Law Commons^™

Regulating New Tech: Problems, Pathways, And People, Cary Coglianese

All Faculty Scholarship

New technologies bring with them many promises, but also a series of new problems. Even though these problems are new, they are not unlike the types of problems that regulators have long addressed in other contexts. The lessons from regulation in the past can thus guide regulatory efforts today. Regulators must focus on understanding the problems they seek to address and the causal pathways that lead to these problems. Then they must undertake efforts to shape the behavior of those in industry so that private sector managers focus on their technologies’ problems and take actions to interrupt the causal pathways. …

The Singapore Green Plan 2030: Analysing Its Implications On Law And The Legal Industry In Singapore, Wei Yao, Kenny Chng, Ken Wei Ong

Research Collection Yong Pung How School Of Law

While sustainability has always been an important policy imperative in Singapore, the advent of the Singapore Green Plan 2030 marks a significant development in this regard. Announced in February 2021, the Green Plan represents a concerted national-level strategic shift towards advancing the sustainability agenda in Singapore. With sustainable development now being a ‘major policy priority’, it is inevitable that the Green Plan will have important legal implications, each of which will be identified and analysed in this paper. More broadly, however, the paper also suggests that the Green Plan will open up valuable opportunities for environmental law to receive greater …

Arkansas Practice Materials: A Selective Annotated Bibliography, Jessie Wallace Burchfield, Melissa Serfass

Faculty Scholarship

Whether you are a legal professional or a novice legal researcher, this annotated bibliography of Arkansas practice materials provides current and relevant state-specific information about available resources. The bibliography integrates online and print resources, grouped by topic rather than format. Each source is annotated with helpful information.

Detailed information about primary legal materials such as court cases, statutes and administrative regulations is included. Information about secondary sources such as treatises, practice manuals, forms, and websites, is also covered.

It is organized in five main sections: Primary Materials, Government Resources, State Specific Resources, General Jurisprudence, and Practice Materials by Topic.

Presidential Primacy Amidst Democratic Decline, Arshaf Ahmed, Karen Tani

All Faculty Scholarship

Fifty years ago, when the Harvard Law Review asked Professor Harry Kalven, Jr., to take stock of the Supreme Court’s 1970 Term, Kalven faced a task not unlike Professor Cristina Rodríguez’s. That Term’s Court had two new members, Justices Harry Blackmun and Warren Burger. The Nixon Administration was young, but clearly bent on making its own stamp on American law, including via the Supreme Court. Kalven thus expected to see “dislocations” when he reviewed the Court’s recent handiwork. He reported the opposite. Surveying a Term that included such cases as Palmer v. Thompson, Younger v. Harris, Boddie v. …

Trafficking And The Shallow State, Julie A. Dahlstrom

Faculty Scholarship

More than two decades ago, the Trafficking Victims Protection Act (TVPA) established new, robust protections for immigrant victims of trafficking. In particular, Congress created the T visa, a special form of immigration status, to protect immigrant victims from deportation. Despite lofty ambitions, the annual cap of 5,000 T visas has never been reached, with fewer than 1,200 approved each year. In recent years, denial rates also have climbed. For example, in fiscal year 2020, U.S. Citizenship and Immigration Services denied 42.79% of the T visa applications that the agency adjudicated, compared with just 28.12% in fiscal year 2015. These developments …

Judicial Deference Of The Board Of Immigration Appeals’ Regulatory Interpretations In Light Of Kisor V. Wilkie, Melissa Fullmer

St. Mary's Law Journal

Abstract forthcoming.

How Chevron Deference Fits Into Article Iii, Kent H. Barnett

Scholarly Works

U.S. Supreme Court Justices Clarence Thomas and Neil Gorsuch, along with Professor Philip Hamburger, assert that Chevron deference-under which courts defer to reasonable agency statutory interpretations-violates Article III. Chevron does so because, they argue, it either permits agencies, not courts, "to say what the law is" or requires judges to forgo independent judgment by favoring the government's position. If they are correct, Congress could not require courts to accept reasonable agency statutory interpretations under any circumstances. This Article does what these critics, perhaps surprisingly, do not do-situates challenges to Chevron within the broad landscape of the Court's current Article III …

Department Of Homeland Security V. Regents Of The University Of California And Its Implications, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

The Trump Administration's effort to get rid of Deferred Action for Childhood Arrivals, or DACA, failed before the Supreme Court in Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891, 1896 (2020). In this essay -- based on a presentation given to an American Bar Association section in September 2020 -- I review DACA, the Supreme Court's decision, and its potential legal implications.

