Administrative Law Commons^™

Fail To Comment At Your Own Risk: Does Issue Exhaustion Have A Place In Judicial Review Of Rules, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

Lubbers discusses whether issue exhaustion have a place in judicial review of rules.

Sg's Brief In Lucia Could Portend The End Of The Alj Program As We Have Known It, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Growing The Resistance: A Call To Action For Transactional Lawyers In The Era Of Trump, Gowri Krishna

Articles & Chapters

his essay is a call to action for transactional lawyers looking to support vulnerable immigrants through non-litigation means. By providing a snapshot of an especially precarious time in history for immigrants in the U.S.—the period immediately after the 2016 presidential election—the essay illustrates future areas of opportunity for transactional attorneys.

Food, Fracking, And Folly, Melissa Mortazavi

Faculty Articles

Few industries in the United States carry the clout and capital of the oil and gas and agricultural sectors. Economic behemoths, their booms and busts shape the destinies of states, define national policy, and secure the life or death of small towns across the United States. Like it or not, the agriculture and oil and gas industries have strong lobbies and vehement and mobilized constituencies. Recent years have seen both sectors facing public push-back on modern trends in extraction, growth, and methods of production. In response to these developments, these industries have used their considerable political capital to seek new …

Deliberative Public Engagement With Science: An Empirical Investigation, Lisa M. Pytlikzillig, Myiah J. Hutchens, Peter Muhlberger, Frank J. Gonzalez, Alan Tomkins

Lisa PytlikZillig Publications

The purpose of this book is to share some results and the data from four studies in which we used experimental procedures to manipulate key features of deliberative public engagement to study the impacts in the context of deliberations about nanotechnology. In this chapter, we discuss the purpose of this book, which is to advance science of public engagement, and the overarching question motivating our research: What public engagement methods work for what purposes and why? We also briefly review existing prior work related to our overarching goal and question and introduce the contents of the rest of the book. …

Regulating By Example, Susan C. Morse, Leigh Osofsky

Articles

Agency regulations are full of examples. Regulated parties and their advisors parse the examples to develop an understanding of the applicable law and to determine how to conduct their affairs. However, the theoretical literature contains no study of regulatory examples or of how they might be interpreted. Courts differ about whether examples serve as an independent source of law. There is uncertainty about the proper role of this frequently used regulatory tool.

In this Article, we argue that regulatory examples make law. Our claim is that, as a default rule, the legal content offered by regulatory examples is coequal with, …

Framing Contemporary U.S. Wild Horse And Burro Management Processes In A Dynamic Ecological, Sociological, And Political Environment, J. Derek Scasta, Jacob D. Hennig, Jeffrey L. Beck

Human–Wildlife Interactions

The Wild Free-Roaming Horses and Burros Act (WFRHBA) of 1971 established all “unbranded or unclaimed” equids on U.S. public lands as “living symbols of the historic and pioneer spirit of the West.” Today, >72,000 feral horses (Equus ferus caballus) and burros (E . asinus ; WHB) live on western U.S. public rangelands. The number of WHBs exceeds the Bureau of Land Management’s maximum Appropriate Management Level (AML) of 26,715 by a factor of approximately 2.7 and has nearly doubled from 2007–2015. The AML was set to balance WHB numbers with rangeland health and support other uses such as wildlife habitat …

Deliberative Constitutionalism In The National Security Setting, Mary B. Derosa, Milton C. Regan

Georgetown Law Faculty Publications and Other Works

Deliberative democracy theory maintains that authentic deliberation about matters of public concern is an essential condition for the legitimacy of political decisions. Such deliberation has two features. The first is deliberative rigor. This is deliberation guided by public-regarding reasons in a process in which persons are genuinely open to the force of the better argument. The second is transparency. This requires that requires that officials publicly explain the reasons for their decisions in terms that citizens can endorse as acceptable grounds for acting in the name of the political community.

Such requirements would seem to be especially important in the …

“Officers” In The Supreme Court: Lucia V. Sec, Jennifer L. Mascott

Scholarly Articles

This article appeared in the Cato Supreme Court Review addressing the Court's October Term 2017. The article addresses the Court's June 2018 opinion in Lucia v. SEC, which held that administrative law judges in the Securities and Exchange Commission are "Officers of the United States" within the meaning of the Constitution's Appointments Clause. Significant portions of this article are based on my earlier study of the original meaning of the Appointments Clause that the Stanford Law Review published in February 2018, see 73 Stan. L. Rev. 443 (2018).

The Commenting Power: Agency Accountability Through Public Participation, Donald J. Kochan

Oklahoma Law Review

No abstract provided.

Drilling When The Well Goes Dry: The Oklahoma Corporation Commission & The Police Power Exception To The Automatic Stay, Connor R. Bourland

Oklahoma Law Review

No abstract provided.

