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Revolt Against The U.S. Hegemony: Judicial Divergence In Cyberspace, Dongsheng Zang Jan 2022

Revolt Against The U.S. Hegemony: Judicial Divergence In Cyberspace, Dongsheng Zang

Articles

This Article contributes to our understanding of the current state of cyber law. The global perspective demonstrates an almost uniform response to the U.S. law in cyberspace from all of America's major trading partners. In the past, comparative studies tended to focus on a single jurisdiction-typically, the European Union-and compared it with the United States. This approach, informative as it was, significantly understated the gravity of the differences between that jurisdiction and the United States. Fundamentally, it was based on an American-centric outlook with primary interests in building convergence models. In cyberspace, however, this is simply not helpful. In recent …


Nontraditional Investors, Jennifer S. Fan Jan 2022

Nontraditional Investors, Jennifer S. Fan

Articles

In recent years, nontraditional investors have become a major player in the startup ecosystem. Under the regulatory regime of U.S. securities law, those in the public realm are heavily regulated, while those in the private realm are largely left alone. This public-private divide, which is a fundamental organizing principle of securities law, has eroded with the rise of nontraditional investors. While legal scholars have addressed the impact of some of these nontraditional investors individually, their collective impact on deal terms, deal timelines, due diligence, and board configuration has not been discussed in a holistic manner; neither has their impact on …


The Automated Administrative State: A Crisis Of Legitimacy, Ryan Calo, Danielle Keats Citron Jan 2021

The Automated Administrative State: A Crisis Of Legitimacy, Ryan Calo, Danielle Keats Citron

Articles

The legitimacy of the administrative state is premised on our faith in agency expertise. Despite their extra-constitutional structure, administrative agencies have been on firm footing for a long time in reverence to their critical role in governing a complex, evolving society. They are delegated enormous power because they respond expertly and nimbly to evolving conditions. In recent decades, state and federal agencies have embraced a novel mode of operation: automation. Agencies rely more and more on software and algorithms in carrying out their delegated responsibilities. The automated administrative state, however, is demonstrably riddled with concerns. Legal challenges regarding the denial …


Visual Rulemaking, Elizabeth G. Porter, Kathryn A. Watts Jan 2018

Visual Rulemaking, Elizabeth G. Porter, Kathryn A. Watts

Articles

Visual politics are seeping into the technocracy. Rulemaking stakeholders—including agencies, the President, and members of the public—are deploying politically tinged visuals to push their agendas at every stage of high-stakes, often virulently controversial, rulemakings. These images, GIFs, and videos usually do not make it into the official rulemaking record, so this new “visual rulemaking” world has not been discussed much by scholars or others.

In this article, we explore the new visual rulemaking culture that emerged in Obama’s presidency, providing examples and discussing relevant policy implications. Although we recognize some risks, we argue that, on balance, visual rulemaking is a …


The Other Securities Regulator: A Case Study In Regulatory Damage, Anita K. Krug Jan 2017

The Other Securities Regulator: A Case Study In Regulatory Damage, Anita K. Krug

Articles

Although the Securities and Exchange Commission is the primary securities regulator in the United States, the Department of Labor also engages in securities regulation. It does so by virtue of its authority to administer the Employee Retirement Income Security Act (ERISA), the statute that governs the investment of retirement assets. In 2016, the DOL used its securities regulatory authority to adopt a rule that, for the first time, designates securities brokers who provide investment advice to retirement investors as fiduciaries subject to ERISA's stringent transaction prohibitions. The new rule's objective is salutary, to be sure. However this Article shows that, …


Controlling Presidential Control, Kathryn A. Watts Jan 2016

Controlling Presidential Control, Kathryn A. Watts

Articles

Presidents Reagan and Clinton laid the foundation for strong presidential control over the administrative state, institutionalizing White House review of agency regulations. Presidential control, however, did not stop there. To the contrary, it has evolved and deepened during the presidencies of George W. Bush and Barack Obama. Indeed, President Obama’s efforts to control agency action have dominated the headlines in recent months, touching on everything from immigration to drones to net neutrality.

