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Articles 91 - 120 of 165
Full-Text Articles in Administrative Law
Auer 2.0: The Disuniform Application Of Auer Deference After Kisor V. Wilkie, Daniel Lutfy
Auer 2.0: The Disuniform Application Of Auer Deference After Kisor V. Wilkie, Daniel Lutfy
Fordham Law Review
This Note examines how lower courts have applied Auer deference after the U.S. Supreme Court’s decision in Kisor v. Wilkie. The Court granted certiorari in Kisor to answer one question: whether to overturn the deference regimes created by Bowles v. Seminole Rock & Sand Co. and Auer v. Robbins. The Court upheld the doctrines and clarified their reach, limits, and proper application. This Note focuses on Kisor’s holding regarding the extent judges must scrutinize a regulation before concluding it is ambiguous. Despite the Court’s attempt to explicate a standard, lower courts have demonstrated stark differences in regulatory …
Institutional Independence: Lawyers And The Administrative State, Melissa Mortazavi
Institutional Independence: Lawyers And The Administrative State, Melissa Mortazavi
Fordham Law Review
The institutional structure where federal government lawyers practice is fraught with political and economic pressures that undermine the ability of lawyers to exercise independent professional judgment. A lack of candid legal advice in this space not only removes a pivotal fail-safe between legal and illegal state action but also precariously imbalances the powerful administrative state, exposing it to undue political influence. For these reasons, this Article argues that structural changes to administrative institutions must be made to support and nurture lawyers’ ability to independently determine the bounds of legality. Previous scholarship has examined the role of professional independence for lawyers …
Differentiating Legislative From Nonlegislative Rules: An Empirical And Qualitative Analysis, Nadav D. Ben Zur
Differentiating Legislative From Nonlegislative Rules: An Empirical And Qualitative Analysis, Nadav D. Ben Zur
Fordham Law Review
The elusive distinction between legislative rules and nonlegislative rules has frustrated courts, motivated voluminous scholarly debate, and ushered in a flood of litigation against administrative agencies. In the absence of U.S. Supreme Court guidance on the proper demarcating line, circuit courts have adopted various tests to ascertain a rule’s proper classification. This Note analyzes all 241 cases in which a circuit court has used one or more of the enunciated tests to differentiate legislative from nonlegislative rules. These opinions come from every one of the thirteen circuits and span the period of the early 1950s through 2018. This Note identifies …
Auer Deference: Doubling Down On Delegation's Defects, Ronald A. Cass
Auer Deference: Doubling Down On Delegation's Defects, Ronald A. Cass
Fordham Law Review
Together with the better-known Chevron deference rule, the doctrine articulated in Auer v. Robbins two decades ago—which makes reasonable administrative constructions of ambiguous administrative rules binding on courts in most circumstances—has become a focal point for concerns about the expanding administrative state. Auer deference, even more than Chevron deference, enlarges administrative authority in ways that are at odds with basic constitutional structures and due process requirements. Objections to Auer have provided cogent reasons for why courts should not grant deference to administrative interpretations merely because an agency’s rule is unclear. The most commonly voiced objections, however, do not explain why …
Home Rules: The Case For Local Administrative Procedure, Casey Adams
Home Rules: The Case For Local Administrative Procedure, Casey Adams
Fordham Law Review
Administrative law is critical to the modern practice of governance. Administrative rules fill the gaps in statutes left open by lawmakers, allow agencies to exercise legislative grants of authority and discretion, and give agencies with subject-matter expertise and frontline experience the opportunity to promulgate detailed standards and requirements in their designated issue areas. Adjudication allows an agency to dispose of matters and disputes formally before it, whether under its rules or another source of law. While agencies at every level of government—federal, state, and local— engage in administrative action, legal scholarship on administrative law is almost exclusively focused on the …
“You Must Construct Additional Pylons”: Building A Better Framework For Esports Governance, Laura L. Chao
“You Must Construct Additional Pylons”: Building A Better Framework For Esports Governance, Laura L. Chao
Fordham Law Review
