Administrative Law Commons^™

Do Graphic Tobacco Warnings Violate The First Amendment?, Nathan Cortez

Faculty Journal Articles and Book Chapters

When Congress passed the nation’s first comprehensive tobacco bill in 2009, it replaced the familiar Surgeon General’s warnings, last updated in 1984, with nine blunter warnings. The law also directed the U.S. Food and Drug Administration ('FDA') to require color graphics to accompany the textual warnings. By law, the warnings would cover the top fifty percent of the front and back of tobacco packaging and the top twenty percent of print advertisements, bringing the United States closer to many peer countries that now require graphic warnings. Tobacco companies challenged the requirement on First Amendment grounds, arguing that the compelled disclosures …

The Mobile Health Revolution?, Nathan Cortez

Faculty Journal Articles and Book Chapters

Rarely does a class of technologies excite physicians, patients, financeers, gadgeteers, and policymakers alike. But mobile health — the use of mobile devices like smartphones and tablets for health or medical purposes — has captured our collective imagination. Observers predict that mobile health, also referred to as “mHealth” or “medical apps,” can save millions of lives, billions in spending, and democratize access to health care. Proponents argue that mobile health technologies will transform the ways in which we deliver, consume, measure, and pay for care; disrupting our sclerotic health care system.

This Article evaluates mobile health and its many ambitions. …

The Diffusion Of Regulatory Oversight, Jonathan B. Wiener

Faculty Scholarship

The idea of cost-benefit analysis has been spreading internationally for centuries — at least since an American named Benjamin Franklin wrote a letter in 1772 to his British friend, Joseph Priestley, recommending that Priestley weigh the pros and cons of a difficult decision in what Franklin dubbed a “moral or prudential algebra” (Franklin 1772) (more on this letter below). Several recent studies show that the use of benefit-cost analysis (BCA), for both public projects and public regulation of private activities, is now unfolding in countries on every habitable continent around the world (Livermore and Revesz 2013; Quah and Toh 2012; …

Some Guidance About Federal Agencies And Guidance, Mary Whisner

Librarians' Articles

The federal administrative system is complex and contains ambiguities about what counts as an “agency,” and there is an amorphous border between regulations and guidance. The body of guidance documents (or nonlegislative rules) is growing, both in volume and in importance, and legal researchers should be aware of this important source of authority, as well as its unclear status.

Parallel Investigations Between Administrative And Law Enforcement Agencies: A Question Of Civil Liberties, Shiv Narayan Persaud

Journal Publications

No abstract provided.

A Hen In The Parlor: Municipal Control And Enforcement Of Residential Chicken Coops, Chris Erchull

Student Competition & Published Writings

The locavore movement and similar trends in sustainable agriculture and health are renewing interest in backyard residential chicken coops. This Article analyzes some of the regulatory approaches cities and towns have taken to address backyard residential chicken coops. The Article focuses on how regulation can support and encourage the beneficial aspects of keeping backyard chickens while mitigating the potential harmful impact of excessive or irresponsibly managed residential chicken coops. In particular, the Article examines common trends in local regulation, like limits on the number and sex of birds allowed in each residential yard, setback and structural requirements, and animal welfare …

Visiting Room: A Response To Prison Visitation Policies: A Fifty-State Survey, Giovanna Shay

Faculty Scholarship

This Essay responds to Boudin, Stutz & Littman, Prison Visitation Policies: A Fifty State Survey, by placing American visitation policies in a global context. American prison visitation polices are unique among advanced democracies. Other nations, particularly in Western Europe, have far more liberal policies. Prisons in the United Kingdom, Canada, and Finland feature mother/baby units and family visitation centers. In Denmark and Norway, prisoners are granted passes to visit family. These policies encourage visitation. Increased visitation is linked to lower recidivism, so adopting such policies would potentially lower prison populations in the United States. The Essay acknowledges that following …

“Publicness” In Contemporary Securities Regulation After The Jobs Act, Donald C. Langevoort, Robert B. Thompson

