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Brief Of Amici Curiae Administrative And Federal Regulatory Law Professors In Support Of Respondents, Andrew F. Popper

Amicus Briefs

Amici write to address the first question presented: whether Chevron should be overruled. Properly understood, it should not. Chevron has been much discussed but not always understood. On the one hand, courts have sometimes misapplied the doctrine or failed to understand its legal foundations. On the other, courts and commentators alike have criticized Chevron, often as a result of such aggressive applications. This case provides an opportunity for the Court to clarify what Chevron does and does not entail, while reaffirming the essential role that judicial recognition of constitutionally delegated policymaking authority plays in federal statutory programs. Many of …

Brief Of Scholars Of Administrative Law And The Administrative Procedure Act As Amici Curiae In Support Of Respondents, Jeffrey Lubbers

Amicus Briefs

The principle of judicial deference to agency interpretations of law has been a pillar of this Court's administrative law doctrine for more than a century. This Court's decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), formalized one version of that principle, creating the two-step framework that is now subject to a multifaceted attack. Among other things, Chevron's opponents argue that the doctrine is at odds with the original public meaning of the Administrative Procedure Act. This is wrong, and the text and history of that landmark statute provide no basis for …

Brief Of Administrative Law Scholars As Amici Curiae In Opposition To Petitioners' Request For Reversal, Jeffrey Lubbers

Amicus Briefs

Amici curiae are administrative law scholars from universities around the United States.

They are: • William D. Araiza, Professor of Law and Dean of Brooklyn Law School; • Blake Emerson, Professor of Law at UCLA School of Law; • Jeffrey Lubbers, Professor of Practice in Administrative Law at American University Washington College of Law; • Todd Phillips, Assistant Professor of Business Law at Georgia State University J. Mack Robinson College of Business; and • Beau Baumann, Doctoral candidate at Yale Law School.

Amici have a strong interest in how the Court’s decision will affect the field of administrative law and …

Not So Juris-Prudent: The Misguided Movement To Abandon Chevron Deference Through The Lens Of Mifepristone And The Attacks On Fda Autonomy, Ella Seltzer

Upper Level Writing Requirement Research Papers

No abstract provided.

Regulatory Innovation And Permission To Fail: The Case Of Suptech, Hilary J. Allen

Articles in Law Reviews & Other Academic Journals

The recent U.S. Supreme Court decision West Virginia v. EPA has cast a pall over the discretion of administrative agencies at a very inopportune time. The private sector is currently adopting new technologies at a rapid pace, and as regulated industries become more technologically complex, administrative agencies must innovate technological tools of their own in order to keep up. Agencies will increasingly struggle to do their jobs without that innovation, but the private sector is afforded something that is both critical to the innovation process, and often denied to administrative agencies: “permission to fail.” Without some grace for the inevitable …

Affirmatively Resisting, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

This Article argues that administrative processes, in particular rulemaking’s notice-and-comment requirement, enable local institutions to fight back against federal deregulatory efforts. Federalism all the way down means that state and local officials can dissent from within when challenging federal action. Drawing upon the ways in which localities, states, public housing authorities, and fair housing nonprofits resisted the Trump Administration’s efforts to roll back federal fair housing enforcement, this Article shows how uncooperative federalism works in practice.

Despite the fact that the 1968 Fair Housing Act requires that the federal government affirmatively further fair housing (AFFH), the requirement was largely ignored …

Fighting The Tax Gap: A Prime And Recent Example Of The Value Of Gao Oversight & Reporting, Josh Bill

Upper Level Writing Requirement Research Papers

No abstract provided.

A Political Canary: An Empirical Study Of The Correlation Between Hatch Act Complaints And How The Electoral College Votes, Raimund Stieger

Upper Level Writing Requirement Research Papers

The American public witnesses hundreds, if not thousands, of violations of the Hatch Act—an administrative law designed to keep partisan politics out of Government—each year. This study aimed to determine whether there is a correlation between the number of Hatch Act complaints reported in the fiscal year leading up to a Presidential election and how divisive the political landscape is during that Presidential election. Political divisiveness was defined as how close the winning Presidential candidate was to receive fifty percent of the electoral college. To assess the theory that an increase in Hatch Act complaints is an early indicator of …

Supply And Demand: Navigating Emergency Regulatory Developments In The Fight Against Opioid Use Disorder, Eva Bogdewic

Upper Level Writing Requirement Research Papers

No abstract provided.

