Administrative Law Commons^™

Notes From The Border: Writing Across The Administrative Law/Financial Regulation Divide, Robert B. Ahdieh

Faculty Scholarship

A central feature – if not the central feature – of legal scholarship today is analysis across divides.

It is surprising, then, how little has been written across the divide that separates administrative law and financial regulation. That is perhaps especially so, given the modest nature of the relevant divide: one that is intra- rather than interdisciplinary, one that operates within rather than across geographic boundaries, and one that involves no temporal dimension but operates entirely within current-day law.

For all the proximity in their interests, targets of study, and even analytical tools, however, scholars of administrative law and of …

Collateral Damage: When Should The Determinations Of Administrative Adjudications Have Collateral Estoppel Effect In Subsequent Adjudications?, Matthew Faust

Fordham Law Review

Collateral estoppel is an equitable doctrine under which a court gives issue-preclusive effect to findings of fact or law made in previous proceedings. The U.S. Supreme Court has recently held that under certain circumstances, the determinations of administrative adjudications have collateral estoppel effect in federal court. The Court, however, did not address under which circumstances the determinations of administrative adjudications should have collateral estoppel effect in subsequent administrative adjudications. There has been little clear and consistent reasoning in lower federal courts about when collateral estoppel should apply in administrative adjudications, and administrative agencies vary widely in their application of collateral …

Dynamic Incorporation Of Federal Law, Jim Rossi

Vanderbilt Law School Faculty Publications

This Article provides a comprehensive analysis of state constitutional limits on legislative incorporation of dynamic federal law, as occurs when a state legislature incorporates future federal tax, environmental or health laws. Many state judicial decisions draw on the nondelegation doctrine to endorse an ex-ante prohibition on state legislative incorporation of dynamic federal law. However, the analysis in this Article shows how bedrock principles related to separation of powers under state constitutions, such as protecting transparency, reinforcing accountability, and protecting against arbitrariness in lawmaking, are not consistent with this approach. Instead, this Article highlights two practices that can make dynamic incorporation …

The Administrative Constitution In Exile, Mila Sohoni

William & Mary Law Review

For decades, the aspiration of administrative law has been to develop legal structures that would constrain and legitimate the exercise of agency power. The fruition of that hope was the complex internal blueprint that has made modern administrative governance both successful and legitimate the framework for executive action that many have hailed as the administrative constitution. Today, however, novel exercises of administrative power are crowding out old and familiar varieties, making the conventional forms of administrative action less and less relevant to the conduct of government.

This Article examines how the administrative constitution has changed over time and how that …

Without Deference, Jeffrey A. Pojanowski

Journal Articles

This essay explores what judicial review of agency interpretations of law would look like if the Supreme Court abandoned Chevron deference in favor de novo review. It concludes that such an alternative regime has appealing features, but may not bring as much immediate, practical change as many critiques or defenses of Chevron presume. The largest change would come from how we think about law and policy in the administrative state. The theoretical scaffolding that would uphold a regime of non-deferential review is far more classical in cast than the moderate legal realism underwriting Chevron. The more traditional character of this …

Chevron Is Dead; Long Live Chevron, Michael Herz

Articles

The Supreme Court's decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. continues to obsess academics and courts alike. Despite all the attention, however; the "Chevron revolution" never quite happens. This decision, though seen as transformatively important, is honored in the breach, in constant danger of being abandoned, and the subject of perpetual confusion and uncertainty. This Essay seeks both to bury and to praise Chevron.

Chevron is not a revolutionary shift of authority from the judiciary to the executive. That Chevron is dead. The Chevron that survives is an appropriate allocation of decisionmaking responsibility among the three …

Acus - And Administrative Law - Then And Now, Michael Herz

Articles

The Administrative Conference of the United States (ACUS) both shapes and reflects the intellectual, policy, and practical concerns of the field of administrative law. Its recommendations are therefore a useful lens through which to view that field. Also, because of an unfortunate hiatus, ACUS has gotten underway not once but twice. Those two beginnings provide a kind of natural experiment, and they make a revealing contrast. This article traces the transformations of American administrative law, as well as the field’s perpetual concerns, by comparing the initial recommendations of ACUS 1.0 (1968 to 1970) with the initial recommendations of ACUS 2.0 …

Dynamic Environmentalism And Adaptive Management: Legal Obstacles And Opportunities, Jonathan H. Adler

Faculty Publications

Noted ecologist Daniel Botkin argues that "solving our environmental problems requires a new perspective" of environmental concerns that incorporates contemporary scientific understandings and embraces humanity's role in environmental management. Recognizing a new perspective is but the first step, however. There is also a need to identify how this perspective can inform environmental policy, not just on the ground but in the very institutional architecture of environmental law and management. Then comes the really hard part, for even if it is possible to conceive of how environmental management should proceed, it may be devilishly difficult to put such ideas into practice. …

Visualizing Change In Administrative Law, Aaron L. Nielson

Georgia Law Review

Although few realize it, the structure of administrative law has not changed much in two decades. Unlike past eras of upheaval, the key statutes, institutions, and judicial doctrines that defined administrative law in the early 1990s remain remarkably intact today. Administrative law's complexity, however, makes it difficult to see the big picture. This Article addresses that complexity by introducing a new visual framework. This framework has two principal benefits. First, it illustrates how administrative law's many parts fit together and shows that the field has been in a holding pattern for a long time. Second, it also allows scholars to …

Chevron For Juries, William Ortman

Law Faculty Research Publications

No abstract provided.