Despite the entrenchment of presidential control over the modern regulatory state, administrative law has yet to adapt. To date, the most pervasive response both inside and outside the …


Actic Law & Policy Year In Review: 2015, Craig H. Allen, Bridgette J. Cooper, Adam Murray Jan 2016

Actic Law & Policy Year In Review: 2015, Craig H. Allen, Bridgette J. Cooper, Adam Murray

Articles

A review of significant legal developments affecting the Arctic, including treaties and other international agreements; actions by the U.S. Congress, President, and other federal agencies; developments from the European Union and ten foreign countries; and several international organizations. Also addressed are themes including arctic marine shipping; indigneous residents; marine resources; military activities; polar icebreakers; pollution prevention, response, and liability; and scientific research.


Visual Rulemaking, Elizabeth G. Porter, Kathryn A. Watts Jan 2016

Visual Rulemaking, Elizabeth G. Porter, Kathryn A. Watts

Articles

Federal rulemaking has traditionally been understood as a text-bound, technocratic process. However, as this Article is the first to uncover, rulemaking stakeholders—including agencies, the President, and members of the public—are now deploying politically tinged visuals to push their agendas at every stage of high-stakes, often virulently controversial, rulemakings. Rarely do these visual contributions appear in the official rulemaking record, which remains defined by dense text, lengthy cost-benefit analyses, and expert reports. Perhaps as a result, scholars have overlooked the phenomenon we identify here: the emergence of a visual rulemaking universe that is splashing images, GIFs, and videos across social media …


Rulemaking As Legislating, Kathryn A. Watts Jan 2015

Rulemaking As Legislating, Kathryn A. Watts

Articles

The central premise of the nondelegation doctrine prohibits Congress from delegating its Article I legislative powers. Yet Congress routinely delegates to agencies the power to promulgate legislative rules—rules that carry the force and effect of law just as statutes do. Given this tension between the nondelegation doctrine and the modern regulatory state, some scholars have attacked the nondelegation doctrine as fictional.

Little scholarly attention, however, has been given to considering how the central premise of the nondelegation doctrine coheres with—or fails to cohere with—administrative law as a whole. This Article takes up that task, exploring what might happen to administrative …


Lessons From The Lost History Of Seminole Rock, Sanne H. Knudsen, Amy J. Wildermuth Jan 2015

Lessons From The Lost History Of Seminole Rock, Sanne H. Knudsen, Amy J. Wildermuth

Articles

This Article informs the current debate over Auer v. Robbins (519 U.S. 452 (1997)) deference by exploring the roots of the Bowles v. Seminole Rock decision (325 U.S. 410 (1945)) and its subsequent reinterpretation through a creative approach. To do so, this Article offers a series of hypothetical opinions applying the various historical interpretations of Seminole Rock to a single set of facts.

Part I places Seminole Rock in the constellation of deference doctrines in administrative law so that one can easily understand what the doctrine is and when it applies. Part II examines the transformation of Seminole Rock through …


Unearthing The Lost History Of Seminole Rock, Sanne H. Knudsen, Amy J. Wildermuth Jan 2015

Unearthing The Lost History Of Seminole Rock, Sanne H. Knudsen, Amy J. Wildermuth

Articles

This Article documents the untethering of Bowles v. Seminole Rock [325 U.S. 410 (1945)]. It shows how, in the 1960s and 1970s, alongside an expanding administrative state, the doctrine transformed into a more mechanical and highly deferential form of agency deference. It further shows that this transformation is marked by a consistent lack of scholarly or judicial reflection on its underpinnings.

In doing so, this Article provides new depth to the emerging critiques of Seminole Rock deference and lends critical support for reexamination of the doctrine.


Code, Nudge, Or Notice?, Ryan Calo Jan 2014

Code, Nudge, Or Notice?, Ryan Calo

Articles

Regulators are increasingly turning to means other than law to influence citizen behavior. This Essay compares three methods that have particularly captured the imagination of scholars and officials in recent years. Much has been written about each method in isolation. This Essay considers them together for the first time in order to generate a novel normative insight about the nature of regulatory choice.

The first alternative method, known colloquially as architecture or “code,” occurs when regulators change a physical or digital environment to make undesirable conduct difficult. Speed bumps provide a classic example. The second method, libertarian paternalism or “nudging,” …


Constraining Certiorari Using Administrative Law Principles, Kathryn A. Watts Jan 2012

Constraining Certiorari Using Administrative Law Principles, Kathryn A. Watts

Articles

The U.S. Supreme Court—thanks to various statutes passed by Congress beginning in 1891 and culminating in 1988—currently enjoys nearly unfettered discretion to set its docket using the writ of certiorari. Over the past few decades, concerns have mounted that the Court has been taking the wrong mix of cases, hearing too few cases, and relying too heavily on law clerks in the certiorari process.

