Statutory Constraints Research Articles

Different Schemes, Same City? How lessons from Luas Cross City works are informing the design and implementation of the Luas Finglas and MetroLink Cultural Heritage Strategies

Transport Infrastructure Ireland (TII) Archaeology and Heritage operate under a Code of Practice (CoP) for Archaeology (2017) as agreed with the present Minister for Housing, Local Government and Heritage (MHLGH). In accordance with the CoP, a Project Archaeologist is assigned to each scheme. TII Project Archaeologists are responsible not just for archaeological remains, but for cultural heritage in accordance with the Environmental Impact Assessment Directive 2014/52/EU and Environmental Protection Agency Guidelines. Therefore our responsibilities equally encompass the management of built and cultural heritage constraints. This is inclusive of statutory constraints such as National Monuments, Record of Monuments and Places (RMPs) sites, and Protected Structures, and non-statutory constraints such as those included on the National Inventory of Architectural Heritage (NIAH), industrial heritage complexes, parklands, statues, and street furniture.Between 2013 to 2017, TII managed the various cultural heritage requirements of works contracts associated with the construction of Luas Cross City (LCC) in Dublin, Ireland. This scheme provides an ideal case study to consider how archaeological projects can help us understand the development and eastward expansion of the city's public realm from the late 17th to the 20th century. It also demonstrates how we can apply lessons learned from cultural heritage works to engineering contracts.

Agency control through the appointed hierarchy: presidential politicization of unilateral appointees

AbstractSchedule C and noncareer Senior Executive Service positions hold significant influence over policy outcomes, yet they have received limited scrutiny compared to advise and consent (PAS) appointments. Such appointments offer understudied avenues for presidential control over the bureaucracy. Through a comprehensive analysis of more detailed data than has been employed to date, we reveal that these appointments are responsive to broader political dynamics, particularly those relevant to PAS appointments, including inter- and intrabranch conflicts, agency ideology, Senate workload, and the political calendar. However, statutory constraints and agency characteristics – such as the managerial expertise of appointed agency leadership – also shape their utilization. While unilateral appointments provide an advantage to Presidents, executives are constrained when using them to overcome legislative opposition or reshape resistant agencies. These lower-level appointments reflect the wider political landscape, granting the President significant – but not unrestrained – opportunities to exert influence on both the bureaucracy and policy outcomes.

Impact Fees in New York City? Legal Authority, Constraints, and Potential Options


 
 
 New York City, like many other cities, faces numerous practical, political, and legal challenges in raising the revenue it needs to support its growing population. Against this backdrop are ongoing concerns about how the City will finance the additional public services and infrastructure necessitated by new development, as well as the costs it incurs in mitigating adverse impacts on existing communities and the environment. In this context, some have called for the City to explore whether to adopt a local impact fee program.
 Broadly defined, impact fees are one-time charges imposed on new development as a condition of approval to offset its impact on local infrastructure, services, and the environment. Employed widely in other major U.S. cities, New York City is a notable outlier in that it does not have an official impact fee policy. However, unlike many other cities, New York State law is unclear as to whether local governments have the requisite authority to adopt one.
 This Article analyzes the question of whether New York City has the legal authority to impose impact fees on new development. It argues that, should the City wish to adopt impact fees, it could do so through either its constitutional home rule authority or through its mitigation authority under state environmental review laws. This Article also identifies a number of constitutional and statutory constraints that would likely restrict the design and scope of a local fee program, including limitations under the state’s doctrines on preemption and local taxation, and under the federal exactions jurisprudence.
 
 

PROBLEMATICS OF THE POSITION OF NOTARY IN TECHNOLOGY DEVELOPMENT AND INFORMATION

In the development of technology and information, digitalization needs to be carried out to support the duties and positions of a notary. As a way of adaptation, notaries can implement cyber notaries with positive benefits. Cyber Notary is a concept of utilizing technology that can assist notaries in carrying out their duties. Although there are many positive benefits, there are also obstacles to its application in Indonesia. The goal to be achieved in this research is to find out the problems faced by notaries in going digital, in order to find solutions in an effort to support the notary's duties. The method used is a normative juridical method, with an approach to related laws, and a conceptual approach. From the research results obtained, it is concluded that there are statutory constraints that are still contradictory in implementing Cyber Notary if it is implemented, it can lead to legal conflicts for notaries. As a solution, harmonization of applicable laws is needed.

