Administrative Law Commons^™

Ai Regulation Has Its Own Alignment Problem: The Technical And Institutional Feasibility Of Disclosure, Registration, Licensing, And Auditing, Neel Guha, Christie M. Lawrence, Lindsey A. Gailmard, Kit T. Rodolfa, Faiz Surani, Rishi Bommasani, Inioluwa Deborah Raji, Mariano-Florentino Cuéllar, Colleen Honigsberg, Percy Liang, Daniel E. Ho

Faculty Scholarship

Calls for regulating artificial intelligence (“AI”) are widespread, but there remains little consensus on both the specific harms that regulation can and should address and the appropriate regulatory actions to take. Computer scientists propose technical solutions that may be infeasible or illegal; lawyers propose regulation that may be technically impossible; and commentators propose policies that may backfire. AI regulation, in that sense, has its own alignment problem, in which proposed interventions are often misaligned with societal values.This Article assesses the alignment and technical and institutional feasibility of four dominant proposals for AI regulation in the United States: disclosure, registration, licensing, …

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

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

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 …

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 …

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 Origins Of The Major Questions Doctrine, Rachel Rothschild

Indiana Law Journal

In a series of recent cases, the Supreme Court has invoked the newly named “major questions doctrine” to strike down agency regulations that protect public health and the environment. Several Justices have argued that while the name “major questions” may be new, these decisions are simply the latest iteration in a longstanding effort of the courts to curtail the explosive growth of the administrative state since 1970. The first paradigmatic example of this line of cases is the 1980 “Benzene” case, in which the Supreme Court set aside the Occupational Safety and Health Administration (OSHA)’s new workplace standards for the …

Chenery Ii Revisited, Daniel T. Deacon

Articles

Ever since the Supreme Court’s 1947 decision in SEC v. Chenery Corporation, known as Chenery II, agencies have enjoyed wide latitude to develop policy through individual adjudications in addition to rulemaking. Chenery II has never been completely uncontroversial, and in recent years, calls to overturn or limit it have been expressed in increasingly fervent tones. Agency policymaking by adjudication has emerged as a new front in the struggle over the administrative state.

Against the backdrop of such calls, this Article revisits some of the fundamental questions concerning the Chenery II doctrine. I argue in favor of retaining Chenery II’s core …

The Ordinary Questions Doctrine, Lisa S. Bressman

Vanderbilt Law School Faculty Publications

In Loper Bright Enterprises v. Raimondo, the Supreme Court overruled Chevron as inconsistent with the Administrative Procedure Act ("APA"), which requires courts to decide "all relevant questions of law" and therefore prohibits them from deferring to agency interpretations because the relevant statutory language is ambiguous. A different approach now governs judicial review of the countless routine, often specialized questions of statutory interpretation that agencies answer in the normal course of implementing their statutes-the "ordinary" questions. But Loper Bright did not provide direction on how courts should determine which of these questions are questions of law. This issue arises because many, …

Sengketa Pajak Atas Penugasan Pemerintah Pada Perusahaan Bumn (Studi Kasus Pertamina, Pos Indonesia Dan Reasuransi Indonesia Utama), Raja Darius Sutardjo Sinaga

Jurnal Hukum & Pembangunan

State-owned enterprises (BUMN) are legal entities which the government has more than 51% ownership. The purpose of BUMN being established is to carry out national development by seeking profits that can become income for the government as well as carrying out public activities through carrying out public services such as providing telecommunications, electricity, water, and construction of public facilities which cannot be fully fulfilled by the government. Therefore, the government hands over the completion of public services to BUMN to carry them out because of their expertise in their respective fields. In every business process carried out by a legal …

[Proposed] Brief Of Amici Curiae Professors William Araiza, Jeffrey Lubbers, And Peter M. Shane In Support Of Defendant's Opposition To Plaintiff's Motion For Stay Of Effective Date And For Preliminary Injunction, Jeffrey Lubbers, William Araiza, Peter M. Shane

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.

Amici have a strong interest in the sound development of administrative law in the federal courts and are submitting this brief because of the importance …

Sidestepping Substance: How Administrative Law Plays An Outsized Role In Shaping Environmental Policy And Why Recalibration Is Necessary, Sanne H. Knudsen

Articles

Administrative law and environmental law are companion fields. Still, they are not interchangeable. They promote different values. And yet, sometimes when courts resolve environmental disputes by relying on administrative doctrines, courts elevate the values of administrative law over those codified in environmental statutes. This is particularly concerning when courts rely on judicially-created administrative law doctrines to sidestep congressional intent as expressed by the substantive aims of environmental statutes.

