Administrative Law Commons^™

Regtech, Compliance And Technology Judgement Rule, Nizan Geslevich Packin

Chicago-Kent Law Review

This Article focuses on the rise of Financial Technology, which revolutionized consumer financial service products, and challenged policymakers with regulating the rapidly evolving financial industry. In particular, it explores Regulatory Technology, also known as RegTech, which is the finance industry’s use of technology, especially information technology, in the context of regulatory monitoring, reporting and compliance. RegTech is designed to solve industry needs for a more effective and efficient way to automate corporate governance and compliance processes. Not only has FinTech proven to be a vital revenue source, especially in connection with lending or money transmission services, but it also helps …

The Promise And Perils Of Algorithmic Lenders’ Use Of Big Data, Matthew Adam Bruckner

Chicago-Kent Law Review

Tens of millions of Americans lack access to traditional forms of credit and must rely on payday and pawn loans instead. “Algorithmic lending 2.0” promises to enable fintech companies to lend to those excluded from traditional forms of credit. Version 2.0 algorithmic lenders claim to use Big Data and machine learning to increase credit access by making better predictions about prospective borrowers’ creditworthiness and decreasing the cost of credit. Supporters also claim that algorithmic lending 2.0 removes human bias from the financial services sector. Detractors have cast doubt on both claims, arguing that there is scant evidence that algorithmic lending …

When Influence Encroaches: Statutory Advice In The Administrative State, William C. Hudson

William & Mary Bill of Rights Journal

This Article revisits the D.C. Circuit’s 1993 decision in FEC v. NRA Political Victory Fund, and concludes that the separation of powers reasoning applied in NRA Political Victory Fund could invalidate other common practices in the administrative state, such as statutory requirements that Executive Branch officers serve on the boards of corporations created and staffed by Congress.

A Drone By Any Other Name: Purposes, End-User Trustworthiness, And Framing, But Not Terminology, Affect Public Support For Drones, Lisa M. Pytlikzillig, Brittany Duncan, Sebastian Elbaum, Carrick Detweiler

Lisa PytlikZillig Publications

Projections indicate that, as an industry, unmanned aerial vehicles (UAVs, commonly known as drones) could bring more than 100 000 jobs and $80 billion in economic growth to the U.S. by 2025 [1]. However, these promising projections do not account for how various publics may perceive such technologies. Understanding public perceptions is important because the attitudes of different groups can have large effects on the trajectory of a technology, strongly facilitating or hindering technology acceptance and uptake [2].

To advance understanding of U.S. public perceptions of UAV technologies, we conducted a nationwide survey of a convenience sample of 877 Americans …

King's Domain, Mila Sohoni

Notre Dame Law Review

In King v. Burwell, the Supreme Court called the tax-credit provision of the Affordable Care Act ambiguous—but then invoked the major questions exception to Chevron deference and proceeded to resolve the provision’s meaning for itself. Litigants and commentators quickly recognized that King had the potential to destabilize Chevron. If King exempts from Chevron deference anything that is “major,” then Chevron’s significance will necessarily be diminished, as agencies will only enjoy deference on their answers to questions of “minor” import; the major questions exception may swallow Chevron’s rule.

This Essay, prepared for a symposium held by the …

Executive Orders As Lawful Limits On Agency Policymaking Discretion, Adam J. White

Notre Dame Law Review

After briefly retracing previous Presidents’ general uses of executive orders and debates over presidential power more generally, culminating with the late twentieth century executive orders on White House regulatory oversight, I review the case of Sherley v. Sebelius, in which the D.C. Circuit held that when an agency receives an executive order lawfully cabining or directing the its regulatory discretion, it is excused from its otherwise general duty to respond to rulemaking comments challenging its policy choice. Then, examining this general duty of agencies to respond to rulemaking comments, I consider whether the D.C. Circuit’s approach comports with the …

Chevron Step Two's Domain, Kent H. Barnett, Christopher J. Walker

Notre Dame Law Review

An increasing number of judges, policymakers, and scholars have advocated eliminating or narrowing Chevron deference—a two-step inquiry under which courts defer to federal agencies’ reasonable interpretations of ambiguous statutes the agencies administer. Much of the debate centers on either Chevron’s domain (i.e., when Chevron should apply at all) or how courts ascertain statutory ambiguity at Chevron’s first step. Largely lost in this debate on constraining agency discretion is the role of Chevron’s second step: whether the agency’s resolution of a statutory ambiguity is reasonable. Drawing on the most comprehensive study of Chevron in the circuit courts, this …

