Administrative Law Commons^™

How Artificial Intelligence Will Shape Securities Regulation, Gabriel Rauterberg

Faculty Scholarship

How will the increasing prevalence and sophistication of artificial intelligence (AI) change the doctrine and practice of securities law? My main thesis is that it will push securities regulation toward a more systems-oriented approach. This approach will replace securities law’s emphasis, in areas like manipulation, on forms of enforcement targeted at specific individuals and accompanied by punitive sanctions with a greater focus on ex ante rules designed to shape an ecology of actors and information.

Disappearing Data At The U.S. Federal Government, Janet W. Freilich, Nicholson Price Ii, Aaron S. Kesselheim

Other Publications

Health data hosted by the U.S. federal government have been disappearing. According to our analysis, between January 21 and February 11, 2025, the Centers for Disease Control and Prevention (CDC) removed 203 datasets (13% of its online datasets, a reduction from 1519 to 1316). The situation is dynamic; various datasets have been removed, restored, manipulated, or not posted as planned.

Amicus In Wilcox V. Trump On Presidential Removal And Unitary Executive Theorists’ Errors, Jed Handelsman Shugerman

Faculty Scholarship

As courts ask whether Free Enterprise and Seila Law call into question Humphrey’s Executor and independent officers or agencies, the more immediate questions should be focused on new historical evidence and new fact-checking finding pervasive and repeated historical errors and misinterpretations at the foundation of the unitary executive theory of removal.

Since the Supreme Court decided Seila Law, a wave of new historical research has shown that the Founding generation did not understand Article II to grant the President an indefeasible removal power over executive officials. In response, pro-unitary executive scholars have tried to offer new historical support. That …

Tribute To Sally Katzen, Rachel Rothschild

Articles

I have been excitedly waiting for the opportunity to speak to you all about Sally tonight. I don't think you could find anyone more deserving of this award than she is. You have heard this evening about her extraordinary professional accomplishments and the indelible mark she has made on administrative law over the course of her career. But in addition to her achievements in government service and private practice, Sally will leave a lasting and significant legacy through the students that she taught at NYU. I hope I can do justice to the enormous role she has played in my …

Statutory Liquidation, Daniel Deacon

Articles

When might practice by the political branches settle the meaning of legal text? That question has mostly been taken up in the constitutional setting, with one strand of scholarship taking inspiration from Madison's statement in Federalist No. 37, that "{a}ll new laws ... are considered as more or less obscure and equivocal until their meaning be liquidated and ascertained by a series ef particular discussions and aqjudications." The prospect that post-enactment practice might liquidate the meaning of statutory text has been comparatively underexamined. That's not surprising. Under modern textualism, post-enactment considerations would seem to have little place. And under Chevron …

The Perils Of Pseudo-Textualism, Reuven S. Avi-Yonah

Articles

How much freedom does the IRS have to interpret the code?

In recent years, the Supreme Court and lower courts have put significant barriers in front of the IRS’s ability to interpret the code as it wishes. The question is to what extent the IRS can live with the barriers of textualism, nondeference, the major questions doctrine, nondelegation, and the Administrative Procedure Act. Of these, textualism seems to be the most problematic because it is the hardest to fix. The major questions doctrine rarely applies to statutory tax cases. Nondeference based on Loper Bright can be restricted by Congress adding …

Environmental Law And Social Mistrust- How The Repeal Of The Chevron Doctrine May Hinder The Epa And More, Rebecca R. Collins

Honors Undergraduate Theses

I am specifically studying the effects of a recent Supreme Court decision will have on administrative law and specifically on the EPA. Simply put, the decision is likely going to foster distrust within the EPA and decisions that are made within environmental law, as the shift goes away from scientific experts, but to less educated legal professionals who interpret the laws. In the past, people thought of the initial Chevron decision as incredibly beneficial for scientific matters and for the environment. Chervon was removed recently with another Supreme Court decision that made this idea obsolete, removing professionals from the power …

A Constitutional View Of Administrative Agencies, Anthony J. Diego

Honors Undergraduate Theses

This research focuses on a nuanced area of American law and history: the constitutionality of administrative agencies. Determining their constitutionality requires a sound and fundamental understanding of administrative agencies’ history and purpose, as well as applicable constitutional principles. Reliance on core legal and historical documents founding the United States, as well as existing literature analyzing them, is essential to this determination. Administrative agencies have existed within the United States government since the Founding, though not without scrutiny and exception to government operations. Recently, Supreme Court precedent dramatically changed agency operative functions, making it now an opportune time to analyze the …

Tribal Recognition And Rhode Island: Towards A Recognition Process For The Ocean State, Declan Smith

Roger Williams University Law Review

No abstract provided.