Experimental investigation of synthetic fiber reinforced composites

The manufacturing and automotive industries have begun using renewable resources in place of synthetic fibre reinforced composites because of the significant role that these composites play in the creation of lighter weight structural materials. This is due to the fact that these composites play an essential function in the development of lighter weight structural materials. This is as a result of the fact that these composites play a significant role in the process of creating structural materials that have a lower overall weight. This is one of the reasons why this is the case, and one of the reasons why this is the case is because these composites play an important part in the production of lighter weight structural materials. This is the case due to the fact that, over the course of the past few years, there has been an increase in public knowledge, in addition to the rigorous statutory constraints that have been placed on the utilization of polymers. This has resulted in the current situation. The fundamental purpose of this work is to reinforce an epoxy matrix with nano-2% basalt, carbon, glass, and aluminium fibers by incorporating them into the matrix. In addition to the major attention that will be placed on the accomplishment of this task, an additional secondary emphasis will be placed on the production of an epoxy matrix. First, there is an investigation of the tensile, flexural, and impact properties of the material, in addition to the influence of basalt fiber loading in a number of different orientations.

Non‐resident college student hunting license regulations in the United States

AbstractA decades‐long decline in hunting participation jeopardizes state wildlife agency funding amid growing conservation and management challenges. College students are being recognized by states and non‐governmental organizations as an important population for hunter recruitment and retention, fueling a proliferation of learn‐to‐hunt programs on college campuses. Nearly 3,000,000 students attend college in a state where they are not a resident and may face constraints to hunting. We analyzed hunting license residency statutes in each state to determine whether non‐resident college students were addressed in statutes or policies, catalog statutory provisions that may exclude populations of students from hunting, and document how students' residency status affects the price of a deer and small game license. Nationwide, 29 states have statutes allowing non‐resident college students to hunt at a resident rate. Among these states, we identified a patchwork of statutory requirements for non‐resident students to be eligible for resident‐rate licenses, including waiting periods, age restrictions, credit restrictions, and unclear or onerous purchasing procedures. Non‐resident college students fell into a gray area of licensing policy in the 21 states without statutes addressing this group. In these states, students often needed to pay non‐resident hunting license rates. Hunting licenses were substantially more expensive for non‐resident college students in states without statutes addressing students, and license sales data from Montana, USA, indicated that high license prices are a constraint for student hunters. With college students becoming a focal point for hunter recruitment efforts, we identify statutory constraints to recruiting and retaining hunters on college campuses and help improve the effectiveness of learn‐to‐hunt programs on college campuses.

Globalisation strategies and roles among Australian junior mining firms in Latin America

AbstractAustralian junior mining firms’ globalisation strategies and roles inside the sector remain understudied in economic geography. Such firms are often overshadowed by larger global mining interests, whose operations drive most foreign direct investment, capital, and operational expenditure tied to resource extraction. Unlike large multinationals and state‐owned enterprises, junior firms are nimble, often untethered from path‐dependent national systems, less encumbered by statutory constraints or corporate structures, and less accountable to shareholders. This study sought to understand globalisation strategies and roles among junior mining firms by reference to a case study of 55 Australian junior firms in Latin America. We used spatial analysis to uncover three patterns of junior firm globalisation strategies and roles: specialised service providers supporting the further development of mature and emerging mining industries; regional spearheads opening new destinations; and mineral avant‐gardists developing new speculative industries that are critical to clean energy technologies. We conclude both that Australian junior firms play a crucial role in the development of critical resource basins in other nations and that there are significant forms of firm heterogeneity and functional integration at the core of mining globalisation that need to be more comprehensively incorporated in economic geography research.

Sue The Fed: The Case for Privately Enforceable Statutory Constraints on Federal Reserve Emergency Lending

The federal government’s economic response to the COVID-19 epidemic has principally been one in which the Federal Reserve has set up extraordinary lending facilities in partnership with the Treasury Department. These facilities were modeled on multi-trillion-dollar lending facilities set up by the Federal Reserve in 2008 in response to the prior economic crisis. These Federal Reserve lending facilities are extraordinary in size but also extraordinary because they involve lending to firms that are not banks. Federal Reserve lending over the first hundred years of its history was almost exclusively limited to banks. Congress put in place statutory limits on this extraordinary lending authority in the Dodd-Frank Act of 2010 to limit the Federal Reserve’s discretion and minimize the risk that generous lending by the Federal Reserve would encourage excessive risk taking. Those limits prohibit the Fed from supporting insolvent firms, from propping up individual firms like it did with AIG in 2008, includes a number of other prescriptive measures to ensure the Federal Reserve takes reasonable risk management practices even in extraordinary times. This paper argues that those limits have not proven enforceable nor constraining on the Fed’s discretion, and this paper instead argues that a private right of action to enforce them would better fulfill Congress’ objective in the Dodd-Frank Act to limit Federal Reserve discretion in lending to non-banks.

