Administrative Law Commons^™

The Real World: Child Labor And Reality Television, Ariel Tacher

Cardozo Journal of Equal Rights & Social Justice

The note examines the legal vulnerabilities faced by child participants in reality television shows, arguing that current child labor laws fail to adequately protect them. It highlights how the classification of these children as "participants" rather than "employees" exempts them from protections afforded to child actors, leading to exploitation and insufficient safeguards.

Administrative Law, John Paul Jones

Law Faculty Publications

This article is a report of certain developments during the last two years relating to the Virginia Administrative Process Act ("the VAPA"), which governs rulemaking and adjudication of cases by state agencies as well as judicial review of both.

Advocates, Federal Agencies, And The Education Of Children With Disabilities, Eloise Pasachoff

Georgetown Law Faculty Publications and Other Works

The aim of this essay, prepared for a symposium on dispute resolution in special education held at The Ohio State University Moritz College of Law in February 2014, is to highlight ways that advocates for children with disabilities can use federal agencies to improve the implementation and enforcement of federal laws protecting children with disabilities in schools—that is, the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act as it relates to schools.

One can spend a lot of time engaging with the contemporary public conversation about the law surrounding …

Agency Enforcement Of Spending Clause Statutes: A Defense Of The Funding Cut-Off, Eloise Pasachoff

Georgetown Law Faculty Publications and Other Works

This article contends that federal agencies ought more frequently to use the threat of cutting off funds to state and local grantees that are not adequately complying with the terms of a grant statute. Scholars tend to offer four arguments to explain—and often to justify—agencies’ longstanding reluctance to engage in funding cut-offs: first, that funding cut-offs will hurt the grant program’s beneficiaries and so will undermine the agency’s ultimate goals; second, that federalism concerns counsel against federal agencies’ taking funds away from state and local grantees; third, that agencies are neither designed nor motivated to pursue funding cut-offs; and fourth, …

Trans-Substantivity Beyond Procedure, Suzette M. Malveaux

Publications

No abstract provided.

The Capture Of International Intellectual Property Law Through The U.S. Trade Regime, Margot E. Kaminski

Publications

For years, the United States has included intellectual property ("IP") law in its free trade agreements. This Article finds that the IP law in recent U.S. free trade agreements differs subtly but significantly from U.S. IP law. These differences are not the result of deliberate government choices, but of the capture of the U.S. trade regime.

A growing number of voices has publicly criticized the lack of transparency and democratic accountability in the trade agreement negotiating process. But legal scholarship largely praises the 'fast track" trade negotiating system. This Article reorients the debate over the trade negotiating process away from …

Language Rights As A Legacy Of The Civil Rights Act Of 1964, Ming Hsu Chen

Publications

The fiftieth anniversary of the Civil Rights Act of 1964 offers an important opportunity to reflect on an earlier moment when civil rights evolved to accommodate new waves of immigration. This essay seeks to explain how civil rights laws evolved to include rights for immigrants and non-English speakers. More specifically, it seeks to explain how policy entrepreneurs in agencies read an affirmative right to language access.

The Administrative State's Passive Virtues, Sharon B. Jacobs

Publications

Fifty years ago, Alexander Bickel famousy suggested that courts use tools like standing, ripeness, and the political question doctrine to avoid reaching the merits of difficult cases. Yet despite the increasingly central role of administrative agencies in government, there have been no efforts to date to apply Bickel's insights to the bureaucracy. This Article remedies that deficit. The Article provides a three-part taxonomy of administrative restraint and offers case studies from federal agencies such as the Federal Energy Regulatory Commission, the Environmental Protection Agency, and the Fish and Wildlife Service. It argues that agencies sometimes use restraint strategically for reasons …

[Dis-]Informing The People's Discretion: Judicial Deference Under The National Security Exemption Of The Freedom Of Information Act, Susan Nevelow Mart, Tom Ginsburg

Publications

As noted by President Obama's recent Review Group on Intelligence and Communications Technologies, pervasive state surveillance has never been more feasible. There has been an inexorable rise in the size and reach of the national security bureaucracy since it was created after World War II, as we have gone through the Cold War and the War on Terror. No one doubts that our national security bureaucracies need to gain intelligence and keep some of it secret. But the consensus of decades of experts, both insiders and outsiders, is that there is rampant overclassfication by government agencies. From its inception in …

The Conflict Of Visions In Nfib V. Sebelius, Jonathan H. Adler

Faculty Publications

In 2010, few anticipated the fate of healthcare reform would rest with the Supreme Court. Yet National Federation of Independent Business v. Sebelius [hereinafter NFIB] emerged as a watershed case that could remake the constitutional landscape. NFIB presented a conflict between two constitutional visions of federal power and the role of the courts in policing such limits--an unconstrained vision, under which limits on federal power are enforced primarily through the political process, and a constrained vision, under which constitutional limits on federal power are enforced by the courts. The contrasting views of the constitutionality of the individual mandate and …

The Administrative Origins Of Modern Civil Liberties Law, Jeremy K. Kessler

Faculty Scholarship

This Article offers a new explanation for the puzzling origin of modern civil liberties law. Legal scholars have long sought to explain how Progressive lawyers and intellectuals skeptical of individual rights and committed to a strong, activist state came to advocate for robust First Amendment protections after World War I. Most attempts to solve this puzzle focus on the executive branch's suppression of dissent during World War I and the Red Scare. Once Progressives realized that a powerful administrative state risked stifling debate and deliberation within civil society, the story goes, they turned to civil liberties law in order to …

Incorporating By Reference: Knowing Law In The Electronic Age, Peter L. Strauss

Faculty Scholarship

Last October, the Office of the Federal Register published a Notice of Proposed Rulemaking (78 Fed. Reg. 60,784 (Oct. 2, 2013)) to revise its regulations governing the practice of "incorporation by Reference," which permits federal agencies to create binding regulatory obligations just by referring to standards that have been developed by private nongovernmental organizations, standards development organizations (SDOs) such as the American National Standards Institute (ANSI) or the American Society of Mechanical Engineers (ASME). This rulemaking should be of substantial interest to the occupational safety community. While its comment period has closed, comments remain open until May 12, 2014, on …

Step Zero After City Of Arlington, Thomas W. Merrill

Faculty Scholarship

The thirty-year history of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. is a story of triumph in the courts and frustration on the part of administrative law scholars. Chevron's appeal for the courts rests in significant part on its ease of application as a decisional device. Questions about the validity of an agency's interpretation of a statute are reduced to two inquiries: whether the statute itself provides a clear answer and, if not, whether the agency's answer is a reasonable one. The framework can be applied to virtually any statutory interpretation question resolved by an agency, and …

Relying On Government In Comparison: What Can The United States Learn From Abroad In Relation To Administrative Estoppel, Dorit Rubinstein Reiss

Faculty Scholarship

No abstract provided.

When Truth Cannot Be Presumed: The Regulation Of Drug Promotion Under An Expanding First Amendment, Christopher Robertson

Faculty Scholarship

The Food, Drug, and Cosmetic Act (FDCA) requires that, prior to marketing a drug, the manufacturer must prove that it is safe and effective for the manufacturer’s intended uses, as shown on the proposed label. Nonetheless, physicians may prescribe drugs for other “off-label” uses, and often do so. Still, manufacturers have not been allowed to promote the unproven uses in advertisements or sales pitches.

This regime is now precarious due to an onslaught of scholarly critiques, a series of Supreme Court decisions that enlarge the First Amendment, and a landmark court of appeals decision holding that the First Amendment precludes …