Administrative Law Commons^™

Investments And Security: Balancing International Commerce And National Security With Expanded Authority For The Committee On Foreign Investment In The United States, Christopher Jusuf

Catholic University Journal of Law and Technology

What happens when the interests of international trade conflict with those of national security? This article analyzes this question within the context of the Committee on Foreign Investment in the United States (CFIUS), an obscure but increasingly powerful executive panel that exercises the president's broad authority to unilaterally interfere with and stop international mergers and acquisitions. With the passage of the Foreign Investment Risk Review Modernization Act (FIRRMA), CFIUS is more powerful now than it has ever been, and should be a key consideration for any company seeking to do business with foreign investors. This is especially true as America …

Welcome To The World Of Tomorrow: An Exploration Of Cell-Based Meats And How The Fda And Usda May Protect Intellectual Property Rights, Sean A. Grafton

Catholic University Journal of Law and Technology

Lab-grown meats are ready to be sold in United States markets. However, the meat product needs approval from regulators such as the Food and Drug Administration (“FDA”) and the United States Department of Agriculture (“USDA”). The regulation approval process takes a significant amount of time. This approval period will cut into the lab-grown meat producers’ patent time, rendering a period of the patent ineffective.

This Comment analyzes the effect of, and possible changes to, our current laws on the emerging lab-grown meat market. To look at this problem, this Comment compares FDA and USDA regulations, analyzes the Hatch-Waxman Act, and …

Ambiguity About Ambiguity, Philip A. Hamburger

Faculty Scholarship

Petitions for certiorari from the Supreme Court typically raise legal questions that are all too familiar, as cert ordinarily is available only to resolve circuit splits. Now and then, however, a case is “cert-worthy” precisely because it turns on something novel—even astonishing. Such is Monex v. Commodity Futures Trading Commission, in which the CFTC has been relying on ambiguity about the type of ambiguity that justifies its enforcement actions.

Recovering The Lost History Of Presidential Removal Law, Jane Manners, Lev Menand

Faculty Scholarship

On March 3, 2020, the Supreme Court heard argument in Seila Law v. CFPB, the biggest removal law case since Free Enterprise Fund v. PCAOB was decided a decade ago. The petitioner challenges the constitutionality of the Consumer Financial Protection Bureau, the independent agency established by the 2010 Dodd-Frank Act (DFA) to protect consumers from harmful financial products. Seila Law, a California firm under investigation by the CFPB for its debt-relief marketing practices, argues that statutory limits specifying that the president can fire the CFPB director only for “inefficiency, neglect of duty, or malfeasance in office” (INM) violate the …

Harmonizing ‘Converted Wetland’ Under The Clean Water Act And Food Security Act Would Reaffirm Congress’S Intent To Limit Epa And Army Corps 404 Jurisdiction, Lawrence A. Kogan

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Reconsidering Confidential Settlements In The #Metoo Era, Minna J. Kotkin

Faculty Scholarship

No abstract provided.

Farm To Food Desert: A Look At How The Agriculture And Nutrition Act Of 2018 Affects Food Insecurity And Access To Fresh Fruits And Vegetables, Lexington Souers

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Punishing The Innocent, Richard Parker

Faculty Articles and Papers

No abstract provided.

The Major Questions Doctrine: How The Supreme Court’S Efforts To Rein In The Effects Of Chevron Have Failed To Meet Expectations, Andrew Howayeck

Roger Williams University Law Review

No abstract provided.

Families Belong Together: The Path To Family Sanctity In Public Housing, Mckayla Stokes

Northwestern Journal of Law & Social Policy

In its 2015 landmark civil rights decision in Obergefell v. Hodges, the Supreme Court finally held that the Equal Protection and Due Process Clauses of the United States Constitution guarantee same-sex couples’ marital equality. The Court’s unprecedented declaration that the right to marry is a fundamental right under the Due Process Clause strengthened married couples’ right to privacy because it subjects government actions infringing on marital unions to heightened scrutiny. The Supreme Court has the option to minimize the impact of Obergefell by interpreting the right to marriage very narrowly—as only encompassing the right to enter into a state-recognized union …

The Pursuit Of Comprehensive Education Funding Reform Via Litigation, Lisa Scruggs

Northwestern Journal of Law & Social Policy

No abstract provided.