The popularity of “esports,” also known as “electronic sports” or competitive video gaming, has exploded in recent years and captured the attention of cord-cutting millennials—often to the detriment of sports such as basketball, football, baseball, and hockey. In the United States, the commercial dominance of such traditional sports stems from decades of regulatory support. Consequently, while esports regulation is likely to emulate many aspects of traditional sports governance, the esports industry is fraught with challenges that inhibit sophisticated ownership and capital investment. Domestic regulation is complicated by underlying intellectual property ownership and ancillary considerations such as fluctuations in a video …
The Total Takings Myth, Lynn E. Blais
The Total Takings Myth, Lynn E. Blais
Fordham Law Review
For almost thirty-five years, the U.S. Supreme Court has attempted to carve out a total takings doctrine within its regulatory takings jurisprudence. Most regulatory takings claims are evaluated under the “ad hoc” threefactor test first articulated in Penn Central Transportation Co. v. City of New York. Exceedingly few of these claims are successful. But the Court has identified certain categories of government actions that are compensable takings per se, otherwise known as total takings. This began in 1982 with Loretto v. Teleprompter Manhattan CATV Corp., where the Court held that a land use ordinance requiring a landowner to …
“I Am Undocumented And A New Yorker”: Affirmative City Citizenship And New York City’S Idnyc Program, Amy C. Torres
“I Am Undocumented And A New Yorker”: Affirmative City Citizenship And New York City’S Idnyc Program, Amy C. Torres
Fordham Law Review
The power to confer legal citizenship status is possessed solely by the federal government. Yet the courts and legal theorists have demonstrated that citizenship encompasses factors beyond legal status, including rights, inclusion, and political participation. As a result, even legal citizens can face barriers to citizenship, broadly understood, due to factors including their race, class, gender, or disability. Given this multidimensionality, the city, as the place where residents carry out the tasks of their daily lives, is a critical space for promoting elements of citizenship. This Note argues that recent city municipal identification-card programs have created a new form of …
Paying Too Dearly For A Whistle: Properly Protecting Internal Whistleblowers, Leonardo Labriola
Paying Too Dearly For A Whistle: Properly Protecting Internal Whistleblowers, Leonardo Labriola
Fordham Law Review
In light of substantial disagreement among the circuits on which types of whistleblowers Dodd-Frank intends to protect, and newly proposed legislation which suggests a solution, this Note inspects Dodd-Frank’s whistleblower protections in an effort to better explain which types of Business Organizations whistleblowers should and should not be protected. This Note briefly outlines the United States’s repeated history of increased regulation following financial crises, culminating in the Sarbanes-Oxley and Dodd-Frank Acts. It then describes the goals that motivated these acts and how whistleblowers play an outsized role in accomplishing those goals. It also examines the critical statute for Business Organizations …
Cfius In The Age Of Chinese Investment, Patrick Griffin
Cfius In The Age Of Chinese Investment, Patrick Griffin
Fordham Law Review
As China’s economy has developed, its companies, both state-owned and privately held, have moved to expand their operations in the United States to the point where many now seek to invest in—and on occasion, acquire—U.S. counterparts. This trend has set off alarm bells over fears that China’s unique political and economic system, which gives the state extensive influence over all corporations regardless of their ownership structure, renders such transactions national security threats. Recent hostility toward Chinese-led inbound investment is not a new trend; Congress has attempted to assert itself into the screening process undertaken by the Committee on Foreign Investment …
Who Put The Quo In Quid Pro Quo?: Why Courts Should Apply Mcdonnell ’S “Official Act” Definition Narrowly, Adam F. Minchew
Who Put The Quo In Quid Pro Quo?: Why Courts Should Apply Mcdonnell ’S “Official Act” Definition Narrowly, Adam F. Minchew
Fordham Law Review
Federal prosecutors have several tools at their disposal to bring criminal charges against state and local officials for their engagement in corrupt activity. Section 666 federal funds bribery and § 1951 Hobbs Act extortion, two such statuary tools, have coexisted for the past thirty-six years, during which time § 666 has seen an increasing share of total prosecutions while the Hobbs Act’s share of prosecutions has fallen commensurately. In the summer of 2016, the U.S. Supreme Court decided McDonnell v. United States—a decision that threatens to quicken the demise of Hobbs Act extortion in favor of § 666. If …
