Administrative Law Commons^™

Why America's Response To The Covid-19 Pandemic Failed: Lessons From New Zealand's Success, Richard Parker

Faculty Articles and Papers

Polls show that 48 percent of Americans think the United States has fared no worse in dealing with COVID-19 than most other countries and that COVID-19 posed an essentially impossible test. This article refutes that remarkable misperception. It shows that the U.S. COVID-19 mortality rate for 2020, adjusted for population, was more than twice as high as Canada’s and Germany’s; ten times higher than India’s; 29 times higher than Australia’s; 40 times higher than Japan’s; 59 times higher than South Korea’s, and 207 times higher than New Zealand’s mortality rate. In fact, U.S. performance at the level of South Korea, …

Territorial Exceptionalism And The American Welfare State, Andrew Hammond

UF Law Faculty Publications

Federal law excludes millions of American citizens from crucial public benefits simply because they live in the United States territories. If the Social Security Administration determines a low-income individual has a disability, that person can move to another state and continue to receive benefits. But if that person moves to, say, Guam or the U.S. Virgin Islands, that person loses their right to federal aid. Similarly with SNAP (food stamps), federal spending rises with increased demand—whether because of a recession, a pandemic, or a climate disaster. But unlike the rest of the United States, Puerto Rico, the Northern Mariana Islands, …

Electrifying: Facilitating The Transition To Electric Lawn And Garden Equipment, Bryan Hull, Ryan Murphy

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Courts Beyond Judging, Michael C. Pollack

Articles

Across all fifty states, a woefully understudied institution of government is responsible for a broad range of administrative, legislative, law enforcement, and judicial functions. That important institution is the state courts. While the literature has examined the federal courts and federal judges from innumerable angles, study of the state courts as institutions of state government — and not merely as sources of doctrine and resolvers of disputes — has languished. This Article remedies that oversight by drawing attention for the first time to the wide array of roles state courts serve, and by evaluating the suitability of both the allocation …

Majestic Law And The Subjective Stop, Kyron J. Huigens

Articles

Justice John Paul Stevens subscribed to "a majestic conception" of the Constitution. This Article articulates and defends that vision. Majestic law and legal reasoning characteristically involve frank moral reasoning, such as one finds in the Eighth Amendment's "evolving standards of decency" test for proportionate punishment, or in Due Process formulations such as an appeal to "immutable principles of justice, which inhere in the very idea of free government." Majestic law employs moral values, norms, and judgments in legal reasoning, taking them on their own terms. Majestic legal reasoning does not weigh revealed preferences for decency, for example. It asks whether …

A Biden Executive Branch And Its Supporters May Find The Federal Courts An Obstacle, Heather Elliott

Articles

No abstract provided.

The Non-Lawyer Attorney General- Problems And Solutions, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

In this article, I provide a legal and policy analysis of the non-lawyer Attorney General and recommendations for legislative change. I begin in Part 1 by setting out and assessing Askin and its uptake in the case law and literature. I demonstrate that while the decision in Askin has two major weaknesses, the reasoning is presumably applicable across the country.7 In Part 2, I examine the legal consequences of Askin and its policy or practical consequences. I argue that it threatens the government’s solicitor-client privilege and that it leaves the non-lawyer Attorney General unconstrained by the law of lawyering more …

Subordination And Separation Of Powers, Matthew B. Lawrence

Faculty Articles

This Article calls for the incorporation of antisubordination into separation-ofpowers analysis. Scholars analyzing separation-of-powers tools—laws and norms that divide power among government actors—consider a long list of values ranging from protecting liberty to promoting efficiency. Absent from this list are questions of equity: questions of racism, sexism, and classism. This Article problematizes this omission and begins to rectify it. For the first time, this Article applies critical-race and feminist theorists’ subordination question—are marginalized groups disproportionately burdened?—to three important separation-of-powers tools: legislative appropriations, executive conditions, and constitutional entrenchment. In doing so, it reveals that each tool entails subordination by creating generalized …

