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Administrative Law

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Researching Administrative Law, Keith Lacy Dec 2021

Researching Administrative Law, Keith Lacy

Law Librarian Scholarship

Administrative law is a broad subject area concerning the laws and procedures governing administrative agencies. It also encompasses the substantive law produced by those agencies — most commonly in the form of regulations (rules) or agency decisions. This article highlights a few major resources for researching administrative law in the United States.


National Security Policymaking In The Shadow Of International Law, Laura T. Dickinson Oct 2021

National Security Policymaking In The Shadow Of International Law, Laura T. Dickinson

Utah Law Review

Scholars have long debated whether and how international law impacts governmental behavior, even in the absence of coercive sanction. But this literature does not sufficiently address the possible impact of international law in the area of national security policymaking. Yet, policies that the executive branch purports to adopt as a wholly discretionary matter may still be heavily influenced by international legal norms, regardless of whether or not those norms are formally recognized as legally binding. And those policies can be surprisingly resilient, even in subsequent administrations. Moreover, because they are only seen as discretionary policies, they may be more easily ...


"Not For Human Consumption": Prison Food's Absent Regulatory Regime, Amanda Chan, Anna Nathanson Jul 2021

"Not For Human Consumption": Prison Food's Absent Regulatory Regime, Amanda Chan, Anna Nathanson

William & Mary Bill of Rights Journal

Prison food is poor quality. The regulations which govern prison food are subpar and unenforceable by prisoners, due in large part to Sandin v. Conner and the Prison Litigation Reform Act. This Article aims to draw attention to the dire food conditions in prisons, explain the lax federal administrative law that permits these conditions, highlight the role of Sandin v. Conner and the Prison Litigation Reform Act in curtailing prisoners’ rights, and criticize the role of the private entity American Correctional Association in enabling mass neglect of prison food. The authors recommend that the Prison Litigation Reform Act be repealed ...


The Emerging Lessons Of Trump V. Hawaii, Shalini Bhargava Ray Jun 2021

The Emerging Lessons Of Trump V. Hawaii, Shalini Bhargava Ray

William & Mary Bill of Rights Journal

In the years since the Supreme Court decided Trump v. Hawaii, federal district courts have adjudicated dozens of rights-based challenges to executive action in immigration law. Plaintiffs, including U.S. citizens, civil rights organizations, and immigrants themselves, have alleged violations of the First Amendment and the equal protection component of the Due Process Clause with some regularity based on President Trump’s animus toward immigrants. This Article assesses Hawaii’s impact on these challenges to immigration policy, and it offers two observations. First, Hawaii has amplified federal courts’ practice of privileging administrative law claims over constitutional ones. For example, courts ...


Who Constrains Presidential Exercise Of Delegated Powers?, Rebecca L. Brown Jun 2021

Who Constrains Presidential Exercise Of Delegated Powers?, Rebecca L. Brown

William & Mary Bill of Rights Journal

Building on the work of administrative law scholars who have identified and illuminated the several components of the problem over the years, this Article will seek to show what has happened when a cluster of separate circumstances have come together to create a new and serious threat to individual liberty when the President exercises expansive delegated authority. Several doctrinal components lead to this confluence: First, the moribund “intelligible principle” test has evolved to provide little or no constraint on this or any other delegation. Second, a delegation to the President, specifically, is not subject to the procedural requirements of the ...


Mother Nature Needs Her Sox: Reviewing The Impetus And Goals Of The Increased Financial Regulations Of The Sarbanes-Oxley Act And How They Parallel The Needs Of Today's Environmental Protection Agency, Scott Meyer May 2021

Mother Nature Needs Her Sox: Reviewing The Impetus And Goals Of The Increased Financial Regulations Of The Sarbanes-Oxley Act And How They Parallel The Needs Of Today's Environmental Protection Agency, Scott Meyer

William & Mary Environmental Law and Policy Review

As climate change and natural disasters appear to be increasingly prevalent across the United States, the question of how to respond to these threats looms large. Arguably, the Environmental Protection Agency (“EPA”) represents the tip of that responding spear. The agency, literally dedicated to protecting the environment, is positioned to drive industry environmental standards, set sustainable metrics, and even determine thresholds for habitable life.

Looks can be deceiving, though. This Note examines the current state of the EPA, and the minimal effect it currently has on penalizing and deterring industry environmental degradation. It specifically focuses on a number of high-profile ...


