Law Commons^™

Loper Bright’S Deregulatory Synergies, Renee Farmer, Daniel G. Aaron

Utah Law Faculty Scholarship

For over 40 years, Chevron U.S.A. v. National Resources Defense Council stood as a keystone of administrative law. It infused agencies with the discretion to leverage the edges of statutory language and granted them the security that day-to-day agency actions would survive judicial review. Although Chevron’s demise in Loper Bright Enterprises v. Raimondo elicited rebuke from many legal scholars, it struck some as unsurprising, unimportant, or unconcerning, whether due to the narrowing of Chevron over time, the Supreme Court’s disuse of it in recent years, or the belief that its holding flew in the face of the Administrative Procedure Act. …

The Solicitor General, Consistency, And Credibility, Margaret H. Lemos, Deborah A. Widiss

Articles by Maurer Faculty

This Article offers the first comprehensive look at cases in which the Solicitor General (SG) rejects a legal argument offered on behalf of the United States in prior litigation. Such reversals have received considerable attention in recent years, as shifts in presidential administrations have produced multiple high-profile “flip-flops”—as the Justices sometimes call them—by the SG. Even those observers who defend the SG, including veterans of the office, caution that inconsistency in legal argument poses a threat to the SG’s credibility with the Court. Our goal is to better understand the circumstances that lead the SG to change its position on …

Litigation, Reform, And The Opioid Crisis: From Mdl To Bankruptcy, Abbe R. Gluck

Touro Law Review

Can bankruptcy solve a public health crisis? Bankruptcy has taken center stage in complex civil litigation, and the massive opioid litigation is no exception. The U.S. Supreme Court in 2024 decided its first recent case about the intersection of bankruptcy and modern public harms litigation in Harrington v. Purdue Pharma L.P., a decision that brought to the fore pressing questions about the increasing use of bankruptcy in mass torts. In raising concerns about bankruptcy courts being used as a “roving commission to solve all such problems” in complex civil litigation,” the case potentially signals the Court’s growing discomfort with creative …

Mitigating The Opioid Epidemic Crisis: An Assessment Of Multidisciplinary Public Health Interventions And Substance Use Disorder Curriculum Expansion In Osteopathic Institutions, Olalekan Ogunsakin

Touro Law Review

The opioid epidemic remains a critical public health crisis, with over one million drug overdose deaths reported since 1999. In 2021 alone, more than 80,000 deaths were attributed to opioid overdoses, with synthetic opioids like fentanyl contributing to nearly 88% of these fatalities. This evolving epidemic underscores the urgent need for innovative approaches to address the misuse of opioids, particularly in healthcare settings. This study evaluates a multidisciplinary public health intervention focusing on substance use disorder (“SUD”) curriculum expansion in osteopathic institutions. Designed to bridge knowledge gaps among future healthcare professionals, the intervention included training over 1,200 osteopathic students in …

Special Issues Facing People Who Use Drugs And How Sensitive Lawyers Can Help: Three Case Studies From Rutgers Law Associate, Andrew J. Rothman

Touro Law Review

No abstract provided.

Addressing Opioid Use Disorder In The Middle East And North Africa (Mena) Regions, Alyaa Chace

Touro Law Review

The opioid crisis has devastated communities across the United States, prompting extensive litigation against pharmaceutical companies for their role in fueling addiction. Aggressive pharmaceutical marketing has led to the development of key lawsuits against Purdue Pharmaceuticals, the Sackler family, Johnson & Johnson, and Teva Pharmaceuticals, as well as a landmark $26 billion global settlement involving major distributors. U.S. courts have played a crucial role in corporate accountability, mandating record financial settlements alongside behavioral and policy reforms. By contrast, the opioid crisis in MENA, which stemmed largely from illicit drug trafficking often linked to geopolitical instability, has been more often met …

Doręczenie Wydruku Pisma Uzyskanego Z Systemu Teleinformatycznego Na Podstawie Art. 393 K.P.A. Uwagi Na Temat Miejsca W Nowej Strukturze Doręczeń, Agnieszka Skóra