Legal Regulation and the Juridification of Party Governance

Although democratic states increasingly regulate political parties, we know little about how legal environments shape parties' internal lives. This article conceptualizes and measures the "juridification" of party organizations' conflict regulation regimes: that is, the extent to which parties replicate external legal standards (e.g. norms of due process) within their own procedures. Formulating hypotheses on juridification within different parties and legal environments, we examine intra-party juridification across four democracies with most different party law provisions. While party juridification varies—reflecting parties' ideological differences—in contexts where organizational governance remains unregulated, once intra-organizational governance is subject to statutory constraints, parties emulate legal norms embedded in the state legal system, transcending what is legally required, which has important repercussions for how the law shapes civil society organizations generally.

Brief of Amici Curiae Professors of Patent and Administrative Law in Support of Respondent, Thryv, Inc. v. Click-To-Call Technologies, LP, No. 18–916 (Sup. Ct., Nov. 4, 2019)

This case implicates a significant balance in the patent system between the competing powers of the federal courts and the U.S. Patent and Trademark Office Patent Trial and Appeal Board (“PTAB”) to review patent validity. Congress allocated those powers through several provisions of the America Invents Act, including the one-year time bar of 35 U.S.C. § 315(b). The Federal Circuit, starting with its en banc decision in Wi-Fi One, LLC v. Broadcom Corp., 878 F.3d 1364 (Fed. Cir. 2018), has been taking proper account of that balance of power by exercising judicial review over the PTAB’s application of the one-year bar. Judicial review of § 315(b) time-bar determinations is foundational to safeguarding the court-agency balance of patent powers, whose scope and impact extend well beyond the PTAB and into the courts. Accordingly, the Federal Circuit’s conclusion that such review is available correctly applies this Court’s guidance in Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131 (2016), and is strengthened even further by this Court’s subsequent decision in SAS Institute Inc. v. Iancu, 138 S. Ct. 1348 (2018). Moreover, detailed empirical evidence reveals that litigants use the PTAB to a significant extent as a strategic substitute for courts in reevaluating patent validity. Strategic substitution is subject to important statutory constraints, especially the one-year bar of § 315(b). These constraints promote repose for litigants, conservation of both court and agency resources, and inter-branch respect for the judgments of competing tribunals. Accordingly, in evaluating the reviewability of the PTAB’s timeliness determinations under § 315(b), this Court should take careful account of the significant scope and impact that § 315(b) has beyond the inter partes review setting in preserving the balance of power that Congress has allocated to the PTAB and to the courts.

More than Control: Partisan Differences in the Use of Statutory Constraints on the Bureaucracy

Bureaucratic agencies have discretion when implementing laws. Because legislators and bureaucratic officials may have different policy preferences, legislators have developed a number of methods to control those officials. Previous research suggests that legislators who are ideologically aligned with the executive branch are more likely to grant the bureaucracy discretion in policy implementation because of their shared policy goals. This is referred to as the However, sometimes ideologically aligned legislators place significant constraints on bureaucratic agencies. Why do these legislators curb discretion from supposedly allied agencies? I argue that statutory constraints are a policy tool, and that Republican legislators use them in an effort to reduce the scope of government bureaucracy. I then test this theory using the text from twenty-four years of U.S. Congressional legislation. I find that while Democrats' behavior is consistent with the Ally Principle, Republican legislation displays strong evidence of a reverse Ally Principle.

Brief of Amici Curiae Professors of Patent and Administrative Law in Support of Neither Party, Wi-Fi One, LLC v. Broadcom Corporation, No. 1551944, -1945, -1946 (Fed. Cir., Feb. 23, 2017)

This case implicates a significant balance in the patent system between the competing powers of the federal courts and the U.S. Patent and Trademark Office to review patent validity. Although Congress already allocated these powers through various provisions of the America Invents Act, this Court’s decision in Achates Reference Publishing, Inc. v. Apple, Inc., 803 F.3d 652 (Fed. Cir. 2015), failed to take account of that balance of power and now threatens to obstruct this Court’s ability to safeguard the balance from further disruption. Intervening guidance from the Supreme Court in Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131 (2016), sheds new light on the court-agency balance of patent powers, whose scope and impact extend well beyond the USPTO Patent Trial and Appeal Board and into the courts. New empirical evidence reveals that litigants use the USPTO to a significant extent as a strategic substitute for courts in reevaluating patent validity. Strategic substitution is subject to important statutory constraints, especially the one-year bar of 35 U.S.C. § 315(b). These constraints promote repose for litigants, conservation of both court and agency resources, and inter-branch respect for the judgments of competing tribunals. Notably, these constraints appear to channel litigants into socially desirable collective action but may also foster undesirable harassment of patent owners and delay in adjudicating patent disputes. Accordingly, in deciding the judicial reviewability of USPTO determinations regarding timeliness under § 315(b), this Court should take careful account of the significant scope and impact that § 315(b) has beyond the inter partes review setting in preserving the balance of power that Congress has allocated to the USPTO and to the courts.

