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Articles 31 - 60 of 437
Full-Text Articles in Administrative Law
Regulating Compliance Officers, Jennifer M. Pacella
Regulating Compliance Officers, Jennifer M. Pacella
Brooklyn Journal of Corporate, Financial & Commercial Law
Compliance officers are currently an unregulated body and, unlike the legal profession, are not subject to any particular set of professional guidelines that guide their behavior. The lack of a distinct compliance officer profession creates risks relating to heightened potential personal liability and the possibility of merging with another profession that is not exactly compatible with the compliance function. To mitigate these risks, this Article proposes the creation of a professional regulatory system for compliance officers that is industry-specific and self-regulated and discusses the various benefits that would stem from such a system.
Data Scraping For Generative Ai—To What Extent?, Jae Yeon Cecilia Kim
Data Scraping For Generative Ai—To What Extent?, Jae Yeon Cecilia Kim
Brooklyn Journal of Corporate, Financial & Commercial Law
Generative AI platforms are developed by scraping data from other platforms. This raises complex copyright infringement issues that are yet to be resolved. Courts have attempted to address these problems using the fair use doctrine, which evaluates four factors to determine whether a use infringes on copyright: (1) the purpose and character of the use, (2) the nature of the use, (3) the amount and substantiality of the copyrighted work’s use, and (4) the impact of the use on the market for the original work. Despite efforts to apply this long-established doctrine, challenges persist, including difficulties in identifying the copyright …
I Ain't Afraid Of No Ghost…Kitchen! A New Realm Of Consumer Protection After The Inform Consumers Act, Johanna Silva
I Ain't Afraid Of No Ghost…Kitchen! A New Realm Of Consumer Protection After The Inform Consumers Act, Johanna Silva
Brooklyn Journal of Corporate, Financial & Commercial Law
The effects of the COVID-19 pandemic were pervasive, sparing none from its impact. However, the restaurant industry bore an even greater change and a heavier burden than most. At the height of the pandemic, some 110,000 restaurants shut down. QR codes replaced paper menus, street parking transformed into outdoor dining sheds, and Friday night dinners at the “great spot on the corner” became takeout orders from the couch. Reopening was an unpredictable gamble for restaurant owners, fraught with tiered plans and inconsistent regulations on safe and unsafe dining practices. The desperate search for creative solutions to stay in business propelled …
Emerging Compliance In The Generative Decentralized Era, Nizan Geslevich Packin
Emerging Compliance In The Generative Decentralized Era, Nizan Geslevich Packin
Brooklyn Journal of Corporate, Financial & Commercial Law
Is it the end of compliance as we know it? Emerging technologies such as Artificial Intelligence (“AI”), including Generative AI (“GenAI”), and blockchain are reshaping regulatory compliance in the Web 3.0 era. As machine-generated data becomes the norm, traditional models reliant on human oversight are becoming obsolete, necessitating swift adaptation from regulators and industry stakeholders. Historically, compliance was designed to be managed by humans due to the need for critical thinking, ethical considerations, and nuanced decision-making. Yet, in today’s era, this approach is no longer viable. Addressing this need, Regulatory Technology (“RegTech”) has played a key role in modernizing compliance …
Violence In The Administrative State, Emily R. Chertoff
Violence In The Administrative State, Emily R. Chertoff
Georgetown Law Faculty Publications and Other Works
Drawing on an original, interview-based case study of Immigration and Customs Enforcement (ICE) and a synthesis of six decades of social science literature, this Article offers a theory of physical violence in the administrative state that challenges foundational assumptions about administrative law. Approximately one-fifth of federal employees work for administrative agencies that police, fight wars, enforce immigration law, or incarcerate people—in other words, agencies that use force to execute the laws. These agencies are saturated with administrative law that obligates front-line administrators to confer due process, give notice, behave non-arbitrarily, and comply with law. Yet this law often fails to …
Treating The Administrative As Law: Responding To The “Judicial Aggrandizement” Critique, Chad Squitieri
Treating The Administrative As Law: Responding To The “Judicial Aggrandizement” Critique, Chad Squitieri
Scholarly Articles
Modern separation-of-powers jurisprudence—including key decisions decided during the Supreme Court’s 2023-24 term—has been critiqued on the grounds that it constitutes “judicial aggrandizement,” i.e., that it impermissibly empowers federal courts to decide separation-of-powers questions better left to Congress and the President. This “judicial aggrandizement” critique goes too far to the extent it suggests that federal courts may not play any role in enforcing the separation of powers. After all, ours is a system of a President and Congress constrained by a written Constitution—not a King in Parliament free to act outside of judicial constraint. But the “judicial aggrandizement” critique is persuasive …
Brief Of Banking And Administrative Law Scholars As Amici Curiae In Support Of Appellants/Cross-Appellees, Jeffrey Lubbers
Brief Of Banking And Administrative Law Scholars As Amici Curiae In Support Of Appellants/Cross-Appellees, Jeffrey Lubbers
Amicus Briefs & Court Filings
Amici have a strong interest in how this Court’s decision will affect the fields of banking and administrative law and the enforcement of banking regulation. Amici seek to assist this Court in resolving questions of law that arise in the core of their professional expertise and scholarship, namely the scope of the Seventh Amendment as applied to the Federal Deposit Insurance Corporation’s authority to regulate and adjudicate unsafe or unsound practices in the operation of banks.