The failure of the Trump Administration to eliminate DACA may have had significant political consequences, and it surely had immediate and momentous consequences for many of DACA’s hundreds of thousands …

The Return Of A Judicial Artifact? How The Supreme Court Could Examine The Question Of The Nondelegation Doctrine’S Place In Future Cases, Dalton Davis

Helms School of Government Undergraduate Law Review

No abstract provided.

Deference Is Dead, Long Live Chevron, Nathan D. Richardson

Faculty Publications

Chevron v. NRDC has stood for more than 35 years as the central case on judicial review of administrative agencies’ interpretations of statutes. Its contours have long been debated, but more recently it has come under increasing scrutiny, with some—including two sitting Supreme Court Justices—calling for the case to be overturned. Others praise Chevron, calling deference necessary or even inevitable. All seem to agree the doctrine is powerful and important.

This standard account is wrong, however. Chevron is not the influential doctrine it once was and has not been for a long time. It has been eroded from the outside …

The Unmeritorious ‘Legality’/‘Merits’ Distinction In Singapore Administrative Law, Benjamin Joshua Ong

Research Collection Yong Pung How School Of Law

The Singapore courts often state that judicial review of executive decision-making ought only to involve an inquiry into the ‘legality’ of a decision or the ‘decision-making process’, and not the ‘decision itself’ or its ‘merits’ – let us call this the ‘Distinction’. This paper argues that the Distinction should be expunged from Singapore law. The Distinction has its roots in English case law which aimed to prevent the courts from arbitrarily substituting their decision for the executive’s by reason of mere disagreement. But Singapore case law has gone further and treated the Distinction as a general principle applicable to all …

Data Privacy Issues In West Virginia And Beyond: A Comprehensive Overview, Jena Martin

Consumer Law Scholarship

This white paper was commissioned by the Center for Consumer Law and Education, a joint initiative launched by West Virginia University and Marshall University to “coordinate the development of consumer law, policy, and education research to support and serve consumers.”

As such, this paper has a dual purpose. First, it provides a comprehensive overview of the many different legal issues that affect data privacy concerns (both nationally and in West Virginia). Second, it documents and discusses the result of a survey and specific focus groups that were undertaken throughout the fall of 2019 into January 2020 where individuals within the …

The Deregulation Deception, Cary Coglianese, Natasha Sarin, Stuart Shapiro

All Faculty Scholarship

President Donald Trump and members of his Administration repeatedly asserted that they had delivered substantial deregulation that fueled positive trends in the U.S. economy prior to the COVID pandemic. Drawing on an original analysis of data on federal regulation from across the Trump Administration’s four years, we show that the Trump Administration actually accomplished much less by way of deregulation than it repeatedly claimed—and much less than many commentators and scholars have believed. In addition, and also contrary to the Administration’s claims, overall economic trends in the pre-pandemic Trump years tended simply to follow economic trends that began years earlier. …

Legitimacy, Flexibility And Administrative Law, Soochan Ahn

Maurer Theses and Dissertations

This dissertation reassesses the importance of flexibility in ensuring the legitimacy of the administrative state and argues how administrative law should accommodate the ever-growing agency discretion without sacrificing the legitimacy of the agencies. Flexibility results from an agency’s exercise of its interpretative power with statutory ambiguities and is the most significant ingredient of the modern administrative state. However, flexibility does not mean anything goes. There should be limits. The proper latitude of judicial review is the essential device that makes the administrative state legitimate. From the perspective of a traditional approach of U.S. administrative law, giving agencies flexibility evokes the …

Fiscal Waivers And State "Innovation" In Health Care, Matthew B. Lawrence

William & Mary Law Review

This Article describes how the Department of Health and Human Services (HHS) has used fiscal waiver authorities—delegated power to alter federal payments to states under Medicaid and the Affordable Care Act (ACA)—to influence state health policy choices. It highlights how the agency uses its fiscal waiver authorities to shape which reforms states choose to pursue, in some cases inspiring genuine state innovation and in others encouraging states to adopt reforms favored by HHS or discouraging states from adopting disfavored reforms. Moreover, while HHS has sometimes influenced state policy making in ways that further the substantive goals of the ACA and …