Hostile Takeovers—An Analysis Through Just War Theory

This paper examines the dynamics of hostile takeovers (HT's) as a form of corporate warfare. There are a number of compelling reasons for believing this to be an accurate approximation to corporate reality and therefore an appropriate analogy. In circumstances where it is all-too easy for either of the protagonists to act unethically (Berle and Means, The modern corporation and private property, Transaction Publishers, New Brunswick, 1991), there is an evident need for an appropriate template through which to analyse and evaluate the ethical dilemmas that HT's inevitably raise (Armour and Skeel, Georget Law J 95:1727, 2007)—whilst also, where possible, employing its prescriptions as a means of corporate conflict resolution. This paper evaluates just war theory (JWT) as one such template. In seeking a conceptually adaptable framework for analysing, interpreting and articulating antagonistic behaviour during a HT, it became apparent in the course of the research that JWT provided a potentially useful and viable template within which to pursue the above. The research questions centre not necessarily on whether this template could in some way be a substitute for statutory and regulatory constraints on unethical conduct but, rather, whether it might better inform all stakeholders of the importance of ethically informed restraint in the interest of the greater good.

Re-Setting the Agenda: Estimating Congressional Responsiveness to Fire Alarms in the DC Circuit Court of Appeals

Evaluating the effects of bureaucratic policy-making requires a systematic way to evaluate the policies that emerge over time. Such a measure would allow us to understand the substantive policy effects of agencies’ implementation choices over time. This paper raises the following core question: To what extent, and under what conditions, do congressional coalitions respond to interest group fire alarms raised through the DC Circuit by statutorily amending administrative capacity? I argue that agency losses through DC Circuit litigation should raise signals to Congress that the agency has drifted in its implementation behavior, and spur it to amend legislation to better constrain the agency’s latitude. I evaluate this in the context of the Environmental Protection Agency from 1973 to 2010 using a rich new dataset comprising the 2,000 statutory amendments to the legislation under the jurisdiction of the EPA, each of which is hand-coded to determine the magnitude of the congressional revision, as well as the DC Circuit cases in which the agency was the defendant. I find robust support for the claim that agency losses are associated with subsequent statutory constraints on the agency, but do not find strong support for the claim that executive branch vulnerability is predictive of congressional interventions.

Delegation of Political Authority to Bureaucratic Agencies in an Authoritarian Regime: An Analysis of Regional Economic Regulation in Kazakhstan

This paper investigates the delegation of economic policy implementation in non-democratic settings. It draws on a dataset of statutory and administrative regulation created between 1991 and 2011 in Kazakhstan in order to investigate economic effects of bureaucratic discretion. The examination of regional and temporal variation in the number and detail of economic regulations shows that while regulatory intervention does not have a discernible effect on economic performance, statutory constraints on bureaucratic discretion have a positive effect. This finding supports the notion that in the absence of societal accountability, statutory constraint on the administrative apparatus leads to a more stable business climate and better economic performance. The paper explicates the ways in which theories of delegation apply to autocracies and broadens our understanding of political control over economic policy implementation.

‘A Legal Limited Monarchy’: Scottish Constitutionalism in the Union of Crowns, 1603–1707

After the formation of the British composite monarchy in 1603, a distinctive pattern of Scottish constitutionalism emerged in which a desire to maintain the Scottish realm and church encouraged an emphasis on the limitation of the monarch by fundamental law, guaranteed by oaths. The Covenanters attempted to use the National Covenant and the 1651 coronation to force the king to maintain the Presbyterian church as defined by law. Restoration royalists emphasised the untrammelled power of the king, but in the Revolution of 1688-89, the Claim of Right was presented with the oath of accession as a set of conditions designed to re-establish the Scottish realm as a ‘legal limited monarchy’ with a Presbyterian church. Reforms in 1640-41, 1689-90 and 1703-4 placed statutory constraints on the royal prerogative. The making of the union relied on a reassertion of monarchical sovereignty, though Presbyterian unionists ensured that the new British monarch would be required to swear to uphold the church as established by law.

