Administrative Law

  • November 9, 2010

    In his new book, Yale Law Professor Douglas Kysar challenges the United States' current approach to regulating the environment, suggesting a new model that deemphasizes cost-benefit analysis.

    During an ACS event focused on the book, Regulating from Nowhere: Environmental Law and the Search for Objectivity, panelists took a step back from the usual debates about particular environmental issues and engaged in a philosophical discussion about whether our current models for setting environmental policy can actually reflect our ideals.

    "Much of environmental health and safety law is being confused and distorted by applying that wrong lens and so its aims are being misunderstood," Kysar said during the panel discussion, explaining that the current welfare economics approach "condemns laws without really understanding what it is they're intended to do."

    He explained that the cost-benefit analyses policy-makers use to set, for example, acceptable levels of pollutants start with flawed assumptions. One such assumption is that U.S. policies will never affect other nations' policies, obscuring the likelihood that a major shift in U.S. policy would cause other countries to follow suit.

    "I think that today we are at the threshold of an era where we absolutely have to think of planetary governance to an extent," said Sheila Jasanoff, a professor of science and technology studies at the Harvard Kennedy School.

    Jasanoff suggested that we are currently entering a "constitutional moment," in which we will reconsider our constitutional principles in light of our understanding that regulating our environment and our health is a global issue.

    "I think that the question for law that rises and rises is sort of played out in different harmonies throughout Doug's book is what role does American constitutional law have in charting the course toward this new era in which we have to think of supranational governance," Jasanoff said.

    Watch the full discussion below.

  • September 9, 2010

    Two days after U.S. District Court Judge Royce Lamberth refused to stay his order blocking federal funding for embryonic stem cell research, the U.S. Court of Appeals for the D.C. Circuit granted the Obama administration's emergency request for a stay.

    In its order, the court used "standard language" indicating that the stay would give the court time to consider the merits of the motion, and should not be read as a ruling on the merits, The Blog of the Legal Times reports. The court set deadlines for the plaintiffs to respond to the stay request, and for a Department of Justice rebuttal.

    In its request for a stay, the administration argued that "[d]isruption of ongoing research will result in irreparable setbacks and, in many cases, may destroy a project altogether," and that the injunction is at odds with the intent of Congress when it passed the law, Reuters reports.

    Law and biosciences expert Hank Greely wrote in an ACSblog post that Judge Lamberth's initial opinion was "disappointingly bad," and predicted that the D.C. Circuit would first stay the order and then reverse it.


  • August 20, 2010
    Guest Post

    By Karen Musalo, clinical professor of law and director of the Center for Gender and Refugee Studies at the University of California, Hastings College of Law.
    On August 4, 2010, in a closely watched case, an immigration judge granted asylum to Ms. L.R., a woman from Mexico. The grant in Ms. L.R.'s case came on the heels of a grant of asylum in another high-profile case, that of the Guatemalan asylum seeker, Rody Alvarado. What both cases had in common is that the women asylum seekers had fled brutal violence and abuse at the hands of their male partners in a situation where neither the police nor the courts responded to repeated calls for protection. Taken together the cases send a message loud and clear that domestic violence can be the basis for a successful claim to asylum. They also stand for the broader principle that women who suffer a range of violations of their fundamental human rights - from female genital cutting (FGC), to honor killings, to forced marriage or sexual slavery - are also entitled to protection as refugees.

    Although the protection of women whose human rights are violated should not be a controversial proposition, it has been - and continues to be - and women have had to struggle for the recognition that "women's rights are human rights." Their activism over the years has resulted in the promulgation of a number of international human rights instruments, including the Declaration on the Elimination of Violence against Women that specifically address the human rights of women.

    In the United States, these advances began to bear fruit in the refugee protection area with the 1996 grant of asylum to Fauziya Kassindja, a woman who fled female genital cutting [FGC]. The decision in Fauziya Kassindja's case (known as Matter of Kasinga) was issued by the Board of Immigration Appeals (BIA), the highest immigration tribunal in the U.S., and was the first precedent decision in U.S. law granting asylum to a woman who fled a gender-based form of persecution. Women's rights and refugee rights advocates celebrated the grant in Ms. Kassindja's case, seeing it as the opening of the door to protection for women fleeing gender-based violations.

    However, the celebration was short-lived. Three years later the BIA denied asylum to Rody Alvarado, who sought asylum from more than a decade from what can only be characterized as torture at the hands of her husband, an ex-soldier in the Guatemalan military. Over the ten years of their marriage, her husband pummeled her with his fists, broke windows and mirrors with her head, woke her in the middle of the night with a knife to her throat, and threw machetes across the room at her. The police never answered her desperate calls for help, and a judge told her he wouldn't get involved in a "private" matter.