Georgetown Law Faculty Publications and Other Works

The JOBS Act of 2012 reflects the largest deregulatory change to the Securities Exchange Act of 1934 over its more than 75 year history. It contracts the coverage of those companies subject to the obligations of ‘publicness” and it introduces an “on ramp” that will permit most newly-public companies to meet a lesser set of disclosure, internal control and governance obligations for up to five years. We set these changes against a larger discussion of when a private enterprise should be forced to take on public status in securities regulation, a topic that has been entirely under theorized. We conclude …

Archival: A Water Rights Manual For Mutual Domestic Water Consumers Associations, Utton Center, University Of New Mexico - School Of Law, Zackeriah Carpenter, Gregory Chakalian, Darcy S. Bushnell

Publications

The Utton Center prepared this Water Rights Manual to assist Mutual Domestic Water Consumers Associations (MDWCAs) with the development, protection and management of their water rights.

This manual provides an introduction to and defines Water Rights in New Mexico, as well as to acquire and have recognized Water Rights. This document also covers water management and planning, and provides additional resources.

The Missing Due Process Argument, Jamal Greene

Faculty Scholarship

The argument that eventually persuaded five members of the Supreme Court to conclude that the individual mandate exceeded Congress’s power to regulate interstate commerce is one most observers originally considered frivolous. In that respect, it is similar to another potential argument against the mandate — that forcing someone to pay for insurance violates the liberty interests guaranteed by the Constitution’s Due Process Clause. The Commerce Clause argument was the centerpiece of the challenge to the mandate; the due process argument was not meaningfully advanced at all. This chapter suggests reasons why.

Offices Of Goodness: Influence Without Authority In Federal Agencies, Margo Schlanger

Law & Economics Working Papers

Inducing governmental organizations to do the right thing is the central problem of public administration. If Congress or another principal wants a federal executive agency to pay attention to a value that constrains or conflicts with the agency’s overall mission — that additional value is here labeled, generically, "Goodness" — the principal often creates a subsidiary agency office — an "Office of Goodness." Both policymakers and scholars should care about how and when Offices of Goodness work. Yet while Offices of Goodness are frequently established in federal agencies, they are nearly invisible in scholarship. And the resulting knowledge gap is …

Chevron Meets Youngstown: National Security And The Administrative State, Joseph Landau

Faculty Scholarship

The past several years have witnessed a burst of scholarship at the intersection of national security and administrative law. Many supporters of this approach endorse a heightened, “super-strong” brand of Chevron deference to presidential decisionmaking during times of emergency. Believing that the Executive’s comparative advantage in expertise, access to information, and accountability warrant minimal judicial scrutiny, these Chevron-backers advance an Executive-centric view of national security powers. Other scholars, by contrast, dispute Chevron’s relevance to national security. These Chevron-detractors argue for an interventionist judiciary in national security matters. Both camps criticize the Supreme Court’s scaling of deference to the Executive after …

Insider Trading Restrictions And Top Executive Compensation, David J. Denis, Jin Xu

Purdue CIBER Working Papers

The use of equity incentives is significantly greater in countries with stronger insider trading restrictions, and these higher incentives are associated with higher total pay. These findings are robust to alternative definitions of insider trading restrictions and enforcement, and to panel regressions with country fixed effects. We also find significant increases in top executive pay and the use of equity-based incentives in the period immediately following the initial enforcement of insider trading laws. We conclude that insider trading laws are one channel through which cross-country differences in pay practices can be explained.

The Movement Of U.S. Criminal And Administrative Law: Processes Of Transplanting And Translating, Toby S. Goldbach, Benjamin Brake, Peter J. Katzenstein

All Faculty Publications

This article examines the transplanting and translating of law in the domains of criminal procedure and administrative law. The transnational movement of law is full of unexpected twists and turns that belie the notion of the United States as a legal behemoth. Furthermore, the movement of legal procedures which occurs both within and across countries with common and civil law legal traditions challenges preconceived notions of an orderly divide between legal families. While the spread of elements of the U.S. jury system and methods of plea bargaining reveals the powerful influence of U.S. legal ideas, the ways that these procedures …

