Administrative Law Commons^™

Bridges To A New Era Part 2: A Report On The Past, Present, And Potential Future Of Tribal Co-Management On Federal Lands In Alaska, Monte Mills, Martin Nie

Articles

Nowhere else in the United States are tribal connections and reliance on federal public lands as deep and geographically broad-based as in what is now Alaska. The number of Tribes—229 federally recognized tribes—and the scope of the public land resource—nearly 223 million acres—are simply unparalleled. Across that massive landscape, federal public lands and the subsistence uses they provide remain, as they have been since time immemorial, “essential to Native physical, economic, traditional, and cultural existence.”^[1] Alas, the institutions, systems, and processes responsible for managing those lands, protecting those uses, and honoring those connections are failing Alaska Native Tribes.

The …

Post-Grant Adjudication Of Drug Patents: Agency And/Or Court?, Arti K. Rai, Saurabh Vishnubhakat, Jorge Lemus, Erik Hovenkamp

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The America Invents Act of 2011 (AIA) created a robust administrative system-the Patent Trial and Appeal Board (PTAB)-that provides a route for challenging the validity of granted patents outside of district courts. Congress determined that administrative adjudication of the validity of initial patent grants could be cheaper and more scientifically accurate than district court adjudication of such validity.

For private economic value per patent, few areas of technology can match the biopharmaceutical industry. This is particularly true for small-molecule drugs. A billion-dollar drug monopoly may be protected from competition by a relatively small number of patents. Accordingly, the social cost …

Responding To Mass, Computer-Generated, And Malattributed Comments, Steven J. Balla, Reeve Bull, Bridget C.E. Dooling, Emily Hammond, Michael A. Livermore, Michael Herz, Beth Simone Noveck

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A number of technological and political forces have transformed the once staid and insider dominated notice-and-comment process into a forum for large scale, sometimes messy, participation in regulatory decisionmaking. It is not unheard of for agencies to receive millions of comments on rulemakings; often these comments are received as part of organized mass comment campaigns. In some rulemakings, questions have been raised about whether public comments were submitted under false names, or were automatically generated by computer “bot” programs. In this Article, we examine whether and to what extent such submissions are problematic and make recommendations for how rulemaking agencies …

Nontraditional Investors, Jennifer S. Fan

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In recent years, nontraditional investors have become a major player in the startup ecosystem. Under the regulatory regime of U.S. securities law, those in the public realm are heavily regulated, while those in the private realm are largely left alone. This public-private divide, which is a fundamental organizing principle of securities law, has eroded with the rise of nontraditional investors. While legal scholars have addressed the impact of some of these nontraditional investors individually, their collective impact on deal terms, deal timelines, due diligence, and board configuration has not been discussed in a holistic manner; neither has their impact on …

Transition Administration, Michael Herz, Katherine A. Shaw

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The period from November 3, 2020 to January 20, 2021, was unlike any presidential transition in our history. President Donald Trump refused to accept his ballot-box defeat, instead battling to overturn the election’s outcome. This dramatic public campaign was waged in state and federal courts, state legislatures, the offices of state and local election officials, the Department of Justice, and finally the halls of Congress, where on January 6, 2021, a mob incited by the President stormed the Capitol with the explicit goal of preventing the final counting of electoral votes for Joe Biden. These efforts had more mundane and …

Fraudulent Transfers And Juries: Was Granfinanciera Rightly Decided?, David G. Carlson

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In 1989, the Supreme Court ruled that a third party recipient of a fraudulent conveyance had a Seventh Amendment right to a jury trial when a bankruptcy trustee brought suit for a money judgment under Bankruptcy Code section 550(a). This was because, in 1791, an English bankruptcy trustee would have brought fraudulent transfer litigation in a court of law (not a court of equity) and would have obtained a money judgment. I maintain that the Supreme Court committed the classical logical error of Quaternio Terminorum—a false analogy. The analogy was that American bankruptcy trustees are like 18th century English bankruptcy …