Brief Of Professors Of Administrative Law As Amici Curiae In Support Of Plaintiff-Appellant, Jeffrey Lubbers
Brief Of Professors Of Administrative Law As Amici Curiae In Support Of Plaintiff-Appellant, Jeffrey Lubbers
Amicus Briefs & Court Filings
Amici are professors of law who teach and write in the field of administrative law. They have an interest in how this Court’s decision will affect administrative law, especially the judicial review of agency action. While individual amici’s views on judicial review of agency action may differ, all agree that the panel opinion’s denial of judicial review of the Federal Election Commission’s dismissal of complaints brought under the Federal Election Campaign Act, 52 U.S.C. § 30101 et seq., is incorrect.
With Fear, Favor, And Flawed Analysis: Decision-Making In The U.S, Immigration Courts, Karen Musalo, Anna O. Law, Annie P. Daher, Katharine Donato, Chelsea Meinders
With Fear, Favor, And Flawed Analysis: Decision-Making In The U.S, Immigration Courts, Karen Musalo, Anna O. Law, Annie P. Daher, Katharine Donato, Chelsea Meinders
Publications and Research
Immigration judges (IJs), housed within the Executive Office for Immigration Review within the Department of Justice (DOJ), make decisions in asylum and withholding claims, which are life or death matters. And although their title is “judge,” IJs are DOJ attorneys who lack independence and are par- ticularly susceptible to political pressures. Federal court judges and scholars alike have criticized the quality and fairness of IJ decision-making, and many studies have been carried out to better understand the factors that impact it. The prior studies have relied principally on quantitative data because IJ decisions are not publicly available or searchable in …
Chevron's 51 Imperfect Solutions., Christopher J. Walker, Neena Menon
Chevron's 51 Imperfect Solutions., Christopher J. Walker, Neena Menon
Articles
In June 2024, the U.S. Supreme Court eliminated the judicial deference federal agencies previously received for their statutory interpretations, overturning the Court’s landmark 1984 decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. While Chevron was never binding on state courts, where the balance of powers and state constitutions may require different or no deference to agencies, numerous states have adopted Chevron deference, Skidmore weight, or similar deference regimes for judicial review of agency legal interpretations. Despite these developments, little scholarly attention has been paid to how and why states have developed administrative law’s deference doctrines, how the …
Chevron Deference Is Dead, Long Live Deference, Jack M. Beermann
Chevron Deference Is Dead, Long Live Deference, Jack M. Beermann
Faculty Scholarship
The demise of Chevron deference standing alone may turn out to be much less important for the future of administrative law and agency regulation than many believe. The Court explicitly approved of deference under the Skidmore factors, which instruct reviewing courts to “resort for guidance, even on legal questions” to “the interpretations and opinions of the relevant agency, made in pursuance of official duty and based upon specialized experience.”8 Further, the Court had already created numerous limitations to the reach of Chevron deference and, as the Court noted, it had not deferred under Chevron in nearly a decade. Chevron deference …
Brief Of Professors William Araiza, Jeffrey Lubbers, And Peter M. Shane As Amici Curiae In Support Of Defendantappellant Federal Trade Commission, Jeffrey Lubbers
Brief Of Professors William Araiza, Jeffrey Lubbers, And Peter M. Shane As Amici Curiae In Support Of Defendantappellant Federal Trade Commission, Jeffrey Lubbers
Amicus Briefs & Court Filings
Amici are law professors who teach and write in the fields of administrative law and statutory interpretation. Amicus William Araiza is the Stanley A. August Professor of Law at Brooklyn Law School. Amicus Jeffrey Lubbers is Professor of Practice in Administrative Law at American University, Washington College of Law. Amicus Peter M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law Emeritus at Ohio State University, Moritz College of Law. As leading administrative law scholars, amici have a strong interest in the sound development of administrative law in the federal courts, and are submitting this …
The Federal Judiciary's Double Standard: How The Fsia Deters Plaintiffs In Their Search For Justice, Chance Easterling
The Federal Judiciary's Double Standard: How The Fsia Deters Plaintiffs In Their Search For Justice, Chance Easterling
MC Law Review
No abstract provided.