Searching For Proportionality In U.S. Administrative Law, Jud Mathews

Contributions to Books

There is no such thing as “proportionality review” in American administrative law, but instead, a number of doctrines that courts deploy to evaluate agency exercises of discretion. In some respects, these frameworks for review resemble proportionality in operation, but there are also notable differences. This essay surveys the doctrines governing judicial review of administrative discretion in the United States, highlighting three distinguishing features of the American approach. First, American judicial review is characterized by a high degree of unpredictability, not only with respect to outcomes, but often with respect to what framework of review is applicable. Second, while classical proportionality …

Trade Secret Hacking, Online Data Breaches, And China’S Cyberthreats, Peter K. Yu

Cardozo Law Review de•novo

Taking advantage of the forum provided by this timely Symposium, this Article closely examines the ongoing debate on China’s sustained effort in using online hacking and other intrusive techniques to steal trade secrets and proprietary data from U.S. businesses. Part I outlines the five common narratives that have thus far been advanced to recount this widely criticized effort. Sensing the narratives’ negative overtones, Part II offers five modest suggestions on how a more positive debate can be constructed to help identify ways to reduce online hacking and data breaches as well as to enhance the protection of trade secrets and …

The Organizational Premises Of Administrative Law, William H. Simon

Faculty Scholarship

The core doctrines of administrative law have not taken account of developments in the theory and practice of organization. The contours of these doctrines were set in the mid-twentieth century when the Administrative Procedure Act (APA) was passed. Although these doctrines have evolved since then, administration itself has changed more. Many of the widely perceived deficiencies of the doctrines, including some associated with overregulation and others with underregulation, seem influenced by an anachronistic understanding of organization.

Much administrative law continues to understand public administration as bureaucracy. In particular, doctrine is strongly influenced by three premises. First, the backward-looking conception of …

Enhancing The Use Of Negotiated Rulemaking By The U.S. Department Of Education, Jeffrey Lubbers

Research Reports & White Papers

White paper for the American Council on Education, published as Appendix IV, Recalibrating Regulation of Colleges and Universities, Report of the Task Force on Federal Regulation of Higher Education, 90-125 (2015), available at http://www.help.senate.gov/imo/media/Regulations_Task_Force_Report_2015_FINAL.pdf

Passing The Torch But Sailing Too Close To The Wind: Congress’S Role In Authorizing Administrative Branches To Promulgate Regulations That Contemplate Criminal Sanctions, Reem Sadik

Legislation and Policy Brief

The Supreme Court has stated that Congress must simply “lay down by legislative act an intelligible principle” to which the agency must conform. If this is done, a court will find the delegation of broad authority to the agency to be constitutional. There is, however, an open issue regarding whether the “intelligible principle” standard applies to delegations of authority that allow for the promulgation of both civil and criminal penalties. In Touby v. United States, the Supreme Court was asked whether “something more than an ‘intelligible principle’ is required” when Congress authorizes an agency to issue regulations that contemplate …

Recovering The Promise Of Public Truth: Juridification And The Loss Of Purpose In Public Inquiries, Jessica Mckeachie

LLM Theses

My intention in this work is to investigate the apparent disconnect between the intended social purposes of inquiries and the impact pressures of juridification have had on them, and consider what steps inquiries may take to resist these pressures. Public inquiries, formerly relied on as an alternative to criminal and civil proceedings and as a means to engage the public on issues of policy, now seem to exhibit more intense procedures akin to those found in the alternative processes they were designed to resist. Under increasing juridification pressures, what function should public inquiries fulfil? In short, my aim is to …

Court Limitations On 'Cap And Trade' Regulation: Administrative Law Decisions Applicable To The Mechanism Of The Kyoto Protocol, E.U.-Ets, And U.S. Regulation, Steven Ferrey

Suffolk University Law School Faculty Works

‘Cap-and-trade’ regulation is the regulatory 21st century tool used in environmental law and climate change regulation. It is a key mechanism employed under the U.S. Clean Air Act, integral to the Clean Development Mechanism of the Kyoto Protocol for greenhouse gas control, and the regulatory foundation of carbon control legislation in every U.S. state which regulates carbon. This modern ‘cap-and-trade’ mechanism for environmental regulation has been challenged in recent litigation in the U.S. The D.C. Circuit Court of Appeals in every one of five recent legal challenges has held EPA’s use of ‘cap-and-trade’ to be illegal. In only one case, …

Drones, Henry H. Perritt Jr., Eliot O. Sprague

All Faculty Scholarship

Abstract

Drone technology is evolving rapidly. Microdrones—what the FAA calls “sUAS”—already on the market at the $1,000 level, have the capability to supplement manned helicopters in support of public safety operations, news reporting, and powerline and pipeline patrol, when manned helicopter support is infeasible, untimely, or unsafe.