    The denial of asylum in Ms. Alvarado's case was the opening shot in a 14-year-long battle to vindicate the principle that women's rights are human rights, and to hold the courts to the precedent exemplified by the grant of asylum in Matter of Kasinga. Ms. Alvarado was finally granted asylum in December 2009. To understand how this came about, it's necessary to return to where we began - the L.R. case, which the Obama Administration chose to be the vehicle by which it would articulate its position on the issue of asylum in cases such as these. Although one can only speculate, it is a good assumption that the Administration chose the L.R. case because its facts were not only compelling, but also representative of cases involving gender-based violence.

  • August 17, 2010
    Guest Post

    By John Rother, executive vice president for policy and strategy at AARP.
    On Saturday, we marked the diamond anniversary of a national treasure - Social Security, signed into law on August 14, 1935. With his signature, President Roosevelt began what has become the bedrock of economic security for countless working Americans and their families. In addition to providing retirement benefits for those age 62 and older, Social Security provides benefits that help all generations. Families of soldiers killed in Iraq and Afghanistan, children who lose a working parent, workers who become disabled, widows and widowers - all count on Social Security benefits. In all, 53 million Americans today count on Social Security as a critical source of income.

    It's a time to celebrate Social Security's remarkable past success, and to commit to ensuring our nation's most important program will be strong in the future. It's also a time to counter false assumptions that give rise to so-called "solutions" that instead of strengthening the program, will undermine the retirement security of our children and grandchildren.

    The fact is, Social Security will be as important for future generations as it is for current retirees. In the recession millions of Americans lost their jobs and their pensions and saw their private savings accounts plummet with the fall of the stock market, but Social Security benefits were there, as they have been for 75 years, in good times and bad.

    For the majority of retirees, Social Security can be the difference between aging with independence and aging in financial desperation. To be specific, Social Security provides more than half the income for 72 percent of single individuals age 65+ who receive Social Security benefits and for 52 percent of couples who receive benefits.

    And, yet, as vital as these benefits are, they are modest by any standard. Social Security was never designed to be a worker's sole source of retirement income. Today's average workers' benefits will replace only about $4 of every $10 earned while working. The average retirement benefit in December 2009 was $1,168 per month - about $14,000 a year. For retired women, even less - only $983 a month -- or less than $12,000 a year.

  • August 16, 2010

    The Social Security Act turned 75 on Saturday, and President Obama seized the occasion to remind the public that the United States cannot afford to privatize social security.

    "I'll fight with everything I've got to stop those who would gamble your Social Security on Wall Street," President Obama said during his weekly address. "Because you shouldn't be worried that a sudden downturn in the stock market will put all you've worked so hard for - all you've earned - at risk. You should have the peace of mind of knowing that after meeting your responsibilities and paying into the system all your lives, you'll get the benefits you deserve."

    Adds the Los Angeles Times in an editorial:

    Conservatives have tried for several years to use the trust fund's long-term troubles as a rationale for privatizing Social Security. But allowing workers to take control (and responsibility) for all or part of their accounts would only exacerbate the problem. That's because, despite $2.5 trillion in reserves, the trust fund isn't large enough to finance the benefits promised to workers already in the system. Shifting payroll taxes from the trust fund to private accounts would make the shortfall worse.

    The editorial calls instead for a combination of smaller steps, including raising the retirement age, raising payroll taxes, cutting benefits and changing cost-benefit adjustments.

    Editorials in both The Washington Post and The New York Times also call for balanced reform, with a combination of benefit cuts and tax increases, but the Post calls the newest numbers a "warning sign," while The Times editorial board says "Social Security is holding up even in the face of a weak economy," due in part to savings Medicare will experience thanks to health care reform.

    Paul Krugman writes that claims of a Social Security crisis rely on "bad-faith accounting."

    "I'm not just talking about the fact that it's a lot easier to imagine working until you're 70 if you have a comfortable office job than if you're engaged in manual labor," Krugman writes. "America is becoming an increasingly unequal society - and the growing disparities extend to matters of life and death. Life expectancy at age 65 has risen a lot at the top of the income distribution, but much less for lower-income workers. And remember, the retirement age is already scheduled to rise under current law."

    Derek Thompson writes in the Atlantic that Krugman's article is misleading, pointing out that modest cuts today will benefit the bottom 50 percent of Social Security recipients more than steep cuts in the future.

    The Nation's Katrina vanden Heuvel suggests: "on this 75th anniversary, rather than fighting these Social Security-busters, we should celebrate what has been one of the nation's best anti-poverty programs - a lifeline for millions of Americans - and a reminder of what effective government can do."

    She adds:

    This anniversary is also a reminder of how major social reforms in this country have come about - in fits and starts. As former Clinton adviser Paul Begala observed in a Washington Post op-ed, "No self-respecting liberal today would support Franklin Roosevelt's original Social Security Act... If that version of Social Security were introduced today, progressives like me would call it cramped, parsimonious, mean-spirited and even racist. Perhaps it was all those things. But it was also a start. And for 74 years we have built on that start."