Administrative Law Commons^™

Sidelining The Public, Anya Bernstein, Glen Staszewski, Wendy E. Wagner

Faculty Scholarship

This Article challenges the widely held view that Congress is the American government’s institution closest to the people, while administrative agencies are unaccountable and unresponsive. Providing a systematic, side-by-side institutional analysis, we compare the actual practices and capacities of these two institutions to engage affected publics in policymaking. We find that despite the democratic bona fides of an elected legislature, agencies possess superior capacities, more evolved practices, stricter rules, and stronger incentives for meaningful public engagement. Yet these capacities have been eroded—particularly over the last 50 years—by intensifying legal, political, and managerial obstacles. The Supreme Court and political actors have …

The Networked City: City Climate Change Networks And U.S. Climate Governance, Caroline G. Cox

American University Law Review

City climate change networks complicate common narratives about the local role in environmental and climate change governance in the United States. These networks—organizations with three or more member cities or representative city staff that share information and resources—are crucial actors in supporting the increasing interest in local climate change mitigation. Building upon prior scholarship addressing mayor-led networks and municipal collaborations, this Article considers how city climate networks challenge notions of local parochialism and rebut some critiques of local climate action. The Article also evaluates the growing importance of these networks in light of changes in federal climate policy, including the …

Dualisme Tujuan Pembebanan Uang Pengganti: Analisis Putusan Angelina Sondakh Di Berbagai Tingkat Peradilan, Valencia Puspa Novandra Ali, Tamsil .

Jurnal Hukum & Pembangunan

Studi ini meneliti perbedaan interpretasi dan penerapan hukuman tambahan berupa restitusi (uang pengganti) dalam kasus korupsi melalui analisis komparatif keputusan Angelina Sondakh di pengadilan tingkat pertama, pengadilan banding, pengadilan kasasi, dan pengadilan peninjauan yudisial. Muncul interpretasi ganda antara memandang restitusi sebagai kompensasi atas kerugian keuangan negara dan sebagai mekanisme untuk menyita keuntungan ilegal. Judex facti menolak penerapan restitusi dengan alasan bahwa tidak terjadi kerugian negara dalam kasus suap dan gratifikasi, sementara judex juris di tingkat kasasi menafsirkan restitusi sebagai instrumen pemulihan aset yang ditujukan untuk keuntungan yang diperoleh secara ilegal. Orientasi konseptual yang bertentangan ini menghasilkan perbedaan signifikan dalam penjatuhan …

A Theory Of Major Questions, Nicholas Almendares

Cardozo Law Review

The major questions doctrine has been fiercely criticized as an example of the Supreme Court’s “imperial” turn where it concentrates ever more power in its own hands. The doctrine is sweeping, vague, and lacks a clear justification. Not only does the Court get to decide when the doctrine applies and when the heightened standard is satisfied, but it has also not offered good reasons behind this rule. A well-defined theory would give the doctrine structure, clarity, and consistency. While majority opinions have been conspicuously quiet on the theory behind the major questions doctrine, concurrences, namely by Justice Gorsuch, have argued …

Tinjauan Frasa “Setiap Orang” Dalam Pasal 3 Ayat (1) Peraturan Pemerintah Nomor 56 Tahun 2021 Tentang Pengelolaan Royalti Hak Cipta Lagu Dan/Atau Musik, Fajar Hidayansyah Ilham, Luna Dezeana Ticoalu

Jurnal Hukum & Pembangunan

Copyright is one form of legal protection for intellectual works, occupying an important position within the intellectual property law system. The Copyright Law explicitly grants exclusive rights to creators, encompassing both moral rights and economic rights. Economic rights, as stipulated in Article 9 paragraph (1), allow creators to obtain economic benefits from their works, ranging from publication, reproduction, distribution, performance, to communication to the public. This provision shows that creators hold a primary position as legal subjects entitled to protection, while also serving as central actors in the creative industry ecosystem. In practice, the mechanism for copyright protection requires implementing …