From Protecting Water Quality To Protecting States’ Rights: Fifty Years Of Supreme Court Clean Water Act Statutory Interpretation, Stephen M. Johnson

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In 1972, a bipartisan Congress enacted the Clean Water Act “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Almost fifty years have passed since Congress enacted the law, and during that time, the Supreme Court has played a significant role in the administration and evolution of the law. Since the dawn of the environmental era in the 1970s, the Supreme Court has heard more cases involving the Clean Water Act than any other environmental law. However, the manner in which the Court has analyzed the law has changed substantially over the last half century. …

A Biden Executive Branch And Its Supporters May Find The Federal Courts An Obstacle, Heather Elliott

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No abstract provided.

The Automated Administrative State: A Crisis Of Legitimacy, Ryan Calo, Danielle Keats Citron

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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 …

Courts Beyond Judging, Michael C. Pollack

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Across all fifty states, a woefully understudied institution of government is responsible for a broad range of administrative, legislative, law enforcement, and judicial functions. That important institution is the state courts. While the literature has examined the federal courts and federal judges from innumerable angles, study of the state courts as institutions of state government — and not merely as sources of doctrine and resolvers of disputes — has languished. This Article remedies that oversight by drawing attention for the first time to the wide array of roles state courts serve, and by evaluating the suitability of both the allocation …

Majestic Law And The Subjective Stop, Kyron J. Huigens

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Justice John Paul Stevens subscribed to "a majestic conception" of the Constitution. This Article articulates and defends that vision. Majestic law and legal reasoning characteristically involve frank moral reasoning, such as one finds in the Eighth Amendment's "evolving standards of decency" test for proportionate punishment, or in Due Process formulations such as an appeal to "immutable principles of justice, which inhere in the very idea of free government." Majestic law employs moral values, norms, and judgments in legal reasoning, taking them on their own terms. Majestic legal reasoning does not weigh revealed preferences for decency, for example. It asks whether …

Substance Use Disorder Discrimination And The Cares Act: Using Disability Law To Inform Part 2 Rulemaking, Kelly K. Dineen, Elizabeth Pendo

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Substance use disorder (SUD) is a chronic health condition—like people with other chronic health conditions, people with SUDs experience periods of remission and periods of exacerbation or recurrence. Unlike people with most other chronic conditions, people with SUDs may be more likely to garner law enforcement attention than medical attention during a recurrence. They are also chronically disadvantaged by pervasive social stigma, discrimination, and structural inequities. The COVID-19 pandemic has had devastating consequences for people with SUDs, who are at higher risk for both contracting the SARS-CoV-19 virus and experiencing poorer outcomes. Meanwhile, there are early indications that pandemic conditions …

Back To The Future: Creating A Bipartisan Environmental Movement For The 21st Century, David M. Uhlmann

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With a contentious presidential election looming amidst a pandemic, economic worries, and historic protests against systemic racism, climate action may seem less pressing than other challenges. Nothing could be further from the truth. To prevent greater public health threats and economic dislocation from climate disruption, which will disproportionately harm Black Americans, people of color, and indigenous people, this Comment argues that we need to restore the bipartisanship that fueled the environmental movement and that the fate of the planet—and our children and grandchildren—depends upon our collective action.

Legitimacy And Agency Implementation Of Title Ix, Samuel R. Bagenstos

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Title IX of the Education Amendments of 1972 prohibits sex discrimination by programs receiving federal education funding. Primary responsibility for administering that statute lies in the Office for Civil Rights of the Department of Education (OCR). Because Title IX involves a subject that remains highly controversial in our polity (sex roles and interactions among the sexes more generally), and because it targets a highly sensitive area (education), OCR’s administration of the statute has long drawn criticism. The critics have not merely noted disagreements with the legal and policy decisions of the agency, however. Rather, they have attacked the agency’s decisions …