Challenges To The Independence Of Inspectors General In Robust Congressional Oversight, Fernando R. Laguarda

Articles in Law Reviews & Other Academic Journals

Congressional oversight of the Executive is among the chief responsibilities of the legislative branch. Inspectors General ("IGs") are among the most important tools available to Congress because they are "hard-wired" into the Executive itself. The value of IGs to Congress depends on their expertise in the workings of their host agencies and their "independence" from those agencies. But "independence" is not a statutorily defined term. As the agencies, and sometimes Congress itself, expand the role of IGs to engage in activities that parallel the regulatory programs of their host agencies, IG independence is compromised and the value IGs provide to …

Gundy And The Civil-Criminal Divide, Jenny M. Roberts

Articles in Law Reviews & Other Academic Journals

It could have been the case that declared “most of Government ... unconstitutional,” by reviving a robust application of the doctrine that prohibits Congress from delegating its law-making power to the other branches. At least that is what many awaiting the Court’s widely-anticipated 2019 decision in Gundy v. United States believed, after the Court agreed to decide whether “Congress unconstitutionally delegated legislative power when it authorized the Attorney General to ‘specify the applicability’ of [the federal Sex Offender Registration and Notification Act]’s registration requirements to pre-Act offenders.” Gundy did not deliver on its potential to upend the administrative state. Instead, …

A Tribute To Judge Patricia Wald, Jeffrey Lubbers

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Regulatory Accountability Act Loses Steam But The Trump Executive Order On Alj Selection Upturned 71 Years Of Practice, Jeffrey Lubbers

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Sg's Brief In Lucia Could Portend The End Of The Alj Program As We Have Known It, Jeffrey Lubbers

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Fail To Comment At Your Own Risk: Does Issue Exhaustion Have A Place In Judicial Review Of Rules, Jeffrey Lubbers

Articles in Law Reviews & Other Academic Journals

Lubbers discusses whether issue exhaustion have a place in judicial review of rules.

Cooperative Enforcement In Immigration Law, Amanda Frost

Articles in Law Reviews & Other Academic Journals

ABSTRACT: Immigration officials take two approaches to unauthorized immigrants: Either they seek to deport them, or they exercise prosecutorial discretion, allowing certain categories of unauthorized immigrants to remain in the United States without legal status. Neither method is working. The executive lacks the resources to remove more than a small percentage of the unauthorized population each year, and prosecutorial discretion is by definition an impermanent solution that leaves unauthorized immigrants vulnerable to exploitation at both work and home - harming not just them, but also the legal immigrants and U.S. citizens with whom they live and work.This Article: suggests a …

Tobacco, Denormalization, Anti-Healthism, And Health Justice, Lindsay Wiley

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Comments On Omb's Interim Guidance Implementing Section 2 Of Executive Order 13,771 Reducing Regulation And Controlling Regulatory Costs, Jeffrey Lubbers

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Protecting Juveniles In Adult Facilities From Sexual Abuse: Best Practices For Implementing The Youthful Inmate Standard, Brenda V. Smith

Reports

Housing youth who are prosecuted and convicted as adults in adult facilities is challenging and creates significant dilemmas for correctional agencies. In particular, should such “youthful inmates” be treated as part of the regular adult population or should these youth be housed in facilities still under the purview of the adult corrections agency but in facilities designated for youth? More narrowly, should youthful inmates who remain in an adult facility be held in separate housing blocks? Or, should youthful inmates in adult correctional facilities be housed in protective custody or solitary confinement for their protection? How should agencies provide required …

Policy Review And Development Guide: Lesbian, Gay, Bisexual, Transgender, Questioning, And Intersex Persons In Custodial Settings, 3rd Ed., Brenda V. Smith, Jaime M. Yarussi

Reports

The Project on Addressing Prison Rape (the Project) at American University’s Washington College of Law (WCL) has had a cooperative agreement with the National Institute of Corrections (NIC) to provide training and technical assistance to high-level correctional decisionmakers on key issues in preventing and addressing staff sexual misconduct since 1999. In 2003, with the enactment of the Prison Rape Elimination Act (PREA), the Project’s focus shifted to addressing prison rape—both staff sexual misconduct and inmateon- inmate sexual abuse. Beginning in 2006, Smith Consulting began a collaborative effort with the Project and NIC to focus efforts on providing technical assistance to …

The Judgment Fund: America's Deepest Pocket & Its Susceptibility To Executive Branch Misuse, Paul F. Figley

Articles in Law Reviews & Other Academic Journals

Over the last thirty-five years, the United States government has paid out billions of dollars in settlements that have had no fiscal consequences for the agencies whose actions caused the claims. It has done so through the Judgment Fund, a relatively unknown permanent, indefinite appropriation originally created by Congress almost half a century ago to pay certain types of judgments entered against the United States.