The Nlrb’S Authority To Make Workers Whole, Wanny Mei

Fordham Law Review

In December 2022, the National Labor Relations Board (NLRB or the “Board”) announced a modified make-whole remedial framework in Thryv, Inc.For all standard make-whole relief orders, the Board would order relief for direct or foreseeable pecuniary harms that employees suffer as a result of an unfair labor practice. Proponents of this remedial design assert that this is consistent with the Board’s authority under section 10(c) of the National Labor Relations Act (NLRA). On the other hand, opponents find that this design exceeds the Board’s statutory authority and conflicts with the Seventh Amendment right to a jury trial.

This Note …

Recalibrating Deference In Sentencing, Meghana Nemali

Fordham Law Review

The U.S. Sentencing Commission (the “Commission”) is responsible for promoting consistency, transparency, and fairness in federal sentencing. In pursuit of this mandate, the Commission publishes the U.S. Sentencing Guidelines (the “Guidelines”), which are accompanied by official commentary. In Stinson v. United States, the U.S. Supreme Court endowed the commentary with controlling authority. However, nearly three decades later, the Court in Kisor v. Wilkie granted courts greater discretion in deciding whether to defer to the commentary. Moreover, in 2024, the Court eliminated the absolute deference regime for administrative agency determinations in Loper Bright Enterprises v. Raimondo. As a result, …

Kedudukan Hukum Eks-Kreditor Pasca Debt To Equity Swap Yang Dihomologasi Dalam Pkpu Kedua Dan Kepailitan Debitor Akibat Pembatalan Perdamaian, Reza Rahmawati

Jurnal Hukum & Pembangunan

Debt to Equity Swap (DES) under a composition plan in Suspension of Debt Payment Obligations (PKPU) proceedings constitutes a restructuring mechanism that transforms the legal status of a Creditor into that of a shareholder upon homologation. Legal issues arise when The Debtor subsequently enters a Second PKPU due to newly incurred debts or is declared bankrupt following the annulment of the composition, while Law No. 37 of 2004 on Bankruptcy and Suspension of Debt Payment does not expressly regulate the legal consequences of a DES under such circumstances. This normative legal research aims to analyze the legal standing and legal …

Kedudukan Putusan Peradilan Etik Sebagai Keputusan Tata Usaha Negara: Studi Kasus Gugatan Hakim Konstitusi Anwar Usman, Satrio Febriyanto

Jurnal Hukum & Pembangunan

As an effort to concretize ethics, there is a process of formalizing ethics into a set of rules through a code of ethics. The code of ethics needs institutional enforcement instruments so that it can be effectively applied through ethical trials. Ethical courts, as institutions that adjudicate violations of the code of ethics, have the authority to issue decisions as a follow-up to cases of violations of the code of ethics that they handle. In carrying out its duties, ethical courts use ethical and moral analysis to assess the appropriateness of an action. This analytical approach differs from legal decisions …

Rivers Of Sovereignty: The Epa’S New Water Quality Standards Rule As A Potential Channel For Revitalizing Tribal Reserved Water Rights, Mostyn Josty

Cardozo Law Review

This Note explores the federal government’s evolving approach to its obligation to protect tribal reserved water rights through a case study of the Environmental Protection Agency’s (EPA) 2024 Water Quality Standards Regulatory Revisions to Protect Tribal Reserved Rights rule (the “WQS Rule”). It argues that while the WQS Rule represents a step forward in safeguarding tribal water rights, the legal challenge it faces underscores broader issues of federalism, administrative authority, and the country’s fluctuating commitment to tribal sovereignty. The Note examines the WQS Rule’s legal foundation, its potential challenges, and the implications for tribal self-determination, emphasizing the need for a …

The Deregulation Of Cancer, Daniel G. Aaron

Utah Law Faculty Scholarship

Fifty years ago, the U.S. embarked on a radical new path. Under pressure from the environmental movement, Congress passed an array of statutes aimed at regulating carcinogens out of our world. This regulatory experiment sprawled from air and water to food and consumer products.

