Administrative Law Prof Blog

Rossi on Nondelegation

Available on SSRN is an article on the nondelegation doctrine by Jim Rossi (Florida State) from the Encyclopedia of the Supreme Court of the United States (David S. Tanenhaus, ed.; Detroit : Macmillan Reference USA, 2008; ISBN: 9780028661247).  Bites from the article:

In Field v. Clark, 143 U.S. 649, 692 (1892), Justice Harlan acknowledged "[t]hat Congress cannot delegate legislative power . . . . is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution."  ... Normatively, the doctrine is premised primarily on the concern that "[u]nchecked delegation would undercut the legislature's accountability to the electorate and subject people to rule through ad hoc commands rather than democratically considered general laws" ... However, since 1935 the Supreme Court has not held a single statute unconstitutional on nondelegation grounds ... While the nondelegation doctrine has fallen into disfavor as a direct way of invalidating congressional actions that assign power to the President or to an executive branch agency, it remains a very important to several modern doctrines of constitutional and administrative law ... The nondelegation doctrine also lingers in the backdrop of modern administrative law, serving primarily to limit the executive branch ... nondelegation principles could be said to require that some government actor take responsibility for making the hard choices reflected in regulatory decisions and arguably courts may be willing to give Congress more leeway than administrative agencies in making their decisions.

Thanks to Larry Solum's Legal Theory Blog.  EMM

Rossi on the Filed Rate Doctrine

Jim Rossi (Florida State) has posted on SSRN a new article, "Why the Filed Rate Doctrine Should Not Imply Blanket Judicial Deference to Regulatory Agencies", to be published in the Fall 2008 issue of Administrative & Regulatory Law News.  (This journal is available on Westlaw (ADMRLN), but as of today the article is not yet posted; it does not appear to be available on Lexis.)  Abstract:    

The filed rate doctrine is a venerable doctrine of public utility regulation. Federal courts applying the doctrine frequently defer to the regulatory agency and refuse to consider the merits of alleged violations of antitrust, tort or contract claims where resolution would require a departure from a filed rate. For over a century, the filed rate doctrine has served many important purposes. However, with increased attention to market-based approaches to electric power, natural gas and telecommunications regulation, there is reason to question both the doctrine's continued applicability and usefulness. This short essay argues that, as regulators implement competitive markets in utility industries, at a minimum the traditional principles of deference which courts applied in this context need to be reassessed.

Hat tip to Larry Solum's Legal Theory Blog.  EMM

Eric Posner on "regulation by deal"

On The Volokh Conspiracy, Eric Posner (Chicago) comments on a piece by Tyler Cowen (Economics, George Mason) in the New York Times and a paper "Big Deal: The Government's Response to the Financial Crisis" by Steven Davidoff (UConn /Ohio State) and David Zaring (Penn).

The abstract for the Davidoff-Zaring paper:

How should we understand the federal government's response to the financial crisis? The government's team, largely staffed by investment bankers, pushed the limits of its statutory authority to authorize an ad hoc series of deals designed to mitigate that crisis. It then decided to seek comprehensive legislation that, as it turned out, paved the way for more deals. The result has not been particularly coherent, but it has married transactional practice to administrative law. In fact, we think that regulation by deal provides an organizing principle, albeit a loose one, to the government's response to the financial crisis. Dealmakers use contract to avoid some legal constraints, and often prefer to focus on arms-length negotiation, rather than regulatory authorization, as the source of legitimacy for their actions, though the law does provide a structure to their deals. They also do not always take the long view or place value on consistency, instead preferring to complete the latest deal at hand and move to the next transaction. In this paper, we offer a first look at the history of the financial crisis from the fall of Bear Stearns up to, and including, the initial implementation of the Economic Emergency Stability Act of 2008. We analyze in depth each deal the government concluded, and how it justified those deals within the constraints of the law, using its authority to sometimes stretch but never truly break that law. We consider what the government's response so far means for transactional and administrative law scholarship, as well as some of the broader implications of crisis governance by deal.

Cowen's critique quoted by Posner:

The ad hoc aspect of the bailout created a precedent for what has come to be called "regulation by deal" — now the government's modus operandi. Rather than publicizing definite standards and expectations for bailouts in advance, the Fed and the Treasury confront each particular crisis anew. Decisions are made as to whether a merger is possible, whether a consortium can be organized, what kind of loan guarantees can be offered and what kind of concessions will be extracted in return. So far, every deal — or lack thereof, in the case of Lehman Brothers — has been different.

