Administrative Law Commons^™

Embattled Sec Climate-Related Disclosure Regulation, Thomas M. Madden

William & Mary Business Law Review

This Article informs the reader as to the current state of the U.S. Securities and Exchange Commission’s (SEC or Commission) Release No. 33-11275, The Enhancement and Standardization of Climate-Related Disclosures for Investors (the Final Rules), approved and then stayed by the Commission in March of 2024 and now being challenged in the Eighth Circuit Court of Appeals. It argues that the Final Rules are sound and should be upheld for seven articulated reasons, taking into account the arguments made by petitioners and amici curiae in the Eighth Circuit. Moreover, the Article argues that even with Chevron overturned, the Final Rules …

The Toll Paid When Adjudicators Err: Reforming Appellate Review Standards For Refugees, Charles Shane Ellison

Faculty Scholarship

Deep, variegated, and unresolved tensions run between and within the U.S. courts of appeals’ standard of review classifications of the five core elements of the refugee definition. Several circuits have taken note of their dissonant jurisprudence, calling for either en banc or Supreme Court intervention. While existing scholarship raises cogent criticisms of excessive factual deference in U.S. immigration adjudications, very little attention has been paid to how the fact-law divide regarding the refugee definition maps onto review standards in the appellate context. This dearth of scholarly consideration is accompanied by the reality that standards of review often decide cases where …

Judicial Review Of Emergency Administration, Desiree Leclercq

American University Law Review

This Article seeks to describe and defend the judicial review of federal agencies’ responses to national emergencies - what I refer to as “emergency administration.” That may prove difficult. Agencies are experts in their respective fields. During emergencies, scholars and policymakers assume that judges will defer to that expertise under the Administrative Procedure Act (APA ). On January 13, 2022, the Supreme Court defied that assumption when it blocked the Biden Administration s workplace vaccine and masking rules. Critics now assume that judges are reviewing emergency administration to constrain regulation. Both assumptions conclude that judicial review is neither sincere nor …

Citizens To Preserve Overton Park – Race-Inflected Below Its Surface, Peter L. Strauss

Faculty Scholarship

This is not a picture one would have seen during the battles over Memphis’s Overton Park. When planning for Interstate 40’s route through Memphis began in the 50’s, one could have found Blacks in parts of that park only on Tuesdays; the park was for Whites only on other days. An urban oasis near downtown, largely surrounded by White residential areas, this large park held a zoo, golf course, and attractive forests and grounds – a municipal treasure not far from the commercial area. It was bisected by a bus road that was proposed as the route for I-40 to …

Progressive Textualism In Administrative Law, Kathryn E. Kovacs

Michigan Law Review Online

Nicholas Bagley’s article The Procedure Fetish is destined to be a classic. In it, Bagley systematically dismantles administrative law’s obsession with procedure. He decimates the arguments that procedure is necessary to legit-imize the administrative state and avoid agency capture. He nullifies the con-tention that administrative law is neutral by showing how proceduralism inhibits regulation and “favors a libertarian agenda over a progressive one.” Bagley urges progressives to abandon “gauzy claims about legitimacy and accountability” and approach procedure with skepticism.

The Procedure Fetish addresses the normative question of what adminis-trative law ought to require. Bagley writes about how progressives should solve …

Neither Fish Nor Fowl: The Separation Of Powers And The Office Of Administrative Hearings, Ann E. Cohen, Elise Larson

Mitchell Hamline Law Review

No abstract provided.

Engineering Rules, Peter L. Strauss

Faculty Scholarship

“Engineering Rules” is a clever triple entendre, evoking rules (the industrial standards that are its concern), the emergence of engineering (the profession largely responsible for their creation) and the consensus processes developed over time (the engineering) by which they have been created. The book is an extraordinarily detailed history of the movement from national to international standards creation and use, a necessary product of the industrial age and the emergence of a global economy. It introduces as its heroes, in remarkably intimate accounts of their careers, a series of men of rectitude and accomplishment who selflessly built the practice. The …

Legislation And Comment: The Making Of The § 199a Regulations, Shu-Yi Oei, Leigh Osofsky

Faculty Scholarship

In 2017, Congress passed major tax legislation at warp speed. After enactment, it fell to the Treasury Department to write regulations clarifying and implementing the new law. To assure democratic legitimacy in making regulations, administrative law provides that an agency must issue a notice of proposed rulemaking, followed by an opportunity for the public to comment (so-called “notice and comment”). But, after the 2017 tax overhaul, many sophisticated actors did not wait until the issuance of a notice of proposed rulemaking to comment, instead going to the Treasury Department immediately with comments designed to influence the regulations.