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

Article 393 of the Polish Administrative Proceedings Act (k.p.a.) has played an important role in the digitization of Polish public administration bodies, as a solution to facilitate the functioning of these institutions in the face of technological change. It also ensured that documents could be delivered to people who are digitally excluded, or otherwise not ready to use electronic means of communication. However, in the context of the change in the wording (from 1 January 2025) of Articles 39 and 391 k.p.a., with which Article 393 k.p.a. was immanently linked, its functioning is questionable. In this study, the author characterizes …

Environmental Law And Social Mistrust- How The Repeal Of The Chevron Doctrine May Hinder The Epa And More, Rebecca R. Collins

Honors Undergraduate Theses

I am specifically studying the effects of a recent Supreme Court decision will have on administrative law and specifically on the EPA. Simply put, the decision is likely going to foster distrust within the EPA and decisions that are made within environmental law, as the shift goes away from scientific experts, but to less educated legal professionals who interpret the laws. In the past, people thought of the initial Chevron decision as incredibly beneficial for scientific matters and for the environment. Chervon was removed recently with another Supreme Court decision that made this idea obsolete, removing professionals from the power …

The Administrative State's Second Face, Emily R. Chertoff, Jessica Bulman-Pozen

Georgetown Law Faculty Publications and Other Works

We often assume that there is one administrative state, with one body of administrative law that governs it. In fact, the administrative state has two distinct faces: one turned toward regulation and benefits distribution, and one turned toward physical force and surveillance. The two faces are growing further apart under the Roberts Court, which has hemmed in the first face with decisions like Loper Bright while showing solicitude for national security and law enforcement agencies.

This Article delineates the two faces of the administrative state. It provides a descriptive account of the second face and the distinctive administrative law that …

Finding The Major Questions Doctrine, Chad Squitieri

Scholarly Articles

The major questions doctrine has been invoked primarily in the rulemaking context, where it requires agencies to identify particularly clear statutory authority before promulgating rules of “major” importance. Some scholars have suggested that the doctrine is a tool that should be limited to agency actions that are purportedly “legislative” in nature (e.g., rule makings)—meaning the doctrine would not apply in other contexts, such as agency adjudications and enforcement actions that may not be similarly “legislative.” This Essay responds by arguing that the major questions doctrine is best understood as a limit on executive authority—meaning the doctrine could apply across a …

The 340b Drug Pricing Program: Administration, Litigation, And Reform, Ryan P. Knox, Ameet Sarpatwari

Oklahoma Law Review

No abstract provided.

Modularity, Licensing, And The Nrc, Tara Righetti, Madeleine Lewis

Oklahoma Law Review

No abstract provided.

Cost–Benefit Analysis, Matthew D. Adler

Faculty Scholarship

This chapter will address the place of cost–benefit analysis (CBA) in constitutional law, by way of a case study. I’ll describe, and puzzle over, CBA’s absence from most U.S. constitutional doctrines, notwithstanding its major role in U.S. administrative law. The general questions that I seek to illuminate are by no means limited to the U.S. How might CBA figure within the tests that constitutional courts use to adjudicate alleged violations of constitutional rights? How might it serve to determine the structure of constitutional institutions? Would it be justified for CBA to play these doctrinal roles? But these general questions are …

Presidential Regulation, Timothy Meyer, Ganesh Sitaraman

Faculty Scholarship

This Article documents and analyzes the rise of a new mode of economic governance: presidential regulation. Today, the President regularly bypasses not only Congress but also the executive branch’s own administrative agencies and directly imposes sweeping new economic regulations. President Biden, for instance, created new regulatory regimes governing producers of artificial-intelligence technologies, companies that trade in or hold the personal information of U.S. citizens, and companies that can increase the production of energy-efficient equipment and technology. During his first term, President Trump regulated the kinds of technologies that U.S. telecommunications companies can buy and sell, placed restrictions on the electrical …

The Solicitor General, Consistency, And Credibility, Margaret H. Lemos, Deborah A. Widiss