While there are some advantages to leaving discretion in regulators' hands, this hasn't worked out very well. It has become increasingly apparent that the market doesn't know what to expect and that many financial institutions are sitting on the sidelines, waiting to see what regulators will do next. Regulatory uncertainty is stifling the ability of financial markets to engineer at least a partial recovery.

Posner's response to Cowen:

The question for Tyler is just what would the bailout rules that he has in mind look like? I suspect that an adequate set of rules could not be invented—and that the lesson of his column is not that regulatory discretion to address crises in the financial sector is wrong, but that a particular exercise of that discretion, the decision to bail out LTC, was wrong. What would the rules be? The institution has to be big, no? But how big? Doesn't it matter whether the financial health of other firms depend on the firm in question; if so, how many such firms and to what degree? And isn't the overall health of the economy also a relevant factor—indeed, Tyler points to the different conditions that prevailed in 1998—the budget surplus, the booming economy, the small size of the derivatives market—as a reason why the LTC bailout was a mistake. How should these factors be incorporated into a rule?

I have a particular interest in what might be termed "pararegulation" - the exercise of regulatory functions outside executive "notice and an opportunity to be heard".  I usually think in terms of non-executive regulation by judicial decisions (common law standard-making), by non-government standards bodies such as ICANN, or by private cartels, for example.  However, this discussion of "regulation by deal" identifies another kind of pararegulation - by agreement between the government and the regulated entity.  It may be by contract, as with the current bailouts, or by consent, as with a bank affiliating with the FDIC.  The regulated entity may choose not to be regulated, and pay whatever price reality exacts for that freedom.  Come to think of it, there are also hybrids such as government mandated cartels (e.g., the Livestock Marketing Association).  Curiouser and curiouser.  EMM

Estoppel to contest jurisdiction

In "Peril for the Unwary: Use It or Lose It Against The Coastal Commission" on the Abbott & Kindermann Land Use Law Blog, Cori Badgley and Nathan Jones describe a regulated entity that failed to object to an agency's jurisdiction while negotiating with it over two and a half years.  When the regulated entity finally raised the issue, the state appellate court found that it was estopped from contesting the agency's jurisdiction.  The authors' conclusions:

Most courts are generous to parties who make a continuous and good faith attempt to resolve their disputes notwithstanding the existence of a solid defense. It appears MHH's mistake was in failing to raise the issues following its initial determination that the Coastal Commission lacked jurisdiction. The court's analysis suggested that it was perturbed by MHH's delay in raising the issue to the detriment of the entire legal process. This case illustrates that while continuing to negotiate, the project proponent should still clearly raise any viable legal defenses from the beginning. If they are not promptly voiced, the defense may be lost.

EMM

Schwinn on Sunstein's "Is OSHA unconstitutional?"

At our sibling Constitutional Law Prof Blog, Steven D. Schwinn (John Marshall - Chicago) summarizes a new article by Cass Sunstein (Harvard) in the Virginia Law Review.

OSHA's constitutional problem is one of nondelegation:  It lacks an "intelligible principle" to guide and limit agency discretion.  Sunstein explains:

[The core provision of OSHA] defines an "occupational safety and health standard" as one that is "reasonably necessary or appropriate to provide safe or healthful employment or places of employment."  When the Secretary of Labor issues regulations governing tractors, ladders, or electrical equipment, the only question to be asked is whether one or another standard is "reasonably necessary or appropriate."

This language apparently gives the agency authority to "choose whatever principle it likes"--an unconstitutionally broad delegation of authority.

EMM

New administrative law articles

From the University of Washington's Current Index to Legal Periodicals:

