Law Commons^™

The Administrative State And Artificial Intelligence: Toward An Internal Law Of Administrative Algorithms, Amit Haim

UC Irvine Law Review

The administrative state is gradually embracing artificial intelligence (AI) algorithms. The advent of the so-called automated state has raised concerns over accountability, transparency, and fairness and engendered proposals for legal regulation. Yet the notion that algorithms are not merely technical instruments but encode social behavior embedded in a bureaucratic context has largely been missing from the discourse. This Article identifies algorithms as sociotechnical systems embedded in an organizational context, which can function as bureaucratic governance instruments. It argues that external legal institutions, whether legislative endeavors or judicial review, lack the capacity, insight, and perspective to achieve meaningful accountability in reviewing …

Statutory Interpretation And Chevron Deference In The Appellate Courts: An Empirical Analysis, Amy Semet

UC Irvine Law Review

What statutory methods does an appellate court use in reviewing decisions of an administrative agency? Further, in doing this review, are appellate judges more likely to use certain statutory methods when they expressly cite the Chevron two-step framework than if they do not? This Article explores the answers to these questions using an original database of over 200 statutory interpretation cases culled from more than 2,500 cases decided in appellate courts reviewing National Labor Relations Board (NLRB or the Board) adjudications from 1994 through 2020. In particular, the study examined the use of text, language canons, substantive canons, legislative history, …

Trafficking And The Shallow State, Julie Dahlstrom

UC Irvine Law Review

More than two decades ago, the Trafficking Victims Protection Act (TVPA) established new, robust protections for immigrant victims of trafficking. In particular, Congress created the T visa, a special form of immigration status, to protect immigrant victims from deportation. Despite lofty ambitions, the annual cap of 5,000 T visas has never been reached, with fewer than 1,200 approved each year. In recent years, denial rates also have climbed. For example, in fiscal year 2020, U.S. Citizenship and Immigration Services denied 42.79% of the T visa applications that the agency adjudicated, compared with just 28.12% in fiscal year 2015. These developments …

Judicial Administration, Bijal Shah

UC Irvine Law Review

“Presidential administration” has been discussed for the last twenty years. However, scholars have not considered whether courts are doing the same thing. Like presidents, courts may oversee the quality of administrative action under authority granted by the Constitution and legislation. And also, like presidents, courts make policy decisions in lieu of the agency that has been delegated policymaking power.

This Article draws on case law and legal scholarship, as well as work from public administration and political science, to construct a paradigm of “judicial administration.” More specifically, it offers a history of and traces the tension between the “overseer” and …

The Forgotten Stewards Of Higher Education Quality, Matthew A. Bruckner

UC Irvine Law Review

A “triad” of regulators is supposed to ensure that student loan borrowers are not harmed by low-value institutions of higher education, including exploitative profiteers operating fly-by-night or predatory institutions of higher education. The triad has failed. Millions of students have borrowed billions of federal student loan dollars that they won’t ever repay, causing borrowers to suffer needless economic harm and psychological anguish. But these harms were, are, and remain mostly preventable. This Article appears to be the first law review article to consider the states’ role in policing institutional quality and ensuring that student borrowers are not preyed upon by …

The Contract State, Program Failure, And Congressional Intent: The Case Of The Public Service Loan Forgiveness Program, Alan White

UC Irvine Law Review

If a future administration were to adopt sweeping student loan forgiveness, the contract state may stand in the way of actual debt cancellation. In the likely event that Congress were to adopt something short of universal and immediate student loan forgiveness, the Public Service Loan Forgiveness (PSLF) experience teaches us that the federal bureaucracy is unlikely to deliver fully on the legislative promise. In the first two years of the PSLF program, nearly 100,000 student loan borrowers have applied, and the Department of Education’s contractor has denied roughly 99,000 of those applications. The Department blames Congress for an unduly complex …

Illusory Due Process: The Broken Student Loan Hearing System, Deanne Loonin

UC Irvine Law Review

Student loan collection hearings should be the primary gateway to relief for borrowers in default, but the system is profoundly broken. The author presents case examples, available data, and responses from industry surveys to describe how student loan collection hearings offer no more than an illusion of due process. The later sections present reform proposals to improve the existing hearing system, including eliminating private contractor outsourcing and increasing government accountability and oversight. Recognizing that it is counterproductive to try to fix the hearing process without tackling systemic issues, the final section includes a summary of broad reform measures aimed at …

When Agencies Make Criminal Law, Brenner M. Fissell

UC Irvine Law Review

The nondelegation doctrine prohibits a legislature from delegating its power to an administrative agency, yet it is famously underenforced—even when the delegation results in the creation of criminal offenses (so-called “administrative crimes”). While this practice appears to scandalize the hornbook presumption that legislatures alone define criminal offenses, it has long been ratified by the Supreme Court and has received little scholarly attention. The few commentators who have addressed administrative crimes highlight the intuition that criminal sanctions are uniquely severe and thus deserving of a more rigorous nondelegation analysis, but they stop there. They do not precisely link the severe aspects …

A Record Of What? The Proper Scope Of An Administrative Record For Informal Agency Action, Peter Constable Alter

UC Irvine Law Review

Recent cases involving controversial actions taken by federal agencies under the Trump Administration have highlighted a preliminary procedural nuance unique to litigation under the Administrative Procedure Act of 1946 (APA): the “administrative record.” The APA provides for liberal judicial review of federal agency actions, but limits that review to the “whole record, or those parts of it cited by a party.” This “record rule” limits judicial review to the “administrative record” before the agency when it made the decision at issue. The APA defines the administrative record for agency action subject to its formal procedural requirements, but leaves open the …

Cost-Benefit Analysis, Ben Franklin, And The Supreme Court, Amy Sinden

UC Irvine Law Review

No abstract provided.

The Federal Election Commission As Regulator: The Changing Evaluations Of Advisory Opinions , Michael M. Franz

UC Irvine Law Review

No abstract provided.

Business Crime And The Public Interest: Lawyers, Legislators, And The Administrative State, Harry First

UC Irvine Law Review

No abstract provided.

A Critique Of Supplying The Nrlb With Social Science Expertise Through Party/ Amicus Briefs, Xenia Tashlitsky

UC Irvine Law Review

No abstract provided.

Finding A Meaningfulness Principle In Firm Resettlement Law: A Proposal For A More Robust Framework In Light Of The Board Of Immigration Appeals’ Decision In Matter Of A-G-G-, Sam Lam

UC Irvine Law Review

No abstract provided.