Prosecutorial Declination Statements, Jessica A. Roth

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This Article examines how prosecutors convey to various audiences their decisions not to charge in discrete cases. Although prosecutors regularly issue public statements about their declinations—and anecdotal evidence suggests that declination statements are on the rise—there is an absence of literature discussing the interests that such statements serve, the risks that they pose, and how such statements are consistent with the prosecutorial function. Prosecutors also operate in this space without clear ground rules set by law, policies, or professional standards. This Article attempts to fill that void. First, it theorizes the interests potentially advanced by such statements—characterized as signaling, accountability, …

Zealous Administration: The Deportation Bureaucracy, Geoffrey Heeren

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An agency's culture shapes its lawmaking. Under certain conditions, agency culture dominates decision-making so strongly that it mutes the influence of those factors that administrative law scholars have traditionally focused on including presidential will, judicial oversight, internal resistance, and public opinion. We call this undertheorized phenomenon "zealous administration." The immigration enforcement bureaucracy has vast discretion to remove unauthorized immigrants from the United States. Current immigration policies-such as indiscriminate deportation, family separation, and harsh detention-represent the most prominent example of zealous administration in the federal government. This Article focuses on that bureaucracy to plumb the causes and effects of zealous administration …

Religious Liberty In A Pandemic, Caroline Mala Corbin

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The coronavirus pandemic caused an unprecedented shutdown of the United States. The stay-at-home orders issued by most states typically banned large gatherings of any kind, including religious services. Churches sued, arguing that these bans violated their religious liberty rights by treating worship services more strictly than analogous activities that were not banned, such as shopping at a liquor store or superstore. This Essay examines these claims, concluding that the constitutionality of the bans turns on the science of how the pathogen spreads, and that the best available scientific evidence supports the mass gathering bans.

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

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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 has not yet driven …

Payday, Yonathan A. Arbel

Articles

Legislation lags behind technology all too often. While trillions of dollars are exchanged in online transactions-safely, cheaply, and instantaneously-workers still must wait two weeks to a month to receive payments from their employers. In the modern economy, workers are effectively lending money to their employers, as they wait for earned wages to be paid.

The same worker who taps a credit card to pay for groceries in semiautomated checkout lines depends on dated payroll systems that only transfer payments on a "payday." Workers, especially those living paycheck-to-paycheck, are hard-pressed to meet their daily needs and turn to expensive, short-term credit …

Failure To Capture: Why Business Does Not Control The Rulemaking Process, Gabriel Scheffler

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Leading figures on both the political right and the political left have concluded that the agency rulemaking process is captured: that it serves to benefit businesses, at the expense of the general public. This perception appears to be supported by recent theoretical and empirical scholarship and has prompted lawmakers to introduce various proposals to reform the federal rulemaking process.

Yet as I will demonstrate in this Article, the view of the rulemaking process as captured is unwarranted. I will show that the academic literature actually provides little guidance as to the magnitude of business influence that is, the extent to …

Critical Developments In Housing Policy, Kat Meyers, Cheryl Gonzales, Edward Josephson, Andrew Scherer, Michael C. Pollack

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The 2019 Cardozo Journal of Equal Rights and Social Justice Symposium, Critical Developments in NY Housing Policy, brought leaders in NYC housing law to campus for a discussion on recent changes to tenants’ rights in the 2019 New York Housing Stability and Tenant Protection Act.

The event began with a keynote introduction by Kat Meyers, Staff Attorney in the Law Reform Unit of the Legal Aid Society, explaining the context of the new laws.

After a short break, Cardozo's Professor Pollack moderated a panel with participants Honorable Cheryl Gonzales, Supervising Judge in Kings County, Edward Josephson, Director of Litigation …

A Functional Approach To Judicial Review Of Ptab Rulings On Mixed Questions Of Law And Fact, Rebecca S. Eisenberg

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The Court of Appeals for the Federal Circuit (“Federal Circuit”) has long relied on active appellate review to bring uniformity and clarity to patent law. It initially treated the PTO the same as the federal district courts, reviewing its factual findings for clear error and its legal conclusions de novo. Following reversal by the Supreme Court in Dickinson v. Zurko, the Federal Circuit began giving greater deference to PTO factual findings. But it continued to review the PTO’s legal conclusions de novo, while coding an expansive list of disputed issues in patent cases as legal conclusions, even when they …

