Administrative Law Commons^™

Beyond Jarkesy: Rethinking The Role Of Administrative Law Judges In Sec Administrative Proceedings, Mark T. Uyeda, Jaime Marinaro

Fordham Journal of Corporate & Financial Law

No abstract provided.

The Federal Reserve’S Fight Against Covid-19: A Study Of The Corporate Bond Intervention, Noah Seilgson

Fordham Journal of Corporate & Financial Law

In response to the COVID-19 pandemic, the Federal Reserve (Fed) embarked on an unprecedented mission to stabilize the U.S. economy as businesses shut down. One emergency Fed facility, the Secondary Market Corporate Credit Facility (SMCCF), was used to purchase corporate bonds and corporate bond exchange-traded funds (ETFs) in the secondary market. This extraordinary measure, which injected liquidity into the corporate bond market, aimed to mitigate economic fallout for large companies. Purchasing corporate bonds marked a departure from previous Federal Reserve interventions, but the statutory authority was the same as had been used in past crises: Section 13(3) of the Federal …

Alternatives To Delaware? Evaluating Corporate Law In Nevada, Texas, And Wyoming, Joseph Landau, Bailey Swartz, Anthony Rickey, Robert Ragazzo, Benjamin Edwards, George A. Mocsary

Fordham Journal of Corporate & Financial Law

No abstract provided.

Algorithms In Finance: Balancing First Amendment Protections And Regulation, Yusraa Tadj

Fordham Journal of Corporate & Financial Law

As algorithms become a function of decision-making in the financial sector, policymakers, the judiciary, and academics grapple with regulatory questions. With the increased reliance on algorithms in finance, the Securities and Exchange Commission (SEC) proposed a rule to mitigate potential conflicts of interest that can arise out of financial firms using algorithms. Algorithm users, including financial firms, are finding novel ways to protect algorithm use, such as by offering them First Amendment protections.

This Note considers to what extent algorithms can be considered protected speech amidst the complexity of algorithms and relationship within the financial sector. The Note argues that …

Healthcare Ai's Unlearned Intermediaries, Charlotte A. Tschider

Faculty Publications & Other Works

The U.S. Food & Drug Administration (“FDA”), as the largest and one of the most influential federal agencies, plays a significant role informing downstream tort actions, such as product liability claims against medical product manufacturers.  The contours of the relationship between regulatory behavior and tort law are allocated according to congressional act and through judicial interpretation of agency action.  While artificially intelligent medical devices are technically regulated by the FDA, FDA regulatory approaches may not meaningfully reduce the probability of patient injury.  When, despite inadequate ex ante processes, injured plaintiffs cannot recover in tort due to court perceptions of regulatory …

The Reedy Creek Improvement District: A Comparative Analysis Underscoring The Problems In Hampering Special Districts, J. Patrick Moll

Dickinson Law Review (2017-Present)

In 2022, the Florida legislature passed a bill that removed the administration of the Reedy Creek Improvement District, the special district governing the Walt Disney World Resort. The bill replaced it with the Central Florida Tourism Oversight District. Governor Ron DeSantis hailed this legislation as a success in reigning in a corporation operating with unchecked and unprecedented levels of governmental authority. Since its inception, however, the replacement administration has contended with claims of ethical violations, inefficiency, and unconstitutional enactment. Before the repeal of the Walt Disney World special district, special districts themselves were not often present in the Nation’s everyday …

Internet Search Engines’ Privacy Violations And The Lack Of Federal Regulation To Protect Consumers Rights, Elsa M. G. Rodriguez Ogando

Dickinson Law Review (2017-Present)

The United States’ current legal framework regarding internet search engines is disadvantageous to consumers. Federal privacy laws (although not encompassing search engines) grant businesses a strong legal basis in privacy claims and alibies for arbitrary behavior; these laws favor businesses over consumers. Moreover, state privacy laws empower nonspecific agencies to oversee privacy matters and enforce consumers’ rights. Thus, the U.S. privacy legal framework is in need of a new federal law that establishes consumers’ rights, as well as a federal agency dedicated solely to privacy matters. This Article proposes a federal law recommendation based on the standards of the California …

Sending A Message: An Empirical Assessment Of Responses To Punitive And Non-Punitive Compliance Messaging Strategies, Jodi L. Short, Michael W. Toffel, Elizabeth A. Keenan, Melissa Ouellet

Faculty Scholarship

Regulators have long faced the challenge of enforcing extensive legal requirements with resources that are wildly inadequate to the task. Even in the most hospitable legal and political climate, it is inherently difficult for regulators to deploy sufficient resources to monitor and enforce compliance with broad statutory mandates and extensive bodies of rules. Legal and political hostility to regulation further diminishes regulators' capacity to enforce the law. In contexts where legal requirements far outstrip an agency's enforcement capacity, regulators must wrestle with the question of whether it is possible to persuade regulated individuals and entities to comply with law when …

Unwritten Administrative Law And The Regulatory Last Mile, Anthony B. Derron

Publications

Programs like the Clean Water Act, Clean Air Act, and Resource Conservation and Recovery Act are ostensibly federal. But once they change hands from national to subnational, they’re implemented through state statutes and regulations, not direct enforcement of the United States Code. As a result, state, not federal, administrative law governs in many bread-and-butter situations. Through a comprehensive fifty-state survey, I find that this body of law is largely unwritten.

