Administrative Law

Zivotofsky v. Clinton: The Little Case that Raises Big Constitutional Questions

Posted on December 19, 2011
Early in November, Solicitor General Donald B. Verrilli, Jr., the Justice Department?s top lawyer, made a very consequential speech about foreign policy and the separation of powers.  It also is a speech that nearly no one has ever heard. Verrilli made his remarks during an argument before the U...

A Few Moments With Harvey Mackay, The Indispensable Man

Posted on February 27, 2010
Yesterday, I took a few moments out of a busy day to attend a book-signing. The event centered on the release of Harvey Mackay?s latest title, Use Your Head to Get Your Foot in the Door.  As many people who know me well ? and frankly, even many of those who don?t know me particularly well ? could tell you, I am a huge Harvey Mackay fan...

Moving Toward the Right Procurement Agenda ? For Congress and For Us

Posted on February 21, 2010
Steven L. Schooner, Associate Professor of Law and Co-Director of the Government Procurement Law Program at George Washington University, recently posted to the Social Science Research Network a chapter from a forthcoming book: ?Framing a Public Management Research Agenda...

The Land Use Case that Every Minnesota Rule Writer Should Read

Posted on February 13, 2010
On Thursday, the Minnesota Supreme Court issued an interesting and important opinion that the rulemaking community is certain to be thinking about, reading and discussing for weeks to come.The opinion arises out of a challenge to the Department of Natual Resources' refusal to certify a local variance in favor of a landowner who wished to build a home along the Saint Croix River...

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Not Just Narrowly Tailored, But Gently Tailored As Well

Posted on January 23, 2010
While one could no doubt run an entire constitutional law seminar on the features that are found yesterday?s 183-page opinion, Citizens United v. Federal Elections Commission, I was drawn to one part in particular ? the majority?s contention that bureaucratic red tape can stifle political speech just as much as the censor?s blue pencil...

OAH Releases its "Video Guide to Hearings" to Aid Unrepresented Parties

Posted on January 20, 2010
The Minnesota Office of Administrative Hearings, in partnership with Senate Media Services, developed this 8-minute video as an aid to persons with contested cases who appear on their own behalf, without an attorney.The video guide is meant as a supplement to OAH's Contested Case Hearing Guide; delivering some of that content in a format that is both more accessible and user friendly.

Oral Argument in U.S. v. Comstock Has Echos of M'Culloch v. Maryland

Posted on January 18, 2010
Last Tuesday, the Supreme Court of the United States heard oral argument in the case of U.S. v. Graydon Earl Comstock, Jr. In Comstock, the court considers whether Congress has the authority to enact a statute providing for the indefinite civil commitment of "sexually dangerous persons? who are in the custody of the Bureau of Prisons, but whose federal prison sentence is at an end...

Digital Remedies for Counsel with Colds

Posted on January 11, 2010
Since the temperatures plummeted to well below zero a few weeks ago, I have struggled against a cold that I have not been able to shake. I am down; then I rally for a few days; and then I am down again. Up and down. Up and down. It has been awful.During the down phases of this winter roller-coaster, I have swallowed a river of cold medicine and listened to a lot of podcasts...

Heat and Light in Saint Paul this Winter

Posted on December 20, 2009
On Wednesday of this past week, a panel of the U.S. Court of Appeals for the Eighth Circuit heard oral argument in the case of Wersal v. Sexton.As readers of these pages will recall, in February of this year, Judge Ann H. Montgomery of the U.S. District Court for the District of Minnesota, turned away a civil rights suit challenging the provisions of Minnesota Code of Judicial Conduct...

Twenty Years Ago ? A Great Miracle Happened Here

Posted on December 11, 2009
When I was in Israel in April, I set out to find and purchase some Israeli dreidels. As readers of these pages may know, dreidels in the United States (and other places outside of Israel) are different from the ones that are found in Israel.In the United States, the Hebrew letters that adorn the four sides of a dreidel ? ?-?-?-? ? form an acronym for the phrase ?Nes Gadol Hayah Sham;? a great miracle happened there...

Stras to Preview October 2009 U.S. Supreme Court Term

Posted on September 27, 2009
The MSBA Administrative Law Section is co-hosting with the Appellate Practice Section an exciting CLE at the Minnesota Judicial Center.Professor David Stras, of the University of Minnesota Law School, and a key player in the ensemble that writes SCOTUSblog, will give a detailed preview of the U...

On Neglect

Posted on September 27, 2009
Neglect (ni-glekt?) ? transitive verb: 1. to ignore or disregard; 2. to fail to care for or attend to sufficiently or properly; 3. to fail to carry out (an expected or required action) through carelessness or by intention.I know that I have been neglectful of this blog...

Franken, Coleman, the Forest and the Trees

Posted on July 04, 2009
While mindful of the very wide range of opinions that have already been expressed on the Minnesota Supreme Court's conclusion that Al Franken?s was elected U.S. Senator from Minnesota last fall (see, e.g., here and here), I thought that I would add a few comments of my own on Tuesday's landmark decision...

Does Caperton Invite More or Less Danger for Judges in Retention Elections?

Posted on June 26, 2009
In the run-up to their fundraising benefit scheduled for next week, supporters of retention elections for state court judges here in Minnesota have hailed the recent U.S. Supreme Court decision in Caperton v. A.T. Massey Coal Company Co.As readers of these pages are aware, earlier this month a divided U...

Really Clever People Get Free CLE

Posted on June 26, 2009
At its annual meeting last week, the Minnesota State Bar Association?s Administrative Law Section announced a program under which it is trading good ideas for complimentary admission to an upcoming Continuing Legal Education program sponsored by the Section...