To reduce the risk of sidestepping—whether inadvertent or intentional—this Article critically examines how administrative law doctrines can undermine environmental law. Drawing on prominent case examples, including the Supreme Court decision in Sackett …

Brief Of Amici Curiae Professors William Araiza, Jeffrey Lubbers, And Peter M. Shane In Support Of Defendants' Opposition To Plaintiff's Motion To Stay Effective Date And For Preliminary Injunction, Jeffrey Lubbers, William Araiza, Peter M. Shane

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.

Amici have a strong interest in the sound development of administrative law in the federal courts, and are submitting this brief because of the importance …

Job Incidence Numbers In Social Security Disability Claims: A Case Study And Analysis, Kevin Liebkemann

Journal of the National Association of Administrative Law Judiciary

The Social Security Administration (SSA) processes numerous disabled worker applications each year. In adult disability claims, SSA employs a strict five-step sequential disability evaluation to decide whether a person is disabled. Many adult Social Security Disability claimants either win or lose at the fifth and final step, where an SSA adjudicator decides whether there is “a significant number of jobs (in one or more occupations) having requirements which you are able to meet with your physical or mental abilities and vocational qualifications.” This article examines the vocational evidence that SSA uses to decide the significant number of jobs issue. It …

Diabetes Management Of Incarcerated Individuals: Is The Federal Bureau Of Prisons Contributing To Worsening Diabetic Conditions?, Mariam Antony

Journal of the National Association of Administrative Law Judiciary

There are many issues related to noncommunicable disease care in federal prisons, which fall under the management of the U.S. Bureau of Prisons, a federal agency. Although there are many noncommunicable diseases, this comment specifically focuses on diabetes because of its prevalence (how common it is in individuals), especially in incarcerated individuals. Prison and incarceration are not conducive to the management of diabetes because diabetes may not even show symptoms until an individual mismanages the disease for a long time. An individual could first appear normal and then suffer a diabetic emergency, which could lead to consequences like heart attack …

Legal Summaries Of Administrative Law Cases, Keyana Young

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Implied Consent In Administrative Adjudication, Grace Moore

Washington and Lee Law Review Online

Article III of the Constitution mandates that judges exercising the federal judicial power receive life tenure and that their pay not be diminished. Nonetheless, certain forms of adjudication have always taken place outside of Article III—in state courts, military tribunals, territorial courts, and administrative tribunals. Administrative law judges, employed by various federal administrative agencies, decide thousands of cases each year. A vast majority of the cases they decide deal with public rights, which generally include claims involving federal statutory rights or cases in which the federal government is a party. With litigant consent, however, the Supreme Court has upheld administrative …

The Dubious Validity Of The System Of Deportation Arrests, Jack M. Beermann

Faculty Scholarship

Did you ever wonder how it came to be that people suspected of immigration violations are subject to arrest without a judicially issued warrant? That executive branch immigration enforcement officers themselves have the authority to issue enforceable arrest warrants? And further, how it came to be that alleged immigration law violators can be held in prolonged detention without a probable cause hearing before a neutral magistrate of any kind?

When I first encountered this set of related issues, I quickly learned the conventional wisdom, that based on a longstanding tradition and Supreme Court approval, immigration law is an exception to …

Strengthening The Illinois Freedom Of Information Act: Affording The Administrative Enforcement Necessary For Government Transparency And Accountability, Joshua Jenkins

Northern Illinois Law Review Supplement

The Illinois Freedom of Information Act was amended in 2009 to avail a greater level of government transparency. The amendments to the Act have given Illinois some of the transparency the Legislature sought to provide, however, there are some issues with the administrative remedy which have prevented full openness of government information as envisioned. The administrative remedies created to provide oversight of government compliance with the Act have not fully fulfilled their role and reform is needed. This article analyzes the circumstances surrounding the application of the Act as it relates to the public’s interaction with law enforcement. Specifically, this …

Government Misinformation Platforms, Janet Freilich

Faculty Scholarship

There is a harmful mismatch between how information published by the government is perceived-as highly trustworthy-and the reality that it is often not. This Article shows that the government frequently collects information from third party private entities and publishes it with no review or vetting. Although this information is riddled with errors and inaccuracies, scholars, policymakers, and the public treat the information with unwarranted confidence because it derives from the government. Further, institutional imprimatur (and consequent trust) attaches to information even tangentially associated with the government and to information where the government explicitly disclaims review.

This Article highlights the ubiquity …

The Submerged Administrative State, Gabriel Scheffler, Daniel E. Walters

Faculty Scholarship

The United States government is experiencing a reputation crisis: after decades of declining public trust, many Americans have lost confidence in the government’s capacity to perform its basic functions. While various explanations have been offered for this worrying trend, these existing accounts overlook a key factor: people are unfamiliar with the institutions that actually do most of the governing—administrative agencies—and they devalue what they cannot easily observe. The “submerged” nature of the administrative state is, we argue, a central reason for declining trust in government.