Legal scholars have paid scant attention to this wave of cancer regulation despite its size and importance and the public’s apparent interest in avoiding carcinogens. But there is a growing literature finding flaws with individual regimes within the framework, such as the Clean Air Act, the Toxic Substances Control Act, and the Tobacco Control Act. In …

Trump V. Cook And The American Rule Of For-Cause Removal, Jane Manners, Lev Menand

Faculty Scholarship

No abstract provided.

Who Decides Who Gets Deported?, Mauricio Noroña, Peter L. Markowitz

Scholarly Works

As President Trump began his second term, he promised the largest mass deportation program in U.S. history, backed by unprecedented increases in immigration enforcement funding. Yet even at historically unprecedented resource levels, the government can reach only a fraction of the tens of millions of noncitizens now subject to deportation. So this Administration, like every administration before it, must make choices about whom to target—and every decision to deport someone necessarily entails an implicit or explicit decision to deprioritize someone else. But who makes those decisions?

Every modern presidential administration has tried to vest such choices in high-level, politically accountable …

Evolving Legal Issues In Higher Education: Introduction To The Higher Education And The Law Symposium, Patricia E. Salkin

Touro Law Review

The Touro Law Review could not have selected a better time to highlight many of the evolving legal issues in higher education. It can be both an exciting time to practice law in this space and one that challenges the creative problem-solving skills of lawyers and their clients. This issue of the Law Review highlights a number of key developments and trends.

Loper Bright Enterprises V. Raimondo And The Prospect Of “Management By Judiciary”, Rodger D. Citron

Touro Law Review

In January 2025, Touro University, Touro Law Center, and Touro Law Review held a wide-ranging conference on higher education in the 21st century. The timing could not have been more apt. We were days away from the inauguration of Donald Trump’s second term as President. The ferment in higher education would continue, only more so. In addition, in its 2023-24 term, the Supreme Court had decided a number of important administrative law cases, none more significant than Loper Bright Enterprises v. Raimondo (“Loper Bright”). Although I did not speak at the panel session on “The Changing Regulatory Landscape in Higher …

Durbin’S Ripple: How Fee Caps Reshaped Banking And Boosted Fintechs: Exploring The Unintended Consumer Impacts And Regulatory Gaps In The Wake Of The Durbin Amendment, Rebecca M. Reeve

Touro Law Review

This Article explores the implications of the Durbin Amendment on consumer protection, financial innovation, and market competition. Initially intended to cap interchange fees and foster cost savings for merchants and consumers, the Amendment’s effects have diverged from its legislative intent. Financial institutions offset lost revenue by increasing other consumer fees, unintentionally spurring a financial technology (fintech) boom as consumers sought low-cost alternatives. This Article examines the administrative rulemaking challenges the Federal Reserve faced in implementing the Amendment, the rise of fintech solutions as a response to shifting bank priorities, and the potential regulatory gaps affecting consumer protection in a rapidly …

The American Dream And The Politics Of Promise: Presidential Rhetoric Against Reality On Inequality, Education, And Assistance Since 2000, Abigail Demonte

Touro Law Review

No abstract provided.

Anatomy Of A Successful College Closure, Kevin P. Mcdonough

Touro Law Review

Alarming forecasts of mass closures of colleges and universities in the United States have been part of the higher education landscape for many years now. Unfortunately, such prognosticators have been proven largely correct as college closures have been occurring with increasing regularity. The closure process has been carried out with varying degrees of success. At one end of the spectrum lies the poorly planned, precipitous closure, which often garners the most attention because of its devastating impact on students and their families. This Article examines certain actions and strategies that the leadership of a college compelled to cease operations can …

Unprecedented Leadership For Unprecedented Times: The Ethical Imperative For Transformational Change In American Higher Education, Andrés Acebo