Scholars, in turn, have proposed fairly sweeping reforms, such as the creation of a certiorari division to handle certiorari petitions. This Article argues that before the Court’s discretion to set its own agenda is taken away, …


Regulatory Moratoria, Kathryn A. Watts Jan 2012

Regulatory Moratoria, Kathryn A. Watts

Articles

Despite significant scholarly attention given to tools that the political branches use to exert control over the administrative state, one emerging tool has gone largely unnoticed: regulatory moratoria. Regulatory moratoria, which stem from legislative or executive action, aim to freeze rulemaking activity for a period of time.

As this Article demonstrates, regulatory moratoria have worked their way into the political toolbox at both the federal and state levels. For example, at least fifteen federal bills proposing generalized regulatory moratoria were introduced in the first session of the 112th Congress, and from 2008 to 2011 alone, no fewer than nine states …


Proving Natural Resource Damage Under Opa 90: Out With The Rebuttable Presumption, In With Apa-Style Judicial Review?, Craig H. Allen Jan 2011

Proving Natural Resource Damage Under Opa 90: Out With The Rebuttable Presumption, In With Apa-Style Judicial Review?, Craig H. Allen

Articles

In the aftermath of the Deepwater Honrzon oil spill of 2010, Prsident Obama uged Congess to amend the natural resource damage provisions of the Oil Pollution Act of 1990 to replace the rebuttable presumption of validity the law presently accords to damage assessments by the designated natural resource trustees that were conducted in accordance with regulations promulgated by the National Oceanic and Atmosphenc Administration with the standard of judicial review prescrbed by the Administrative Procedures Act (APA). Although the House of Representatives passed such an amendment in 2010, the Senate failed to act on the amendment before the 111th congressional …


From Chevron To Massachusetts: Justice Stevens's Approach To Securing The Public Interest, Kathryn A. Watts Jan 2010

From Chevron To Massachusetts: Justice Stevens's Approach To Securing The Public Interest, Kathryn A. Watts

Articles

During the past three decades, one Supreme Court justice— John Paul Stevens—has authored two of the most significant administrative law decisions that speak to the judiciary’s role in checking agency interpretations of the statutes that they administer. In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., Justice Stevens’s landmark 1984 decision unanimously upheld the EPA’s construction of a term found in the Clean Air Act. Subsequently, in Massachusetts v. EPA, Justice Stevens’s 2007 opinion for a five-justice majority handed a major win to global environmental security by ordering the EPA to reconsider its refusal to regulate greenhouse …


Proposing A Place For Politics In Arbitrary And Capricious Review, Kathryn A. Watts Jan 2009

Proposing A Place For Politics In Arbitrary And Capricious Review, Kathryn A. Watts

Articles

Current conceptions of “arbitrary and capricious” review focus on whether agencies have adequately explained their decisions in statutory, factual, scientific, or otherwise technocratic terms. Courts, agencies, and scholars alike, accordingly, generally have accepted the notion that influences from political actors, including the President and Congress, cannot properly help to explain administrative action for purposes of arbitrary and capricious review. This means that agencies today tend to sweep political influences under the rug even when such influences offer the most rational explanation for the action.

This Article argues that this picture should change. Specifically, this Article argues for expanding current conceptions …


A New Deal For End Users? Lessons From A French Innovation In The Regulation Of Interoperability, Jane K. Winn, Nicolas Jondet Jan 2009

A New Deal For End Users? Lessons From A French Innovation In The Regulation Of Interoperability, Jane K. Winn, Nicolas Jondet

Articles

In 2007, France created the Regulatory Authority for Technical Measures (lAutoritj de Rdgulation des Mesures Techniques or ARMT), an independent regulatory agency charged with promoting the interoperability of digital media distributed with embedded "technical protection measures" (TPM), also known as "digital rights management" technologies (DRM). ARMT was established in part to rectify what French lawmakers perceived as an imbalance in the rights of copyright owners and end users created when the European Copyright Directive (EUCD) was transposed into French law as the "Loi sur le Droit d'Auteur et les Droits Voisins dans la Société de l'Information" (DADVSI).