Localist Administrative Law, Nestor M. Davidson
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 …
Fair Or Foul?: Sec Administrative Proceedings And Prospects For Reform Through Removal Legislation, Joseph A. Grundfest
Fair Or Foul?: Sec Administrative Proceedings And Prospects For Reform Through Removal Legislation, Joseph A. Grundfest
Fordham Law Review
This Article catalogues the long list of criticisms of the Commission’s administrative proceedings. It also evaluates data describing the outcome of litigated matters and finds that, with the exception of insider trading cases, the Commission has an exceptionally high and statistically indistinguishable record of success in administrative and federal court proceedings alike. The data thus seem not to support the view that the Commission has a generalized home-court advantage in administrative proceedings. Nonetheless, the Commission’s virtually unfettered discretion in forum selection decisions, when it can assign cases to a forum that it controls, raises a plethora of institutional design concerns.
Now Is The Time!: Challenging Resegregation And Displacement In The Age Of Hypergentrification, Bethany Y. Li
Now Is The Time!: Challenging Resegregation And Displacement In The Age Of Hypergentrification, Bethany Y. Li
Fordham Law Review
Gentrification is reaching a tipping point of resegregating urban space in global cities like New York and San Francisco, often spurred by seemingly neutral government policies. The displacement resulting from gentrification forces low-income people from their homes into areas of concentrated poverty. Low-income communities consequently lose space, place, social capital, and cultural wealth that residents and small businesses have spent decades building up. This Article argues that communities at this tipping point must integrate litigation strategies directly aimed at stemming the adverse impacts of gentrification. Community organizing is integral to antidisplacement efforts, but litigation—and its injunctive powers—should play a larger …
Collateral Damage: When Should The Determinations Of Administrative Adjudications Have Collateral Estoppel Effect In Subsequent Adjudications?, Matthew Faust
Fordham Law Review
Collateral estoppel is an equitable doctrine under which a court gives issue-preclusive effect to findings of fact or law made in previous proceedings. The U.S. Supreme Court has recently held that under certain circumstances, the determinations of administrative adjudications have collateral estoppel effect in federal court. The Court, however, did not address under which circumstances the determinations of administrative adjudications should have collateral estoppel effect in subsequent administrative adjudications. There has been little clear and consistent reasoning in lower federal courts about when collateral estoppel should apply in administrative adjudications, and administrative agencies vary widely in their application of collateral …
Moving Beyond “Reasonable”: Clarifying The Ftc’S Use Of Its Unfairness Authority In Data Security Enforcement Actions, Timothy E. Deal
Moving Beyond “Reasonable”: Clarifying The Ftc’S Use Of Its Unfairness Authority In Data Security Enforcement Actions, Timothy E. Deal
Fordham Law Review
Data security breaches, which compromise private consumer information, seem to be an ever-increasing threat. To stem this tide, the Federal Trade Commission (FTC) has relied upon its authority to enforce the prohibition against unfair business practices under section 5 of the Federal Trade Commission Act (“section 5”) to hold companies accountable when they fail to employ data security measures that could prevent breaches. Specifically, the FTC brings enforcement actions when it finds that companies have failed to implement “reasonable” data security measures. However, companies and scholars argue that the FTC has not provided adequate notice of which data security practices …
Foreword: Lawyering In The Regulatory State, Nancy J. Moore
Foreword: Lawyering In The Regulatory State, Nancy J. Moore
Fordham Law Review
The authors use a variety of methodologies, including traditional legal analysis, as well as empirical and historical research. Finally, they focus on such diverse issues as the role of agencies in facilitating access to justice, the lawyer’s role as gatekeeper in agency litigation and regulatory compliance, and the unique role of the in-house lawyer, both private and public. Taken together, they open a large window on the complex work of many lawyers who are often overlooked in the legal profession’s literature.