Touro Law Review

Many eras quietly yield to another while its institutions continue speaking the language of a world that no longer exists. Such moments expose the widening distance between inherited assumptions and emerging realities, between institutional memory and societal need, between what once served the public well and what the future now requires. American higher education has arrived at such a moment. For more than a decade, its challenges have been described through the language of crisis. The prevailing literature has documented enrollment decline, demographic transformation, fiscal instability, technological disruption, political polarization, declining public confidence, and institutional fragility with increasing sophistication. Yet …

Who’S In Charge Here?: Collegiate Athletics After The House Settlement, Pamela Ko

Touro Law Review

The House v. NCAA settlement, which was approved in June 2025, paved the way for groundbreaking changes to the National Collegiate Athletic Association (NCAA) and the implementation of its rules and regulations related to athlete rights, including transformative levels and types of student-athlete compensation that have never been permitted in the history of college sports. These changes fundamentally altered the relationship between many Division I student-athletes, educational institutions, athletic conferences, and the NCAA. This Article will discuss both the short and long-term impacts of the House settlement while analyzing both the continuing role of the NCAA and the role of …

Higher Education’S Legal Reckoning: The Institutional Lawyer—More Than A Trend, Jenean Taranto

Touro Law Review

Higher education institutions (IHEs) operate in an increasingly complex legal and regulatory environment that has transformed institutional governance, administration, and leadership. Since the enactment of the Higher Education Act of 1965, colleges and universities have experienced growing federal, state, and quasi-regulatory oversight, a phenomenon commonly described as the “lawyerization” of higher education. This process has resulted in expanded compliance obligations, increased litigation risks, and greater reliance on legal expertise within institutional operations. Recent federal actions following the inauguration of President Donald Trump in January 2025— including executive orders, agency guidance, policy memoranda, and related litigation—have intensified regulatory uncertainty and further …

Conditional Admission And The Hazards Of Lawyer Assistance Programs Operating Without Transparency Or Oversight, Paula Schaefer

Oklahoma Law Review

No abstract provided.

Preempted Or Permitted? State Immigration Enforcement, Federal Preemption, And The Future Of Immigration Policy, Aryn Kerr

Oklahoma Law Review

No abstract provided.

Oklahoma’S Bible Policy: The Evolving Establishment Clause From Lemon To Kennedy, Carson Douglas Shaw

Oklahoma Law Review

No abstract provided.

From Chevron To Chaos: How Loper Is Redefining The Future Of Health Privacy, Skylar Johnson

Oklahoma Law Review

No abstract provided.

Breaking Free – The Legality Of The Ftc’S Fight Against Non-Competes, M. Akram Faizer

Oklahoma Law Review

No abstract provided.

Beyond Repeal Of Flsa Section 14(C): A Policy Path To Competitive Integrated Employment, Natalie Spear

Oklahoma Law Review

No abstract provided.

Marijuana, Marinol, And Chapter 11: The Federal Roadblock To Bankruptcy Protection, Grace Griggs

Oklahoma Law Review

No abstract provided.

Uncertain Enforcement And Standing To Sue, Ernest A. Young

Faculty Scholarship

Plaintiffs with strong claims that a law is unconstitutional may yet fail to establish standing when the law is rarely enforced. Other statutes, like Texas’s unusual abortion law, may render challenges difficult by delegating enforcement to private parties who are difficult to identify in advance. Both problems arise from the assumption that the law shapes behavior only through sanctions imposed in enforcement proceedings. This view is mistaken, both jurisprudentially and empirically. Worse, it requires courts to ask two unanswerable questions: How likely is enforcement? And how likely does Article III require it to be? It also asks standing doctrine to …

The Law Of For Cause Removal, Jane Manners, Lev Menand

Faculty Scholarship

For the first time in American history, the Supreme Court is poised to decide what it means for the president to remove a principal officer “for cause.” The case — which arises from the attempted removal of Lisa Cook, a member of the Board of Governors of the Federal Reserve System — has major implications for central bank independence in the United States and, more broadly, for the U.S. administrative state. But given how long it has been since such offices were formally contested, courts and commentators have forgotten many aspects of the legal tradition governing “for cause” removal. In …