Fiscal Waivers And State "Innovation" In Health Care, Matthew B. Lawrence

Faculty Articles

This Article describes how the Department of Health and Human Services (HHS) has used fiscal waiver authorities—delegated power to alter federal payments to states under Medicaid and the Affordable Care Act (ACA)—to influence state health policy choices. It highlights how the agency uses its fiscal waiver authorities to shape which reforms states choose to pursue, in some cases inspiring genuine state innovation and in others encouraging states to adopt reforms favored by HHS or discouraging states from adopting disfavored reforms. Moreover, while HHS has sometimes influenced state policy making in ways that further the substantive goals of the ACA and …

Congress's Domain: Appropriations, Time, And Chevron, Matthew B. Lawrence

Faculty Articles

Annual appropriations and permanent appropriations play contradictory roles in the separation of powers. Annual appropriations preserve agencies’ need for congressionally provided funding and enforce a domain of congressional influence over agency action in which the House and the Senate each enforce written unicameral commands through the threat of reduced appropriations in the next annual cycle. Permanent appropriations permit agencies to fund their programs without ongoing congressional support, circumscribing and diluting Congress’s domain.

The unanswered question of Chevron deference for appropriations demonstrates the importance of the distinction between annual appropriations and permanent appropriations. Uncritical application of governing deference tests that emphasize …

The Remaking Of The Supreme Court: Implications For Climate Change Litigation & Regulation, Mark P. Nevitt

Faculty Articles

With the nomination of Judge Amy Coney Barrett, the Supreme Court is a Senate vote away from a historic shakeup that will cement a conservative judicial majority for decades. While politicians, scholars, and the media have largely focused on what a Barrett nomination means for the Affordable Care Act and Roe v. Wade, the confirmation of Barrett would significantly impact a wide swath of environmental and climate change cases for years to come. As the Supreme Court is on the brink of a generational transformation, it is increasingly clear that we have a generation—and no longer—to reduce our Greenhouse …

Recognizing The Role Of Inspectors General In The U.S. Government's Cybersecurity Restructuring Task, Amy Gaudion

Faculty Scholarly Works

Months prior to the 2015 public disclosure of a data breach at the U.S. government’s Office of Personnel and Management (OPM), the Office of the Inspector General for OPM issued a report that identified significant deficiencies and material weaknesses in a number of the agency’s information systems and IT security programs. In response to the 2020 SolarWinds supply chain hack, attributed to Russia, calls are underway for inspectors general to conduct audits and inspections and to review prior inspector general assessments of information systems and vulnerabilities at federal agencies. The use of inspectors general to assess information system vulnerabilities and …

The Lost History Of Delegation At The Founding, Christine Chabot

Faculty Publications & Other Works

The new Supreme Court is poised to bring the administrative state to a grinding halt. Five Justices have endorsed Justice Gorsuch's dissent in Gundy v. United States--an opinion that threatens to invalidate countless regulatory statutes in which Congress has delegated significant policymaking authority to the Executive Branch. Justice Gorsuch claimed that the “text and history” of the Constitution required the Court to replace a longstanding constitutional doctrine that permits broad delegations with a more restrictive one. But the supposedly originalist arguments advanced by Justice Gorsuch and like-minded scholars run counter to the understandings of delegation that prevailed in the Founding …

Finding Parity Through Preclusion: Novel Mental Health Parity Solutions At The State Level, Ryan D. Kingshill

Dickinson Law Review (2017-Present)

Recently, the federal government has taken numerous steps to promote the equal treatment (also known as parity) of mental and physical health issues. The two most impactful actions are the Mental Health Parity and Addiction Act of 2008 and the Affordable Care Act. These acts focus on the traditional avenue for parity change—insurance regulation. While these acts have improved parity, major gaps in coverage and treatment between mental health/substance use disorder treatment and medical/surgical treatment persist. ERISA Preemption, evasive insurer behavior, lack of enforcement, and lack of consumer education continue to plague patients and healthcare professionals. On its own, federal …

