Administrative Law Commons^™

The Esg Information System, Stavros Gadinis, Amelia Miazad

Seattle University Law Review

The mounting focus on ESG has forced internal corporate decision-making into the spotlight. Investors are eager to support companies in innovative “green” technologies and scrutinize companies’ transition plans. Activists are targeting boards whose decisions appear too timid or insufficiently explained. Consumers and employees are incorporating companies sustainability credentials in their purchasing and employment decisions. These actors are asking companies for better information, higher quality reports, and granular data. In response, companies are producing lengthy sustainability reports, adopting ambitious purpose statements, and touting their sustainability credentials. Understandably, concerns about greenwashing and accountability abound, and policymakers are preparing for action.

In this …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

The Marijuana Insurgency: Federalism And Social Reframing In Policy Reform, Matthew P. Cavedon

Seattle University Law Review

After fifty years of federal prohibition, marijuana reform efforts have won political and legal success. These victories hold lessons for anyone seeking to resist federal law without being able to directly affect it.

Victory can come from reframing an issue. For marijuana reform, social reframing—not formal legal analysis or material factors—provides the best explanation for how advocates achieved change. Their unconventional political tactics, akin to those used by insurgents in wartime, undercut federal prohibition by winning hearts and minds.

This is an analysis of the sociology of legal change. It is also the story of how ordinary Americans retook personal …

What Is In Your Tampon? Increasing Transparency In Menstrual Products, Elianna Spitzer

Seattle University Law Review

The average person who menstruates will bleed for an average of five days, every twenty-four to thirty-eight days, over several decades and could use thousands of disposable menstrual products in their lifetime. Menstrual products line retail shelves. They can be found in homes, bags, and bodies—but until 2021, manufacturers were not required to disclose the ingredients used to make these products to consumers at all. In fact, they still are not federally required to disclose menstrual product ingredients on product packaging. Instead, in recent years, changes to menstrual product labels have largely been the result of state legislation. In 2019, …

Independence Through Judicialization: The Politics Surrounding Administrative Adjudicators, 1929-1949, Lawrence J. Liu

Michigan Journal of Environmental & Administrative Law

One front in today’s battle to define the scope of the administrative state concerns the authority, status, and future of its 10,000-plus administrative adjudicators. Decisions by federal courts and the executive branch to increase the dependence of administrative adjudicators on the executive have sparked strong reactions from observers, with many advocating for measures to increase adjudicator “independence.” But who should administrative adjudicators be independent of, which ought to be independent, and why?

Calls for administrative adjudicator independence are not new. This Article draws on primary documents produced by private actors, congressional decisionmakers, and federal executive agents to present a political …

Improving The Affirmative Disclosure Of Agency Legal Materials, Bernard W. Bell, Cary Coglianese, Michael Herz, Margaret B. Kwoka, Orly Lobel

Michigan Journal of Environmental & Administrative Law

It is axiomatic that in a democratic society the law must be broadly accessible. Administrative agencies produce a plethora of materials imposing legal obligations on commercial or individual actors in the private sector. Other materials bind the agencies themselves in ways that affect the rights or interests of private parties. Still other materials provide the public with information about how agencies interpret and apply the statutes and rules they administer, or how agencies seek to deploy their discretion or take other actions that can affect private individuals or organizations. This Article focuses on improving the public availability of all of …

Democratic Accountability And Tax Enforcement, Joshua D. Blank, Leigh Osofsky

Faculty Publications

One of the most powerful charges that can be leveled against the IRS is that it is targeting taxpayers. Charges of political targeting have dogged the IRS for over a century, including in major controversies such as the alleged Tea Party auditing scandal in 2013. Commentators and scholars have long critiqued the IRS for focusing audit resources on some of the lowest-income Americans. And, most recently, a group of researchers estimated that the IRS audits Black taxpayers at a 2.9 to 4.7 times greater rate, as compared to non-Black taxpayers. In response, legislators demanded action, there was widespread public consternation, …

Behaviour Of Creditors And Involved Stakeholders In Corporate Insolvency Resolution Process (Cirp) In India: An Economic Perspective, Hiteshkumar Thakkar, Pranay Agarwal, Randall K. Johnson