In this Article, …

Lucia Et Al. V. Securities And Exchange Commission: Brief Amicus Curiae Of Federal Administrative Law Judges Conference In Support Of Neither Party, John M. Vittone

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Blacklining Editorial Privilege, Justin Hurwitz

Michigan Telecommunications & Technology Law Review

Over the past year, FCC Commissioner Mike O’Rielly has drawn valuable attention to various Commission procedures in need of reform. Of these procedures perhaps the most perplexing is that of “editorial privileges” – a process whereby Commission staff is granted permission to continue editing Commission Orders subsequent to their adoption, such that the text of the Order voted on by the Commission is not necessarily the same as that ultimately published in the Federal Register or otherwise released to the public. This procedure is longstanding – predating institutional memory; yet it is also entirely unprecedented in the canon of administrative …

Unappealing: An Assessment Of The Limits On Appeal Rights In Canada's New Refugee Determination System, Angus Gavin Grant, Sean Rehaag

Articles & Book Chapters

Canada’s refugee determination system was revised in 2012. One key feature of the new process is a quasi-judicial administrative appeal, on matters of both fact and law, at the Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB). Under the new process, however, many claimants are denied access to the RAD.

This article assesses these limits on access to the RAD, drawing mostly on quantitative data obtained from the IRB and Citizenship and Immigration Canada through access to information requests. Our aim is to provide evidence-based analysis and recommendations for reform. Essentially, our conclusions are that the bars …

Democratic Rulemaking, John M. De Figueiredo, Edward H. Stiglitz

Faculty Scholarship

This paper examines to what extent agency rulemaking is democratic. It reviews theories of administrative rulemaking in light of two normative benchmarks: a “democratic” benchmark based on voter preferences, and a “republican” benchmark based on the preferences of elected representatives. It then evaluates how the empirical evidence lines up in light of these two approaches. The paper concludes with a discussion of avenues for future research.

The Struggle For Administrative Legitimacy, Jeremy K. Kessler

Faculty Scholarship

Nearly forty years ago, Professor James 0. Freedman described the American administrative state as haunted by a "recurrent sense of crisis." "Each generation has tended to define the crisis in its own terms," and "each generation has fashioned solutions responsive to the problems it has perceived." Yet "a strong and persisting challenge to the basic legitimacy of the administrative process" always returns, in a new guise, to trouble the next generation. On this account, the American people remain perennially unconvinced that administrative decisionmaking is "appropriate, proper, and just," entitled to respect and obedience "by virtue of who made the decision" …

The Volcker Rule: A Brief Political History, Kimberly D. Krawiec, Guangya Liu

Faculty Scholarship

Today, more than five years after Dodd-Frank was first signed into law, uncertainty surrounds many aspects of the Volcker Rule’s application and ultimate impact on financial markets and bank stability. Many more years will likely pass before that uncertainty is resolved. We demonstrate through a quantitative and qualitative analysis that these difficulties were presaged by the Volcker Rule’s political history. The Volcker Rule -- originally rejected by Congressional lawmakers and economists within the Obama administration as unworkable -- arose as a political concession designed to quiet critics who contended that Dodd-Frank did not do enough to control risky bank activity. …

The Department Of Agriculture's Rules Of Practice: Do They Still Serve Both The Department's And The Public's Needs?, Peter M. Davenport

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Should Chevron Have Two Steps?, Richard M. Re

Indiana Law Journal

Prominent judges and scholars have criticized the familiar Chevron deference scheme on the ground that its two steps are redundant. But each step of traditional two-step Chevron actually does unique interpretive work. In short, step one asks whether agency interpretations are mandatory, whereas step two asks whether they are reasonable. Other judges and scholars defend two-step Chevron on the ground that the second step should be equated with arbitrary-and-capricious review. But that approach makes Chevron partially redundant with the Administrative Procedure Act and compresses the distinct mandatoriness and reasonableness questions into an artificially singular first step. This Article identifies a …

The Defense Of Entrapment In Administrative Proceedings, Jan Mark Dudman

Pepperdine Law Review

No abstract provided.

Management Of Federal Agency Adjudication, Jeffrey S. Lubbers

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Judges Under Fire - Alj Independence At Issue, Debra Cassens Moss

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Contempt Powers Of The Administrative Law Judge, Joyce Krutick Barlow

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Administrative Law Judges: Past, Present And Future, John Paul Jones

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Making Findings Of Fact And Preparing A Decision , Patrick J. Borchers

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Judicial Deference To Administrative Interpretations Of Law, Antonin Scalia

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Official Notice And The Administrative Process, Daniel B. Rodriguez

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Recent Legal Developments In State Oil And Gas Administrative Hearings, Patrick H. Martin

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Evaluation: Where Are We? Where Are We Going?, Ronnie A. Yoder

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Development Of The Model Code Of Judicial Conduct For State Administrative Law Judges, Stanley J. Cygan

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Courting Of Credibility, A Nervous Mistress, Edd Wheeler

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Opening The Floodgates Of Decision-Making At The Missouri Administrative Hearing Commission, Daniel R.E. Jordan

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Alj Support Systems: Staff Attorneys And Decision Writers, Russell L. Weaver

Journal of the National Association of Administrative Law Judiciary

No abstract provided.