• Bausinger, P. Leigh.  Note.  Welcome to the (impenetrable) jungle: Massachusetts v. EPA, the Clean Air Act and the common law of public nuisance.  (Massachusetts v. EPA, 127 S. Ct. 1438, 2007.)  53 Vill. L. Rev. 527-560 (2008). [L]|[W]
• Beaton, Benjamin J.  Note.  Walking the federalist tightrope:  a national policy of state experimentation for health information technology.  108 Colum. L. Rev. 1670-1717 (2008).
• Koch, Laura.  Comment.  The promise of wave energy.  2 Golden Gate U. Envtl. L.J. 162-199 (2008). [L]|[W]
• Mandel, Gregory.  Nanotechnology governance.  59 Ala. L. Rev. 1323-1384 (2008). [L]|[W]
• Annual Review of Environmental and Natural Resources Law.  Foreword by Robert Infelise; notes by Doug Karpa, Stefanie Gitler, Shawn Eisele, Christie Henke, Jonathan York, Matt Sieving, Jennifer Jeffers, Nicole Ries, Genevieve Casey, Max Baumhefner and Jamey Volker.  35 Ecology L.Q. 285-610 (2008). [L]|[W]
  • Infelise, Robert.  Foreword.  35 Ecology L.Q. 285-290 (2008). [L]|[W]
  • Karpa, Doug.  Note.  Loose canons:  the Supreme Court guns for the Endangered Species Act in ... (Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518, 2007.)  35 Ecology L.Q. 291-335 (2008). [L]|[W]
  • Gitler, Stefanie.  Note.  Settling the tradeoffs between voluntary cleanup of contaminated sites and cooperation with the government under CERCLA.  (United States v. Atlantic Research Corp., 127 S. Ct. 2331, 2007.)  35 Ecology L.Q. 337-361 (2008). [L]|[W]
  • Eisele, Shawn.  Note.  Paving the way for cap and trade?  (Envtl. Def. v. Duke Energy Corp., 127 S. Ct. 1423, 2007.)  35 Ecology L.Q. 363-384 (2008). [L]|[W]
  • Henke, Christie.  Note.  Giving states more to stand on:  why special solicitude should not be necessary.  (Massachusetts v. EPA, 127 S. Ct. 1438, 2007.)  35 Ecology L.Q. 385-404 (2008). [L]|[W]
  • York, Jonathan.  Note.  The next step in revitalizing RCRA:  Maine People's Alliance and the importance of citizen intervention in EPA actions.  (Me. People's Alliance v. Mallinckrodt, Inc., 471 F.3d 277, 2006, cert denied, 128 S. Ct. 93, 2007)  35 Ecology L.Q. 405-425 (2008). [L]|[W]
  • Sieving, Matt.  Note.  Rising phoenix-like from the ashes:  an argument for expanded corporate successor liability under CERCLA.  (K.C. 1986 Ltd. P'ship v. Reade Mfg., 472 F.3d 1009, 2007.)  35 Ecology L.Q. 427- 453 (2008). [L]|[W]
  • Jeffers, Jennifer.  Note.  Reversing the trend towards species extinction, or merely halting it?  Incorporating the recovery standard into ESA section 7 jeopardy analysis.  (National Wildlife Federation v. National Marine Fisheries Service, 481 F.3d 1224, 2007.)  35 Ecology L.Q. 455-489 (2008). [L]|[W]
  • Ries, Nicole.  Note.  The (almost) all-American canal:  Consejo de Desarrollo Economico de Mexicali v. United States and the pursuit of environmental justice in transboundary resources management.  (Consejo de Desarrollo Economico de Mexicali v. United States, 417 F. Supp. 2d 1176, 2006; Consejo de Desarrollo Economico de Mexicali v. United States, 438 F. Supp. 2d 1194, 2006; Consejo de Desarrollo Economico de Mexicali v. United States, 438 F. Supp. 2d 1207, 2006 and Consejo de Desarrollo Economico de Mexicali v. United States, 482 F.3d 1157.)  35 Ecology L.Q. 491-529 (2008). [L]|[W]
  • Casey, Genevieve.  Note.  What went wrong in San Francisco Baykeeper v. Cargill Salt Division?  The Ninth Circuit's weak reading of Kennedy's Rapanos concurrence, and a prescription for litigating Clean Water Act claims under Rapanos.  (San Francisco Baykeeper v. Cargill Salt Division, 481 F.3d 700, 2007.)  35 Ecology L.Q. 531-556 (2008). [L]|[W]
  • Baumhefner, Max.  Note.  The ozone saga.  (S. Coast Air Quality Mgmt. Dist. V. EPA, 472 F.3d 882, 2006.)  35 Ecology L.Q. 557-572 (2008). [L]|[W] Volker, Jamey.  Note.  Water supplies finally take center stage in the land use planning arena.  (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, 150 P.3d 709, 2007.)  35 Ecology L.Q. 573-610 (2008). [L]|[W]
• The West's Aging Dams:  Retain or Remove?  Introduction by Paul Stanton Kibel and C. Danny Wang; articles by Russell W. Busch, Gerald H. Meral, David L. Wegner and Jonas Minton.  2 Golden Gate U. Envtl. L.J. 1-117 (2008). [L]|[W]
  • Kibel, Paul Stanton and C. Danny Wang.  Instruments not monuments:  an introduction to the issue.  2 Golden Gate U. Envtl. L.J. 1-4 (2008). [L ]|[W]
  • Busch, Russell W.  Tribal advocacy for Elwha River Dams removal on Washington's Olympic Peninsula.  2 Golden Gate U. Envtl. L.J. 5-21 (2008). [L ]|[W]
  • Meral, Gerald H.  Beyond and beneath O'Shaughnessy Dam:  options to restore Hetch Hetchy Valley and replace water and energy supplies.  2 Golden Gate U. Envtl. L.J. 22-68 (2008). [L]|[W]
  • Wegner, David L.  New ideas for old dams:  developing solutions for a shrinking Colorado River.  2 Golden Gate U. Envtl. L.J. 69-95 (2008). [L]|[W]
  • Minton, Jonas.  The old and the new:  evaluating existing and proposed dams in California.  2 Golden Gate U. Envtl. L.J. 96-117 (2008). [L]|[W]