Faculty Works

IBC has long clarified its purpose of achieving efficiency in the resolution procedure along with the welfare of the stakeholders. In order to achieve it, the code introduced Corporate Insolvency Resolution Process (CIRP) as a group solution mechanism in insolvency cases. While there is a plethora of studies focusing on the procedural and substantive working of the process, its influence over the behaviour and conduct of the stakeholders and its impact on its success has been ignored. Through this study, the author aims to develop a comprehensive economic model to explain the impact of CIRP on the creditor’s behaviour and …

West Virginia V. Epa: Maybe A Big Deal, But Maybe Not, Michael Lewyn

Scholarly Works

In West Virginia v. EPA, the Supreme Court ruled that the Environmental Protection Agency (EPA) lacked the statutory authority to implement the Clean Power Plan, a regulation designed to reduce coal-fired power plant emissions by encouraging the use of non-coal energy sources. The Court’s decision was primarily grounded in the "major questions doctrine," which asserts that courts may reject agency actions that involve significant and consequential powers not reasonably inferred from Congressional intent, even if a statute is unclear. This decision raised concerns among commentators that it might severely restrict environmental regulations and the broader administrative state. However, the …

"Major Questions" Malarkey: An Arbitrary And Capricious New Doctrine For Vetoing Controversial Agency Rules, Lars Noah

UF Law Faculty Publications

In 2022, in West Virginia v. EPA, the U.S. Supreme Court officially adopted the “major questions” doctrine. Commentators have already spilled plenty of ink trying to make sense of what this might portend, but so far seemingly everyone has accepted at face value the Court’s framing of the issue that it confronted in that case. This symposium contribution offers a slightly different perspective on the decision and suggests that closer attention to the precise nature of the question posed therein might reveal a distinctive flaw at the heart of the majority’s newfangled clear statement rule—it only sows confusion to …

"The Game" (Or How I Learned To Stop Worrying And Love The Major Questions Doctrine, Gary Lawson

UF Law Faculty Publications

No abstract provided.

Banned Books & Banned Identities: Maintaining Secularism And The Ability To Read In Public Education For The Well-Being Of America's Youth, Megan M. Tylenda

Indiana Journal of Law and Social Equality

Books containing LGBTQ+ themes and characters are being removed from public school libraries at a rapid rate across the United States. While a book challenge has made it to the Supreme Court once before, the resulting singular plurality opinion left courts without a clear test to apply, ultimately leaving students’ First Amendment rights in the air. Additionally, the increasingly relaxed view of courts towards religious influence in public schools indicates that if a modern case were to reach the Supreme Court, religious challenges may be accepted, which would leave LGBTQ+ students who seek to see themselves represented in literature without …

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

Articles

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 …

The Federal Pregnant Workers Fairness Act: Statutory Requirements, Regulations, And Need (Especially In Post-Dobbs America), Deborah Widiss

Articles by Maurer Faculty

The federal Pregnant Workers Fairness Act, enacted in December 2022, is landmark legislation that will help ensure workers can stay healthy through a pregnancy. It responds to the reality that pregnant workers may need small changes at work, such as permission to sit periodically, carry a water bottle, relief from heavy lifting, or reduced exposure to potentially dangerous chemicals. Workers may also need schedule modifications or leave for prenatal appointments, childbirth, or post-partum recovery, or accommodations to address medical conditions related to pregnancy or childbirth.

Previously, federal sex discrimination law and federal disability law sometimes required employers to provide such …

Conjuring The Flag: The Problem Of Implied Government Endorsements, Michael Mattioli

Articles by Maurer Faculty

This Article exposes a harmful form of advertising that exploits government actions like patent issuances, FDA authorizations, and trademark registrations. By calling upon the symbolic power of such regulatory approvals—i.e., “conjuring the flag”—marketers deceive consumers, distort competition, and undermine administrative agencies. Using machine-learning techniques to analyze hundreds of ads across multiple media formats, this Article offers the first comprehensive analysis of this pervasive practice. The study reveals that it is especially prevalent in industry settings where consumers are likely to seek reassurance that a product is safe and effective. Specifically, the examples examined show that patents are mentioned frequently in …

