Administrative Law Commons^™

Fears, Faith, And Facts In Environmental Law, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

Environmental law has long been shaped by both the particular nature of environmental harms and by the actors and institutions that cause such harms or can address them. This nation’s environmental statutes remain far from perfect, and a comprehensive law tailored to the challenges of climate change is still elusive. Nonetheless, America’s environmental laws provide lofty, express protective purposes and findings about reasons for their enactment. They also clearly state health and environmental goals, provide tailored criteria for action, and utilize procedures and diverse regulatory tools that reflect nuanced choices.

But the news is far from good. Despite the ambitious …

Power Corrupts, Emily S. Bremer

Journal Articles

Administrative agencies bear principal responsibility for keeping the federal government’s promises by giving effect in the real world to the laws Congress enacts. If administrative law’s goal was to help agencies fulfill this responsibility, its lodestar would be a thick concept of administration. But as a field, administrative law today neglects administration, focusing instead on power and the institutions that wield it, particularly the Supreme Court, the President, and Congress. This Essay traces the field’s reorientation from administration to power, beginning with the deportation cases that revealed thinner-than-acknowledged political will behind the Administrative Procedure Act (APA), through the misunderstood shift …

Avoiding A "Nine-Headed Hydra": Intervention As A Matter Of Right By Legislators In Federal Lawsuits After Berger, Taylor Lawing

Vanderbilt Law Review

Heightened political polarization across the United States has resulted in the increased use of Rule 24(a) intervention as a matter of right by elected legislators in federal litigation concerning state law. Because states differ in their approaches to intervention, with only some states expressly granting intervention in state matters, lower federal courts have been tasked with evaluating motions to intervene by reconciling Rule 24(a)'s requirements with state statutes, which poses challenging questions concerning Rule 24. This Note aims to provide lower courts with a reimagined standard for evaluating motions to intervene from state legislators that considers the administrative, political, and …

Navigating The Frontiers Of Medtech, Benjamin Sundholm

Faculty Publications

The medical community is increasingly focused on the rise of adaptive and opaque artificial intelligence tools. These systems improve over time but produce results through complex calculations that are difficult for humans to fully understand. Although promising, these features challenge existing legal doctrines. To date, efforts to overcome these challenges have been too fragmented and limited in scope. As a result, the full promise of adaptive and opaque artificial intelligence systems remains untapped.

This Article proposes a framework for unleashing the potential of these systems through a blend of forward- and backward-looking reforms. The ex ante feature of my framework …

An Empirical Evaluation Of The Trademark Modernization Act, Jeremy N. Sheff

Faculty Publications

The Trademark Modernization Act of 2020 (TMA) created two new forms of administrative proceedings designed to clear spurious trademarks from the federal register. Congress’s hope for these new proceedings was that they would “respond to concerns that registrations persist on the trademark register despite a registrant not having made proper use of the mark covered by the registration” by “allow[ing] for more efficient, and less costly and time consuming” means of removing them. This Article subjects that policy to empirical examination, disclosing and analyzing a newly constructed dataset covering the dockets of all TMA proceedings (and petitions for proceedings) to …

Administering A Democratic Industrial Policy, Joel Michaels, Amy Kapczynski

Center for Law and the Economy

In Washington today, we are witnessing what many call the “return of industrial policy.” Some argue that a new political economic paradigm is emerging, departing from the neoliberal order of the last several decades. High-stakes questions about how to administer industrial policy have followed, for good reason: industrial policy necessarily involves a great deal of administrative discretion. Yet we have no adequate literature discussing how that discretion should be deployed. Administrative law scholarship has largely ignored the distinctive tools of industrial policy, such as grantmaking, lending, government contracts and ownership stakes. These tools require flexibility and discretion, and often cannot …

The Consumer’S Choice To Boycott, Agnes Bresee

Seattle University Law Review

In the wake of employees losing their jobs upon voicing their political opinions concerning Israel, Harvard and Columbia law students’ job offers being rescinded upon expressing support for Palestine, and the names and social media profiles of individuals who support Palestine being collected and listed on Canary Mission, such backlash may leave many Americans wondering what form of resistance to settler-colonialist apartheid is acceptable in the twenty-first century. Recently, the movement to collectively boycott brands like Starbucks, which sued its Worker’s Union for a tweet expressing support for Palestine; Disney, which donated money to Israel; and McDonald’s, where a location …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