Yet cooperative federalism relies on the capacity of state institutions to function. And equally critical is the existence of law that shepherds a program from congressional subcommittee to the very …

Emergency Oversight, Catherine Baylin Duryea

Faculty Publications

This Article examines one of the most pressing questions in administrative law: How much judicial oversight should administrative agencies face during an emergency? This issue was particularly salient during the COVID epidemic, but it is not new. The Second World War saw a significant expansion and consolidation of the power of administrative agencies as well as experimentation with the appropriate oversight role for courts. This Article analyzes one such experiment: judicial oversight of agencies implementing wartime anti-inflationary measures, i.e., price controls and rationing. During the war, Congress created a specialized court, the Emergency Court of Appeals (ECA), to hear disputes …

Structuring The President’S Removal Power: An Agency-Specific Approach, Peter Margulies

American University Law Review

Recent Supreme Court decisions have taken a broad view of the President’s power to remove executive branch officials. According to the Court, the President’s Article II obligation to “take Care that the Laws be faithfully executed” generally requires that the President have authority to remove officials at will. The Court has thus far declined to overrule Humphrey’s Executor v. United States, a 1935 decision upholding “forcause” restrictions on removal for multi-member “quasi-judicial” bodies such as the Federal Trade Commission (FTC). Nonetheless, recent Court decisions have eroded the rationale in the earlier case, which has received additional attention because of efforts …

A Small Price To Pay For Better Mental Health Crisis Care: Why States Should Be Funding The New 988 Hotline Through Phone Fees, Katherine Menello

Law Student Publications

Mental health care in the United States is uncoordinated, underresourced, and overall insufficient. Mental health crisis care is much the same, but with much higher stakes. The lack of a comprehensive mental health crisis care system across the country has led to law enforcement involvement becoming the default system in most communities. Yet, an overwhelming majority of Americans want a better way; in a survey conducted in summer 2023, “85% of people sa[id] they want a mental health response to someone experiencing a mental health, drug or suicide crisis, not a police response.”...

Rhode Island Troopers Ass’N V. Division Of The State Police, 316 A.3d 1140 (R.I. 2024), Alexis N. Reed

Roger Williams University Law Review

No abstract provided.

Vidot V. Salisbury, 315 A.3d 928 (R.I. 2024), Alexander Lavoie

Roger Williams University Law Review

No abstract provided.

The Value Of A Statistical Life: From Skin In The Game To Vision Zero, Michael C. Duff

All Faculty Scholarship

This essay discusses justice issues surrounding occupational safety and health and assesses the ethical legitimacy—the justice—of regulatory cost benefit analysis when the costs in question involve the risks and realization of workplace injury and fatalities. The current “value of a statistical life” for legal-regulatory purposes is 13.1 million dollars. While economists are careful to say that this figure does not “really” represent an attempt to value any particular life, the purpose of even calculating the number is to provide an “aggregated” statistical justification for saying “no” to rules requiring safer work. This seems acceptable until you, or someone you love, …

Scientific And Technical Expertise After Loper Bright, Sapna Kumar

Articles

Courts once trusted federal agencies for their expertise in administering complex statutory schemes, particularly regarding science and technology. Unlike judges, agency officials can narrowly focus on a specific area of law and have access to experts to inform their decision making. In Chevron U.S.A., Inc. v. Natural Resources Defense Council, the Supreme Court created a presumption that, absent language to the contrary, Congress intends for agencies to interpret statutory ambiguities. Chevron allowed agencies to utilize their varied forms of expertise while ensuring oversight from generalist judges. This court–agency partnership abruptly ended, however, in Loper Bright Enterprises v. Raimondo. The Court …

A Practical Guide To Investigations And California Administrative Procedure Act Discovery, Allard Chu, Denise Smith

University of San Francisco Law Review

No abstract provided.

Opioid Settlements And Profitable Public Nuisances, Clayton J. Masterman

Touro Law Review

The global settlements between state and local governments and opioid manufacturers, distributors, and retailers require opioid defendants to transform their businesses and pay more than $40 billion to abate the ongoing opioid epidemic. The $40 billion in abatement funds is a substantial pool of money that is likely to help states combat opioid use and abuse. Large as the payments are, however, they are significantly smaller than the profits that the opioid defendants made over the course of the epidemic or the total harm that they caused. This Article argues that the global opioid settlements incentivize future defendants to create …

Evaluating Competitive Equality: The Department Of Education’S Regulations And Impact On Title Ix In Women’S Sports, Lola-Marie Pyros

Touro Law Review

Title IX was enacted to guarantee women equal opportunities in athletics by preserving competitive fairness. That objective has been challenged by evolving policies on transgender participation in women’s sports. Proponents of inclusion frame the issue as a matter of civil rights, while opponents emphasize physiological differences between the sexes that remain even after medical transition. Shifting interpretations by the Department of Education, influenced by changes in presidential administrations, have created legal uncertainty, culminating in Tennessee v. Cardona, which rejected an expansive definition of “sex” to include gender identity. This Note argues that maintaining the integrity of women’s athletics requires recognition …

The Keys To The Kingdom: The Unexpectedly Unsettled Definitions Of Security And Sale And The Overruling Of Chevron, Joel Seligman

Scholarship@WashULaw

This article explores two important unresolved questions for the Federal Securities regulation under the Securities Act of 1933 and the Securities Exchange Act of 1934. The definition of security and the definition of sale were increasingly contested and potentially unstable before the United States Supreme Court decision in Loper Bright Enterprises v. Raimondo overruled the Chevron doctrine.