The Carbon Price Equivalent: A Metric For Comparing Climate Change Mitigation Efforts Across Jurisdictions, Gabriel Weil

Dickinson Law Review (2017-Present)

Climate change presents a global commons problem: Emissions reductions on the scale needed to meet global targets do not pass a domestic cost-benefit test in most countries. To give national governments ample incentive to pursue deep decarbonization, mutual interstate coercion will be necessary. Many proposed tools of coercive climate diplomacy would require a onedimensional metric for comparing the stringency of climate change mitigation policy packages across jurisdictions. This article proposes and defends such a metric: the carbon price equivalent. There is substantial variation in the set of climate change mitigation policy instruments implemented by different countries. Nonetheless, the consequences of …

The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum

Dickinson Law Review (2017-Present)

This article enters into the modern debate between “consti- tutional departmentalists”—who contend that the executive and legislative branches share constitutional interpretive authority with the courts—and what are sometimes called “judicial supremacists.” After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas—popular sovereignty and the separation of powers—which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, …

The Fda’S Power Over Non-Therapeutic Uses Of Drugs And Devices, Patricia J. Zettler

Washington and Lee Law Review

Although we often—and rightly—think of the U.S. Food and Drug Administration (FDA) as regulating important therapies for patients, the agency also can regulate non-therapeutic uses of drugs and devices. The Federal Food, Drug, and Cosmetic Act defines drugs and devices as including not only products intended to address disease but also those intended to affect the structure or function of the body, such as cognitive enhancements, wrinkle removers, and recreational drugs. Indeed, if these broad definitions were read literally, many everyday consumer products—such as winter jackets intended to keep wearers’ warm—may be drugs or devices. Accordingly, Congress, courts, and the …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Banki V. Fine, 224 A.3d 88 (R.I. 2020), Richard Tavares

Roger Williams University Law Review

No abstract provided.

Comments On Rights To Federally Funded Inventions And Licensing Of Government Owned Inventions, National Institute Of Standards And Technology (Nist), United States Department Of Commerce, Notice Of Proposed Rulemaking. 86 Fr 35. Agency/Docket Number: 201207-0327, Joshua D. Sarnoff, Liza Vertinsky, Yaniv Heled, Ana Santos Rutschman, Cynthia M. Ho

All Faculty Scholarship

This letter is written in response to the notice of proposed rulemaking published in the Federal Register on January 4, 2021, seeking public comments on the revised regulations proposed by NIST to the University and Small Business Patent Procedure Act of 1980 (the “Bayh-Dole Act”). We submit this letter as academics who engage in research on patent law and biomedical innovation. The arguments also reflect practical knowledge that one of us has acquired from a decade of working with U.S. universities and biotech companies in the process of technology transfer as a lawyer practicing in two highly regarded Boston law …

Presidential Primacy Amidst Democratic Decline, Ashraf Ahmed, Karen M. Tani

Faculty Scholarship

Fifty years ago, when the Harvard Law Review asked Professor Harry Kalven, Jr., to take stock of the Supreme Court’s 1970 Term, Kalven faced a task not unlike Professor Cristina Rodríguez’s. That Term’s Court had two new members, Justices Harry Blackmun and Warren Burger. The Nixon Administration was young, but clearly bent on making its own stamp on American law, including via the Supreme Court. Kalven thus expected to see “dislocations” when he reviewed the Court’s recent handiwork. He reported the opposite. Surveying a Term that included such cases as Palmer v. Thompson, Younger v. Harris, Boddie v. …

The Equity E.O.: Building A Regulatory Infrastructure Of Inclusion, Olatunde C.A. Johnson