United States V. Arthrex Inc.: Clarifying Appointments Clause Requirements For Administrative Judges, Albert Barkan Apr 2021

United States V. Arthrex Inc.: Clarifying Appointments Clause Requirements For Administrative Judges, Albert Barkan

Duke Journal of Constitutional Law & Public Policy Sidebar

Article II of the United States Constitution details the methods by which presidential subordinate officers must be appointed. Despite its presence in the Constitution’s original text, the Appointments Clause remains ambiguous. The Clause provides different appointment processes for principal and “inferior officers,” but does not distinguish between these officers’ functions. In United States v. Arthrex, Inc., the Supreme Court must clarify the relationship between an Executive officer’s responsibilities and their appointment process.


Popular Regulation? State Constitutional Amendment And The Administrative State, Jonathan L. Marshfield Apr 2021

Popular Regulation? State Constitutional Amendment And The Administrative State, Jonathan L. Marshfield

Belmont Law Review

No abstract provided.


Administrative Law Symposium Debate, Akram Faizer, Stewart Harris Apr 2021

Administrative Law Symposium Debate, Akram Faizer, Stewart Harris

Belmont Law Review

No abstract provided.


The Roberts Court's Theory Of Agency Accountability: A Step In The Wrong Direction, Howard Schweber Apr 2021

The Roberts Court's Theory Of Agency Accountability: A Step In The Wrong Direction, Howard Schweber

Belmont Law Review

No abstract provided.


Death Penalty Exceptionalism And Administrative Law, Corinna B. Lain Apr 2021

Death Penalty Exceptionalism And Administrative Law, Corinna B. Lain

Belmont Law Review

No abstract provided.


Ai For Retrospective Review, Catherine M. Sharkey Apr 2021

Ai For Retrospective Review, Catherine M. Sharkey

Belmont Law Review

No abstract provided.


Constitutional Limits On Administrative Agencies In Cyberspace, Jon M. Garon Apr 2021

Constitutional Limits On Administrative Agencies In Cyberspace, Jon M. Garon

Belmont Law Review

No abstract provided.


Orwell's 1984 "Big Brother" Concept And The Government Use Of Facial Recognition Technology: A Call To Action For Regulation To Protect Privacy Rights, Tate Ducker Apr 2021

Orwell's 1984 "Big Brother" Concept And The Government Use Of Facial Recognition Technology: A Call To Action For Regulation To Protect Privacy Rights, Tate Ducker

Belmont Law Review

No abstract provided.


The Role Of Administrative Law In Defining Impetuses Leading To Orders Under Impugnation- دور القضاء الإداري في تحديد أسباب القرار المطعون فيه, Dr.Ali Khattar Shatnawi Apr 2021

The Role Of Administrative Law In Defining Impetuses Leading To Orders Under Impugnation- دور القضاء الإداري في تحديد أسباب القرار المطعون فيه, Dr.Ali Khattar Shatnawi

Journal Sharia and Law

The research explains the role of Administrative Law in defining the reasons behind impugned orders, stressing the importance of having reasons that lead to issuing administrative orders, announced by the administration. The researcher discusses the judicial power in defining such reasons.

The research was ended with conclusions derived from the study of the role of Administrative Law in defining the impetuses leading to orders under impugnation.


The Legal System Of Charities And Other Social Entities In Jordan, Mwaffaq Almahameed Mar 2021

The Legal System Of Charities And Other Social Entities In Jordan, Mwaffaq Almahameed

Journal Sharia and Law

The 1966 Jordanian Charities and Other SocialEntities law No (33) and its subsequent modifications regulates and overseesall matters related to the registration and practice of charities and socialgroups. Moreover, the 1985 Income Tax Law No. (57) and its modifications holds a series of incentives directed towards charities and other socialgroups; these incentives which include income derived from non profit activities, subscriptions and grants are ceded special treatment in the form of deductions that must not go beyond a certain percentage of the total taxed income. That being the case, it is necessary to identify the meaning of the terms “charities ...


Fair Housing’S Third Act: American Tragedy Or Triumph?, Heather R. Abraham Mar 2021

Fair Housing’S Third Act: American Tragedy Or Triumph?, Heather R. Abraham

Journal Articles

Fifty-two years ago, Congress enacted a one-of-a-kind civil rights directive. It requires every federal agency—and state and local grantees by extension—to take affirmative steps to undo segregation. In 2020, this overlooked Fair Housing Act provision—the “affirmatively furthering fair housing” or “AFFH” mandate—has heightened relevance. Perhaps most visible is Donald Trump’s racially charged “protect the suburbs” campaign rhetoric. In an apparent appeal to suburban constituents, his administration repealed a race-conscious fair housing rule, replacing it with a no-questions-asked regulation that elevates “local control” above civil rights.