Faculty Scholarship

This Article offers the first comprehensive look at cases in which the Solicitor General (SG) rejects a legal argument offered on behalf of the United States in prior litigation. Such reversals have received considerable attention in recent years, as shifts in presidential administrations have produced multiple high-profile “flip-flops”—as the Justices sometimes call them—by the SG. Even those observers who defend the SG, including veterans of the office, caution that inconsistency in legal argument poses a threat to the SG’s credibility with the Court. Our goal is to better understand the circumstances that lead the SG to change its position on …

The Judicial Administrative Power, Jonathan Petkun, Joseph Schottenfeld

Faculty Scholarship

Article III of the Constitution confines the “judicial Power of the United States” to the adjudication of “cases” and “controversies.” In practice, however, federal judges exercise control over, and spend their scarce time on, a wide range of activities that traverse far beyond any individual adjudication. Typically classified as a form of “judicial administration,” these activities span everything from promulgating the rules of the various federal courts to overseeing federal pretrial detention services or choosing federal public defenders.

This Article describes how judges became involved in these nonadjudicatory Article III activities, clarifies the activities’ relationship to Article III adjudication, and …

Interplanetary Risk Regulation, Jonathan B. Wiener, Charles (Chase) Hamilton

Faculty Scholarship

Space exploration promises new opportunities but also new risks. After centuries of national settlements and international conflicts on Earth, and the Cold War era of two great power states racing to the Moon, today we see a rapidly proliferating arena of actors, both governmental and non-governmental, undertaking bold new ventures off-Earth while posing an array of new risks. These multiple activities, actors, and risks raise the prospects of regulatory gaps, costs, conflicts, and complexities that warrant reconsideration and renovation of legacy legal regimes such as the international space law agreements. New approaches are needed, beyond current national and international law, …

Hiding In Plain Sight: Erisa’S Cure For The $1.4 Trillion Health Benefits Market, Amy B. Monahan, Barak D. Richman

Articles

Since 1974, the Employee Retirement Income Security Act (ERISA) has imposed fiduciary duties on those who manage and administer employee benefit plans. But for the largest employee benefits—retirement benefits and health plans, which together constitute 13% of total national compensation—ERISA’s fiduciary duties have played very different roles. For retirement benefits, ERISA scrutinizes plan managers and requires employers to select plan investments with care. For health plans, there is a regulatory vacuum, as ERISA imposes few federal requirements yet preempts state efforts to ensure quality plan offerings. In short, ERISA has advanced protections for retirement plans but mostly curtailed protections for …

Unwritten Administrative Law And The Regulatory Last Mile, Anthony B. Derron

Publications

Programs like the Clean Water Act, Clean Air Act, and Resource Conservation and Recovery Act are ostensibly federal. But once they change hands from national to subnational, they’re implemented through state statutes and regulations, not direct enforcement of the United States Code. As a result, state, not federal, administrative law governs in many bread-and-butter situations. Through a comprehensive fifty-state survey, I find that this body of law is largely unwritten.

Yet cooperative federalism relies on the capacity of state institutions to function. And equally critical is the existence of law that shepherds a program from congressional subcommittee to the very …

Administrative Law's Unavailing Duties, Daniel Z. Epstein

Texas A&M Law Review

Through a novel empirical approach, this Article shows that legal doctrine does not determine whether federal courts provide remedies when agencies fail to enforce a statutory duty. Plaintiffs are most likely to succeed against the government when litigating statutory procedures located within agency-specific statutes and which raise major policy questions in immigration, healthcare, Native American rights, public housing, the environment, or labor. Others are more likely to lose against the government: plaintiffs litigating statutory violations involving procedures not specific to an agency, but which apply to officers and agencies throughout the bureaucracy. These cases involve duties governing ethics, transparency, recordkeeping, …

The Fundamental Right Of A Safe Place To Call Home: Why The United States Immigration System Needs To Reform Its Response To Humanitarian Crises, Mackenzie Biles

Journal of the National Association of Administrative Law Judiciary

As part of its overall aim to identify how the United States can more proactively intervene in humanitarian crises, this article will examine the Department of Homeland Security’s role in securing the safe arrival of migrants into the United States and helping them to thrive thereafter, using the crisis in Afghanistan as a lens. Part I outlines the U.S. involvement in Afghanistan and the events culminating in the 2021 military withdrawal, while seeking to remain mindful of this history’s complexity and nuance. Part II examines existing U.S. immigration mechanisms, with a focus on humanitarian parole, and critiques their inadequacy in …