?Released from Confinement?: What it Means for Offenders, Agencies and You

Posted on June 21, 2009
In an interesting set of opinions issued on June 9, the Minnesota Court of Appeals turned away dual challenges to the risk level assessments imposed by the Department of Corrections? End of Confinement Review Committee. As readers of these pages are aware, Minnesota law obliges the Department to assign a risk level to predatory offenders upon their ?release from confinement...

Beck Internship Turns $4,000 into $16,000 for Indigent Clients

Posted on June 20, 2009
On Wednesday of this past week, the MSBA Administrative Law and Health Law Sections' commemorated their joint underwriting of a summer internship program in Administrative Law with the Volunteer Lawyers Network. The Sections' $4,000 contribution will, in combination with federal Work-Study matching grants, translate into $16,000 worth of stipend resources for VLN as it assists indigent clients with administrative law matters...

The AGO's Annual CLE Seminar and the Oral Argument Everyone is Talking About

Posted on June 07, 2009
I had a great time at the annual all-day CLE seminar hosted by the Minnesota Attorney General's Office, held this past Friday. The program was entitled ?Anatomy of a Contest Case? and explored elements of effective administrative law practice from various different perspectives...

Some Thoughts on the Sotomayor Nomination ? Part I

Posted on June 06, 2009
On Thursday of this week, the U.S. Senate?s Committee on the Judiciary posted to the internet Judge Sonia Sotomayor?s replies to the Committee?s background questionnaire. Submission of the questionnaire replies is an important early step as Judge Sotomayor seeks confirmation to become the next Associate Justice of the Supreme Court of the United States...

Some Thoughts on the Sotomayor Nomination ? Part II

Posted on June 06, 2009
While the story has already been covered in great detail by the Washington Examiner and the Washington Post, to my mind the most interesting feature of the run-up to the confirmation hearings for Circuit Judge Sonia Sotomayor to be an Associate Justice of the U...

Federalism and the Predatory Offender

Posted on May 16, 2009
In a remarkably interesting opinion issued on Wednesday of this week, the U.S. Court of Appeals for the Eighth Circuit reversed a lower court?s decision that had declared the civil commitment portions of the Adam Walsh Act unconstitutional. Last May, then-Chief Judge of the U...

Take Homes from The Big Easy

Posted on May 16, 2009
As noted in an earlier post, I had spent much of the last few weeks and months preparing for a presentation I was giving to the American Bar Association Public Contract Law Section?s 4th Annual State and Local Procurement Symposium. (That post, and a copy of the paper I presented, are accessible here)...

Looking for Law in All the Wrong Places

Posted on May 07, 2009
I was vacationing in Israel when the U.S. Supreme Court handed down its decision in Federal Communications Commission v. Fox Television Stations, Inc. And while details as to the holding and rationale announced by the High Court were a bit sketchy in news accounts at that time ? even from the plaintiff Fox Television ? since my return to the U...

Gabba Gabba Hey: Is the Decision "In Re Gabby?s" a Big Deal or Not a Big Deal?

Posted on April 02, 2009
On Tuesday of this week, the Minnesota Court of Appeals issued a published decision which has had me thinking.At issue in the case was the propriety of the City of Minneapolis? imposition of licensing conditions on the liquor license held by Gabby?s Saloon and Eatery in Northeast Minneapolis...

Mankato Diary, Our Federal Bargain and Some Heretical Ideas

Posted on March 26, 2009
I have had the good fortune to spend the last two days with some of the state?s brightest and most dedicated professionals. Yesterday and today, the Minnesota State University at Mankato has hosted the Third Annual Midwest Regional Special Education Law Conference...

Thanks for Being Patient

Posted on March 22, 2009
I am scheduled to make a presentation at the American Bar Association's 4th Annual State and Local Procurement Symposium in May, and, as noted immediately below, suspended my blogging for a few weeks so that I could complete the article requested by the symposium organizers...

With Apologies, Gone Writin'

Posted on February 27, 2009

For Wersal?s Challenges to the Code of Judicial Conduct, Tomorrow is Another Day

Posted on February 15, 2009
I only recently received a copy of the Memorandum Opinion and Order issued by Judge Ann H. Montgomery, of the U.S. District Court for the District of Minnesota, in Wersal v. Sexton.As readers of these pages will recall, in March of last year, Golden Valley attorney and sometime candidate for election to the Minnesota Supreme Court, Gregory F...

Our Ratings Wars: Court Puts Advisory Committee to Work on Courtroom Camera Pilot Project

Posted on February 13, 2009
Today, a divided Minnesota Supreme Court directed the Advisory Committee on the General Rules of Practice to ?recommend draft rules establishing a pilot project on cameras in the court that includes ? effective mechanisms for measuring the impact of: cameras on the proceedings and on the participants before, during and after the proceedings, and the financial impact of both the pilot project and study, and the ongoing administration of cameras in the courtroom ?...

Session Update: Bills for Administrative Lawyers to Note (and Watch)

Posted on February 11, 2009
HF 347 (Lenczewski) Repeals the Mandatory Retirement Age for Administrative Law Judges.HF 395 / SF 215 (Anderson, B. / Koch and Dille) would establish a Board of Oversight of Human Services Appeals to review ?challenges by aggrieved parties to the commissioner's final orders from fair hearings and contested case hearings under chapter 245, 245A, 245B, 245C, 252, 253B, 256, 256B, 256C, 256D, 256J, 256L, 257, or 626 ?...

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