The Sec And "Major Questions Doctrine" Questions, Donna M. Nagy

Articles by Maurer Faculty

Nearly two years ago, in the wake of the Supreme Court’s formal adoption of what it termed the “major questions doctrine,” the Wall Street Journal reported a prediction that “‘every corporate securities lawyer in America is going to now fashion their arguments against SEC rulemaking to force-fit it into [that doctrine].’” As articulated by the sharply divided 6- 3 majority in West Virginia v. EPA, major questions doctrine (MQD) analysis is warranted in certain “extraordinary cases” involving a “transformative expansion” in a federal agency’s regulatory authority that is premised on “a merely plausible textual basis for the agency action.” Extraordinariness, …

Selling Surveillance, Asaf Lubin

Articles by Maurer Faculty

Almost everything we do on the Internet is achieved through Internet-connected devices, such as smartphones and laptops. This reality has produced a new sprawling industry of commercial spyware corporations: a vast network of companies specializing in selling security vulnerabilities in the very devices we all use. These companies provide clients with tools and services for unauthorized access and surveillance. Investigative reporting has unearthed the scope and nature of the systematic abuses produced by these technologies. Around the world, government actors rely on spyware to target human rights activists, journalists, and dissidents with almost no accountability.

Spyware companies have long defended …

Shareholder Primacy Versus Shareholder Accountability, William W. Bratton

Seattle University Law Review

When corporations inflict injuries in the course of business, shareholders wielding environmental, social, and governance (“ESG”) principles can, and now sometimes do, intervene to correct the matter. In the emerging fact pattern, corporate social accountability expands out of its historic collectivized frame to become an internal subject matter—a corporate governance topic. As a result, shareholder accountability surfaces as a policy question for the first time. The Big Three index fund managers, BlackRock, Vanguard, and State Street, responded to the accountability question with ESG activism. In so doing, they defected against corporate legal theory’s central tenet, shareholder primacy. Shareholder primacy builds …

Patent Term Tailoring, Sarah Rajec

Indiana Law Journal

Patent rights are designed to encourage innovation with both the promise of a patent and with its expiration. Currently, patent term lasts from issuance until twenty years from the application date, with minor exceptions. The patent term is limited so that rewards for past invention do not overly hinder future progress. Although the goal is laudable, a uniform patent term is a blunt instrument to achieve such a nuanced balance. Historically, the patent system was not averse to tailoring terms through, for example, individually granted extensions to undercompensated inventors or term curtailment when a foreign patent holder failed to “work” …

Interlocal Power Roulette, Daniel B. Rosenbaum

Indiana Law Journal

Local governments inhabit a crowded ecosystem. Cities, counties, and school districts—and many more—share overlapping territorial jurisdictions. Overlapping jurisdiction goes hand-in-hand with redundant local power, defined as a scenario where multiple governments hold independent authority to take the exact same action in the exact same territorial space. In Maine, for example, state law empowers three local bodies to operate the same sewer infrastructure. In Detroit, two separate entities are equally tasked with managing the city’s streetlights. And in communities across the country, local governments are broadly authorized to own the same parcels of public land, including in Oakland, California, where public …

Verses Turned To Verdicts: Ysl Rico Case Sets A High-Watermark For The Legal Pseudo-Censorship Of Rap Music, Nabil Yousfi

Seattle University Law Review

Whichever way you spin the record, rap music and courtrooms don’t mix. On one side, rap records are well known for their unapologetic lyrical composition, often expressing a blatant disregard for legal institutions and authorities. On the other, court records reflect a Van Gogh’s ear for rap music, frequently allowing rap lyrics—but not similar lyrics from other genres—to be used as criminal evidence against the defendants who authored them. Over the last thirty years, this immiscibility has engendered a legal landscape where prosecutors wield rap lyrics as potent instruments for criminal prosecution. In such cases, color-blind courts neglect that rap …

Modern Disaster Fragmentation, Abigail E. André

Fordham Law Review

Natural disasters test us. They exist at the intersection of nature, law, and society to show us where our systems are failing. Beyond physical damage, they magnify weaknesses in our socioeconomic and legal systems. In an attempt to leverage the lessons disasters bring, this Article analyzes the administrative institutions that govern disaster relief from the perspective of law, history, equity, and institutional design. This intersectional analysis uncovers a system fragmented by centuries of disorganization and infused with socioeconomic discrimination. Minor revisions cannot fix our federal approach to disaster relief: an institutional overhaul is required to achieve good governance.