A Different Approach To Agency Theory And Implications For Esg, Jonathan Bonham, Amoray Riggs-Cragun

Seattle University Law Review

In conventional agency theory, the agent is modeled as exerting unobservable “effort” that influences the distribution over outcomes the principal cares about. Recent papers instead allow the agent to choose the entire distribution, an assumption that better describes the extensive and flexible control that CEOs have over firm outcomes. Under this assumption, the optimal contract rewards the agent directly for outcomes the principal cares about, rather than for what those outcomes reveal about the agent’s effort. This article briefly summarizes this new agency model and discusses its implications for contracting on ESG activities.

Overseeing The Administrative State, Jill E. Fisch

Seattle University Law Review

In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A History of Securities Law in the Supreme Court, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance …

The Sec, The Supreme Court, And The Administrative State, Paul G. Mahoney

Seattle University Law Review

Pritchard and Thompson have given those of us who study the SEC and the securities laws much food for thought. Their methodological focus is on the internal dynamics of the Court’s deliberations, on which they have done detailed and valuable work. The Court did not, however, operate in a vacuum. Intellectual trends in economics and law over the past century can also help us understand the SEC’s fortunes in the federal courts and make predictions about its future.

The Sffa V. Harvard Trojan Horse Admissions Lawsuit, Kimberly West-Faulcon

Seattle University Law Review

Affirmative-action-hostile admissions lawsuits are modern Trojan horses. The SFFA v. Harvard/UNC case—Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, et. al., decided jointly—is the most effective Trojan horse admissions lawsuit to date. Constructed to have the distractingly appealing exterior façade of a lawsuit seeking greater fairness in college admissions, the SFFA v. Harvard/UNC case is best understood as a deception-driven battle tactic used by forces waging a multi-decade war against the major legislative victories of America’s Civil Rights Movement, specifically Title VI and Title VII …

Feeding The Good Fire: Paths To Facilitate Native-Led Fire Management On Federal Lands, Kevin Burdet

Seattle University Law Review

In 2003, nearly twenty Native American reservations were devastated by wildfires that originated on adjacent federal lands. The San Pasqual Reservation’s entire 1,400 acres were burned along with over a third of its homes, and seventy-five percent of the Rincon Reservation was burned, taking twenty homes with it. These devastating fires, along with others in 2002, brought about the Tribal Forest Protection Act of 2004 (TFPA), which offered hope for Tribes to propose projects on bordering or adjacent federal lands and protect reservation lands in the process. Unfortunately, twenty years later, the TFPA has had a marginal effect in enabling …

A Hard Pill To Swallow: The Abysmal Mental Health Standards Of Detained Immigrant Children In The United States, Rama Bankesly

Seattle University Law Review

After setting foot into the U.S., unaccompanied children must learn to navigate academic and legal systems while receiving little support and carrying the heavy burden of effects of trauma on their mental health. They need access to mental health care from qualified professionals, but as this Comment will explain, they systematically fail to receive care, as can be seen in cases like Doe v. Shenandoah Valley Juv. Ctr. Comm’n. In Shenandoah, an unaccompanied child arrived in the U.S. and was placed in a facility that failed to provide remotely adequate mental health care and in fact was subjected …

Securities Law—The Issue With Designating Crypto Assets On The Secondary Market As Securities And Regulating Crypto Assets Appropriately, Bregje De Vet

University of Arkansas at Little Rock Law Review

No abstract provided.