Accountability For Nonenforcement, Urska Velikonja

Notre Dame Law Review

Changes in enforcement can move in more than one direction: enforcement can increase significantly as the Securities and Exchange Commission saw in the aftermath of the accounting scandals or the Madoff Ponzi scheme, and decrease precipitously, as evidenced at the Consumer Financial Protection Bureau under Acting Director Mick Mulvaney. There is no reason in constitutional or administrative law to treat changes in enforcement policy differently depending on whether enforcement increases or decreases. Policy choices raise similar questions about reviewability and accountability, regardless of whether they increase or decrease enforcement. They also raise symmetrical questions about fair notice and due process …

The American Deep State, Jon D. Michaels

Notre Dame Law Review

This Article, written for the Notre Dame Law Review Symposium on Administrative Lawmaking in the Twenty-First Century, considers the notion of bureaucratic depth and what it means in the American context. In what follows, I argue that the American deep state has very little in common with those regimes usually understood to harbor deep states; that, far from being shadowy or elitist, the American bureaucracy is very much a demotic institution, demographically diverse, highly accountable, and lacking financial incentives or caste proclivities to subvert popular will; that demotic bureaucratic depth of the American variety should be celebrated, not feared; …

The Ambiguous Ambiguity Inquiry: Seeking To Clarify Judicial Determinations Of Clarity Versus Ambiguity In Statutory Interpretation, Meredith A. Holland

Notre Dame Law Review

This Note will apply Judge Kavanaugh’s proposed mechanism to the interpretation of the Title IX prohibition of discrimination on the basis of sex. Part I discusses recent cases decided by the Roberts Court that demonstrate the difficulties with the current jurisprudential approach to the clarity versus ambiguity determination. Part II explores Judge Kavanaugh’s recent proposal for reducing threshold findings of ambiguity. Part III considers various interpretive methods and applies Judge Kavanaugh’s proposal in the context of Title IX. Finally, this Note concludes that Judge Kavanaugh’s approach, while most dramatically transforming the purposivist approach, also has consequences for the textualist inquiry.

Introduction: Administrative Lawmaking In The Twenty-First Century, Jeffrey A. Pojanowski

Notre Dame Law Review

It is always hard to map a river while sailing midstream, but the current state of administrative law is particularly resistant to neat tracing. Until the past few years, administrative law and scholarship was marked by pragmatic compromise: judicial deference on questions of law (but not too much and not all the time) and freedom for agencies on questions of politics and policy (but not to an unseemly degree). There was disagreement around the edges—and some voices in the wilderness calling for radical change—but they operated within a shared framework of admittedly unstated, and perhaps conflicting, assumptions about the administrative …

Symbolism And Separation Of Powers In Agency Design, Kristin E. Hickman

Notre Dame Law Review

My goal with this Essay is a modest one: to raise a few reservations regarding judicial refashioning of agency design via this severance remedy for separation of powers violations. To that end, the Essay will proceed fairly straightforwardly. I will describe three cases or sets of cases in which the Supreme Court or the D.C. Circuit has employed the severance remedy: Free Enterprise Fund v. Public Company Accounting Oversight Board, a series of D.C. Circuit cases brought by the Intercollegiate Broadcasting System against the Copyright Royalty Board, and PHH Corp. v. Consumer Financial Protection Bureau. Then I will highlight three …

The Attorney General And Early Appointments Clause Practice, Aditya Bamzai

Notre Dame Law Review

This Article proceeds as follows. In Part I, I provide an overview of the Appointments Clause and the officer-employee line as it currently stands in caselaw and in executive branch practice. I also summarize the Appointments Clause practices of the First Congress. In Part II, I address the opinions of the Attorneys General, and their attempt to rationalize and to explain the statutes enacted by the First Congress and the appointments practices of the nation. In Part III, I derive some implications and conclusions, generally for the Appointments Clause and specifically for the Administrative Law Judge controversy that is currently …

How Agencies Choose Whether To Enforce The Law: A Preliminary Investigation, Aaron L. Nielson

Notre Dame Law Review

One of the most controversial aspects of administrative law in recent years concerns agency decisions not to enforce the law. Such nonenforcement is often beneficial or, in any event, inevitable. A particular violation may be so distant from what Congress or the agency had in mind when the general prohibition was put on the books that enforcement makes little sense. Likewise, because agencies have finite resources, they cannot enforce the law in all situations. At the same time, however, nonenforcement can also raise difficult questions about basic notions of fairness and administrative regularity, as well as separation of powers concerns. …

