Law Commons^™

Plenary Power In The Modern Administrative State, Catherine Y. Kim

Faculty Scholarship

No abstract provided.

Bureaucracy As The Border: Administrative Law And The Citizen Family, Kristin Collins

Faculty Scholarship

This contribution to the symposium on administrative law and practices of inclusion and exclusion examines the complex role of administrators in the development of family-based citizenship and immigration laws. Official decisions regarding the entry of noncitizens into the United States are often characterized as occurring outside of the normal constitutional and administrative rules that regulate government action. There is some truth to that description. But the historical sources examined in this Article demonstrate that in at least one important respect, citizenship and immigration have long been similar to other fields of law that are primarily implemented by agencies: officials operating …

A Rock Unturned: Justice Scalia's (Unfinished) Crusade Against The Seminole Rock Deference Doctrine, Kevin O. Leske

Faculty Scholarship

No abstract provided.

Localist Administrative Law, Nestor M. Davidson

Faculty Scholarship

To read the voluminous literature on administrative law is to inhabit a world focused almost exclusively on federal agencies. This myopic view, however, ignores the wide array of administrative bodies that make and implement policy at the local-government level. The administrative law that emerges from the vast subterranean regulatory state operating within cities, suburbs, towns, and counties has gone largely unexamined. Not only are scholars ignoring a key area of governance, but courts have similarly failed to develop an administrative jurisprudence that recognizes what is distinctive about local agencies. The underlying justifications for core administrative law doctrines at the federal …

Freedom Of Information Beyond The Freedom Of Information Act, David Pozen

Faculty Scholarship

The U.S. Freedom of Information Act (FOIA) allows any person to request any agency record for any reason. This model has been copied worldwide and celebrated as a structural necessity in a real democracy. Yet in practice, this Article argues, FOIA embodies a distinctively “reactionary” form of transparency. FOIA is reactionary in a straightforward, procedural sense in that disclosure responds to ad hoc demands for information. Partly because of this very feature, FOIA can also be seen as reactionary in a more substantive, political sense insofar as it saps regulatory capacity; distributes government goods in an inegalitarian fashion; and contributes …

The Management Side Of Due Process In The Service-Based Welfare State, Charles F. Sabel, William H. Simon

Faculty Scholarship

The American social welfare system is evolving away from the framework established by the New Deal and elaborated during the civil rights era. It is becoming less focused on income maintenance and more on capacitation. Benefits thus more often take the form of services. Such benefits are necessarily less standardized and stable than monetary ones. Their design is more individualized and provisional. The new trends favor different organizational forms, and they imply a different ideal of procedural fairness.

Jerry L. Mashaw’s work of the 1970s and 1980s provided the deepest and most comprehensive analysis of the New Deal regime from …

Overreach And Innovation In Equality Regulation, Olatunde C.A. Johnson

Faculty Scholarship

At a time of heightened concern about agency overreach, this Article highlights a less appreciated development in agency equality regulation. Moving beyond traditional bureaucratic forms of regulation, civil rights agencies in recent years have experimented with new forms of regulation to advance inclusion. This new "inclusive regulation" can be described as more open ended, less coercive, and more reliant on rewards, collaboration, flexibility, and interactive assessment than traditional modes of civil rights regulation. This Article examines the power and limits of this new inclusive regulation and suggests a framework for increasing the efficacy of these new modes of regulation.

1930s Redux: The Administrative State Under Seige, Gillian E. Metzger

Faculty Scholarship

Eighty years on, we are seeing a resurgence of the antiregulatory and antigovernment forces that lost the battle of the New Deal. President Trump's administration has proclaimed the "deconstruction of the administrative state" to be one of its main objectives. Early Trump executive actions quickly delivered on this pledge, with a wide array of antiregulatory actions and a budget proposing to slash many agencies' funding. Invoking the long-dormant Congressional Review Act (CRA), the Republican-controlled Congress has eagerly repealed numerous regulations promulgated late in the Obama Administration. Other major legislative and regulatory repeals are pending, and bills that would impose the …

Irreconcilable Similarities: The Inconsistent Analysis Of 212(C) And 212(H) Waivers, Kate Aschenbrenner Rodriguez

Faculty Scholarship

No abstract provided.