Renewable Energy Through Agency Action, Amy L. Stein

University of Colorado Law Review

Despite the many societal benefits associated with renewable energy, it is used to generate only about 5 percent of our nation's electricity needs. The bulk of governmental efforts to rectify this situation have disproportionately impacted private actors. This Article argues that the federal government should expand its efforts to more fully capture the gains that can be achieved by targeting both private and public actors, particularly federal agencies. Federal agencies have enormous purchasing power that can be channeled toward using electricity and fuels derived from renewable energy. Federal agencies are some of the largest consumers of electricity. Federal agencies manage …

Deference Lotteries, Jud Mathews

Faculty Scholarship

When should courts defer to agency interpretations of statutes, and what measure of deference should agencies receive? Administrative law recognizes two main deference doctrines — the generous Chevron standard and the stingier Skidmore standard — but Supreme Court case law has not offered a bright-line rule for when each standard applies.

Many observers have concluded that courts’ deference practice is an unpredictable muddle. This Article argues that it is really a lottery, in the sense the term is used in expected utility theory. Agencies cannot predict which deference standard a court will apply or with what effect, but they have …

Embracing The Queen Of Hearts: Deference To Retroactive Tax Rules, James M. Puckett

Faculty Scholarship

The Supreme Court’s decision in Mayo Foundation for Medical Education and Research v. United States underscored the importance of a uniform approach to judicial review of administrative action; accordingly, the Court clarified that tax administration is generally subject to the same review as other kinds of administrative action by other federal agencies. Tax guidance from the IRS and Treasury Department serves an important role in clarifying the tax law so that taxpayers may report their tax liability accurately and plan their affairs. Meanwhile, aggressive attempts by a relatively small number of taxpayers to avoid tax liability by exploiting arguable ambiguities …

My Great Foia Adventure And Discoveries Of Deferred Action Cases At Ice, Shoba S. Wadhia

Faculty Scholarship

This Article describes my adventures in FOIA litigation and analyzes deferred action data collected informally by 24 ICE field offices between October 1, 2011, and June 30, 2012. This Article also offers recommendations for the agency on data collection, recordkeeping, and transparency in deferred action cases. Deferred action is a form of prosecutorial discretion that can be granted at any stage of the immigration enforcement process and historically has been applied both to people who meet group characteristics and on an individual basis in compelling humanitarian circumstances. The theory behind deferred action and prosecutorial discretion more generally is to enable …

Should Congress Create A Special Category Of Ssa Aljs, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Litigation-Fostered Bureaucratic Autonomy: Administrative Law Against Political Control, Daniel E. Walters

Faculty Scholarship

The idea of political control dominates our understanding of both what administrative law does and what it should do. This emphasis on political control, however, downplays the important ways that administrative law facilitates resistance to political control in administrative agencies. In this article, I offer studies of two instances in which agencies harnessed the power of seemingly standard administrative law litigation to resist the imposition of policies by political leadership. I classify these kinds of modes of resistance as instances of “litigation-fostered bureaucratic autonomy” and flesh out the mechanisms that drive the process. Acknowledging the role of such modes of …

The Immigration Prosecutor And The Judge: Examining The Role Of The Judiciary In Prosecutorial Discretion Decisions, Shoba S. Wadhia

Faculty Scholarship

Legal scholars and judges have long examined the role of judicial review in immigration matters, and also criticized the impacts of the “plenary power” doctrine and statutory deletions of judicial review for certain immigration cases. Absent from this scholarship is a serious examination of the judiciary’s role in immigration decisions involving prosecutorial discretion. I attribute this absence to both a silent concession that prosecutorial discretion decisions are automatically barred from judicial review because of the plain language of the Immigration and Nationality Act (INA); the judicial review “exceptions” in the Administrative Procedures Act (APA), and the cases that analyze these …

Global Governance In The Information Age: The Terrorist Finance Tracking Program, Hannah Bloch-Wehba

Faculty Scholarship

Europe has long been deemed "more protective" of privacy than the United States. In the context of transatlantic cooperation in the war on terrorism, divergences in privacy law and policy have become ever more apparent. As has always been the case, the same technologies that pose new and vital privacy issues with regard to personal information and private data are those that are important sources for government actors, including law enforcement and intelligence agencies. Despite the increasing reliance by national agencies on information flowing from other nations, regulation of information transfer, processing and sharing has been achieved largely outside of …

Improving Water Quality Antidegradation Policies, Sandra B. Zellmer, Robert L. Glicksman

Faculty Law Review Articles

No abstract provided.