Legitimacy And The Major Questions Doctrine, Ronald M. Levin

Scholarship@WashULaw

Questions about the legitimacy of recent Supreme Court decisions are occupying an increasingly prominent place in public law discourse. Last February, a widely discussed feature in the New York Times quoted several well-known law professors' laments that multiple decision by the newly empowered conservative majority of the Court have departed so far from accepted constitutional premises that the professor could not figure out how to teach them to their students

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With due respect to the Chief Justice, I will explain here why the MQD is itself among the few legal developments that I would describe as giving rise to …

Public Services In Railway Freight Transport, Stefan A. Jarecki

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

So far, practitioners and academics generally believed that in land transport, the concept of public services could only refer to passenger traffic. Recently, this approach has changed. The European Commission has stated that public services can also be provided in railway freight transport. Railway freight transport services can only be qualified as public services when the given Member State establishes that there is a genuine need for such services, a need that is not, or is not sufficiently met by the market. Currently, to provide financing of some railway freight services, Member States have to fulfil the Altmark conditions, or …

Psychedelics, Psychosocial Support, And Psychotherapy: Why It Matters For The Law, Ethics, And Business Of Medical Psychedelic Use, I. Glenn Cohen

Fordham Law Review

No abstract provided.

The Major Questions Doctrine At The Boundaries Of Interpretive Law, Daniel E. Walters

Faculty Scholarship

The Supreme Court’s apparent transformation of the major questions doctrine into a clear statement rule demanding clear congressional authorization for “major” agency actions has already had, and will continue to have, wide-ranging impacts on American public law. Not the least of these is the impact it will have on the enterprise of statutory interpretation. Indeed, while it is easy to focus on the policy repercussions of a newly constrained Congress and newly hamstrung administrative state, this Article argues that equally important is the novel precedent that is set in this particular formulation of a clear statement rule, which stands almost …

Balancing Chevron, Skidmore, And Major Questions: A Novel Framework For Judicial Deference To Agency Legal Interpretations, Charles A. Bower

Brooklyn Law Review

The Supreme Court’s decision in West Virginia v. EPA is a watershed moment for administrative law. For the first time, the Court explicitly invoked the Major Questions Doctrine by name in a majority opinion. The usage of the Major Questions Doctrine is important on its own, but equally important is the fact that the longstanding Chevron doctrine played no part in the majority’s analysis. The absence of Chevron doctrine in West Virginia in favor of the Major Questions Doctrine continues a trend where the Court has been relying on Chevron less often. The threats the Chevron faces do not appear …

Full Moon Or Full Fraud? A Proposed Method For Interpreting Emojis Under Rule 10b-5, Sophie Abrams

Brooklyn Law Review

In the wake of the COVID-19 pandemic, many Americans who were stuck at home turned to social media forums in search of community and investing advice. Fifteen million (and counting) of them found community in r/wallstreetbets, a group on Reddit that banded together to drive up the prices of “meme stocks.” Bed Bath and Beyond was one stock that piqued retail investors’ interest after seeing billionaire investor Ryan Cohen take a 10 percent stake and activist role in the company. However, Cohen ended up being a large disappointment to his retail investor fans, as he subsequently sold off his stake …

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

Measuring Compliance With The California Consumer Privacy Act Over Space And Time, Jens Frankenreiter, Van Tran, Aarushi Mehrotra, Marshini Chetty, Nick Feamster, Lior Strahilevitz

Scholarship@WashULaw

The widespread sharing of consumers personal information with third parties raises significant privacy concerns. The California Consumer Privacy Act (CCPA) mandates that online businesses offer consumers the option to opt out of the sale and sharing of personal information. Our study automatically tracks the presence of the opt-out link longitudinally across multiple states after the California Privacy Rights Act (CPRA) went into effect. We categorize websites based on whether they are subject to CCPA and investigate cases of potential non-compliance. We find a number of websites that implement the opt-out link early and across all examined states but also find …

Provisioning Digital Tools And Systems For Government Use, Brenda Dvoskin, Julie E. Cohen, Paul Ohm, Meg Leta Jones, Smitha Krishna Prasad, Nina-Simone Edwards

Scholarship@WashULaw

This document is part of a larger project aimed at reinventing the administrative state for effective governance of the digital, information-driven economy. It explores how the administrative state can more effectively equip itself with digital tools and systems that align with and improve government’s ability to serve public values. Established approaches to digital provisioning fail in many important respects. Among others, they introduce thorny coordination problems while doing little to ensure design for broader public values; they cause obsolete and/or poorly conceived requirements to cascade through the development process for new tools and systems; they magnify the potential for technology-driven …

Regulatory Monitoring In The Information Economy, Brenda Dvoskin

Scholarship@WashULaw

The administrative state is inadequately structured to define and implement public values related to the design and operation of digital architectures, systems, and processes. The Reimagining the Governance Stack Project at Georgetown Law is a long-term, full-stack effort to reinvent the administrative state so that it is capable of governing the information economy in accordance with public priorities. This first concept paper focuses on regulatory monitoring capacities. Agencies need new tools to monitor compliance with existing public mandates and understand the information economy in order to develop new and more effective regulation.

