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Articles 1 - 30 of 31
Full-Text Articles in Law
Regarding Docket No. Fr-6111-P-02, Hud’S Implementation Of The Fair Housing Act’S Disparate Impact Standard, Sonia Gipson Rankin, Alfred Mathewson, Melanie Moses, G. Matthew Fricke, Kathy Powers, Gabriel R. Sanchez, Christopher Moore, Elizabeth Bradley, Mirta Galesic, Joshua Garland
Regarding Docket No. Fr-6111-P-02, Hud’S Implementation Of The Fair Housing Act’S Disparate Impact Standard, Sonia Gipson Rankin, Alfred Mathewson, Melanie Moses, G. Matthew Fricke, Kathy Powers, Gabriel R. Sanchez, Christopher Moore, Elizabeth Bradley, Mirta Galesic, Joshua Garland
Faculty Scholarship
The is a Comment on the Department of Housing and Urban Development (HUD) Proposed Rule: FR-6111-P-02 HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard . This comment examines how algorithms in housing applications may be inherently biased against certain groups of people.
Their arguments against the proposed legislation:
1. To ensure that an algorithm does not have disparate impact, it is not enough to show that individual input factors are not “substitutes or close proxies” for protected characteristics.
2. It is impossible to audit an algorithm for bias without an adequate level of transparency or access to the …
Disguised Patent Policymaking, Saurabh Vishnubhakat
Disguised Patent Policymaking, Saurabh Vishnubhakat
Faculty Scholarship
Patent Office power has grown immensely in this decade, and the agency is wielding its power in predictably troubling ways. Like other agencies, it injects politics into its decisions while relying on technocratic justifications. It also reads grants of authority expansively to aggrandize its power, especially to the detriment of judicial checks on agency action. However, this story of Patent Office ascendancy differs from that of other agencies in two important respects. One is that the U.S. patent system still remains primarily a means for allocating property rights, not a comprehensive regime of industrial regulation. Thus, the Patent Office cannot …
The Missing Regulatory State: Monitoring Businesses In An Age Of Surveillance, Rory Van Loo
The Missing Regulatory State: Monitoring Businesses In An Age Of Surveillance, Rory Van Loo
Faculty Scholarship
An irony of the information age is that the companies responsible for the most extensive surveillance of individuals in history—large platforms such as Amazon, Facebook, and Google—have themselves remained unusually shielded from being monitored by government regulators. But the legal literature on state information acquisition is dominated by the privacy problems of excess collection from individuals, not businesses. There has been little sustained attention to the problem of insufficient information collection from businesses. This Article articulates the administrative state’s normative framework for monitoring businesses and shows how that framework is increasingly in tension with privacy concerns. One emerging complication is …
Faithful Execution And Article Ii, Andrew Kent, Ethan J. Leib, Jed Handelsman Shugerman
Faithful Execution And Article Ii, Andrew Kent, Ethan J. Leib, Jed Handelsman Shugerman
Faculty Scholarship
Article II of the U.S. Constitution twice imposes a duty of faithful execution on the President, who must "take Care that the Laws be faithfully executed" and take an oath or affirmation to 'faithfully execute the Office of President." These Faithful Execution Clauses are cited often, but their background and original meaning have never been fully explored. Courts, the executive branch, and many scholars rely on one or both clauses as support for expansive views of presidential power, for example, to go beyond standing law to defend the nation in emergencies; to withhold documents from Congress or the courts; or …
Administrative Adjudication And Adjudicators, Jack M. Beermann
Administrative Adjudication And Adjudicators, Jack M. Beermann
Faculty Scholarship
The appointment, removal, supervision and allocation of cases to Administrative Law Judges (ALJs) and other non-Article III adjudicators in the United States federal government continues to create vexing legal issues for courts and commentators. This article is an effort to address all of these issues together, to facilitate a holistic understanding of the place of non-Article III adjudicators in the federal government. The appointment question revolves around whether non-Article III adjudicators are Officers of the United States, which most are. There are two issues surrounding the removal of non-Article III adjudicators. First, for reasons sounding in due process concerns, adjudicators …
Capturing The Regulatory Agenda: An Empirical Study Of Agency Responsiveness To Rulemaking Petitions, Daniel E. Walters
Capturing The Regulatory Agenda: An Empirical Study Of Agency Responsiveness To Rulemaking Petitions, Daniel E. Walters