EMM

Collateral attack on rules

E.L. Lipman on his Within the Scope blog points out a new D.C. Circuit opinion extending the concept of "constructive reopening" of rules to collateral attack.  "Sierra Club v. EPA: A Wider Doctrine on the Time to File Rulemaking Challenges?"  The Clean Air Act says that regulations must be challenged within 60 days, and these regs were first promulgated in 1994.  The EPA salami-sliced a near repeal of these regs by removing the various requirements over several years.  The EPA claimed that the Sierra Club had waived its right to challenge the regs by not petitioning in 1994, but the D.C. Circuit agreed with the Sierra Club that the changes together were so great as to constitute new regulations and allowed the Sierra Club to proceed.

If you are involved in administrative law as a professor or as a practitioner, you should follow Within the Scope.  EMM

Standing to enforce a regulation

In her Law of the Land blog, Patty Salkin (Albany) describes a recent Massachusetts case affirming that adjacent property owners in this case had standing to enforce the local zoning ordinance.  "Adjacent Property Owners Are 'Persons Aggrieved' for Purposes of Zoning and Appeals Court Finds that Two Lots in Single Ownership Merged for Purposes of Zoning". 

The Massachusetts Appeals Court noted that for the Dwyers [the adjacent property owners - ed.] to have standing, they must show that the zoning relief granted adversely affected them directly and that their injury is related to a cognizable interest protected by the applicable zoning law.  The Court noted that the Dwyers described the close proximity of the lot to their rear sunroom and the loss of privacy that has already resulted from the removal of trees in anticipation of construction as well as a dramatically altered view of wooded trees. The Court found that "…crowding of an abutter's residential property by violation of the density provisions of the zoning by-law will generally constitute harm sufficiently perceptible and personal to qualify the abutter as aggrieved as thereby confer standing to maintain a zoning appeal."  Although Gallo [the property owner requesting the building permit - ed.] claimed that the value of the Dwyer's property would increase as a result of the proposed construction, the Court said that economic considerations are not determinative, but that density concerns related directly to the zoning scheme are.

Note the relationship between the particular harm and the purpose of the regulatory scheme.  EMM

When you don't have to exhaust administrative remedies

E.L. Lipman, on his Within the Scope blog, points out that a case that garnered some laughs actually has some interesting law. 

Russell Kaemmerling, the inmate, filed suit to enjoin application of the DNA Analysis Backlog Elimination Act to him, on the grounds that it violated rights that were guaranteed to him under the First Amendment and the Religious Freedom Restoration Act ("RFRA"). The DNA Analysis Backlog Elimination Act directs the Bureau of Prisons to collect DNA samples from inmates like Kaemmerling, and to forward them to the FBI for analysis and possible matching against evidence in unsolved cases. Kaemmerling asserted that while he did not object to the collection of the sample per se, he regarded the FBI's review of the "building blocks of life" as "laying the foundation for the rise of the anti-Christ."