Coping With Coppa: Exploring Alternatives To The Children's Online Privacy Protection Act, Andrew Parra

Indiana Journal of Law and Social Equality

The Children’s Online Privacy Protection Act of 1998 (COPPA) stands as one of the greatest protectors of children’s privacy for nearly twenty-five years. However, COPPA has struggled to keep pace with technological changes during this time, and the COVID-19 pandemic highlighted the shortcomings of COPPA regulations as children were forced to spend increased amounts of time in digital spaces. As the Federal Trade Commission (FTC) is set to make changes to COPPA, it is necessary to consider what changes would be most beneficial to protect children. This paper will explore the current regulatory framework, its strengths and weaknesses, and then …

Second-Class Administrative Law: Lincoln V. Vigil'S Puzzling Presumption Of Unreviewability, Matthew B. Lawrence

Faculty Articles

Administrative law ordinarily presumes that someone hurt by “arbitrary and capricious” agency action may seek relief in federal court unless Congress says otherwise. Administrative law does the opposite, however, when the harmful agency action happens to be one “allocating a lump-sum appropriation” (whatever that means). When it comes to spending programs that courts deem to fit in this ill-defined category, agency actions are presumptively immune from judicial review, insulated from the safeguards of administrative law no matter how arbitrary.

This Article looks behind the superficial, technocratic simplicity of the presumption of unreviewability through a novel, person-sensitive study of its origins …

When Is Legal Methodology Binding?, Jonathan R. Nash

Faculty Articles

Common-law interpretive methodologies are mostly nonbinding, but some interpretive methodologies are seen as binding precedent. This Article offers an explanation for this state of affairs. Whereas the extant scholarship on common-law interpretive methodologies offers descriptive accounts (often assuming that common-law methodologies are per se nonbinding) and normative analysis, this Article fills a gap in the literature by providing a realist explanation for the legal landscape of binding interpretive methodologies. It identifies whether a methodology is rule-like, and whether it increases judicial legitimacy and/or court power as “pull factors”—that is, incentives that might attract judges to recognize interpretive methodologies as binding. …

A Major Question For The Sec: Analyzing Constitutional Limits On Regulatory Authority, Matthew Diller, Meredith Berger, Samuel W. Buell, John M. Golden, Suzanne Ashley, Coy Garrison, Aaron Saiger, Suman Naishadham, Mary Jo White

Fordham Journal of Corporate & Financial Law

No abstract provided.

Another Major Question: The Department Of Labor Should Retire The Tiebreaker Rule And Reemploy Pecuniary Language In Erisa, Brandon Chesner

Fordham Journal of Corporate & Financial Law

The Employee Retirement Income Security Act of 1974 (“ERISA”) soon turns 50. Instead of celebrating with cake, retirees and future retirees alike get to witness a new chapter in the debate over the consideration of Environmental, Social, or Governance (“ESG”) factors in investing with plan assets. As employees cross the bridge into retirement, they look to their 401(k)s and pension plans for peace of mind, for it is ERISA that has been working silently in the background establishing minimum standards, practices, and fiduciary duties to protect participants. In recent years, the U.S. Department of Labor (“DOL”) has passed three regulations—two …

Humans Outside The Loop, Charlotte A. Tschider

Faculty Publications & Other Works

Artificial Intelligence (AI) is not all artificial. Despite the need for high-powered machines that can create complex algorithms and routinely improve them, humans are instrumental in every step used to create AI. From data selection, decisional design, training, testing, and tuning to managing AI’s development as it is used in the human world, humans exert agency and control over the choices and practices underlying AI products. AI is now ubiquitous: it is part of every sector of the economy and many people’s everyday lives. When AI development companies create unsafe products, however, we might be surprised to discover that very …

Loper Bright In A Larger Interpretive Perspective: Is This Justice Scalia’S Court Anymore?, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

Loper Bright Enterprises v. Raimondo has left administrative lawyers agog: Could the Supreme Court really reverse the “goliath” known as Chevron deference? For those who study the Court’s interpretive landscape more broadly, however, Chevron reversal may not be as unexpected as administrative lawyers believe. This Article will look at Loper Bright by linking three notable interpretive developments: the major questions doctrine, Chevron skepticism, and strict constructions of statutory text. These developments share the same risk: the Court is imposing a new “clarity tax” on both Congress and administrative agencies. Having said this, others’ grave worries about changes in Chevron are …

Marijuana And The Tyrannies Of Scheduling, Robert A. Mikos

Fordham Law Review

No abstract provided.