Faculty Scholarship
In environmental regulation as well as in other regulatory domains, a critical question is how outside interests shape the rulemaking agenda. A great deal of skepticism toward regulation stems from the widespread perception that agencies excessively, or even exclusively, cater to business interests. One answer to these concerns is administrative procedure, in particular rulemaking petitions, which are provided for in the Administrative Procedure Act and in many substantive environmental statutes. Although rulemaking petitions could in theory be used by business interests to strengthen their hold on regulatory agenda-setting, a growing number of scholars, highlighting the critical role a rulemaking petition …
Data-Informed Duties In Ai Development, Frank A. Pasquale
Data-Informed Duties In Ai Development, Frank A. Pasquale
Faculty Scholarship
Law should help direct—and not merely constrain—the development of artificial intelligence (AI). One path to influence is the development of standards of care both supplemented and informed by rigorous regulatory guidance. Such standards are particularly important given the potential for inaccurate and inappropriate data to contaminate machine learning. Firms relying on faulty data can be required to compensate those harmed by that data use—and should be subject to punitive damages when such use is repeated or willful. Regulatory standards for data collection, analysis, use, and stewardship can inform and complement generalist judges. Such regulation will not only provide guidance to …
Separation Of Powers In Comparative Perspective: How Much Protection For The Rule Of Law?, Peter L. Strauss
Separation Of Powers In Comparative Perspective: How Much Protection For The Rule Of Law?, Peter L. Strauss
Faculty Scholarship
This chapter discusses the separation of powers. The point about traditions, or shared social norms, is a central one for this chapter. At a time of growing pessimism about the fate of democracy worldwide, adherence to norms of political behaviour may have an importance transcending formal provisions for the allocation of governmental power. As such, this chapter first presents a brief account of ‘separation of powers’ under American presidentialism; then the contrasting system of Westminster parliamentarianism; third, the increasingly prevalent mixed regimes, often semi-presidential, that can be described as ‘constrained parliamentarism’; and, finally, international institutions. As the chapter shows, in …
Eroding "Checks" On Presidential Authority – Norms, The Civil Service, And The Courts, Peter L. Strauss
Eroding "Checks" On Presidential Authority – Norms, The Civil Service, And The Courts, Peter L. Strauss
Faculty Scholarship
Susan Rose-Ackerman's "Executive Rulemaking and Democratic Legitimacy: 'Reform' in the United States and the United Kingdom's Route to Brexit" insightfully illuminates important differences between parliamentary and presidential systems of government in relation to executive bodies' production of the large volume of secondary legislation common, indeed inevitable, for both. Agreeing heartily with her conclusion that the weakness of parliamentary engagement with secondary legislation, and limited judicial review of its production, counsels greater provision for public participation and transparency of action at the agency level, there is little for me to add. Aware, too, as she remarks, that others have dealt more …
A Softer, Simpler View Of Chevron, Peter L. Strauss
A Softer, Simpler View Of Chevron, Peter L. Strauss
Faculty Scholarship
Justice Kennedy's concurrence in Pereira gives reason to hope that the Court may be finally catching on to the difficulties it created by Chevron's opening language, as distinct from its inherent reasoning. When courts quote language like "precise question" and "permissible" to limit themselves (as Justice Scalia and others unfortunately tended to reinforce by their quotations from the opinion), they stray not only from judicial function but also from the statute (APA) that instructs them how to review, and which strangely the opinion does not mention. But Chevron actually (a) independently found and defined a statutory gap within which …
Jurisdiction Stripping Circa 2020: What The Dialogue (Still) Has To Teach Us, Henry P. Monaghan
Jurisdiction Stripping Circa 2020: What The Dialogue (Still) Has To Teach Us, Henry P. Monaghan
Faculty Scholarship
Since its publication in 1953, Henry Hart’s famous article, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, subsequently referred to as simply “The Dialogue,” has served as the leading scholarly treatment of congressional control over the federal courts. Now in its seventh decade, much has changed since Hart first wrote. This Article examines what lessons The Dialogue still holds for its readers circa 2020.