... Kaemmerling was not obliged to exhaust his administrative remedies through the Bureau of Prisons before filing suit, because the Bureau of Prisons was wholly without the power to either avoid collecting a DNA sample from him or to prevent the FBI from reviewing the same. Because of the clear directive of the statute, the panel concluded that this was the "rare case" where administrative exhaustion before filing a court action was neither useful nor required. The Bureau of Prisons simply could not offer relief to the inmate's complaint.

The Court then proceeded to affirm dismissal (with prejudice) on the merits. Kaemmerling v. Lappin, No. 07-5065 (D.C. Cir., December 30, 2008).  EMM

Two new admin law opinions

Two interesting opinions spotted by the Environmental Law Prof Blog:

U.S. D.C. Circuit Court of Appeals, December 23, 2008
American Forest & Paper Assoc. v. Fed. Energy Regulatory Comm'n, No. 071328
Petition for review of defendant-Federal Energy Regulatory Commission's (FERC) interpretation of a term used in amendment to the Public Utility Regulatory Policies Act (PURPA) is denied where defendant-FERC's interpretation of the term "markets" in 16 U.S.C. section 824a-3(m)(1)(A)(ii) encompassing both competitive and non-competitive markets was reasonable. Read more...

U.S. D.C. Circuit Court of Appeals, December 23, 2008
Devon Energy Corp. v. Kempthorne, No. 075299
Pursuant to plaintiff's lease to extract coalbed methane from federal land in Wyoming, a final order issued by US Department of the Interior (DOI) requiring plaintiff to retroactively recalculate royalties owed to the government is affirmed where: 1) the DOI's interpretation of the marketable condition rule reflected a reasonable construction of the rule; 2) the agency's order was not at odds with the plain language of the rule, nor did it effectively "amend," rather than reasonably construe the rule; and 3) plaintiff's claim that DOI's order conflicted with a prior interpretation of the marketable condition rule is rejected. Read more...

EMM

CMS Rating Nursing Homes

The Centers for Medicare and Medicaid Services (CMS), the behemoth finance and regulatory agency, has just started rating nursing homes on its Nursing Home Compare website.  On the plus side, the new five star system makes it easier than ever before to compare nursing homes.  Simply plug in a zip code, city, state, or county and you can get ratings compiled by CMS for every home within your search range.  CMS rates providers based on three criteria: inspection histories, staffing and quality measures.  Quality measures include descriptors of the physical and mental functioning of the population at a given nursing home.  They provide a snapshot of the relative overall health of a given nursing home population.  These data provide an excellent starting point for evaluating nursing homes.

On the down side, the ratings are only as good as the data used to make them.  Patient advocates complain that not enough information is provided to consumers.  Industry advocates complain that the data are misleading, incomplete and do not include relevant information such as patient satisfaction.  Critics of the ratings system also note that well-respected, high quality institutions have received "inappropriately low" ratings.   Meanwhile, both patient advocates and industry advocates (rightly) complain about the unevenness of the inspection system.   

Is the five star system a good idea?  Most certainly, but it remains to be seen whether this version provides a reliable assessment of the relative benefits of one nursing home over another.  For a treasure trove of articles about the rating system, check out the silobreaker website.

Happy Holidays!  LT

New administrative law articles

From the University of Washington's Current Index to Legal Periodicals:

• Cooter, Robert.  Doing what you say:  contracts and economic development. 59 Ala. L. Rev. 1107-1133 (2008). [L]|[W]
• Crow, Brett D.  Equal consideration and systematic measurement error in hydroelectric relicensing.  48 Nat. Resources J. 91-128 (2008). [L]|[W]
• Damschen, Charles A.  Note.  Patentable subject matter:  do the 2005 USPTO Interim Guidelines intersect State Street at a roundabout?  93 Iowa L. Rev. 1889-1918 (2008). [L]|[W]
• Hardin, Don Bradford, Jr.  Comment.  Why cost-benefit analysis?  A question (and some answers) about the legal academy.  59 Ala. L. Rev. 1135- 1181 (2008). [L]|[W]
• Hurlbut, David.  A look behind the Texas renewable portfolio standard:  a case study.  48 Nat. Resources J. 129-161 (2008). [L]|[W]
• Klurfeld, Roger J. and Steven Placek.  Rhetorical judgments:  using holistic assessment to improve the quality of administrative decisions.  5 J. Ass'n Legal Writing Directors 58-78 (2008). [ L]|[W]
• Smith, Erik Bruce.  Note.  Dental therapists in Alaska:  addressing unmet needs and reviving competition in dental care.  24 Alaska L. Rev. 105-143 (2007). [L]|[W]
• You, Mingqing.  Moratorium on EIA approvals:  China's new environmental law enforcement tool.  48 Nat. Resources J. 163-187 (2008). [L]|[W]
• Twentieth Anniversary Issue.  Beyond Kyoto--The Developing World and Climate Change.  Preface by Edith Brown Weiss; foreword by Andrew Schatz, Executive Editor; workshop papers by Dale Jamieson, Brooke Ackerly, Michael P. Vandenbergh, John C. Dernbach, Albert Mumma, David Hodas, Craig Hart, Kenji Watanabe, Ka Joon Song, Xiaolin Li and Tseming Yang; note by Andrew Schatz.  20 Geo. Int'l Envtl. L. Rev. 521-742 (2008). [L ]|[W]
  • Twentieth Anniversary Issue.  Beyond Kyoto--The Developing World and Climate Change.  20 Geo. Int'l Envtl. L. Rev. 521-742 (2008). [L ]|[W]
  • Weiss, Edith Brown.  Preface.  20 Geo. Int'l Envtl. L. Rev. 521-529 (2008). [L ]|[W]
  • Schatz, Andrew.  Foreword:  Beyond Kyoto--The Developing World and Climate Change.  20 Geo. Int'l Envtl. L. Rev. 531-535 (2008). [L ]|[W]
  • Jamieson, Dale.  The post-Kyoto climate:  a gloomy forecast.  20 Geo. Int'l Envtl. L. Rev. 537-551 (2008). [L ]|[W]
  • Ackerly, Brooke and Michael P. Vandenbergh.  Climate change justice: the challenge for global governance.  20 Geo. Int'l Envtl. L. Rev. 553- 571 (2008). [L ]|[W]
  • Dernbach, John C.  Achieving early and substantial greenhouse gas reductions under a post-Kyoto agreement.  20 Geo. Int'l Envtl. L. Rev. 573-618 (2008). [L ]|[W]
  • Mumma, Albert and David Hodas.  Designing a global post-Kyoto climate change protocol that advances human development.  20 Geo. Int'l Envtl. L. Rev. 619-643 (2008). [L ]|[W]
  • Hart, Craig, Kenji Watanabe, Ka Joon Song and Xiaolin Li.  East Asia Clean Development Mechanism:  engaging East Asian countries in sustainable development and climate regulation through the CDM.  20 Geo. Int'l Envtl. L. Rev. 645-680 (2008). [L ]|[W]
  • Yang, Tseming.  The implementation challenge of mitigating China's greenhouse gas emissions.  20 Geo. Int'l Envtl. L. Rev. 681-701 (2008). [L ]|[W]
  • Schatz, Andrew.  Note.  Discounting the Clean Development Mechanism.  20 Geo. Int'l Envtl. L. Rev. 703-742 (2008). [L ]|[W]

EMM

Theory: Solum on Sunstein on the Constitutionality of OSHA

For those interested in admin law theory, Lawrence Solum links to, extracts from, and comments on a recently posted article by Cass Sunstein in "Legal Theory Blog: Sunstein on the Constitutionality of OSHA".  From the abstract for the Sunstein article:

Under the Occupational Safety and Health Act, the Secretary of Labor is authorized to issue whatever standards are reasonably necessary or appropriate to provide safe or healthful places of employment. More than any other provision in federal regulatory law, this language is subject to a plausible nondelegation challenge, because it seems to ask the Secretary to choose among a wide array of intelligible principles for standard-setting. The constitutional challenge raises serious and unresolved questions for both regulatory policy and administrative law.

From Solum's comments:

A deeply interesting treatment of an important question--very highly recommended.

I am not fully convinced by Sunstein's argument at the end of the paper.

EMM

Obesity epidemic may result in new federal regulations

The FDA may expand its primary focus from drug oversight to food-related health issues.  The Los Angeles Times reports on the increasing likelihood that the federal government will require increased nutritional reporting from restaurants.

KP

Good source for today's substantive admin law highlights

If you want to find out quickly about the latest substantive federal regulatory issues, I recommend the Washington Post's new Federal Eye blog.  Most weekday mornings its "Eye Opener" post spots the latest executive branch news - not as snarky as Above The Law but still enjoyable.  It also highlights important functional gears in the government machinery, such as "Nuts and Bolts: Busy Times at The Federal Register".  EMM