The Plaintiff’S Last Chance: Foia’S Waiver Doctrine, Sydney Hutchins

Student Works

No abstract provided.

Undue Process At The Fda, Lisa Heinzerling

Georgetown Law Faculty Publications and Other Works

For over 40 years, the Food and Drug Administration has been collecting evidence that the routine administration of antibiotics to animals destined for the food supply contributes to the development of antibiotic-resistant infections in the human population. For all these years, the FDA has put off acting with any force on this health risk. The agency’s explanation has been that the Food, Drug and Cosmetic Act requires it to hold time- and resource-intensive formal hearings before it can withdraw approvals for antibiotics used for the purposes of promoting growth and preventing infection in food animals. In so arguing, the FDA …

Charles Koch: The Casebook And The Scholarship, William S. Jordan Iii

Akron Law Faculty Publications

In this tribute article, William S. Jordan III reflects on the scholarly contributions and pedagogical legacy of Charles H. Koch Jr., a renowned administrative law scholar and casebook author. Jordan highlights Koch's nuanced approach to administrative law, particularly his emphasis on constitutional values, due process, and the practical realities of agency governance. The article explores how Koch’s scholarship influenced the development of administrative law doctrine and teaching, especially through his widely used casebook. Jordan pays special attention to how Koch integrated European administrative law perspectives into U.S. scholarship, helping bridge comparative and domestic legal frameworks. The article serves as both …

Private Standards Organizations And Public Law, Peter L. Strauss

Faculty Scholarship

Simplified, universal access to law is one of the important transformations worked by the digital age. With the replacement of physical by digital copies, citizens ordinarily need travel only to the nearest computer to find and read the texts that bind them. Lagging behind this development, however, has been computer access to standards developed by private standards development organizations, often under the umbrella of the American National Standards Institute (ANSI), and then converted by agency actions incorporating them by reference into legal obligations. To discover what colors the Occupational Safety and Health Administration (OSHA) requires for use in work-place caution …

Constitutional Uncertainty And The Design Of Social Insurance: Reflections On The Aca Case, Michael J. Graetz, Jerry L. Mashaw

Faculty Scholarship

The Health Care Case is best understood as a legal attack on the means but not the goals of the health care legislation. This emphasis on means rather than ends and on state over federal powers potentially poses significant risks for the complex institutional arrangements for social insurance that now exist and may imply harmful constraints on how Congress can restructure these programs to better meet the needs of the American people in the twenty-first-century economy. Not coincidentally, the new constitutional framework announced in the ACA decision favors those who want to dismantle rather than strengthen the nation’s social insurance …

Mapping The Future Of Insider Trading Law: Of Boundaries, Gaps, And Strategies, John C. Coffee Jr.

Faculty Scholarship

The current law on insider trading is remarkably unrationalized because it contains gaps and loopholes the size of the Washington Square Arch. For example, if a thief breaks into your office, opens your files, learns material nonpublic information, and trades on that information, he has not breached a fiduciary duty and is presumably exempt from insider trading liability. But drawing a line that can convict only the fiduciary and not the thief seems morally incoherent. Nor is it doctrinally necessary.

The basic methodology handed down by the Supreme Court in SEC v. Dirks and United States v. O'Hagan dictates (i) …

Administrative Constitutionalism, Gillian E. Metzger

Faculty Scholarship

The U.S. Food and Drug Administration adopts a rule requiring tobacco companies to include graphic images warning of the health risks associated with smoking, defending the rule at length against the claim it violates the First and Fifth Amendments. The Department of Education and the Department of Justice (DOJ) jointly issue guidance explaining how elementary and secondary schools can voluntarily consider race consistently with governing constitutional law. The Office of Legal Counsel (OLC) in DOJ issues a memorandum to the Attorney General concluding that the President had constitutional authority to commit U.S. forces as part of the NATO military campaign …