The Trump Administration And Administrative Law, Peter L. Strauss
The Trump Administration And Administrative Law, Peter L. Strauss
Faculty Scholarship
Shortly after the 2018 mid-term elections ended a two-year period of "unified government," under the Republican party,1 twenty one law professors from around the country met at Chicago-Kent College of Law to discuss the seven papers contained in this edition of its Law
Review. Commentaries written in response to each of these papers will appear in the next edition of the Law Review. For those reading any of these essays in the interval between publication of this and the commentary issue, this necessary inconvenience is regrettable; the commentaries (and ensuing open discussion) were enriching and, indeed, have contributed to the …
New Look Constitutionalism: The Cold War Critique Of Military Manpower Administration, Jeremy K. Kessler
New Look Constitutionalism: The Cold War Critique Of Military Manpower Administration, Jeremy K. Kessler
Faculty Scholarship
By reconstructing the anxious, constitutional dialogue that shaped the administration of military manpower under President Eisenhower’s New Look, this Article explores the role that administrative constitutionalism played in the development of the American national-security state, a state that became both more powerful and more legalistic during the pivotal years of the Cold War. The Article also questions the frequent identification of administrative constitutionalism with the relative autonomy and opacity of the federal bureaucracy. The back-and-forth of administrative constitutionalism continually recalibrated the degree of autonomy and opacity that characterized the draft apparatus. This evidence suggests that bureaucratic autonomy and opacity may …
Legislation And Comment: The Making Of The § 199a Regulations, Shu-Yi Oei, Leigh Osofsky
Legislation And Comment: The Making Of The § 199a Regulations, Shu-Yi Oei, Leigh Osofsky
Faculty Scholarship
In 2017, Congress passed major tax legislation at warp speed. After enactment, it fell to the Treasury Department to write regulations clarifying and implementing the new law. To assure democratic legitimacy in making regulations, administrative law provides that an agency must issue a notice of proposed rulemaking, followed by an opportunity for the public to comment (so-called “notice and comment”). But, after the 2017 tax overhaul, many sophisticated actors did not wait until the issuance of a notice of proposed rulemaking to comment, instead going to the Treasury Department immediately with comments designed to influence the regulations.
In this Article, …
Book Review: Jonathan P. Thompson, River Of Lost Souls: The Science, Politics, And Green Behind The Gold King Mine Disaster (2018), Clifford J. Villa
Book Review: Jonathan P. Thompson, River Of Lost Souls: The Science, Politics, And Green Behind The Gold King Mine Disaster (2018), Clifford J. Villa
Faculty Scholarship
On August 5, 2015, contractors for the U.S. Environmental Protection Agency (EPA) investigating the Gold King Mine in southwestern Colorado accidently released some three million gallons of contaminated water into the Animas River, triggering weeks of front-page headlines, months of congressional hearings, and now years of litigation. River of Lost Souls: The Science, Politics, and Greed Behind the Gold King Mine Disaster, a new book by Jonathan P. Thompson, suggests by its title a human folly behind this “disaster” much broader and deeper than one tragic accident wrought by EPA contractors. On this thesis, Thompson certainly delivers. However, what …
Showcase Panel I: What Is Regulation For?, Richard Epstein, Philip A. Hamburger, Kathryn Kovacs, John D. Michaels, Britt Grant
Showcase Panel I: What Is Regulation For?, Richard Epstein, Philip A. Hamburger, Kathryn Kovacs, John D. Michaels, Britt Grant
Faculty Scholarship
2018 National Lawyers Convention Transcripts
“The administrative state, with roots over a century old, was founded on the premise that Congress lacked the expertise to deal with the many complex issues facing government in a fast-changing country, and that it was unhelpfully mired in and influenced by politics, leading to bad outcomes when it did act. The alternative was to establish administrative agencies, each with assigned areas of responsibility, housing learned experts qualified to make policy decisions, deliberately insulated from political accountability. The Administrative Procedure Act (APA), passed in 1946, both governs the manner in which agencies may adopt and …
Administrative States: Beyond Presidential Administration, Jessica Bulman-Pozen
Administrative States: Beyond Presidential Administration, Jessica Bulman-Pozen
Faculty Scholarship
Presidential administration is more entrenched and expansive than ever. Most significant policymaking comes from agency action rather than legislation. Courts endorse “the presence of Presidential power” in agency decisionmaking. Scholars give up on external checks and balances and take presidential direction as a starting point. Yet presidential administration is also quite fragile. Even as the Court embraces presidential control, it has been limiting the administrative domain over which the President presides. And when Presidents drive agency action in a polarized age, their policies are not only immediately contested but also readily reversed by their successors.