This Article shows that the administrative state is systematically submerged in two ways. First, administrative …

Enhancing Public Access To Agency Law, Bernard Bell, Cary Coglianese, Michael Herz, Margaret Kwoka, Orly Lobel

Articles

A just, democratic society governed by the rule of law requires that the law be available, not hidden. This principle extends to legal materials produced by administrative agencies, all of which should be made widely accessible to the public. Federal agencies in the United States do disclose online many legal documents—sometimes voluntarily, sometimes in compliance with statutory requirements. But the scope and consistency of these disclosures leaves considerable room for improvement. After conducting a year-long study for the Administrative Conference of the United States, we identified seventeen possible statutory amendments that would improve proactive online disclosure of agency legal materials. …

User Fee Programs, Erika Lietzan

Faculty Publications

A user fee is a fee assessed by the government when it provides a good or service to a private party. Classic examples include the fee to enter Yellowstone National Park and payment to the U.S. Postal Service for a first-class postage stamp. In these transactions, the government provides a specific benefit to an identifiable recipient, who pays the fee. Although the federal government has assessed user fees since this country's founding, broad authorizing legislation in the middle of the 20th century made it possible for agencies to craft user fee programs on their own initiative. Interest in relying on …

Radical Administrative Law, Christopher S. Havasy

Vanderbilt Law Review

The administrative state is under attack. Judges and scholars increasingly question why agencies should have such large powers to coerce citizens without adequate democratic accountability. Rather than refuting these critics, this Article accepts that in scrutinizing the massive powers that agencies hold over citizens, these critics have a point. However, their solution—to augment the powers of Congress or the President over agencies to instill indirect democratic accountability—is one step too quick. We should first examine whether direct democratic accountability of agencies by the citizenry is possible.

This Article excavates the nineteenth-century European intellectual history following the rise of the modern …

Keynote Address: "Attacking And Defending The Administrative State", Jack M. Beermann

Faculty Scholarship

At the beginning of this semester I told my students at Boston University that this is the most interesting time to take administrative law since I started teaching it nearly forty years ago. Doctrines that seemed settled just a few years ago have been questioned and significant change seems to be on the horizon. Don't get me wrong, we've been here before. In the 1970s and 1980s there were a few Supreme Court decisions on separation of powers¹ that indicated the possibility of big changes, but ultimately it fizzled out into the administrative law revolution that wasn't.

Things feel …

Agency Self-Funding In The Antinovelty Age, Zois Manaris

William & Mary Law Review Online

This Article demonstrates that CFSA's [Community Financial Services Association of American v. CFPB] introduction of antinovelty into the self-funding space, including its particular antinovelty approach, poses an existential threat to any and all agency self-funding. On its face, this may seem like something that will only worry the more functionalist or more liberal crowd—likely because so much of the recent discussion surrounding agency self-funding has revolved around the polarizing CFPB. But even those who might want the CFPB struck down and those who subscribe to the antinovelty rationale as a general matter (between those two camps there …

An Unfair Method Of Rulemaking: An Application Of Constitutional Doctrines That Oppose The Ftc Rule Banning Non-Competition Agreements, Jared Yaggie

University of Cincinnati Law Review

No abstract provided.

Res Judicata And Multiple Disability Applications: Fulfilling The Praiseworthy Intentions Of The Fourth And Sixth Courts, Amber Mae Otto

Vanderbilt Law Review

In the United States, the application process to receive disability benefits through the Social Security Administration is often a tedious, multistep procedure. The process becomes even more complex if a claimant has filed multiple disability applications covering different time periods. In that circumstance, the question arises as to whether an administrative law judge hearing a claimant’s second application must make the same findings as the administrative law judge who heard the first application. In other words, how should res judicata function in the administrative law context when a claimant has filed for disability multiple times? Currently, circuits differ on this …

Barring Judicial Review, Laura E. Dolbow

Vanderbilt Law Review

Whether judicial review is available is one of the most hotly contested issues in administrative law. Recently, laws that prohibit judicial review have sparked debate in the Medicare, immigration, and patent contexts. These debates are continuing in challenges to the recently created Medicare price negotiation program. Yet despite debates about the removal of judicial review, little is known about how often, and in what contexts, Congress has expressly precluded review. This Article provides new insights about express preclusion by conducting an empirical study of the U.S. Code. It creates an original dataset of laws that expressly preclude judicial review of …

Four Futures Of Chevron Deference, Daniel Walters

Faculty Scholarship

In two upcoming cases, the Supreme Court will consider whether to overturn the Chevron doctrine, which, since 1984, has required courts to defer to reasonable agency interpretations of otherwise ambiguous statutes. In this short essay, I defend the proposition that, even on death’s door, Chevron deference is likely to be resurrected, and I offer a simple positive political theory model that helps explain why. The core insight of this model is that the prevailing approach to judicial review of agency interpretations of law is politically contingent—that is, it is likely to represent an equilibrium that efficiently maximizes the Supreme Court’s …