The Never-Ending Assault On The Administrative State, Jack M. Beermann

Notre Dame Law Review

This Article is an exploration of the twists and turns of the never-ending assault on the administrative state. Without attempting to resolve all of the separation of powers controversies that have existed since the beginning of the Republic, this Article examines and analyzes the fundamental constitutional challenges to the administrative state as well as the more peripheral constitutional difficulties involving the administrative state and the nonconstitutional legal challenges that have arisen over the decades. In my view, the legal and political arguments made in favor of major structural changes to the administrative state do not provide sufficient normative bases for …

Agency Underenforcement As Reviewable Abdication, Jentry Lanza

Northwestern University Law Review

The Supreme Court held in 1985 that agency refusals to enforce are presumptively unreviewable under the Administrative Procedure Act. In doing so, the Court created an exception for when an agency has “consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.” Courts and scholars have mostly interpreted this abdication exception as capturing only total nonenforcement, which is when an agency completely stops enforcing its statutory responsibilities. On the other hand, the D.C. Circuit allows review of all general enforcement policies, regardless of whether they implicate abdication—but rarely do …

Zenor V. State, Dep't Of Transp., 134 Nev. Adv. Op. 14 (Mar. 1, 2018), Brianna Stutz

Nevada Supreme Court Summaries

The Court held that NRS 233B.130 prohibits attorney fees in petitions for judicial review of agency determinations.

K-Kel, Inc. V. State Dep't Of Taxation, 134 Nev. Adv. Op. 10 (Mar. 10, 2018), Casey Lee

Nevada Supreme Court Summaries

The court determined that (1) the district court does not have jurisdiction over a petition for judicial review of an administrative agency decision when the appellants do not file the petition according to statutory requirements, (2) that district court orders in a case where it does not have jurisdiction are void, and (3) that administrative agency decisions made in compliance with void court orders do not grant district court jurisdiction.

Courts As Gatekeepers: The Case For Minimal Deference To Agency Interpretations Of The Common Law, Brent Droze

Washington Law Review

In Flytenow, Inc. v. FAA, the D.C. Circuit encountered an important, yet unresolved, question: how much deference should a court give an agency for its interpretation of a common-law term used in a statute or regulation? Traditionally, the Chevron and Auer deference doctrines provide agencies significant freedom in clarifying and interpreting statutes and regulations. The use of these doctrines, though, becomes problematic when applied to fact patterns where agencies interpret the meaning of common-law terms. This Comment argues that courts should not apply either Chevron or Auer deference doctrines in cases where an agency interprets a term that already …

Lnk Market Community Conversations, Lisa M. Pytlikzillig, Usda Value Added Producer Grant Steering Committee

Lisa PytlikZillig Publications

This report details the procedures and results from two public engagements conducted around the possibility of a year-round public market that might be situated in or near Lincoln’s downtown area. The purpose of these engagements was to uncover and explore the range of responses, hopes, concerns, and perceived benefits, barriers, and facilitators of a year-round Lincoln market.

A multi-pronged approach was used in which recruitment survey responses from about 135 persons was combined with pre-post surveys and in-depth conversations with 60 persons as shown in Figure 1.1.

The final report includes all three strands of information: from the recruitment surveys, …

Administrative Lawmaking In The Twenty-First Century, Jeffrey A. Pojanowski

Journal Articles

It is always hard to map a river while sailing midstream, but the current state of administrative law is particularly resistant to neat tracing. Until the past few years, administrative law and scholarship was marked by pragmatic compromise: judicial deference on questions of law (but not too much and not all the time) and freedom for agencies on questions of politics and policy (but not to an unseemly degree). There was disagreement around the edges-and some voices in the wilderness calling for radical change-but they operated within a shared framework of admittedly unstated, and perhaps conflicting, assumptions about the administrative …

Interpreting An Unamendable Text, Thomas W. Merrill

Vanderbilt Law Review

Many of the most important legal texts in the United States are highly unamendable. This applies not only to the Constitution, which has not been amended in over forty years, but also to many framework statutes, like the Administrative Procedure Act and the Sherman Antitrust Act. The problem is becoming increasingly severe, as political polarization makes amendment of these texts even more unlikely. This Article considers how interpreters should respond to highly unamendable texts. Unamendable texts have a number of pathologies, such as excluding the people and their representatives from any direct participation in legal change. They also pose an …