States complicate each piece of …
Unjust Cities? Gentrification, Integration, And The Fair Housing Act, Olatunde C.A. Johnson
Unjust Cities? Gentrification, Integration, And The Fair Housing Act, Olatunde C.A. Johnson
Faculty Scholarship
What does gentrification mean for fair housing? This article considers the possibility that gentrification should be celebrated as a form of integration alongside a darker narrative that sees gentrification as necessarily unstable and leading to inequality or displacement of lower-income, predominantly of color, residents. Given evidence of both possibilities, this article considers how the Fair Housing Act might be deployed to minimize gentrification’s harms while harnessing some of the benefits that might attend integration and movement of higher-income residents to cities. Ultimately, the article urges building on the fair housing approach but employing a broader set of tools to advance …
Broken Experimentation, Sham Evidence-Based Policy, Kristen Underhill
Broken Experimentation, Sham Evidence-Based Policy, Kristen Underhill
Faculty Scholarship
Evidence-based policy is gaining attention, and legislation and agency regulation have been no exception to calls for greater uptake of research evidence. Indeed, current interest in “moneyball for government” is part of a long history of efforts to promote research-based decisions in government, from the U.S. Census to cost-benefit analysis. But although evidence-based policy-making (EBPM) is often both feasible and desirable, there are reasons to be skeptical of the capacity of EBPM in governmental decision-making. EBPM is itself bounded by limits on rationality, the capacity of science, the objectivity of science, and the authority we wish to give technocrats. Where …
Global Platform Governance: Private Power In The Shadow Of The State, Hannah Bloch-Wehba
Global Platform Governance: Private Power In The Shadow Of The State, Hannah Bloch-Wehba
Faculty Scholarship
Online intermediaries—search engines, social media platforms, even e-commerce businesses—are increasingly required to make critical decisions about free expression, individual privacy, and property rights under domestic law. These requirements arise in contexts that include the right to be forgotten, hate speech, “terrorist” speech, and copyright and intellectual property. At the same time, these disputes about online speech are increasingly borderless. Many laws targeting online speech and privacy are explicitly extraterritorial in scope. Even when not, some courts have ruled that they have jurisdiction to enforce compliance on a global scale. And governments are also demanding that platforms remove content—on a global …
The Self-Delegation False Alarm: Analyzing Auer Deference’S Effect On Agency Rules, Daniel E. Walters
The Self-Delegation False Alarm: Analyzing Auer Deference’S Effect On Agency Rules, Daniel E. Walters
Faculty Scholarship
Auer deference holds that reviewing courts should defer to agencies when the latter interpret their own preexisting regulations. This doctrine relieves pressure on agencies to undergo costly notice-and-comment rulemaking each time interpretation of existing regulations is necessary. But according to some leading scholars and jurists, the doctrine actually encourages agencies to promulgate vague rules in the first instance, augmenting agency power and violating core separation of powers norms in the process. The claim that Auer perversely encourages agencies to “self-delegate”—that is, to create vague rules that can later be informally interpreted by agencies with latitude due to judicial deference—has helped …
Invasion Of The Content-Neutrality Rule, William D. Araiza
Invasion Of The Content-Neutrality Rule, William D. Araiza
Faculty Scholarship
No abstract provided.
Balancing Political Power: Community Economic Development And Institutional Design, K. Sabeel Rahman
Balancing Political Power: Community Economic Development And Institutional Design, K. Sabeel Rahman
Faculty Scholarship
No abstract provided.
