chevron (hence it would be a fertile subject for academic commentary and an eventual Supreme Court decision).  I also liked how the Chevron issue here was interwoven with delegation concerns, nicely illustrating a point Cass Sunstein made a few years ago that Chevron really is a "nondelegation canon."

This is also one of the somewhat-rare examples of an agency losing on Chevron step 2.  The low threshold for states to meet (reasonableness), and the long-standing precedent for judicial deference to agency interpretations, make it unusual for a court to rule against the agency at that stage in the analysis.  In this case, the Court held that the state lost on both Chevron step 1 and step 2.

I confess I also liked it that the casinos lost; gaming presents serious public policy concerns (there are overt economic benefits for the states, but also troubling externalities that affect the local area), and it seems to be an area where states should decide what is best for their citizenry. 

-Dru Stevenson

WSJ Commentary on Current Anti-Agency Environmental Litigation

This editorial from the Wall Street Journal nicely summarizes some of the current litigation by environmental groups against government agencies, particularly in areas affecting energy production.

-D.S.

Workers' Comp Reform in CA Affects National Numbers

This article describes how California's recent reform of its workers' comp system caused a dramatic reduction in payments to workers.  The drop was enough to reduce the overall stats nationwide for 2005, even though the rest of the country - if California's numbers were excluded - would appear to have an increase for the same period.

-D.S.