Larger drones–"machodrones”–are not yet available outside battlefield and counterterrorism spaces. Approximating the size of manned helicopters, but without pilots, or with human pilots being optional, their design is still in its infancy as designers await greater clarity in the regulatory requirements that will drive airworthiness certification.

This article evaluates drone technology and design …

The Implausibility Of Secrecy, Mark Fenster

UF Law Faculty Publications

Government secrecy frequently fails. Despite the executive branch’s obsessive hoarding of certain kinds of documents and its constitutional authority to do so, recent high-profile events — among them the WikiLeaks episode, the Obama administration’s infamous leak prosecutions, and the widespread disclosure by high-level officials of flattering confidential information to sympathetic reporters — undercut the image of a state that can classify and control its information. The effort to control government information requires human, bureaucratic, technological, and textual mechanisms that regularly founder or collapse in an administrative state, sometimes immediately and sometimes after an interval. Leaks, mistakes, and open sources all …

"Sleeping With The Enemy?" On Government Lawyers And Their Role In Promoting Social Change: The Israeli Example, Itay Ravid

Faculty Publications

Among cause lawyers, it is common to characterize government lawyers in negative tones. Both in the United States and in Israel they are often perceived as the servants of the regime, providing it with legal tools to protect its policies. Therefore, government lawyers are often marked as obstacles for the promotion of social change—agents of the status quo rather than agents of change. This Note suggests a different approach. By analyzing the current literature on the role of government lawyers, this Note stresses not only the complexity of this role, but also its relative flexibility, which emerges from its unique …

Standing In The Shadow Of Tax Exceptionalism: Expanding Access To Judicial Review Of Federal Agency Rules, Lynn D. Lu

Publications and Research

No abstract provided.

Regulatory Translations: Expertise And Affect In Global Legal Fields (Symposium Introduction), Ziya Umut Turem, Andrea Ballestero

Indiana Journal of Global Legal Studies

Regulatory Translations: Expertise and Affect in Global Legal Fields, Symposium, May 16-18, 2013, Istanbul, Turkey

The Uneasy Case Against Auer And Seminole Rock, Conor Clarke

Scholarship@WashULaw

The deference regimes of Auer and Seminole Rock give an agency's interpretation of its own regulation "controlling weight unless [the interpretation] is plainly erroneous or inconsistent with the regulation." This doctrine has long been criticized for giving agencies an incentive to promulgate vague regulations. In this essay I critically review these objections to Auer and Seminole Rock against the backdrop of plausible alternative regimes and recent developments in the lower courts.

Private Standards Organizations And Public Law, Peter L. Strauss

William & Mary Bill of Rights Journal

Simplified, universal access to law is one of the important transformations worked by the digital age. With the replacement of physical by digital copies, citizens ordinarily need travel only to the nearest computer to find and read the texts that bind them. Lagging behind this development, however, has been computer access to standards developed by private standards development organizations, often under the umbrella of the American National Standards Institute (ANSI), and then converted by agency actions incorporating them by reference into legal obligations. To discover what colors the Occupational Safety and Health Administration (OSHA) requires for use in work-place caution …

An Essay On Due Process And The Endowment Effect, Paul R. Verkuil

William & Mary Bill of Rights Journal

No abstract provided.

On Candor, Free Enterprise Fund, And The Theory Of The Unitary Executive, Michael J. Gerhardt

William & Mary Bill of Rights Journal

No abstract provided.

"Data, Views, Or Arguments": A Rumination, Michael Herz

William & Mary Bill of Rights Journal

No abstract provided.

Jury Review Of Administrative Action, John F. Duffy

William & Mary Bill of Rights Journal

No abstract provided.

Charles Koch, Jr. — The Casebook And The Scholarship, William S. Jordan Iii

William & Mary Bill of Rights Journal

No abstract provided.

Administrative Judges And Agency Policy Development: The Koch Way, Ronald M. Levin

William & Mary Bill of Rights Journal

Among the creative contributions that the late Charles H. Koch, Jr., made to administrative law thinking was his exploration of the present and potential role of administrative judges as policymakers. Charles stood in firm opposition to recent trends that, in his view, had served to strengthen the policymaking role of administrative judges at the expense of agency heads. He insisted that ultimate control over the policy direction of a program should rest with the officials who have been appointed to administer that program. While adhering to this baseline, however, Charles gravitated over time toward a nuanced view that sought to …