Unrules, Cary Coglianese, Gabriel Scheffler, Daniel Walters

All Faculty Scholarship

At the center of contemporary debates over public law lies administrative agencies’ discretion to impose rules. Yet, for every one of these rules, there are also unrules nearby. Often overlooked and sometimes barely visible, unrules are the decisions that regulators make to lift or limit the scope of a regulatory obligation, for instance through waivers, exemptions, and exceptions. In some cases, unrules enable regulators to reduce burdens on regulated entities or to conserve valuable government resources in ways that make law more efficient. However, too much discretion to create unrules can facilitate undue business influence over the law, weaken regulatory …

Chevron Is A Phoenix, Lisa Schultz Bressman, Kevin M. Stack

Vanderbilt Law Review

Judicial deference to agency interpretations of their own statutes is a foundational principle of the administrative state. It recognizes that Congress has the need and desire to delegate the details of regulatory policy to agencies rather than specify those details or default to judicial determinations. It also recognizes that interpretation under regulatory statutes is intertwined with implementation of those statutes. Prior to the famous decision in Chevron, the Supreme Court had long regarded judicial deference as a foundational principle of administrative law. It grew up with the administrative state alongside other foundational administrative law principles. In Chevron, the …

Patent Fake News, Jack M. Beermann

Faculty Scholarship

Complaints about the patent system are legion. Critics complain that it is too easy to get a patent, that it is too easy to challenge an existing patent, that many patent denials are rationally inexplicable, that aggressive enforcement of patents stifles innovation, that patent trolls abuse the system to extort money from innocent users of widespread technology, and that inventors leverage modest modifications of existing patents to extend the patent period beyond intended legislative limits. While Janet Freilich’s forthcoming article, Ignoring Information Quality, may not reveal the root of all patent evil, it illuminates an important problem in the …

Populism And Transparency: The Political Core Of An Administrative Norm, Mark Fenster

UF Law Faculty Publications

Transparency has become a preeminent administrative norm with unimpeachable status as a pillar of democracy. But the rise of right-wing populism, reminiscent of older forms of militaristic authoritarianism, threatens transparency’s standing. Recently elected governments in Europe, Latin America, and North America represent a counter-movement away from liberal-democratic institutions that promote the visibility and popular accountability that transparency promises. Contemporary populist movements have not, however, entirely rejected it as an ideal. The populist rebuke of power inequities and its advocacy for popular sovereignty implicitly and sometimes explicitly include a demand for a more visible, accessible state. Populists’ seemingly hypocritical embrace of …

Procedural Fairness Requirements In Decision-Making: Legal Issues And Challenges For Government Secondary School Principals In New South Wales, Tryon Francis

Theses

The application of the rules of procedural fairness, which is an element of administrative law, is an area of law that has not been previously examined in the context of government (public) secondary school principals in New South Wales (‘NSW’). Using a basic qualitative case study design, this study sought to discover the processes that these principals undertook in applying the rules of procedural fairness when managing student discipline, special education and industrial relations. The study examined to what extent New South Wales government (public) secondary school principals were equipped to make decisions that are consistent with the administrative law …

Structural Deregulation, Jody Freeman, Sharon Jacobs

Publications

Modern critics of the administrative state portray agencies as omnipotent behemoths, invested with vast delegated powers and largely unaccountable to the political branches of government. This picture, we argue, understates agency vulnerability to an increasingly powerful presidency. One source of presidential control over agencies in particular has been overlooked: the systematic undermining of an agency’s ability to execute its statutory mandate. This strategy, which we call “structural deregulation,” is a dangerous and underappreciated aspect of what then-Professor, now-Justice Elena Kagan termed “presidential administration.”