Finding The Major Questions Doctrine, Chad Squitieri

Scholarly Articles

The major questions doctrine has been invoked primarily in the rulemaking context, where it requires agencies to identify particularly clear statutory authority before promulgating rules of “major” importance. Some scholars have suggested that the doctrine is a tool that should be limited to agency actions that are purportedly “legislative” in nature (e.g., rule makings)—meaning the doctrine would not apply in other contexts, such as agency adjudications and enforcement actions that may not be similarly “legislative.” This Essay responds by arguing that the major questions doctrine is best understood as a limit on executive authority—meaning the doctrine could apply across a …

Ius Constituendum Pengaturan Ambang Batas Parlemen Berdasarkan Putusan Mahkamah Konstitusi Nomor 116/Puu-Xxi/2023, Arsyianti Mega Nanda, Erland Ferdinansyah

Jurnal Hukum & Pembangunan

Pemilu merupakan wujud pelaksanaan kedaulatan rakyat di Indonesia yang menganut sistem presidensial dan multipartai. Namun, banyaknya partai memicu instabilitas koalisi dan melemahkan dukungan terhadap presiden. Untuk mengatasi hal ini diterapkan ambang batas parlemen (Parliamentary Threshold). Putusan MK No. 116/PUU-XXI/2023 menyatakan ambang batas 4% konstitusional untuk Pemilu 2024, namun inkonstitusional untuk Pemilu selanjutnya. Putusan ini menegaskan perlunya ambang batas baru yang tidak hanya menyederhanakan sistem kepartaian, tetapi juga menjamin keadilan suara dan proporsionalitas sesuai prinsip kedaulatan rakyat. Penelitian ini menggunakan metode yuridis normatif dengan pendekatan kualitatif-deskriptif. Pengumpulan data dilakukan melalui studi kepustakaan. Kerangka teori yang digunakan dalam penelitian ini meliputi teori …

Menguak Status Dan Legalitas Rupiah Digital Sebagai Legal Tender (Perspektif Teori Keadilan Bermartabat), Sylvia Setjoatmadja, Jeferson Kameo

Jurnal Hukum & Pembangunan

Digital technology and modern telecommunications have been and will continue to be key factors in the emergence of various innovative products. One such innovative product is digital currency, specifically Central Bank Digital Currency (CBDC). In Indonesia, advancements in digital technology and telecommunications have encouraged the government to issue a CBDC, which will be named Digital Rupiah. The initiative to issue Digital Rupiah also responds to global trends and the public's need for secure, efficient, and sustainable payment instruments.

However, the plan to issue Digital Rupiah is not without challenges, particularly regarding the clarity of its legal status as a lawful …

Living The Good Life In The Anthropocene, Danielle Stokes

Law Faculty Publications

The Stockholm Resilience Centre has concluded that the number of “planetary boundaries” we are crossing has increased from three in 2009, when the Centre’s researchers first introduced the concept, to six in 2023. Crossing these boundaries means humans are changing basic attributes of planetary systems to the point of risking the future of civilization. And the distinction between “safe” and “just” planetary boundaries raises questions regarding how to conceptualize the “good life.” In this latest in a biannual series of essays, members of the Environmental Law Collaborative explore conceptions of the “good” as well as the various elements necessary to …

Public Patent Powers, Laura E. Dolbow

Publications

Congress has created multiple structures for agencies to control how patents are used, but that institutional design choice has received little academic attention. This Article provides the first comprehensive survey of existing laws that expressly authorize agencies to control patents. I locate 113 express conditions across 68 laws that expressly authorize executive actors to make some form of decision about patents. These powers, which I refer to as “public patent powers,” allow the government to use patented inventions, to obtain patents, to authorize third parties to use patented inventions, and to regulate how patents are used. Agencies have used many …

Unwritten Administrative Law And The Regulatory Last Mile, Anthony B. Derron

Publications

Programs like the Clean Water Act, Clean Air Act, and Resource Conservation and Recovery Act are ostensibly federal. But once they change hands from national to subnational, they’re implemented through state statutes and regulations, not direct enforcement of the United States Code. As a result, state, not federal, administrative law governs in many bread-and-butter situations. Through a comprehensive fifty-state survey, I find that this body of law is largely unwritten.