‘Stuck in the middle’: Waiting and uncertainty in immigration detention

A defining feature of immigration detention in the United Kingdom is its indeterminacy; that is, there are no statutory constraints on the length of time an individual can be detained. As such, detention is uncertain and unpredictable; it may last a few hours or a few days, or weeks, months, and even years. Consequently, the lived experience of detention is one of waiting: waiting to know both when and how detention will end (i.e. release to the community or expulsion from the country). The denial of liberty and the conditions of confinement present additional challenges for detainees, as they must contend with significant limits to their agency as they await the decisions of a variety of other actors. Waiting has been conceptualised as an exercise of power, one that manipulates others’ time. Although it is a common human experience, for immigration detainees, the lived experience of waiting in the uncertain and unpredictable context of detention is especially challenging. Passing time in immigration detention raises important questions about affect, identity, agency, and resistance within this unique quasi-penal space. This paper draws on ethnographic fieldwork, including 89 semi-structured interviews with detainees, carried out in four immigration removal centres in the UK to explore the lived experiences of waiting. The analysis demonstrates the relevancy of time and agency in immigration detention.

Restructuring Puerto Rico's General Obligation Debt

Beyond Chapter 9 of the Bankruptcy Code, states and the Commonwealth of Puerto Rico are free to create a debt adjustment mechanism for their own public debt (as opposed to the debt of their instrumentalities and municipalities). This wiggle-room, however, is subject to the federal Constitution and any relevant state constitutional or statutory constraints. This note seeks to discuss and analyze the federal and state legal framework in which a debt restructuring for Puerto Rico's general obligation bonds would operate and draw a general road-map the Commonwealth could potentially follow if it ever needed to resort to a binding debt adjustment mechanism. To be effective, this mechanism must be capable of cramming down the terms of a negotiated restructuring on a minority of dissenters. It would also have to be carefully structured, with a keen eye on the Commonwealth's constitutional debt priority provisions perceived by some to grant Commonwealth GO bondholders an absolute right of repayment, and possible federal and state constitutional contractual impairment challenges.

Stuck in the Middlee: Waiting and Uncertainty in Immigration Detention

A defining feature of immigration detention in the United Kingdom is its indeterminacy; that is, there are no statutory constraints on the length of time an individual can be detained. As such, detention is uncertain and unpredictable; it may last a few hours or a few days, or weeks, months, and even years. Consequently, the lived experience of detention is one of waiting: waiting to know both when and how detention will end (i.e. release to the community or expulsion from the country). The denial of liberty and the conditions of confinement present additional challenges for detainees, as they must contend with significant limits to their agency as they await the decisions of a variety of other actors. Waiting has been conceptualised as an exercise of power, one that manipulates others’ time. Although it is a common human experience, for immigration detainees, the lived experience of waiting in the uncertain and unpredictable context of detention is especially challenging. Passing time in immigration detention raises important questions about affect, identity, agency, and resistance within this unique quasi-penal space. This paper draws on ethnographic fieldwork within immigration removal centres in the UK to explore the lived experiences of waiting.

Bypassing Federalism and the Administrative Law of Negawatts

Presidential unilateralism has become a defining feature of the executive branch. But a related and equally important phenomenon has been largely ignored: federal agency efforts to circumvent statutory federalism boundaries. The article calls this move federalism. Bypassing involves the use of existing jurisdictional authority to work de facto rather than de jure reallocations of power. The article explores agency bypassing through the lens of the Federal Energy Regulatory Commission’s (FERC’s) promotion of demand response in electricity markets. Demand response refers to customer sales of negative watts, or negawatts, back to the electrical grid. FERC, eager to promote demand-side management programs but stymied by the jurisdictional limitations in the Federal Power Act of 1935, recently adopted a strategy that bypasses these federalism boundaries by setting up demand response programs in wholesale markets (which are under its control) to parallel state and local programs. Although the strategy has boosted program participation, the article ultimately concludes that bypassing is an insalubrious administrative innovation. While it allows agencies to further national objectives without challenging jurisdictional boundaries head on, the strategy has significant downsides. First, statutory constraints may limit an agency’s options in a way that results in the promotion of second-best over first-best policies. Second, even de facto jurisdictional adjustments raise federalism questions that we might prefer be addressed through the legislative process. Finally, by making a dysfunctional statutory scheme workable, bypassing threatens to delay legislative solutions.