The Major Questions Doctrine: Unfounded, Unbounded, And Confounded, Ronald M. Levin

Scholarship@WashULaw

As explicated by the Supreme Court in West Virginia v. EPA in 2022, and reaffirmed in Biden v. Nebraska in 2023, the “major questions doctrine” provides that an administrative agency’s rule in a “major” case must rest on “clear congressional authorization.” Many commentators have deplored the major questions doctrine on the basis of its policy consequences. This Article offers a critique of the doctrine from a different angle. It primarily contends that the reasons the Court has given for enforcing the doctrine do not withstand scrutiny, even on their own terms.

In West Virginia and Nebraska, the Court relied heavily …

Independence Through Judicialization: The Politics Surrounding Administrative Adjudicators 1929-1949, Lawrence J. Liu

Scholarship@WashULaw

One front in today’s battle to define the scope of the administrative state concerns the authority, status, and future of its 10,000-plus administrative adjudicators. Decisions by federal courts and the executive branch to increase the dependence of administrative adjudicators on the executive have sparked strong reactions from observers, with many advocating for measures to increase adjudicator “independence.” But who should administrative adjudicators be independent of, which ought to be independent, and why? Calls for administrative adjudicator independence are not new. This Article draws on primary documents produced by private actors, congressional decisionmakers, and federal executive agents to present a political …

A Regime Of Statutes: Building A Modern President In Gilded Age America (1873-1921), Andrea Scoseria Katz

Scholarship@WashULaw

At a time when the Supreme Court is turning its sights on the administrative state and enhancing the profile and powers of the president, it is worth recalling that behind our national complex of agencies lies a constitutional settlement that has structured government for approximately one hundred and thirty years. Its roots lie in the period from 1873-1921, and its defining values are interbranch cooperation, delegated problem-solving authority, and administrative expertise. This Article proposes to tell its story.

A century and a half ago, America was just healing from its Civil War wounds when a host of new problems descended: …

Provisioning Digital Tools And Systems For Government Use [“Govtech”], Nina-Simone Edwards

Library Scholarship

The project’s second concept paper recommends a series of changes to the current policy landscape for govtech provisioning. The suggestions include rethinking the traditional “make vs. buy” dichotomy in public procurement, mandating interoperability and transparency of govtech tools and systems, and reenvisioning accountability requirements to avoid the problem of “waterfall” development.

To support these policy changes, the paper first recommends improved support and coordination for five important govtech-related functions. Next, it proposes some corresponding changes to institutional structure and organization. Finally, it emphasizes the need to bolster technical capacity within government by developing a pipeline of specialized, govtech-related training programs, …

Movement For Quality Government V. Knesset, Esther Hayut, Yael Willner, Alex Stein, Gila Canfy-Steinitz, Yechiel Meir Kasher, Noam Sohlberg, David Mintz, Yosef Elron, Isaac Amit, Ruth Ronnen, Uzi Vogelman, Khaled Kabub, Anat Baron, Ofer Grosskopf, Daphne Barak-Erez

Translated Opinions

Movement for Quality Government v. Knesset concerned challenges to Amendment No. 3 to Basic Law: The Judiciary (the “reasonableness amendment”). In view of the controversy surrounding the amendment and the fundamental constitutional question it raised in regard to the Supreme Court’s jurisdiction to review Basic Laws, the Court took the unprecedented step of sitting en banc. A translation of the official abstract issued by the Court appears here.

On January 1, 2024, a majority of the Court (12 of 15 justices) held that the Court held the authority to conduct judicial review of Basic Laws and to intervene in …