Panel Discussion: The Right To Education: With Liberty, Justice, And Education For All?

Northwestern Journal of Law & Social Policy

No abstract provided.

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

Faculty Scholarship

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 …

Greening The Old New Deal: Strengthening Rural Electric Cooperative Supports And Oversight To Combat Climate Change, Gabriel Pacyniak

Faculty Scholarship

New Deal cooperatives succeeded in electrifying rural America when for-profit utilities would not. Today, however, rural electric cooperatives are lagging behind when it comes to meeting the challenge of climate change. Cooperatives have collectively been slower to embrace the shift to low-carbon electricity than for-profit and municipal utilities and have served as a drag on state and federal clean energy and climate policies. This is partially because of the structural differences between cooperatives and other utilities, but also because of a weak and under-determined federal and state regulatory structure. A few cooperatives in Colorado and New Mexico are seeking to …

Administrative Law, Alan Gregory Poole Jr., Chelsea M. Lamb

Mercer Law Review

This Article surveys cases from the Georgia Supreme Court and the Georgia Court of Appeals from June 1, 2018 through May 31, 2019, in which principles of administrative law were a central focus of the case. Exhaustion of administrative remedies will be the first topic discussed, followed by a review of decisions by administrative agencies, followed by cases discussing the administrative scope of authority, with statutory construction to follow. The Article will conclude with cases discussing the standard of review of decisions by administrative agencies.

The Case Against Chevron Deference In Immigration Adjudication, Shoba Wadhia, Christopher Walker

Faculty Scholarship

The Duke Law Journal’s fifty-first annual administrative law symposium examines the future of Chevron deference—the command that a reviewing court defer to an agency’s reasonable interpretation of an ambiguous statute the agency administers. In the lead article, Professors Kristin Hickman and Aaron Nielson argue that the Supreme Court should narrow Chevron’s domain to exclude interpretations made via administrative adjudication. Building on their framing, this Article presents an in-depth case study of immigration adjudication and argues that this case against Chevron has perhaps its greatest force when it comes to immigration. That is because much of Chevron’s theory for congressional delegation …

Creative And Responsive Advocacy For Reconciliation: The Application Of Gladue Principles In Administrative Law, Andrew Martin

Articles, Book Chapters, & Popular Press

A s a response to the estrangement and alienation of Indigenous peoples from the Canadian justice system, Gladue principles are central to reconciliation in sentencing and other criminal law contexts. However, the role of Gladue principles in administrative law more broadly remains uncertain. In this paper, I argue that the factors underlying Indigenous peoples’ estrangement and alienation from the justice system indicate estrangement and alienation from the administrative state itself, and thus Gladue principles appropriately apply in administrative law contexts. Using the results of a comprehensive search of reported decisions by tribunals and by courts on judicial review, I analyze …

How Civil Procedure Fails (And Why Administrative Justice Is Better), Allan C. Hutchinson

Articles & Book Chapters

The demand for more and better procedural fairness is a rallying-cry that receives almost universal support. All participants in the legal process – litigants, judges, legislators and lawyers – maintain that the justice of any outcome can be both affected by the quality of the procedures relied upon and offset by the failure to provide access to appropriate and balanced procedural opportunities. Indeed, unless losing litigants or applicants think that they are getting a fair shake when it comes to the procedures used, there will be even greater dissatisfaction with losing than otherwise might be the case. However, while good …

The Science Of Administrative Change, Christine Chabot, Barry Sullivan

Faculty Publications & Other Works

Donald Trump repeatedly vowed to reduce regulation during the 2016 presidential campaign. Indeed, one of his key advisors promised to "deconstruct" the administrative state. Since taking office, President Trump has attempted to make good on his promises, spurring federal agencies to brush aside countless regulations that previous administrations had promulgated based on scientific, technological, or economic evidence. Those efforts, which have been dubbed a "war on science," implicate a long-contested question in administrative law: to what extent should a change in presidential administrations excuse agencies from an obligation to justify changes in policy with expert, reasoned analysis of relevant data? …