Structural deregulation attacks the core capacities of the bureaucracy. The phenomenon encompasses such practices as leaving agencies …

What People Want, What They Get, And The Administrative State, Cristie Ford

All Faculty Publications

Social perceptions of the state and of regulation are badly polarized right now. On one hand, the modern administrative state is under attack. Some modern populists criticize the modern state for being antidemocratic, unaccountable, even tyrannical. Paradoxically, others criticize it for very different reasons: because it is ineffective, or because it binds economies and societies up in “red tape”. On the other hand, the need for a modern, properly-resourced, effective administrative state is also clearer than ever. The financial crisis taught hard lessons about the limits of self-regulation and the need for public sector actors to safeguard the public interest. …

Administrative Law In The Automated State, Cary Coglianese

All Faculty Scholarship

In the future, administrative agencies will rely increasingly on digital automation powered by machine learning algorithms. Can U.S. administrative law accommodate such a future? Not only might a highly automated state readily meet longstanding administrative law principles, but the responsible use of machine learning algorithms might perform even better than the status quo in terms of fulfilling administrative law’s core values of expert decision-making and democratic accountability. Algorithmic governance clearly promises more accurate, data-driven decisions. Moreover, due to their mathematical properties, algorithms might well prove to be more faithful agents of democratic institutions. Yet even if an automated state were …

Retheorizing Precedent, Randy J. Kozel

Journal Articles

Does the doctrine of stare decisis support judicial attempts to retheorize dubious precedents by putting them on firmer footing? If it does, can retheorization provide a means for Chevron to endure as a staple of administrative law notwithstanding serious challenges to its established rationale?

Bankruptcy For Banks: A Tribute (And Little Plea) To Jay Westbrook, David A. Skeel Jr.

All Faculty Scholarship

In this brief essay, to be included in a book celebrating the work of Jay Westbrook, I begin by surveying Jay’s wide-ranging contributions to bankruptcy scholarship. Jay’s functional analysis has had a profound effect on scholars’ understanding of key issues in domestic bankruptcy law, and Jay has been the leading scholarly figure on cross-border insolvency. After surveying Jay’s influence, I turn to the topic at hand: a proposed reform that would facilitate the use of bankruptcy to resolve the financial distress of large financial institutions. Jay has been a strong critic of this legislation, arguing that financial institutions need to …

Ai In Adjudication And Administration, Cary Coglianese, Lavi M. Ben Dor

All Faculty Scholarship

The use of artificial intelligence has expanded rapidly in recent years across many aspects of the economy. For federal, state, and local governments in the United States, interest in artificial intelligence has manifested in the use of a series of digital tools, including the occasional deployment of machine learning, to aid in the performance of a variety of governmental functions. In this paper, we canvas the current uses of such digital tools and machine-learning technologies by the judiciary and administrative agencies in the United States. Although we have yet to see fully automated decision-making find its way into either adjudication …

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 …

Disclosing Discrimination, Stephanie Bornstein

UF Law Faculty Publications

In the United States, enforcement of laws prohibiting workplace discrimination rests almost entirely on the shoulders of employee victims, who must first file charges with a government agency and then pursue litigation themselves. While the law forbids retaliation against employees who complain, this does little to prevent it, in part because employees are also responsible for initiating any claims of retaliation they experience as a result of their original discrimination claims. The burden on employees to complain—and their justified fear of retaliation if they do so—results in underenforcement of the law and a failure to spot and redress underlying structural …

Medical Device Artificial Intelligence: The New Tort Frontier, Charlotte A. Tschider

Faculty Publications & Other Works

The medical device industry and new technology start-ups have dramatically increased investment in artificial intelligence (AI) applications, including diagnostic tools and AI-enabled devices. These technologies have been positioned to reduce climbing health costs while simultaneously improving health outcomes. Technologies like AI-enabled surgical robots, AI-enabled insulin pumps, and cancer detection applications hold tremendous promise, yet without appropriate oversight, they will likely pose major safety issues. While preventative safety measures may reduce risk to patients using these technologies, effective regulatory-tort regimes also permit recovery when preventative solutions are insufficient.

The Food and Drug Administration (FDA), the administrative agency responsible for overseeing the …

Chevron Is A Phoenix, Lisa Bressman, Kevin Stack

Vanderbilt Law School Faculty Publications

Judicial deference to agency interpretations of their own statutes is a foundational principle of the administrative state. It recognizes that Congress has the need and desire to delegate the details of regulatory policy to agencies rather than specify those details or default to judicial determinations. It also recognizes that interpretation under regulatory statutes is intertwined with implementation of those statutes. Prior to the famous decision in Chevron, the Supreme Court had long regarded judicial deference as a foundational principle of administrative law. It grew up with the administrative state alongside other foundational administrative law principles. In Chevron, the Court gave …