Law Commons^™

Breaking The Fever: A New Construct For Regulating Overtreatment, Isaac ("Zack") D. Buck

Scholarly Works

The Department of Justice’s (“DOJ”) current theory of overtreatment regulation — and, in fact, all of the prominent amount of medical necessity-based health care fraud enforcement — adopts the argument that providers are violating the False Claims Act when they submit bills to the federal government for care they administered that is not medically necessary. Besides stoking the ire of the provider community, this regulatory strategy is susceptible to inefficiency, imprecision, and — as I have argued before — overuse. Whether a procedure was medically necessary can be a highly difficult question to answer, one easily swayed by clinically-complex details, …

Chevron For Juries, William Ortman

Law Faculty Research Publications

No abstract provided.

The Normalization Of Foreign Relations Law, Ganesh Sitaraman, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

The defining feature of foreign relations law is that it is distinct from domestic law. Courts have recognized that foreign affairs are political by their nature and thus unsuited to adjudication, that state and local involvement is inappropriate in foreign affairs, and that the President has the lead role in foreign policymaking. In other words, they have said that foreign relations are exceptional. But foreign relations exceptionalism, "the belief that legal issues arising from foreign relations are functionally, doctrinally, and even methodologically distinct from those arising in domestic policy,” was not always the prevailing view. In the early twentieth century, …

Administrative Equal Protection: Federalism, The Fourteenth Amendment, And The Rights Of The Poor, Karen M. Tani

All Faculty Scholarship

This Article intervenes in a burgeoning literature on “administrative constitutionalism,” the phenomenon of federal agencies — rather than courts — assuming significant responsibility for elaborating the meaning of the U.S. Constitution. Drawing on original historical research, I document and analyze what I call “administrative equal protection”: interpretations of the Fourteenth Amendment’s Equal Protection Clause in a key federal agency at a time when the Clause’s meaning was fiercely contested. These interpretations are particularly important because of their interplay with cooperative federalism — specifically, with states’ ability to exercise their traditional police power after accepting federal money.

The Article’s argument is …

Should Agencies Enforce?, Max J. Minzner

Faculty Scholarship

This Article explores an important but understudied structural choice: the decision to vest enforcement authority in administrative agencies. Each year, agencies routinely bring enforcement actions producing billions of dollars in civil penalties and industry-reshaping consent decrees. Where do they get this power? Congress grants enforcement authority to administrative agencies because it believes that agency subject matter expertise will generate appropriate enforcement choices. Similarly, the Supreme Court has strongly deferred to agency enforcement because it sees it as intimately intertwined with other agency regulatory decisions. Scholars have also generally taken for granted that specialist agencies will be enforcement experts because they …

The Organizational Premises Of Administrative Law, William H. Simon

Faculty Scholarship

The core doctrines of administrative law have not taken account of developments in the theory and practice of organization. The contours of these doctrines were set in the mid-twentieth century when the Administrative Procedure Act (APA) was passed. Although these doctrines have evolved since then, administration itself has changed more. Many of the widely perceived deficiencies of the doctrines, including some associated with overregulation and others with underregulation, seem influenced by an anachronistic understanding of organization.

Much administrative law continues to understand public administration as bureaucracy. In particular, doctrine is strongly influenced by three premises. First, the backward-looking conception of …