Yet cooperative federalism relies on the capacity of state institutions to function. And equally critical is the existence of law that shepherds a program from congressional subcommittee to the very …

An Alternate History Of Chevron, With A Lesson For Today, Michael E. Herz

Articles

It is a banal truism that judicial deference to agency decisionmaking enables the executive branch to pursue its agenda, whatever that agenda may be. That was obvious to all in the early years of the Chevron decision, which was greeted enthusiastically on the right and skeptically on the left. In Chevron itself, and for a while thereafter, deference advanced the Reagan deregulatory program. Over the years, a subtler conclusion gained consensus: overall and in the long haul, judicial deference is likely to have a net pro-regulatory impact. Hence the right’s hardened opposition to Chevron leading up to its demise. But …

The Immigration Subpoena Power, Lindsay Nash

Articles

For over a century, the federal government has wielded the immigration subpoena power in darkness, forcing private individuals, subfederal governments, and others to help it detain and deport. This vast administrative power has remained opaque even to those who receive these subpoenas and invisible to those it affects most. Indeed, the very people targeted by these subpoenas often don’t know they exist, much less how they facilitate arrest and deportation. For these reasons—and more—this power has escaped the legal battles raging over other immigration enforcement tactics and the scrutiny of journalists, scholars, and courts. Thus, as state- and locality-held information …

Competitive Populism, Madhav Khosla

Faculty Scholarship

The preoccupation of comparative constitutional lawyers over the past decade or so has been the rise of authoritarian populism. This chapter focuses on one possible pathway that might follow our present political moment: competitive populism. This phase will involve a certain kind of institutional vacuum: the prior institutions, associated with liberal constitutional democracy, will not lend themselves to being rebooted. In reflecting on this possible future, this chapter explores the nature and form of deinstitutionalization that has occurred under authoritarian populism, and the elements that define the emerging constitutional framework. The implication here is that what will be crucial …

The Judicial Administrative Power, Jonathan Petkun, Joseph Schottenfeld

Faculty Scholarship

Article III of the Constitution confines the “judicial Power of the United States” to the adjudication of “cases” and “controversies.” In practice, however, federal judges exercise control over, and spend their scarce time on, a wide range of activities that traverse far beyond any individual adjudication. Typically classified as a form of “judicial administration,” these activities span everything from promulgating the rules of the various federal courts to overseeing federal pretrial detention services or choosing federal public defenders.

This Article describes how judges became involved in these nonadjudicatory Article III activities, clarifies the activities’ relationship to Article III adjudication, and …

The Major Questions Doctrine, Post-Chevron?: Skidmore, Loper-Bright, And A Good-Faith Emergency Question Doctrine, Jed Handelsman Shugerman

Faculty Scholarship

When my students and colleagues fretted about Chevron's fate, I have said, "Worry less. Skid-more." Just as old Skidmore "weight" or "respect" returns post-Chevron, the new (and newer) major questions doctrine(s) survive as a reason to give less weight to an agency interpretation. This symposium essay suggests a special role for the post-Chevron major questions doctrine: an Emergency Questions Doctrine. When the executive asserts an emergency power, when the statutory basis is open-ended (often for very good reasons), majorness means less deference to simple and fast textualism, and more time for courts to engage in deeper purposivism to …

Judicial Accountability, Anya Bernstein

Faculty Scholarship

Judicial decisions are moving ever more authority over regulatory statutes away from agencies and to courts instead. One justification offered for this power transfer: agencies lack the accountability of courts. This Article takes up that claim, assessing the institutions’ relative capacities for accountability in their authoritative interpretations of regulatory statutes—agency regulations and court rulings. I take accountability to involve actors undertaking reasoned decisionmaking grounded in publicly recognized values and facts and justifying their decisions to others who can evaluate, influence, or override those judgments. Accountability thus involves a give and take: it gives an account of government reasoning to a …