Nothing Could Be Finer?: The Role Of Agency General Counsel In North And South Carolina, Elizabeth Chambliss, Dana Remus
Nothing Could Be Finer?: The Role Of Agency General Counsel In North And South Carolina, Elizabeth Chambliss, Dana Remus
Fordham Law Review
This Article examines the role of agency general counsel in North and South Carolina. The two states offer a rich comparative context for research on agency general counsel. Though closely linked in both name and culture, they have different executive structures and recent political histories, and the agency counseling function has evolved and is currently organized in different ways. These structural and political differences at the state level illuminate commonalities and differences at the agency level and provide an accessible starting point for broader state-level research. Part I examines the structural evolution of the agency general counsel position and the …
Recalling The Lawyers: The Nhtsa, Gm, And The Chevrolet Cobalt, Bernard W. Bell
Recalling The Lawyers: The Nhtsa, Gm, And The Chevrolet Cobalt, Bernard W. Bell
Fordham Law Review
This Article summarizes product safety and vehicle safety law and recounts General Motors Company’s (GM) response to the Cobalt ignition switch defect, paying particular attention to the actions of GM’s in-house and outside counsel. This Article then considers the legality and prudence of a regulatory agency’s imposition of gatekeeping responsibilities on such counsel.
Lawyering Within The Domain Of Expertise, David Mcgowan
Lawyering Within The Domain Of Expertise, David Mcgowan
Fordham Law Review
This Article uses the history of patent prosecution to assess the relationship between the practice of law and the claim of an administrative agency to possess and to employ expertise.
The Laws Of Agency Lawyering, George M. Cohen
The Laws Of Agency Lawyering, George M. Cohen
Fordham Law Review
The great variety of agency rules governing lawyers raises interesting questions that are worth exploring. This Article begins that exploration. Part I lays the groundwork by briefly examining how the ABA Model Rules treat regulatory lawyering to raise the question of what regulatory gaps the agency rules might be expected to fill. Part II sets forth several possible theories of agency rule variation. Part III compares agency rules along a number of dimensions, examines some similarities and differences across agencies as well as between the agency rules and the Model Rules, and offers speculations about what may be driving the …
Lawyers In The Shadow Of The Regulatory State: Transnational Governance On Business And Human Rights, Milton C. Regan Jr., Kath Hall
Lawyers In The Shadow Of The Regulatory State: Transnational Governance On Business And Human Rights, Milton C. Regan Jr., Kath Hall
Fordham Law Review
Lawyers are beginning to play an important role in strengthening the system of transnational governance that regulates business and human rights. In setting the background to our discussion of lawyers’ role in this context, Part I of this Article provides a general overview of the emergence of the transnational governance regime. Part II then describes some of the governance instruments that attempt to prevent and rectify the adverse human rights impacts of business activities. Part III discusses the extent to which lawyers are advising their business clients on human rights issues, the factors that may inhibit or encourage the provision …
Local Health Agencies, The Bloomberg Soda Rule, And The Ghost Of Woodrow Wilson, Paul A. Diller
Local Health Agencies, The Bloomberg Soda Rule, And The Ghost Of Woodrow Wilson, Paul A. Diller
Fordham Urban Law Journal
No abstract provided.