Accommodating Incompetency In Immigration Court, Elizabeth Jordan
Accommodating Incompetency In Immigration Court, Elizabeth Jordan
Northwestern University Law Review
In criminal law, an individual must be deemed competent to stand trial, yet our immigration courts routinely order the deportation of incompetent noncitizens. A removal proceeding against a noncitizen—where an outcome of deportation often risks life-threatening harm—continues apace even if the noncitizen has been deemed incompetent by the immigration judge. In place of halting proceedings, the immigration judge imposes “safeguards” pursuant to a provision of the immigration code that neither defines nor explains the term. In practice, judges’ application of the term “safeguards” is often absurd. The implications of continuing a proceeding against a noncitizen with a disability affecting competency …
The Sec As An Entrepreneurial Enforcer, James J. Park
The Sec As An Entrepreneurial Enforcer, James J. Park
Northwestern University Law Review
The truth of disclosures by public companies is policed by both private plaintiffs and the Securities and Exchange Commission (SEC). The courts and many commentators have viewed the SEC as a more responsible enforcer than private litigants. Entrepreneurial enforcers with a profit motive have an incentive to advance questionable legal theories to expand the reach of Rule 10b-5, the primary federal prohibition of securities fraud. In contrast, the conventional view is that a public enforcer will bring straightforward cases against public companies. This Article argues that this perception is dated, and that the SEC has become more entrepreneurial in its …
Non–Article Iii Federal Tribunals: An Essay On The Relation Between Theory And Practice, Richard H. Fallon Jr.
Non–Article Iii Federal Tribunals: An Essay On The Relation Between Theory And Practice, Richard H. Fallon Jr.
Notre Dame Law Review
Since the 1980s, the Supreme Court’s decisions involving the permissible uses of non–Article III federal tribunals have repeatedly invoked two competing theories. A “historical-exceptions” or “formalist” model would insist that only Article III judges can exercise federal adjudicative power except in three categories of cases that history marks as exceptional. A rival approach, often labeled “functionalism,” would allow further deviations from the historical norm if they are supported by sound practical justifications and do not threaten the fundamental role of the Article III judiciary within the separation of powers. This Article explores the relationship between theory and practice in explaining …
Constitutional And Administrative Innovation Through State Labor Law, Kate Andrias
Constitutional And Administrative Innovation Through State Labor Law, Kate Andrias
Faculty Scholarship
This Essay explores recent efforts by worker organizations to transform labor policy in states, as well as countermobilizations by business and conservative groups. It focuses on two particularly promising efforts: the development of worker standards boards and pro-labor changes to state constitutional law. It shows why, as a matter of political economy, such reforms have been achievable at the state and local levels, but not the federal level, and explores the potential of state reforms to build greater economic and political power for working people, notwithstanding limits imposed by federal preemption doctrine. Ultimately, this Essay argues that these recent innovations …
The Demise Of Deference — And The Rise Of Delegation To Interpret?, Thomas W. Merrill
The Demise Of Deference — And The Rise Of Delegation To Interpret?, Thomas W. Merrill
Faculty Scholarship
In the concluding days of its recently completed Term, in the midst of headline-grabbing decisions about presidential immunity, gun rights, and abortion, the Supreme Court rendered a momentous decision overruling the Chevron doctrine. The decision in Loper Bright Enterprises v. Raimondo was not a surprise. After treating the Chevron doctrine as a settled principle of administrative law for more than three decades, the Court stopped applying it in 2016. Several Justices authored individual opinions urging that it was unconstitutional, violated the Administrative Procedure Act (APA), was prone to manipulation by judges, created systematic bias in favor of the government, and …
The Crypto Revolution: A Comparative Analysis Of Crypto Regulation In The United States And The European Union, Joseph Galasso