Blood Biofuels, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Tip Of The Iceberg Ii: How The Intended-Uses Principle Produces Medical Knowledge And Protects Liberty, Christopher Robertson

Faculty Scholarship

In recent years, the Food and Drug Administration’s pre-market approval process has come under increasing scrutiny as an infringement on liberty and a regulation of speech. In the first part of this symposium contribution, we offer a case study of Seroquel XR, showing how the FDA’s premarket approval process – and the restrictions on “off-label” promotion in particular – caused the drug company to produce and disseminate knowledge about safety and efficacy for new uses. The law successfully resolved the collective action problem of producing knowledge, even while the law protected the liberty of individual doctors and patients to use …

Internal Administrative Law, Gillian E. Metzger, Kevin M. Stack

Faculty Scholarship

For years, administrative law has been identified as the external review of agency action, primarily by courts. Following in the footsteps of pioneering administrative law scholars, a growing body of recent scholarship has begun to attend to the role of internal norms and structures in controlling agency action. This Article offers a conceptual and historical account of these internal forces as internal administrative law. Internal administrative law consists of the internal directives, guidance, and organizational forms through which agencies structure the discretion of their employees and presidents control the workings of the executive branch. It is the critical means for …

Benchmark Regulation, Gina-Gail S. Fletcher

Faculty Scholarship

Benchmarks are metrics that are deeply embedded in the financial markets. They are essential to the efficient functioning of the markets and are used in a wide variety of ways—from pricing oil to setting interest rates for consumer lending to valuing complex financial instruments. In recent years, benchmarks have also been at the epicenter of numerous, multi-year market manipulation scandals. Oil traders, for example, deliberately execute trades to drive benchmarks lower artificially, allowing the traders to capitalize on the manipulated benchmarks. This ensures that later trades relying on the benchmarks will be more profitable than they otherwise would have been. …

A Better Calculus For Regulators: From Cost-Benefit Analysis To The Social Welfare Function, Matthew D. Adler

Faculty Scholarship

The “social welfare function” (SWF) is a powerful tool that originates in theoretical welfare economics and has wide application in economic scholarship, for example in optimal tax theory and environmental economics. This Article provides a comprehensive introduction to the SWF framework. It then shows how the SWF framework can be used as the basis for regulatory policy analysis, and why it improves upon cost-benefit analysis (CBA).

Two types of SWFs are especially plausible: the utilitarian SWF, which sums individual well-being numbers, and the prioritarian SWF, which gives extra weight to the well-being of the worse off. Either one of these …

Risk Regulation And Innovation: The Case Of Rights-Encumbered Biomedical Data Silos, Arti K. Rai

Faculty Scholarship

Recent Supreme Court cases on patent-eligible subject matter are likely to exacerbate the longstanding problem of biomedical data fragmentation. For each data silo, multiple overlapping legal claims and claimants must be addressed to achieve the benefits of pooling.

Commentators who have discussed the data aggregation challenge have generally focused on possibilities created through public funding, through collective action by research participants, or through pressure by payers. This Article emphasizes the important role of risk regulators, most notably the precedent offered by risk regulation in the area of clinical trial data.

While U.S. risk regulators have taken some positive steps, the …

Signing Statements And Presidentializing Legislative History, John De Figueiredo, Edward H. Stiglitz

Faculty Scholarship

Presidents often attach statements to the bills they sign into law, purporting to celebrate, construe, or object to provisions in the statute. Though long a feature of U.S. lawmaking, the President has avowedly attempted to use these signing statements as tool of strategic influence over judicial decision making since the 1980s — as a way of creating “presidential legislative history” to supplement and, at times, supplant the traditional congressional legislative history conventionally used by the courts to interpret statutes. In this Article, we examine a novel dataset of judicial opinion citations to presidential signing statements to conduct the most comprehensive …

Probabilistic Compliance, Alex Raskolnikov

Faculty Scholarship

Uncertain legal standards are pervasive but understudied. The key theoretical result showing an ambiguous relationship between legal uncertainty and optimal deterrence remains largely undeveloped, and no alternative conceptual approaches to the economic analysis of legal uncertainty have emerged. This Article offers such an alternative by shifting from the well-established and familiar optimal deterrence theory to the new and unfamiliar probabilistic compliance framework. This shift brings the analysis closer to the world of legal practice and yields new theoretical insights. Most importantly, lower uncertainty tends to lead to more compliant positions and greater private gains. In contrast, the market for legal …

Internal Administrative Law Before And After The Apa, Gillian E. Metzger, Kevin M. Stack

Faculty Scholarship

From his early work on social security to more recent scholarship excavating the first hundred years of administrative life in the United States, Professor Jerry L. Mashaw has forcefully argued for the centrality of “internal administrative law.” Internal administrative law, as Mashaw elaborates the term, is the set of practices, procedures, and pronouncements that administrative agencies adopt to structure their work. In his view, understanding administrative institutions and their promise for systemic legality depends upon recognizing their internal administrative law. Yet, as Mashaw observes, despite its importance, internal administrative law remains at the outskirts of the field of administrative law …

Antitrust Via Rulemaking: Competition Catalysts, Tim Wu

Faculty Scholarship

In its March 26, 2016 issue, The Economist magazine announced that "America needs a giant dose of competition." Its study of industry concentration and profits suggested that, after decades of consolidation, competition had decreased across a broad range of the American economy. An April 2016 issue brief by the Council of Economic Advisors reached similar conclusions, stating that "competition appears to be declining" due to "increasing industry concentration, increasing rents accruing to a few firms, and lower levels of firm entry and labor market mobility."

The promotion of competition in the American economy is a task that has traditionally fallen …