The maneuver is especially stark as protesters fill the streets ...


Early Abortion Exceptionalism, Greer Donley Jan 2021

Early Abortion Exceptionalism, Greer Donley

Articles

Restrictive state abortion laws garner a large amount of attention in the national conversation and legal scholarship, but less known is a federal abortion policy that significantly curtails access to early abortion in all fifty states. The policy limits the distribution of mifepristone, the only drug approved to terminate a pregnancy so long as it is within the first ten weeks. Unlike most drugs, which can be prescribed by licensed healthcare providers and picked up at most pharmacies, the Food and Drug Administration only allows certified providers to prescribe mifepristone, and only allows those providers to distribute the drug to ...


Delegating Or Divesting?, Philip A. Hamburger Jan 2021

Delegating Or Divesting?, Philip A. Hamburger

Faculty Scholarship

A gratifying feature of recent scholarship on administrative power is the resurgence of interest in the Founding. Even the defenders of administrative power hark back to the Constitution’s early history – most frequently to justify delegations of legislative power. But the past offers cold comfort for such delegation.

A case in point is Delegation at the Founding by Professors Julian Davis Mortenson and Nicholas Bagley. Not content to defend the Supreme Court’s current nondelegation doctrine, the article employs history to challenge the doctrine – arguing that the Constitution does not limit Congress’s delegation of legislative power. But the article ...


A Typology Of Justice Department Lawyers' Roles And Responsibilities, Rebecca Roiphe Jun 2020

A Typology Of Justice Department Lawyers' Roles And Responsibilities, Rebecca Roiphe

Articles & Chapters

President Trump’s administration has persistently challenged the legitimacy of the Department of Justice (“DOJ”). In the past, DOJ, like other governmental institutions, has been fairly resilient. Informal norms and practices have served to preserve its proper functioning, even under pressure. The strain of the past three years, however, has been different in kind and scale. This Article offers a typology of different roles for DOJ lawyers and argues that over time the institution has evolved by allocating different functions and responsibilities to different positions within DOJ. By doing so, it has for the most part maintained the proper balance ...


The Life Of Administrative Democracy, Joshua Ulan Galperin Apr 2020

The Life Of Administrative Democracy, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

Imagine if Congress, the President, and the industries they hoped to regulate all decided that neither politically isolated bureaucrats nor a popularly sanctioned President should wield the power to administer Congress’ laws, to make legislative-type policy, to enforce that policy, and to adjudicate disputes under it. Imagine if there were another experiment, one that has persisted, but few have noticed.

Imagine no longer. Overlooked by most, there is a model for federal administration that does not rely on isolated administrators or Presidential control, but instead on elected bureaucrats. Today, the United States Department of Agriculture houses over 7,500 elected ...


Dhs V. Regents Of The University Of California: Administrative Law Concerns In Repealing Daca, Charles Fendrych Mar 2020

Dhs V. Regents Of The University Of California: Administrative Law Concerns In Repealing Daca, Charles Fendrych

Duke Journal of Constitutional Law & Public Policy Sidebar

On its surface, deferred action is simple: it is a decision by Executive Branch officials to postpone deportation proceedings against an individual or group that is otherwise eligible to be removed from the United States.Deferred action is an exercise of the Executive’s inherent authority to manage its policies, but is not expressly grounded in statute Despite this lack of statutory authority, Congress and the Supreme Court have historically recognized deferred action policies. Indeed, records of such Executive discretion date back to the early twentieth century.The Executive, grounding its justification in humanitarian concerns, has continued to institute categorical ...


Administrative Law: Whose Job Is It Anyway?, Allison Mather Jan 2020

Administrative Law: Whose Job Is It Anyway?, Allison Mather

Pepperdine Law Review

This Note examines the current state of judicial deference to administrative agencies and suggests modifying the doctrine to better comport with the Constitution. It examines the history of administrative agencies and the rise of judicial deference. The Note explores the present-day applications of judicial deference and analyzes whether the current doctrine is consistent with both its initial underlying policies and the Constitution. Ultimately, judicial deference to administrative agencies raises serious separation of powers concerns and should be modified to remain faithful to the nation’s founding principles.


Disabling Fascism: A Struggle For The Last Laugh In Trump’S America, Madeleine M. Plasencia Jan 2020

Disabling Fascism: A Struggle For The Last Laugh In Trump’S America, Madeleine M. Plasencia

Articles

Six years before the start of the Second World War and seven months after Hitler’s appointment as Chancellor of Germany, the German government instituted the “Law for the Prevention of Progeny with Hereditary Diseases.” The moral depravity that started as a sterilization program targeting “useless eaters” and lives “unworthy of life” degenerated into a “euthanasia” program that murdered at least 250,000 people with mental and physical dis/abilities as an “open secret” until 1941, when the Bishop of Munster, Clemens August Count von Galen, delivered a sermon protesting the killing of “unproductive people.”2 Although the Trump Administration ...