Faculty Scholarship

Among his first acts, President Biden signed Executive Order 13,985 to advance “Racial Equity and Support for Underserved Communities Through the Federal Government.” Alongside an order directing regulatory review to include “social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations” and an ambitious infrastructure plan, this Equity E.O. signals a new engagement of the administrative state in proactively promoting racial equity and other dimensions of inclusion. The outlines of the infrastructure initiative are still emerging, but what appears key is its conceptualization of infrastructure as extending beyond roads and buildings to the social and …

Taking Appropriations Seriously, Gillian E. Metzger

Faculty Scholarship

Appropriations lie at the core of the administrative state and are be­com­ing increasingly important as deep partisan divides have stymied sub­stan­tive legislation. Both Congress and the President exploit appropria­tions to control government and advance their policy agendas, with the border wall battle being just one of several recent high-profile examples. Yet in public law doctrine, appropriations are ignored, pulled out for spe­cial legal treatment, or subjected to legal frameworks ill-suited for appro­priations realities. This Article documents how appropriations are mar­ginalized in a variety of public law contexts and assesses the reasons for this unjustified treatment. Appro­priations’ doctrinal marginalization does not …

A Political Canary: An Empirical Study Of The Correlation Between Hatch Act Complaints And How The Electoral College Votes, Raimund Stieger

Upper Level Writing Requirement Research Papers

The American public witnesses hundreds, if not thousands, of violations of the Hatch Act—an administrative law designed to keep partisan politics out of Government—each year. This study aimed to determine whether there is a correlation between the number of Hatch Act complaints reported in the fiscal year leading up to a Presidential election and how divisive the political landscape is during that Presidential election. Political divisiveness was defined as how close the winning Presidential candidate was to receive fifty percent of the electoral college. To assess the theory that an increase in Hatch Act complaints is an early indicator of …

Agency Genesis And The Energy Transition, Sharon B. Jacobs

Publications

Commentators and policymakers frequently propose new government agencies in response to novel or intractable problems. New agencies can refocus public attention on the problems they regulate. They can attract new talent and bypass calcified or captured channels. But they are also costly, and there is no guarantee that they will be more successful than their predecessors.

This Article examines agency genesis at the state level. In the process, it expands recent thinking about the administrative separation of powers to the states. At the federal level, setting up agency rivalries within the executive branch can be an effective tool for mitigating …

Principals And Principles In Immigration Law, Jessica Bulman-Pozen

Faculty Scholarship

Adam Cox and Cristina Rodríguez have written a brilliant book — one of big arguments, grand scale, and historical sweep, yet also institutional detail, political acuity, and legal nuance; a book that has as much to teach us about Biden’s nascent administration as about the tenure of his immediate and more distant predecessors. As I add my voice to the chorus of praise, I want to suggest two extensions of the project.

The Poverty Law Education Of Charles Reich, Felicia Kornbluh, Karen M. Tani

Touro Law Review

No abstract provided.

Incorporation By Reference In New York State, Bennett Liebman

Touro Law Review

Incorporation by reference is a traditional procedural mechanism that allows for actors at each level of government to include all or parts of a previously enacted law into the newer version of the law by simply including a statement stating that the second law should be treated as if it was part of the primary law. While incorporation by reference could facilitate and streamline legislation, New York has seemingly banned incorporation by reference in Article III, § 16 of the State Constitution. However, even though this ban is in place, there are several limitations and exceptions placed on the ban …

For All Who Have Borne The Battle: A Wish List For The Incoming Secretary Of The United States Department Of Veterans Affairs, Benjamin Pomerance

Touro Law Review

No abstract provided.

Providing Relief After A Natural Disaster Through Credit Reports, Katherine Wecker

Seattle University Law Review

The COVID-19 pandemic forced the world to re-think systems that have been in place for decades, quickly adapting—at least temporarily— to the new normal. Among those systems was the credit reporting system. In response to the pandemic, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act; an act that, among other things, amends the Fair Credit Reporting Act in regard to how credit reporting agencies should respond to delinquencies resulting from the pandemic.

This Note argues that to adapt to the increasing occurrence of natural disasters, the U.S. government must implement a system in which a consumer can …