The Crypto Revolution: A Comparative Analysis Of Crypto Regulation In The United States And The European Union, Joseph Galasso
Touro Law Review
Cryptocurrency is something that many people have heard of, but few truly understand the totality of it. From its emergence to the present form, cryptocurrency has become an innovative technology which has changed the way in which we use money. As seen time and time again, where there comes new technology comes governmental authorities introducing new laws to regulate these emerging industries. The aim of these laws and regulations is to protect consumers, but it is imperative not to overregulate the industry. The goal of regulation is to allow consumers to enjoy the benefits of the industry; however, one cannot …
Protection In A Virtual Reality: The Dire Need For Trademark And Copyright Law Expansion To Encompass Digital Content Within The Metaverse, Amber N. Roibu
Protection In A Virtual Reality: The Dire Need For Trademark And Copyright Law Expansion To Encompass Digital Content Within The Metaverse, Amber N. Roibu
Touro Law Review
The Metaverse has gained much popularity in recent years, leaving some people with a feeling of uncertainty, but all the while intriguing many others. The multifaceted interactions and activities that take place within the Metaverse have made it a virtual world fertile for not only creative expression but also infringement of existing trademark and copyright protected works. Hand-in-hand with the development of the Metaverse has come the fast-growing interest in buying and selling virtual goods, properties, and non-fungible tokens. To preserve their reputation, avoid costly litigation, and ultimately uphold the exclusive rights allotted to them as intellectual property owners, trademark …
The Danger Of Silence: The Negative Effect Of Supreme Court Hesitance To Establish A Bright-Line Rule For Determining Patent Subject Matter Eligibility, Amber N. Roibu
Touro Law Review
Ambiguity surrounding the interpretation of 35 U.S.C. § 101 and the ultimate application of the Alice/Mayo standard for determining patent subject matter eligibility has long plagued the courts, practitioners, and USPTO examiners alike. Maintaining a standard that leads to sheer confusion and, as a result, inconsistent rulings severely muddles the ultimate goal of patent law, to promote innovation. The Supreme Court has been presented with ample opportunities to address these issues, with the Solicitor General consistently recommending that it hear cases that deal with patent-eligibility debates. Nonetheless, the Supreme Court's continued hesitancy to grant certiorari on these cases only further …
Why The United States Should Change Its Standards For Food Additives, Sara Smith
Why The United States Should Change Its Standards For Food Additives, Sara Smith
Touro Law Review
Processed food products sold in the United States are vastly different than those in Europe, often containing unnecessary and potentially dangerous additives. Recently, food consumer advocacy groups and reporters are bringing attention to these differences, thereby raising awareness of the poor processed food quality in the United States. The United States should take a new and improved method to food safety that mirrors the European Union’s approach. This Note will compare the differences between food additives in the United States and Europe, and further, will propose solutions to increase regulation on food additives in the United States.
Democracy On The Brink, Down But Not Defeated, Andrew F. Popper
Democracy On The Brink, Down But Not Defeated, Andrew F. Popper
Scholarly Articles in Law Reviews & Journals
This essay assesses the current state of governance and is premised on the notion that distrust, anger, and discontent in our legal system represent a threat to the whole of the regulatory state and voting, the preeminent engines of democracy. The decline in trust in government is attributable in meaningful part to the prevalence of lies and false narratives that, if believed, will undermine government at every level. While various recent actions of Congress and certain Supreme Court cases have the potential to further dilute confidence in governance, they are not the focal point of this essay. It is disinformation …
The Major Question: Who Wants A Functioning Government?, Christian Thompson
The Major Question: Who Wants A Functioning Government?, Christian Thompson
University of Cincinnati Law Review
No abstract provided.