Domesticating Guidance, Peter L. Strauss
Domesticating Guidance, Peter L. Strauss
Faculty Scholarship
This Essay, written for an occasion celebrating the scholarship of Professor William Funk of Lewis & Clark Law School, builds in good part on his analyses of soft law documents — statements of general policy and interpretive rules — that today one generally finds discussed under the rubric “guidance.” These are agency texts of less formality than hard law regulations adopted under the procedures of 5 U.S.C. § 553, that inform the public how an agency intends to administer its responsibilities, as a matter of policy or (what may seem just one instance of that) via the interpretation of its …
Research Report On Federal Agency Alj Hiring After Lucia And Executive Order 13843, Jack M. Beermann
Research Report On Federal Agency Alj Hiring After Lucia And Executive Order 13843, Jack M. Beermann
Faculty Scholarship
This draft report examines federal agency hiring practices for administrative law judges ("ALJs"), who preside over formal agency hearings, in light of the Supreme Court's determination that ALJs are constitutional officers and President Trump's executive order to exempt ALJs from certain statutory competitive-service hiring requirements. The report also provides recommendations for best agency hiring practices. Professors Jack Beermann and Jennifer Mascott co-authored this initial draft report. After Professor Mascott stepped down from the Administrative Conference of the United States to work in the Department of Justice's Office of Legal Counsel, Professor Beermann edited the report and produced its final May …
Central Clearing Of Financial Contracts: Theory And Regulatory Implications, Steven L. Schwarcz
Central Clearing Of Financial Contracts: Theory And Regulatory Implications, Steven L. Schwarcz
Faculty Scholarship
To protect economic stability, post-crisis regulation requires financial institutions to clear and settle most of their derivatives contracts through central counterparties, such as clearinghouses associated with securities exchanges. This Article asks whether regulators should expand the central clearing requirement to non-derivative financial contracts, such as loan agreements. The Article begins by theorizing how and why central clearing can reduce systemic risk. It then examines the theory’s regulatory and economic efficiency implications, first for current requirements to centrally clear derivatives contracts and thereafter for deciding whether to extend those requirements to non-derivative contracts. The inquiry has real practical importance because the …
Irrational Ignorance At The Patent Office, Michael D. Frakes, Melissa F. Wasserman
Irrational Ignorance At The Patent Office, Michael D. Frakes, Melissa F. Wasserman
Faculty Scholarship
There is widespread belief that the Patent Office issues too many bad patents that impose significant harms on society. At first glance, the solution to the patent quality crisis seems straightforward: give patent examiners more time to review applications so they grant patents only to those inventions that deserve them. Yet the answer to the harms of invalid patents may not be that easy. It is possible that the Patent Office is, as Mark Lemley famously wrote, “rationally ignorant.” In Rational Ignorance at the Patent Office, Lemley argued that because so few patents are economically significant, it makes sense to …
Revolving Elites: The Unexplored Risk Of Capturing The Sec, James D. Cox, Randall S. Thomas
Revolving Elites: The Unexplored Risk Of Capturing The Sec, James D. Cox, Randall S. Thomas
Faculty Scholarship
Fears have abounded for years that the sweet spot for capture of regulatory agencies is the "revolving door" whereby civil servants migrate from their roles as regulators to private industry. Recent scholarship on this topic has examined whether America's watchdog for securities markets, the Securities and Exchange Commission (SEC), is hobbled by the long-standing practices of its enforcement staff exiting their jobs at the Commission and migrating to lucrative private sector employment where they represent those they once regulated. The research to date has been inconclusive on whether staff revolving door practices have weakened the SEC' s verve. In this …
Patent Trial And Appeal Board's Consistency-Enhancing Function, Michael D. Frakes, Melissa F. Wasserman
Patent Trial And Appeal Board's Consistency-Enhancing Function, Michael D. Frakes, Melissa F. Wasserman
Faculty Scholarship
Agency heads, who have the primary responsibility for setting an agency's policy preferences, have a variety of tools by which they attempt to minimize the discretion of their staff officials in an effort to ensure agency policy preferences are consistently applied. One such mechanism is subjecting agency official's determinations to higher-level agency review. While scholars have long surmised that judges seek to minimize reversal of their decisions by a higher-level court, how agency officials' decisions are influenced by higher-level agency reconsideration has mostly eluded analysis.
In this Essay, we begin to fill this gap by examining the extent to which …
Transgender Tropes & Constitutional Review, Jennifer Levi, Kevin M. Barry
Transgender Tropes & Constitutional Review, Jennifer Levi, Kevin M. Barry
Faculty Scholarship
The Trump administration is aggressively and systematically rolling back policies that protect transgender people. History teaches that these governmental attacks are not new, but instead represent the latest salvo in a long but losing battle to disparage transgender people, who have been ruthlessly depicted as criminals, deviants, and selfish iconoclasts. Notwithstanding the current administration's open hostility toward transgender people, constitutional protections endure. This Article discusses the evolution of government discrimination against transgender people-from laws that criminalized the violation of gender norms in the late twentieth century to the present-day exclusion of transgender people from the U.S. military-and transgender people's continued …