You’Re Fired! Why The Alj Multi-Track Dual Removal Provisions Violate The Constitution & How To Fix Them, Linda D. Jellum

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This Article explains why the for-cause removal provisions for ALJs are unconstitutional and offers three potential solutions to remedy this problem. Part I provides background information, which explains that the APA was a compromise of competing interests. Some wanted ALJs to be completely in-dependent from their agencies to further unbiased decision-making and inde-pendence, and others feared agencies would lose control over setting policy, should ALJs have such an independent function.Ultimately, Congress com-promised by including provisions to make the ALJs more independent, while also ensuring that agencies retained complete control to set policy.

As part of the independence piece of the …

Private Standards And The Benzene Case: A Teaching Guide, Cary Coglianese, Gabriel Scheffler

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No abstract provided.

You're Fired: Why The Alj Multi-Track Dual Removal Provisions Violate The Constitution And Possible Fixes, Linda Jellum

Articles

No abstract provided.

Crisis-Driven Tax Law: The Case Of Section 382, Albert H. Choi, Quinn Curtis, Andrew T. Hayashi

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At the peak of the 2008 financial crisis, the Internal Revenue Service (IRS) issued Notice 2008–83 (the Notice), administrative guidance that limited Internal Revenue Code (the Code) section 382, an important tax rule designed to discourage tax-motivated acquisitions. Although styled as a mere interpretation of existing law, the Notice has been widely viewed as an improper exercise of the IRS’s authority that undermined its legitimacy. But did the Notice work? There were many extraordinary interventions during the financial crisis that raised questions about eroding the rule of law and the long-term destabilizing effects of bail­outs. In a financial crisis, regulators …

The Progressive Idea Of Democratic Administration, William J. Novak

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The first thing to acknowledge about administration is that administration is coincident with governance. Far from being a modern invention or some kind of radical departure from an original political or legal tradition, administration is among the oldest practices of governments. Indeed, it is impossible to conceive of government without administration. Laws need to be enforced, legislation needs to be implemented, and collective goods need to be secured. Governance is mostly a matter of actions and practices, making administration perhaps the most truly reflective aspect of legal and political culture.

Abolish Ice . . . And Then What?, Peter L. Markowitz

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In recent years, activists and then politicians began calling for the abolition of the United States’s interior immigration-enforcement agency: U.S. Immigration and Customs Enforcement (ICE). Many people have misinterpreted the call to “Abolish ICE” as merely a spontaneous rhetorical device used to express outrage at the current Administration’s brutal immigration policies. In fact, abolishing ICE is the natural extension of years of thoughtful organizing by a loose coalition of grassroots immigrant-rights groups. These organizations are serious, not only about their literal goal to eliminate the agency, but also about not replacing it with another dedicated agency of immigration police. Accordingly, …

The Costs Of Uncertainty: The Doj’S Stalled Progress On Accessible Medical Equipment Under The Americans With Disabilities Act, Elizabeth Pendo

Articles

Imagine seeking medical care for serious pressure sores for a year, but your doctor never examining the sores because you could not get on the examination table in her office. Or imagine going more than fifteen years without an annual well-woman examination for the same reason, or your doctor guessing at the right dosage for a prescription because there was no scale that she could use to weigh you.

Although these scenarios may be difficult for many to imagine, they are common experiences for individuals with mobility disability. The Trump administration’s attacks on the Patient Protection and Affordable Care Act …

Drug Approval In A Learning Health System, W. Nicholson Price

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The current system of FDA approval seems to make few happy. Some argue FDA approves drugs too slowly; others too quickly. Many agree that FDA—and the health system generally—should gather information after drugs are approved to learn how well they work and how safe they are. This is hard to do. FDA has its own surveillance systems, but those systems face substantial limitations in practical use. Drug companies can also conduct their own studies, but have little incentive to do so, and often fail to fulfil study commitments made to FDA. Proposals to improve this dynamic often suggest gathering more …