Administrative Law Commons^™

The Rediscovered Stages Of Agency Adjudication, Emily S. Bremer

Journal Articles

Modern administrative law understands the Administrative Procedure Act (APA) to establish an informal and a formal procedural mode of two types of agency action: rulemaking and adjudication. This Article argues that this understanding, which is sound as applied to rulemaking, is wrong as applied to adjudication.

Revisiting the voluminous and long-neglected research that informed the APA, this Article argues the statute codified informal and formal stages—not modes—of adjudication. In this staged process, informal procedures such as investigations, examinations, inspections, and conferences are used in the initial stages of the process and are sufficient to finally dispose of the vast majority …

Retheorizing Precedent, Randy J. Kozel

Journal Articles

Does the doctrine of stare decisis support judicial attempts to retheorize dubious precedents by putting them on firmer footing? If it does, can retheorization provide a means for Chevron to endure as a staple of administrative law notwithstanding serious challenges to its established rationale?

Structural Deregulation, Jody Freeman, Sharon Jacobs

Publications

Modern critics of the administrative state portray agencies as omnipotent behemoths, invested with vast delegated powers and largely unaccountable to the political branches of government. This picture, we argue, understates agency vulnerability to an increasingly powerful presidency. One source of presidential control over agencies in particular has been overlooked: the systematic undermining of an agency’s ability to execute its statutory mandate. This strategy, which we call “structural deregulation,” is a dangerous and underappreciated aspect of what then-Professor, now-Justice Elena Kagan termed “presidential administration.”

Structural deregulation attacks the core capacities of the bureaucracy. The phenomenon encompasses such practices as leaving agencies …

Algorithmic Impact Assessments Under The Gdpr: Producing Multi-Layered Explanations, Margot E. Kaminski, Gianclaudio Malgieri

Publications

Policy-makers, scholars, and commentators are increasingly concerned with the risks of using profiling algorithms and automated decision-making. The EU’s General Data Protection Regulation (GDPR) has tried to address these concerns through an array of regulatory tools. As one of us has argued, the GDPR combines individual rights with systemic governance, towards algorithmic accountability. The individual tools are largely geared towards individual “legibility”: making the decision-making system understandable to an individual invoking her rights. The systemic governance tools, instead, focus on bringing expertise and oversight into the system as a whole, and rely on the tactics of “collaborative governance,” that is, …

Sanctuary Cities And The Power Of The Purse: An Executive Dole Test, Douglas M. Spencer

Publications

A constitutional clash is brewing. Cities and counties are flexing their muscles to frustrate national immigration policy while the federal Executive is threatening to interfere with local law enforcement decision making and funding. Although the federal government generally has plenary authority over immigration law, the Constitution forbids the commandeering of state and local officials to enforce federal law against their will. One exception to this anti-commandeering principle is the Spending Clause of Article I that permits Congress to condition the receipt of federal funds on compliance with federal law. These conditions, according to more than 30 years of Supreme Court …

Disaggregating Chevron, Lawrence B. Solum

Faculty Scholarship

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. is widely regarded as the most important administrative law decision in the history of the United States. The scholarly literature is vast and defies summary or cataloging. Moreover, Chevron is contested and criticized, defended and derided, lauded and lamented—the source of “angst and rancor” in the words of Professor Kristin E. Hickman and R. David Hahn in their article, Categorizing Chevron. One might think that when it comes to Chevron, there is “no new thing under the sun,” but in fact, Chevron is still full of surprises. When we turn …

The Federal Reserve And The 2020 Economic And Financial Crisis, Lev Menand

Faculty Scholarship

This Article provides a comprehensive legal analysis of the Federal Reserve's response to the 2020 economic and financial crisis. First, it examines the sixteen ad hoc lending facilities that the Fed established to fight the crisis and sorts them into two categories. Six advance the Fed's monetary mission and were designed to halt a run on financial institutions. Ten go beyond the Fed's traditional role and are designed to directly support financial markets and the real economy. Second, it maps these programs onto the statutory framework for money and banking. It shows that Congress's signature crisis legislation, the CARES Act, …

Re-Reading Chevron, Thomas W. Merrill

Faculty Scholarship

Though increasingly disfavored by the Supreme Court, Chevron remains central to administrative law doctrine. This Article suggests a way for the Court to reformulate the Chevron doctrine without overruling the Chevron decision. Through careful attention to the language of Chevron itself, the Court can honor the decision’s underlying value of harnessing comparative institutional advantage in judicial review, while setting aside a highly selective reading that unduly narrows judicial review. This re-reading would put the Chevron doctrine – and with it, an entire branch of administrative law – on firmer footing.