Algorithmic Reason-Giving, Arbitrary And Capricious Review, And The Need For A Clear Normative Baseline, Cameron Averill
Algorithmic Reason-Giving, Arbitrary And Capricious Review, And The Need For A Clear Normative Baseline, Cameron Averill
University of Cincinnati Law Review
Federal agencies have caught the artificial intelligence (AI) bug. A December 2023 report by the Government Accountability Office found that twenty of twenty-three federal agencies surveyed reported using some form of AI, with about two hundred current use cases for algorithms and about one thousand more in the planning phase. These agencies are using algorithms in all aspects of administration, including rulemaking, adjudication, and enforcement. The risks of AI are well-documented. Previous work has shown that algorithms can be, among other things, biased and prone to error. However, perhaps no problem poses a more serious threat to the use of …
Tossing Sand In The Regulatory Gears: Hurdles To Policy Progress In The Supreme Court, Nina A. Mendelson
Tossing Sand In The Regulatory Gears: Hurdles To Policy Progress In The Supreme Court, Nina A. Mendelson
Articles
In the last few years, the Supreme Court has been a source of seismic change. In Dobbs v. Jackson Women’s Health Organization, the Court overruled Roe v. Wade, which had protected the right to abortion for nearly fifty years. In Loper Bright Enterprises v. Raimondo, the Court abandoned so-called Chevron deference to particular categories of administrative agency interpretations, a doctrine viewed as bedrock for over forty years. Humphrey’s Executor v. United States, the 1935 ruling validating independent multi-member commissions such as the Federal Trade Commission, Securities and Exchange Commission, and Federal Communications Commission, may soon join the others on the …
The Bauer Lecture With Judge Asim Rehman, Cardozo Law Review
The Bauer Lecture With Judge Asim Rehman, Cardozo Law Review
2024–2025 Flyers
No abstract provided.
Tax Delegation Post-Loper Bright, Reuven S. Avi-Yonah
Tax Delegation Post-Loper Bright, Reuven S. Avi-Yonah
Law & Economics Working Papers
In its recent decision in Loper Bright, the Supreme Court has fundamentally shifted the contours of judicial deference to administrative interpretations by repealing the Chevron doctrine. However, while the Court has curtailed deference, it simultaneously underscored the legitimacy of statutory delegation to agencies. The Internal Revenue Code (Code) is the most intricate legislative text within the U.S. legal framework, necessitating significant technical expertise for its application. It is, therefore, unsurprising that Congress often delegates authority to the IRS for the execution of the statute. In light of the Court's decision in Loper Bright, it becomes imperative to clarify the parameters …
Crypto & The Climate: Will Local & National Environmental Regulation Save Or Stifle The Cryptocurrency Boom?
Fordham Environmental Law Review
As cryptocurrencies continue to gain traction among mainstream investors and consumers, regulators and lobbyists are increasingly taking note of the potential environmental impacts of the industry. At its core, the process of mining new currency for virtual wallets is energy intensive, which can place strains on electrical grids and accelerate the impacts of climate change. However, these effects are felt very differently depending on what source of electricity the mining operation utilizes and the methodology behind the specific currency. These variable factors are on the minds of legislators and regulators as public pressure to better understand and regulate the industry …
A Shifting Focus: How Algal Turf Scrubbers (Ats) In Natural Waterways Can Prevent Toxic Blooms And Could Save The Algae Energy Industry
Fordham Environmental Law Review
Biofuels have generated global interest among oil companies and governments. In particular, algal biofuels are slated to be more promising than traditional biofuel feedstocks, like corn and sugarcane, which are simultaneously cultivated as food products. However, the drawbacks of harvesting algae on a large industrial scale has led to intense criticism. Most critics focus on issues of sustainability, scalability of production, and the legal and ethical concerns of genetically modified crops. New research in cyanobacteria, however, illustrates algae’s potential to produce clean electricity in addition to oil, ethanol, and gasoline. Moreover, using Algal Turf Scrubbers (“ATS”) in natural waterways offers …