High‐Frequency Trading And The New Stock Market: Sense And Nonsense, Merritt B. Fox, Lawrence R. Glosten, Gabriel V. Rauterberg

Articles

The stock market has been transformed during the last 25 years. Human suppliers of liquidity like the NASDAQ dealers and NYSE specialists have been replaced by algorithmic market making; stocks that once traded on a single venue now trade across twelve exchanges and a multitude of alternative trading systems. New venues like dark pools, and new participants like high‐frequency traders, have emerged to take on prominent roles. This new market has had more than its share of controversy and regulatory scrutiny, particularly in the wake of Michael Lewis’s bestseller Flash Boys. In this article, the authors analyze five of the …

Felton V. Douglas County, 134 Nev. Adv. Op. 6 (Feb. 15, 2018), Joshua Garry

Nevada Supreme Court Summaries

The Court determined that when an uncompensated volunteer, who has concurrent private employment and is injured during the course of volunteer work, shall have their average monthly wage for the purposes of workers’ compensation benefits to be the aggregate of the “deemed wage” provided by statute along with their earnings from the concurrent private employment.

Creating Mischief: The Tenth Circuit Declares The Sec’S Administrative Law Judges Unconstitutional In Bandimere V. Securities Exchange Commission, Casey M. Olesen

Maine Law Review

Since the passage of the APA, administrative agencies’ use of Administrative Law Judges (ALJs) to preside over hearings has exploded, and now far outpaces the number trials conducted before federal judges. The Securities and Exchange Commission (SEC) is one such agency that heavily utilizes ALJs to conduct their hearings. Recently, following an apparent higher percentage of SEC wins before their own ALJs as compared to before federal judges, a new constitutional challenge on the basis of the Appointments Clause has been brought before several circuits; that the SEC’s ALJs are inferior officers of the SEC, not employees, and therefore are …

Tax Increment Financing In Maine, Michael G. Walker

Maine Law Review

Tax Increment Financing ("TIF") is a statutorily authorized mechanism which enables municipalities to earmark the property tax revenue from designated areas to pay for things such as infrastructure improvement. Lately, Maine municipalities have been using TIF to refund tax revenues directly to private developers in an effort to attract new business. This Comment will begin by briefly explaining the development of TIF in the United States and how it has evolved over time. It will then summarize how TIF works in Maine and the criticism and praise it has received throughout its existence. Next, it will look at research examining …

Delegating For Trust, Edward H. Stiglitz

Cornell Law Faculty Publications

Courts and legal observers have long been concerned by the scope of authority delegated to administrative agencies. The dominant explanation of delegated authority is that it is necessary to take advantage of administrative agencies' expertise and expansive rulemaking capacity. Though this explanation makes sense in many settings, it falters in many areas and has given rise to a number of longstanding puzzles, such as why Congress does not invest in its own institutional capacity.

Unrecognized in this debate over the puzzles of delegation is that Congress may delegate to take advantage of another distinctive attribute of administrative decisionmaking: the credible …

Grasping For Energy Democracy, Shelley Welton

Michigan Law Review

Until recently, energy law has attracted relatively little citizen participation. Instead, Americans have preferred to leave matters of energy governance to expert bureaucrats. But the imperative to respond to climate change presents energy regulators with difficult choices over what our future energy sources should be, and how quickly we should transition to them—choices that are outside traditional regulatory expertise. For example, there are currently robust nationwide debates over what role new nuclear power plants and hydraulically fractured natural gas should play in our energy mix, and over how to maintain affordable energy for all while rewarding those who choose to …

"Too Big To Foia": How Agencies Avoid Compliance With The Freedom Of Information Act, Stephanie Alvarez-Jones

Cardozo Law Review

The Freedom of Information Act (FOIA), while foundational for promoting government transparency, faces significant challenges in its administration, particularly through the judicially created "undue burden" claim, which allows agencies to evade disclosure. The note argues that courts' deference to agencies' claims of undue burden undermines FOIA's purpose of promoting openness. It proposes reforms, such as a public interest sliding scale, to balance the burden on agencies against the public's right to know, ensuring FOIA remains an effective tool for accountability.

Appeal No. 0945: Mark & Marie Hill Division Of Oil & Gas Resources Management & Antero Resources Corporation, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Review of Chief's Order 2017-153 (Otto Unit) & Chief's Order 2017-168 (Reich Unit)