The Science Of Administrative Change, Barry Sullivan, Christine Chabot

Faculty Publications & Other Works

Donald Trump repeatedly vowed to reduce regulation during the 2016 presidential campaign. Indeed, one of his key advisors promised to "deconstruct" the administrative state. Since taking office, President Trump has attempted to make good on his promises, spurring federal agencies to brush aside countless regulations that previous administrations had promulgated based on scientific, technological, or economic evidence. Those efforts, which have been dubbed a "war on science," implicate a long-contested question in administrative law: to what extent should a change in presidential administrations excuse agencies from an obligation to justify changes in policy with expert, reasoned analysis of relevant data? …

More “Substantial Harm” Than Good: Recrafting Foia’S Exemption 4 After Food Marketing Institute V. Argus Leader Media, Jane E. Kirtley, Scott Memmel, Jonathan Anderson

Mitchell Hamline Law Review

No abstract provided.

Is Airbnb Polluting The Big Apple? The Impact Of Regulating The Short-Term Rental Service In New York City, Kayla Laskin

Journal of Civil Rights and Economic Development

(Excerpt)

Imagine your boss calls you into his office on a Monday morning. You think you are going to chat about the weekly agenda ahead; however, you notice the sullen look on your boss’s face. You immediately become nervous and think that no good news could possibly come from this meeting. You begin to glance over his desk and notice printouts for unemployment counseling and job listings in the area. Sheer panic begins to spread throughout your body, and then your boss states, “I’m sorry, we’re going to have to let you go.” Your stomach drops to the floor. Your …

Against Executive-Controlled Administrative Law Judges, Stephanie N. Higginson

Harvey M. Applebaum ’59 Award

No abstract provided.

Legal Lessons From A Very Fast Problem: Covid-19, Eric E. Johnson, Theodore Bailey

Faculty Articles

The course of a pandemic is as much a function of social structures as protein structures. Law is among the most important of these social structures, and it is among those most capable of the kind of rapid adaptation that is needed against an exponentially replicating virus. Thus, there is an urgent need to scrutinize the role of the law in impeding or supporting timely and effective measures to combat the great pandemic caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) and its associated malady, coronavirus disease 2019, better known as COVID-19. This Essay offers a look back on …

Title Ix Beyond School Lines: The Proposed Regulations That Will Limit Colleges And Universities’ Jurisdictional Scope Of Responsibility, Rachel Dunham

Roger Williams University Law Review

No abstract provided.

Rollingwood Acres, Inc. V. Rhode Island Department Of Environmental Management, 212 A.3d 1198 (R.I. 2019), Tiffany L. Wallace

Roger Williams University Law Review

No abstract provided.

Title Ix & The Civil Rights Approach To Sexual Harassment In Education, Nancy Chi Cantalupo

Roger Williams University Law Review

No abstract provided.

Blais V. Rhode Island Airport Corp., 212 A.3d 604 (R.I. 2019), Sarah Friedman

Roger Williams University Law Review

No abstract provided.

Fixing America's Founding, Maeve Glass

Faculty Scholarship

The forty-fifth presidency of the United States has sent lawyers reaching once more for the Founders’ dictionaries and legal treatises. In courtrooms, law schools, and media outlets across the country, the original meanings of the words etched into the U.S. Constitution in 1787 have become the staging ground for debates ranging from the power of a president to trademark his name in China to the rights of a legal permanent resident facing deportation. And yet, in this age when big data promises to solve potential challenges of interpretation and judges have for the most part agreed that original meaning should …

Environmental Law, Jocelyn Stacey

All Faculty Publications

In commemoration of their 50th anniversary, this chapter examines the Federal Courts’ role in shaping environmental law in Canada. The chapter uses well-known environmental principles – the precautionary principle, sustainable development and access to (environmental) justice – as focal points for examining environmental law as well as the legal culture of the Federal Courts. The chapter identifies four distinct interpretive roles that the Federal Courts have ascribed to the precautionary principle and it argues that three of these roles have the potential to generate more coherent and transparent doctrine that upholds the rule of law in the environmental context. In …