Individualized Education Programs (Ieps) And Special Education Programming For Students With Disabilities In Urban Schools, Mitchell L. Yell, Terrye Conroy, Antonis Katsiyannis, Tim Conroy
Individualized Education Programs (Ieps) And Special Education Programming For Students With Disabilities In Urban Schools, Mitchell L. Yell, Terrye Conroy, Antonis Katsiyannis, Tim Conroy
Fordham Urban Law Journal
This Article examines the individualized education program (IEP) requirement of the Individuals with Disabilities Education Act (IDEA) and presents a method for improving the education of students with disabilities in urban settings by appropriately developing IEPs. Part I considers the unique problems facing special educations in urban school districts. Part II presents an overview of the IDEA and its requirement that school districts provide students with a free appropriate public education (FAPE). Part III examines the components of an IEP and the process for developing students’ IEPs—the key vehicle for providing a FAPE. Part IV outlines a process for developing …
Administrative Oversight Of State Medicaid Payment Policies:Giving Teeth To The Equal Access Provision, Julia Bienstock
Administrative Oversight Of State Medicaid Payment Policies:Giving Teeth To The Equal Access Provision, Julia Bienstock
Fordham Urban Law Journal
No abstract provided.
Filling The Regulatory Void In The Fx Spot Market: How Traders Rigged The Biggest Market In The World, Colleen Powers
Filling The Regulatory Void In The Fx Spot Market: How Traders Rigged The Biggest Market In The World, Colleen Powers
Fordham Urban Law Journal
No abstract provided.
Resetting The Baseline Of Ownership: Takings And Investor Expectations After The Bailouts, Nestor M. Davidson
Resetting The Baseline Of Ownership: Takings And Investor Expectations After The Bailouts, Nestor M. Davidson
Faculty Scholarship
During the economic crisis that began in 2008, the federal government nationalized several of the nation’s most significant private companies as part of a broad effort to forestall a global depression. Shareholders in those companies later filed suit, alleging that the federal government in so doing—and in subsequent actions while in control of the firms—took their property without compensation in violation of the Fifth Amendment. To date, those claims have not succeeded. If these cases continue on their current trajectory, with courts rejecting arguments that the rescue of systematically important firms on the brink of collapse requires compensation for shareholders, …
"A Distinction Without A Difference"?: Bartlett Going Forward, Steven A. Schwartz
"A Distinction Without A Difference"?: Bartlett Going Forward, Steven A. Schwartz
Fordham Law Review
This Note addresses the question of whether federal law preempts state design defect claims against generic drug manufacturers regardless of which test state law uses to determine whether a drug is defective. This issue, arising out of the U.S. Supreme Court's interpretation of preemption jurisprudence and fundamental tort law as stated in Mutual Pharmaceutical Co. v. Bartlett, is significant because it plays a large role in determining to what extent generic drug manufacturers are immune to civil liability arising out of injuries caused by their generic drugs. In an age of rising medical costs and jury awards, both plaintiff …
Procedural Triage, Matthew J.B. Lawrence
Procedural Triage, Matthew J.B. Lawrence
Fordham Law Review
Prior scholarship has assumed that the inherent value of a "day in court" is the same for all claimants, so that when procedural resources (like a jury trial or a hearing) are scarce, they should be rationed the same way for all claimants. That is incorrect. This Article shows that the inherent value of a "day in court" can be far greater for some claimants, such as first-time filers, than for others, such as corporate entities and that it can be both desirable and feasible to take this variation into account in doling out scarce procedural protections. In other words, …
The Internationalization Of Agency Actions, Jason Marisam
The Internationalization Of Agency Actions, Jason Marisam
Fordham Law Review
U.S. agencies routinely base their domestic regulations on international considerations, such as the benefits of coordinating American and foreign standards or the foreign policy advantages of a particular policy. I refer to this phenomenon as the internationalization of agency actions. This Article examines what the internationalization of agency actions means for agency decision-making processes, institutional design, and legal doctrine. It creates a stylized model of how agencies determine whether to coordinate their standards with foreign regulations. Among other institutional design findings, it shows that court opinions that reduce the stringency of judicial review when agencies implement internationally coordinated standards make …