Congress struggled for nearly two hundred years to find a way to exercise its Appropriations Clause authority over claims payments that did not drown its members in procedural detail. The article surveys that history. Through …

Enhancing The Use Of Negotiated Rulemaking By The U.S. Department Of Education, Jeffrey Lubbers

Reports

White paper for the American Council on Education, published as Appendix IV, Recalibrating Regulation of Colleges and Universities, Report of the Task Force on Federal Regulation of Higher Education, 90-125 (2015), available at http://www.help.senate.gov/imo/media/Regulations_Task_Force_Report_2015_FINAL.pdf

Ending Silence: Demanding Safety From Sexual Assault - I Reported, Brenda V. Smith, Caleb J. Bess, Rebecca I. Heinsen, Jaime V. Yarussi, Michael J. Auger

Reports

Ending Silence: Demanding Safety from Sexual Assault & Youth Speaking Up about Sexual Abuse in Custody are a series of graphic novels for adult and juvenile inmates in custodial settings. These graphic novels are intended to educate inmates about how to identify and address incidents of sexual assault. The plot lines in these graphic novels dramatize situations we know occur in custodial settings. The use of graphic novels in community education projects is well established. By presenting information through an illustrative medium, these novels aim to disseminate information about the sexual abuse reporting process to inmates at all literacy levels. …

Training Curriculum: Human Resources And Administrative Investigations (Facilitator’S Guide), Brenda V. Smith, Jaime M. Yarussi, Rebecca Heinsen, Melissa C. Loomis, Caleb J. Bess, Tonya Davis, Kathy Dennehy, A.T. Wall, Lorie Brisbin, Susan Carle, Richard Ugelow, Lisa Capers, Aaron Aldrich

Reports

The enclosed Human Resources and Administrative Investigations curriculum was developed by the Project on Addressing Prison Rape at American University, Washington College of Law as part of contract deliverables for the National PREA Resource Center (PRC), a cooperative agreement between the National Council on Crime and Delinquency and the Bureau of Justice Assistance (BJA). The Prison Rape Elimination Act (PREA) standards served as the basis for the curriculum’s content and development, with the goal of the Human Resources and Administrative Investigations curriculum to satisfy specific PREA standards requirements.

It is recommended that the Human Resources and Administrative Investigations curriculum be …

Frostpaw Addresses Global Warming, William Snape

Articles in Law Reviews & Other Academic Journals

INTRODUCTION: Climate change impacts the law on many levels and in many ways. This Article asks a threshold question: what legal structures will most effectively reduce growing levels of anthropogenic greenhouse pollution? The answer is that an existing U.S. statute-the Clean Air Act-not only possesses clear commands to ratchet down greenhouse pollutants domestically, but also provides explicit authority to negotiate concomitant air pollution reduction with countries around the planet in a fair, transparent, and reciprocal fashion. Further, application of the Clean Air Act is consistent with other legal and policy tools to address global warming. This statute-based solution, while facially …

Soft Whistleblowing, Amanda Leiter

Articles in Law Reviews & Other Academic Journals

This Article explores the underappreciated role that agency insiders play in directing outside oversight of their employer agencies and, in turn, manipulating agency policy development. Specifically, the Article defines, documents, and evaluates the phenomenon of "soft whistleblowing"-an agency employee's deliberate, unsanctioned, substantive, and instrumental disclosure of nonpublic information about issues of policy. This phenomenon is ubiquitous but has received no systematic attention in the academic literature. As the Article demonstrates, agency employees regularly engage in soft whistleblowing to congressional staff, journalists, and agency watchdog groups, in an effort to bring outside pressure to bear on their employer agencies to shift …

The Ohio State University Dispute Resolution In Special Education Symposium Panel, Robert Dinerstein

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Should Congress Create A Special Category Of Ssa Aljs, Jeffrey Lubbers

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Reviewing The American University Law Review On Extraterritoriality: A Critical Response To Viki Economides, Note, Tianrui Group Co. V. Itc: The Dubious Status Of Extraterritoriality And The Domestic Industry Requirement Requirement Of Section 337(Link), Jonathan Stroud

Articles in Law Reviews & Other Academic Journals

Recently, the Federal Circuit upheld the Commission’s decision to exclude goods based on a trade secret violation that largely happened abroad. The American University Law Review critiqued that decision on two grounds: First, that a presumption against extraterritorial application of U.S. law applied; and second, that licensing alone could not establish a domestic industry. The American University Law Review's critique remains incomplete, however, as the Federal Circuit correctly decided the case for at least two reasons. first, the Federal Circuit correctly applied the “extraterritorial presumption” canon of construction; and second, the recent Federal Circuit decision in InterDigital Communications LLC v. …

Prea 101 For Adult Prisons, Brenda V. Smith

Presentations

No abstract provided.