Presidential Progress On Climate Change: Will The Courts Interfere With What Needs To Be Done To Save Our Planet?, Michael B. Gerrard

Faculty Scholarship

The Biden Administration is undertaking numerous actions to reduce greenhouse gas emissions and transition away from fossil fuels as part of the fight against climate change. Many of these actions are likely to be challenged in court. This paper describes the various legal theories that are likely to be used in these challenges, assesses their prospects of success given the current composition of the Supreme Court, and suggests ways to minimize the risks.

Judges And The Deregulation Of The Lawyer's Monopoly, Jessica K. Steinberg, Anna E. Carpenter, Colleen F. Shanahan, Alyx Mark

Faculty Scholarship

In a revolutionary moment for the legal profession, the deregulation of legal services is taking hold in many parts of the country. Utah and Arizona, for instance, are experimenting with new regulations that permit nonlawyer advocates to play an active role in assisting citizens who may not otherwise have access to legal services. In addition, amendments to the Rules of Professional Conduct in both states, as well as those being contemplated in California, now allow nonlawyers to have a partnership stake in law firms, which may dramatically change the way capital for the delivery of legal services is raised as …

Power Transitions In A Troubled Democracy, Peter L. Strauss, Gillian E. Metzger

Faculty Scholarship

Written as our contribution to a festschrift for the noted Italian administrative law scholar Marco D’Alberti, this essay addresses transition between Presidents Trump and Biden, in the context of political power transitions in the United States more generally. Although the Trump-Biden transition was marked by extraordinary behaviors and events, we thought even the transition’s mundane elements might prove interesting to those for whom transitions occur in a parliamentary context. There, succession can happen quickly once an election’s results are known, and happens with the new political government immediately formed and in office. The layer of a new administration’s political leadership …

How The Administrative State Got To This Challenging Place, Peter L. Strauss

Faculty Scholarship

Written for a dispersed agrarian population using hand tools in a local economy, our Constitution now controls an American government orders of magnitude larger that has had to respond to profound changes in transportation, communication, technology, economy, and scientific understanding. How did our government get to this place? The agencies Congress has created to meet these changes now face profound new challenges: transition from the paper to the digital age; the increasing centralization in an opaque, political presidency of decisions that Congress has assigned to diverse, relatively expert and transparent bodies; the thickening, as well, of the political layer within …

Arguing About The Jus Ad Bellum, Monica Hakimi

Faculty Scholarship

Quite a bit of research suggests that international law’s argumentative practice has value insofar as it leads to or affirms some kind of normative settlement. This chapter uses the argumentative practice in the jus ad bellum to counter that view. The chapter’s central claim is that arguments about the jus ad bellum are valuable, even when they do not lead to normative settlement and the law’s content on the issue in dispute remains contested. The reason they are valuable is that they promote certain values that are associated with the rule of law.

The Key To Solving Agency Lock-In: Prepublication Regulatory Discussions (Pre Reg), Gwendolyn Savitz

Articles, Chapters in Books and Other Contributions to Scholarly Works

Most legally binding administrative rules emerge from the notice-and-comment process, which explicitly requires the agency to consider input from the general public. However, by the time the opportunity for public input occurs, the agency is already substantially locked into its chosen approach and cannot act on new information in the comments. This is true even though its chosen approach was decided upon with input from only those the agency routinely deals with. This process entrenches already established interests and prevents those without existing agency connections from meaningfully contributing earlier in the process.

This problem could be solved by holding public …