ARMT is both …


A "New Approach" To Standards And Consumer Protection, Jane Winn, Nicolas Jondet Jan 2008

A "New Approach" To Standards And Consumer Protection, Jane Winn, Nicolas Jondet

Articles

As consumer use of information and communication technology (ICT) products grows, the importance of ICT standards in consumer markets also grows. While standards for manufactured products were once developed at the national level in formal standards bodies, standards for ICT products today are more likely to be developed by informal standards bodies that target global markets, creating new challenges for national consumer protection laws.

As part of the process of creating a single market, the EU developed an innovative and successful form of “coregulation” known as the “New Approach” that coordinated the work of legislators and standards developers to reduce …


Adapting To Administrative Law's Erie Doctrine, Kathryn A. Watts Jan 2007

Adapting To Administrative Law's Erie Doctrine, Kathryn A. Watts

Articles

This Article looks to the federalism context and draws on the federal courts' experience adapting to the Court's landmark decision in Erie Railroad Company v. Tompkins. Much like Brand X, the Court's Erie decision, which commanded federal courts to apply state law in all cases not governed by positive federal law, significantly reduced the lawmaking power of the federal courts by putting the federal courts in the position of interpreting law that they cannot definitively construe. Although Erie seemed simple enough to adhere to when state law provided a clear answer, Erie posed a serious dilemma when federal courts …


Principles Of Non-Arbitrariness: Lawlessness In The Administration Of Welfare, Christine N. Cimini Jan 2005

Principles Of Non-Arbitrariness: Lawlessness In The Administration Of Welfare, Christine N. Cimini

Articles

This article explores whether there exists a concept of non-arbitrariness that imposes limitations on the administration of welfare benefits without rules, regulations, policies or procedures. To address this question, the article examines the concept of non-arbitrariness within various jurisprudential doctrines and the potential applicability of the concept to limit arbitrary governmental action in the welfare context. In each of the areas where courts regulate arbitrary governmental action, underlying judicial concerns give rise to jurisprudential principles. Four principles stand out. First, at a minimum, there must be a rational relationship between the government’s ends and the means it chooses to reach …


Agency Rules With The Force Of Law: The Original Convention, Thomas W. Merrill, Kathryn Tongue Watts Jan 2002

Agency Rules With The Force Of Law: The Original Convention, Thomas W. Merrill, Kathryn Tongue Watts

Articles

The Supreme Court recently held in United States v. Mead Corp. that agency interpretations should receive Chevron deference only when Congress has delegated power to the agency to make rules with the force of law and the agency has rendered its interpretation in the exercise of that power.

The first step of this inquiry is difficult to apply to interpretations adopted through rulemaking, because often rulemaking grants authorize the agency to make "such rules and regulations as are necessary to carry out the provisions of this chapter" or words to that effect, without specifying whether "rules and regulations" encompasses …


Responsible Regulation: A Sensible Cost-Benefit, Risk Versus Risk Approach To Federal Health And Safety Regulation, Steve Calandrillo Jan 2001

Responsible Regulation: A Sensible Cost-Benefit, Risk Versus Risk Approach To Federal Health And Safety Regulation, Steve Calandrillo

Articles

Federal health and safety regulations have saved or improved the lives of thousands of Americans, but protecting our citizens from risk entails significant costs. In a world of limited resources, we must spend our regulatory dollars responsibly in order to do the most we can with the money we have. Given the infeasibility of creating a risk-free society, this paper argues that a sensible cost-benefit, risk versus risk approach be taken in the design of U.S. regulatory oversight policy. The goal should always be to further the best interests of the nation, rather than to satisfy the narrow agenda of …


Becket At The Bar--The Conflicting Obligations Of The Solicitor General, Eric Schnapper Jan 1988

Becket At The Bar--The Conflicting Obligations Of The Solicitor General, Eric Schnapper

Articles

This Article suggests that the Solicitor General has five quite distinct responsibilities: to provide the Supreme Court with accurate and balanced information, to help to shape the Court's docket, to assure that the government's presentations maintain a high level of professionalism, to frame government positions which strike an appropriate balance between justice and advocacy, and to identify the interests and policies of the government client whom he represents. These responsibilities at times place the Solicitor General under conflicting obligations, not merely conflicts between his or her duties to the Court and to the administration, but conflicts in the Solicitor General's …


The Natural Law Of Administrative Law, William H. Rodgers, Jr. Jan 1983

The Natural Law Of Administrative Law, William H. Rodgers, Jr.