Reckoning With Adjudication's Exceptionalism Norm, Emily S. Bremer Jan 2020

Reckoning With Adjudication's Exceptionalism Norm, Emily S. Bremer

Journal Articles

Unlike rulemaking and judicial review, administrative adjudication is governed by a norm of exceptionalism. Agencies rarely adjudicate according to the Administrative Procedure Act’s formal adjudication provisions, and the statute has little role in defining informal adjudication or specifying its minimum procedural requirements. Due process has almost nothing to say about the matter.

The result is that there are few uniform, cross-cutting procedural requirements in adjudication, and most hearings are conducted using procedures tailored for individual agencies or programs. This Article explores the benefits and costs of adjudication’s exceptionalism norm, an analysis that implicates the familiar tension between uniformity ...


An Inconsistent Chevron Standard: Refining Chevron Deference In Immigration Law, Juan P. Caballero Jan 2020

An Inconsistent Chevron Standard: Refining Chevron Deference In Immigration Law, Juan P. Caballero

Loyola University Chicago Law Journal

Recent developments in the composition of the Supreme Court have fueled academic and journalistic speculation about the future of one of the foundational cases in modern administrative law, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Thirty-five years ago, Chevron established the current legal foundation for judicial deference to agency interpretations of ambiguous statutory language. This Article contains an empirical study of the manner in which courts of appeals have applied Chevron in one specific area of administrative law: immigration law.

Immigration law provides a unique case study because it implicates a ...


Administrative Law And Process, 4th Edition, Alfred C. Aman, William Penniman, Landyn Wm. Rookard Jan 2020

Administrative Law And Process, 4th Edition, Alfred C. Aman, William Penniman, Landyn Wm. Rookard

Books & Book Chapters by Maurer Faculty

Administrative law processes enhance participation, transparency, fairness, and access to information in administrative agencies and the government generally. The fourth edition of Administrative Law and Process highlights these issues in a timely manner through both classic and current cases. In Part I, how agencies exercise their powers is explored.

In Part II, the structural and constitutional issues that flow from legislative, executive, and judicial oversight is explored. Key doctrines of administrative law are thoroughly addressed throughout this book, to which Part III adds a new dimension. It focuses directly on how lawyers actually practice administrative law through a series of ...


The Life Of Administrative Democracy, Joshua Galperin Jan 2020

The Life Of Administrative Democracy, Joshua Galperin

Articles

Imagine if Congress, the President, and the industries they hoped to regulate all decided that neither politically isolated bureaucrats nor a popularly sanctioned President should wield the power to administer Congress’ laws, to make legislative-type policy, to enforce that policy, and to adjudicate disputes under it. Imagine if there were another experiment, one that has persisted, but few have noticed.

Imagine no longer. Overlooked by most, there is a model for federal administration that does not rely on isolated administrators or Presidential control, but instead on elected bureaucrats. Today, the United States Department of Agriculture houses over 7,500 elected ...


Judicial Credibility, Bert I. Huang Jan 2020

Judicial Credibility, Bert I. Huang

Faculty Scholarship

Do people believe a federal court when it rules against the government? And does such judicial credibility depend on the perceived political affiliation of the judge? This study presents a survey experiment addressing these questions, based on a set of recent cases in which both a judge appointed by President George W. Bush and a judge appointed by President Bill Clinton declared the same Trump Administration action to be unlawful. The findings offer evidence that, in a politically salient case, the partisan identification of the judge – here, as a “Bush judge” or “Clinton judge” – can influence the credibility of judicial ...


The Death Of Administrative Democracy, Joshua Ulan Galperin Jan 2020

The Death Of Administrative Democracy, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

Everybody agrees. Everybody is certain. There are no elected bureaucrats.

That pervasive certainty must come as quite a surprise to elected bureaucrats.

The federal bureaucracy presents examples of administrative elections, but the most significant is the United States Department of Agriculture’s elected farmer committees. There are over 7,500 elected farmers sitting on over 2,000 committees, and these committees carry out paradigmatic administrative duties including policymaking and adjudication.

Taking for granted that administrators are unelected, judges have shaped an ascendant doctrine of Presidentialism. This doctrine presumes that the administrative state is only legitimate insofar as it is under ...