Cover, Table Of Contents & Masthead, Kateri Son

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

An Analysis Of Due Process Hearing Decisions For “§ 504-Only” Students, Perry A. Zirkel

Journal of the National Association of Administrative Law Judiciary

Many empirical analyses have tracked the trends for both the frequency and outcomes of due process hearing decisions under the IDEA. However, the literature entirely lacks any such analysis of due process hearing decisions under § 504. This gap in the literature is largely attributable to two overlapping factors: these decisions are much less numerous than those under the IDEA, and they are not publicly available. The purpose of this article is to address this gap in the professional literature through an exploratory analysis of the frequency and outcomes of due process hearings for § 504-only students. Part I of …

Making Conflicts Of Interest Matter To Federally Funded Academic Research, Kimberly M. Papadantonakis

Journal of the National Association of Administrative Law Judiciary

This article first provides background on the academic science and technology enterprise and the concerns of counterintelligence agencies that prompted the White House, DOJ, and Congress to act. Section III discusses specific criminal and civil cases, focusing on where prosecutions succeeded or faltered. Section IV covers the new rules and how the agencies are implementing them. Finally, Section V analyzes themes from the cases and examines how the new rules may impact future enforcement and compliance efforts.

Legal Summaries Of Administrative Law Cases, Kimberly M. Papadantonakis

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Ghost Guns: A Case Study On The Tension Between Public Exigencies And Statutory Construction, Bradley Krause

Catholic University Law Review

Administrative agencies often navigate public policy issues while simultaneously handling complex and highly technical matters. When facing a public emergency, how should courts interpret these agencies’ authorizing statutes? What rules of thumb exist to guide the courts? This Comment answers these questions through a case study on ongoing litigation pertaining to a recent ATF (Bureau of Alcohol, Tobacco, and Firearms) regulation. The regulation, targeted towards ghost guns (also known as “privately manufactured firearms”), seeks to incorporate these weapons within pre-existing definitions in the ATF’s authorizing statute, the Gun Control Act of 1968 (GCA). In spite of challenges to the regulation, …

Yellowstone National Park's Record Of Decision On Bison Management, Lila Bennett

Public Land & Resources Law Review

Bison herds once roamed the American Plains by the millions and were a staple in the lives of Native Americans. By the late 1800’s, bison were nearly extinct due to the westward expansion of European settlers and over hunting. Now, there is a population of merely 30,000 wild bison in North America. Although bison no longer face threats of immediate extinction, wild herds face stark realities of disease, habitat loss, and genetic degradation.

Schutter V. State Board Of Land Commissioners, Gillian P. Ellison

Public Land & Resources Law Review

In Schutter v. State Board of Land Commissioners, the Montana Supreme Court addressed the State’s fiduciary obligation in the context of water rights appurtenant to school trust lands. Central to the Court’s holding was the State’s fiduciary duty in managing lands held in trust for the benefit of the State. By upholding the State’s claim to partial ownership of a water right originating on private land, the Schutter Court underscored the tension between private property rights and the State's trust fiduciary duties.

Flathead-Lolo-Bitterroot Citizen Task Force V. Montana, Sarah J. Leopard

Public Land & Resources Law Review

Flathead-Lolo-Bitterroot Citizen Task Force v. Montana evaluates the efficacy of the proposed 2024 gray wolf floating season in preventing harm to grizzly bears, a protected species in Montana. The Court of Appeals for the Ninth Circuit affirmed the implementation of a “serious questions” test for preliminary injunctions that is specific to Endangered Species Act cases. The Court agreed with the district court’s grant of a preliminary injunction that limited the 2024 floating season temporally, but modified the injunction in two respects, thereby narrowing its application. The Court’s holding signifies the continuation of a preliminary injunction standard that values protections for …

Is Hipaa Dead? How Recent Developments In Ftc Section 5 Enforcement May Impact Traditional Notions Of Health Privacy, Brian Patrick

University of Cincinnati Law Review

No abstract provided.