Non-Alj Adjudicators In Federal Agencies: Status, Selection, Oversight, And Removal, Kent H. Barnett, Russell Wheeler

Georgia Law Review

This article republishes—in substantively similar form—our 2018 report to the Administrative Conference of the United States (ACUS) concerning federal agencies’ adjudicators who are not administrative law judges (ALJs). (We refer to these adjudicators as “non-ALJ Adjudicators” or “non-ALJs.”) As our data indicate, non-ALJs significantly outnumber ALJs. Yet non-ALJs are often overlooked and difficult to discuss as a class because of their disparate titles and characteristics. To obtain more information on non-ALJs, we surveyed agencies on non-ALJs’ hearings and, among other things, the characteristics concerning non-ALJs’ salaries, selection, oversight, and removal. We first present our reported data on these matters, which …

If Established By Law, Then An Administrative Judge Is An Officer, Jennifer L. Cotton

Georgia Law Review

Administrative Judges (AJs) are a large and often overlooked group of federal agency adjudicators. While courts have examined Article II Appointments Clause challenges to Administrative Law Judges (ALJs), courts have yet to encounter a legal challenge to the constitutionality of AJs’ appointment procedures. The constitutionality of any federal government actor’s appointment is dependent upon whether that actor is an “officer” or an “employee” under the Article II Appointments clause. It is apparent that the current “significant authority” test that the Supreme Court has espoused to distinguish between officers and employees is unworkable. This Note endeavors to set forth a bright-line …

Risks Faced By Foreign Lawyers In China, Chenglin Liu

Faculty Articles

This article provides an objective assessment of the potential risks that foreign lawyers face in China as they push the boundaries of the limits on their activities set by Chinese law. When the Shanghai Bar Association (SBA), a government-controlled organization, accused foreign lawyers of violating Chinese law and called for official action, some scholars dismissed the threat, claiming that there was no legal basis for a crackdown on foreign lawyers. These scholars erroneously maintained that the Chinese laws that regulate foreign lawyers are ambiguous and create "gray areas." In fact, the claims of the SBA are justified because the applicable …

Who Are “Officers Of The United States”?, Jennifer L. Mascott

Scholarly Articles

For decades courts have believed that only officials with “significant authority” are “Officers of the United States” subject to the Constitution’s Article II Appointments Clause requirements. But this standard has proved difficult to apply to major categories of officials. This Article examines whether “significant authority” is even the proper standard, at least as that standard has been applied in modern practice. To uncover whether the modern understanding of the term “officer” is consistent with the term’s original public meaning, this Article uses two distinctive tools: (i) corpus linguistics-style analysis of Founding-era documents and (ii) examination of appointment practices during the …

Revisiting Seminole Rock, Jeffrey A. Pojanowski

Journal Articles

The rule that reviewing courts must defer to agencies’ interpretations of their own regulations has come under scrutiny in recent years. Critics contend that this doctrine, often associated with the 1997 Supreme Court decision Auer v. Robbins, violates the separation of powers, gives agencies perverse regulatory incentives, and undermines the judiciary’s duty to say what the law is.
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/="/">This essay offers a different argument as to why Auer is literally and prosaically bad law. Auer deference appears to be grounded on a misunderstanding of its originating case, the 1945 decision Bowles v. Seminole Rock. A closer look at …

Municipal Responses To Vacant Properties In The United States, James J. Kelly Jr.

Journal Articles

The administrative law specialized magazine No. 24 which explores the foundation of administrative law theory. This issue contains 5 articles that focus on the vacant house issue.

Vacant house measures in American municipalities

Dunsmuir: A View From South Of The Border, Jeffrey Pojanowski

Journal Articles

First, I would like to thank Leonid and Paul for inviting me to contribute to this symposium. Reading up on Dunsmuir and its legacy has expanded my horizons on administrative law and introduced me to great Canadian legal scholarship. My sense is that Canadian administrative law scholars are engaged in important conversations with their counterparts in Australia, New Zealand, and the U.K., whereas U.S. scholars, per usual, are doing their own thing. For reasons I discuss below, that separation may make some sense. But I am also convinced that further conversation between these wings of Anglo-American public law is important, …

Leveraging Social Science Expertise In Immigration Policymaking, Ming H. Chen

Publications

The longstanding uncertainty about how policymakers should grapple with social science demonstrating racism persists in the modern administrative state. This Essay examines the uses and misuses of social science and expertise in immigration policymaking. More specifically, it highlights three immigration policies that dismiss social scientific findings and expertise as part of presidential and agency decision-making: border control, crime control, and extreme vetting of refugees to prevent terrorism. The Essay claims that these rejections of expertise undermine both substantive and procedural protections for immigrants and undermine important functions of the administrative state as a curb on irrationality in policymaking. It concludes …

The Gdpr’S Version Of Algorithmic Accountability, Margot Kaminski

Publications

No abstract provided.

"At Bears Ears We Can Hear The Voices Of Our Ancestors In Every Canyon And On Every Mesa Top": The Creation Of The First Native National Monument, Charles Wilkinson

Publications

No abstract provided.

Sanctuary Networks And Integrative Enforcement, Ming Hsu Chen

Publications

My intended focus is on the widespread response--in cities, churches, campuses, and corporations that together comprise "sanctuary networks"--to the Trump Administration's Executive Order 13768 Enhancing Public Safety in the Interior of the United States as an instance of the changing relationship between federal, local, and private organizations in the regulation of immigration. After briefly covering the legal background of the Trump Interior E.O., the focus of the Article shifts to the institutional dynamics arising in communities. These institutional dynamics exemplify the beginnings of a reimagined immigration enforcement policy with a more integrative flavor.

Two Pedagogies In Search Of Synergy, Lisa Schultz, Susan Nevelow Mart

Publications

Anyone who has taught a first-year legal research course understands the dilemma: How do we weave research skills into the writing program without sacrificing the quality or quantity of either discipline? In fact, it is difficult and time consuming to interweave any serious legal research instruction into a first-year writing course. What the students need to know is not just how to do a little case law research or how to find a statute: they need to also know how to formulate a research plan, how to evaluate a database, what kind of search works in different information environments, and …

Corporations As Conduits: A Cautionary Note About Regulating Hypotheticals, Douglas M. Spencer

Publications

No abstract provided.