Articles

Law teachers and researchers are inveterate seekers of metaphors. The metaphor, even if glib and obvious, invariably suggests further parallels and relationships, the conjoinder of phenomena. This is the road to uncovering unsuspected linkages and building simple descriptive models.

Theory building, in administrative law as elsewhere, begins with the capture and expression of the convincing metaphor. Extracting metaphors from the natural sciences to account for social happenings begins with a figure of speech and often ends there. Legislatures now are squeezing fat out of administrative agencies, an apt biological picture of a weight watcher's rigor being imposed on flabby, middle-aged …


Judicial Review Of Risk Assessments: The Role Of Decision Theory In Unscrambling The Benzene Decision, William H. Rodgers, Jr. Nov 1981

Judicial Review Of Risk Assessments: The Role Of Decision Theory In Unscrambling The Benzene Decision, William H. Rodgers, Jr.

Articles

[Reprinted in 13 Land Use & Envtl. L. Rev. 629-48 (1982).]


Benefits, Costs, And Risks: Oversight Of Health And Environmental Decisionmaking, William H. Rodgers, Jr. Jan 1980

Benefits, Costs, And Risks: Oversight Of Health And Environmental Decisionmaking, William H. Rodgers, Jr.

Articles

This article considers problems of "regulatory reform" in the context of environmental and health decisionmaking. Specifically, in Part I, this article defines cost-benefit analysis, explores its advantages and limitations, and assays cost-benefit practice in light of descriptive theoretical and practical demands of formal decisionmaking within administrative agencies.

The two remaining sections of this article focus on the question of how Congress and the courts can, do, and should structure environmental and health regulation. In Part II, the article explores legislative models for agency consideration of costs and benefits in promulgating regulations. It examines four alternative models, and identifies normative considerations …


A Hard Look At Vermont Yankee: Environmental Law Under Close Scrutiny, William H. Rodgers, Jr. Jan 1979

A Hard Look At Vermont Yankee: Environmental Law Under Close Scrutiny, William H. Rodgers, Jr.

Articles

In Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. the Supreme Court unanimously reversed the District of Columbia Circuit in two cases that closely scrutinized decisions of the Nuclear Regulatory Commission and, in so doing, questioned settled habits of judicial review of administrative action affecting the environment. In this article Professor Rodgers analyzes four implications of Vermont Yankee—substantive judicial review under the National Environmental Policy Act, judicial imposition of procedures upon agencies beyond the statutory minima of the Administrative Procedure Act, the obligation of the agencies to consider alternatives in the environmental impact statement without regard to …


Comment On The Coal Lease Forfeiture Decision: The Hypothetical Case Of United States V. Peabody Coal Co., William H. Rodgers, Jr. Apr 1975

Comment On The Coal Lease Forfeiture Decision: The Hypothetical Case Of United States V. Peabody Coal Co., William H. Rodgers, Jr.

Articles

This Comment will (1) summarize the antitrust litigation that put Peabody in jeopardy of losing its leases under section 27 of the Mineral Lands Leasing Act of 1920, and (2) criticize the decision of the Justice Department to forego a test case, thus drastically narrowing by administrative fiat the coal lease forfeiture provisions of the Mineral Lands Leasing Act.


A Survey Of The Washington Industrial And Safety Act’S First Months Of Operation, Hugh D. Spitzer Jan 1974

A Survey Of The Washington Industrial And Safety Act’S First Months Of Operation, Hugh D. Spitzer

Articles

The still brief existence of the Washington Industrial Safety and Health Act (WISHA)' has not begun to yield a full view of its operations, effects, strengths and weaknesses. But a look at the preliminary data compiled by the Division of Industrial Safety and Health of Washington's Department of Labor and Industries does give one an idea of the shape that the Act's enforcement will take, as well as its effect on the business and working communities.' This comment will provide a brief overview of Washington's early experience with the Act, based on statistics and interviews with the individuals responsible for …