On Emerging Technologies: The Old Regime And The Proactivity, Ran Xi

Cardozo International & Comparative Law Review

Nowadays, emerging technologies are revolutionizing nearly every facet of human life, shaping legal, cultural, political, and technological landscapes. Despite various breakthroughs, emerging technologies have also brought to society legal and regulatory challenges, such as the pacing problem, regulatory silos, and the black box issue. However, existing state-centric regulation on emerging technologies results in fragmented, inconsistent, and ineffective statutes and policies. The traditional regulatory regime, due to its reactive mindset, incremental approaches, and tools of modest efficacy, fails to mitigate associated risks and harms, sometimes even impeding technological innovation. To tackle this dilemma, this Article proposes a proactive law approach with …

Prosecuting Families, Anna Arons

Faculty Publications

Hundreds of thousands of parents are prosecuted in the family regulation system each year. Their cases are investigated by family regulation agencies and prosecuted by lawyers employed by the government—family regulation prosecutors. Like police and prosecutors in the criminal legal system, this family regulation prosecutorial team wields immense power, particularly over race–class subjugated communities. Yet even as scholarship on criminal prosecutors and on the family regulation system has proliferated, the role of family regulation prosecutors has gone underexamined and undertheorized.

This Article offers a critical examination of the role of these family regulation prosecutors. Drawing on a variety of primary …

Reframing Puerto Rican Advocacy: How The Emerging U.S.-China Rift Can Help Puerto Rico Realize Greater Autonomy, Michael Angelo Tabrizi

Cardozo International & Comparative Law Review

The note advocates for reframing Puerto Rican decolonization efforts as a foreign policy issue rather than solely a domestic matter, leveraging the U.S.-China rivalry to gain international support and alignment with the United Nations' principles on self-governance.

Life After Employee-Status In College Sports, Marc Edelman, John T. Holden, Michael A. Mccann

Fordham Law Review

National Collegiate Athletic Association; NCAA; college sports; intercollegiate sports; college athletes; college-athlete employee; amateurism; worker; employee; employment status; collective bargaining; single-employer bargaining units; Multiemployer Bargaining Units; Joint Employer Bargaining Units; antitrust

The Great Unsettling: Administrative Governance After Loper Bright, Cary Coglianese, Daniel E. Walters

Faculty Scholarship

“Chevron is overruled.” These three words surely captured more attention than any others in the U.S. Supreme Court’s thirty-five-page opinion in Loper Bright Enterprises v. Raimondo. For forty years, the Chevron doctrine had been virtually synonymous with administrative law. Now that the Court has taken a step that many scholars thought unfathomable even just a few years ago, speculation abounds about the possible downstream impacts of Loper Bright on both what agencies will be able to do in the future and how lower courts will respond when reviewing agency action. The vast majority of early expert commentaries suggest …

Medical Review Officers And The Limits Of Judicial Review, Leonard C. Brahin

Mitchell Hamline Law Review

In the public imagination, defenders of our national security wear military garb. But the individuals who determine their fitness-for-duty wear white coats. The unenviable task of assessing those who make up our national security workforce is carried out by a group of independent physicians who must make nuanced determinations about illicit drug and alcohol use by government employees. In addition to testing roles that may seem unexciting, like accountants and auditors, medical review officers (MROs) are tasked with ensuring employees of nuclear power plants and commercial drivers are fit for duty. In doing so, they rely on their experience, expertise, …

Avoiding Spacex's Giant Leap Backwards For Mankind: Why The Nlrb Leadership Is Constitutionally Protected And How To Keep It That Way, Clara Goldrich

Brooklyn Law Review

Companies like SpaceX and Amazon are arguing in federal court that the structure of the National Labor Relations Board (NLRB) unconstitutionally protects its Members and administrative law judges (ALJs) from presidential removal. President Donald Trump’s firing of Member Gwynne Wilcox, the ensuing litigation, and the Supreme Court’s grant of certiorari in an analogous case, Trump v. Slaughter, has kicked the constitutional question of NLRB leadership removal protections into high gear. This Note examines the constitutionality of NLRB Member and ALJ removal protections. Under current Supreme Court precedent, NLRB Member removal protections are likely constitutional. However, the Court has recently signaled …

Exploring The Dynamics And Outcomes Of Family Engagement In Child Welfare Services: A Structural Equation Modeling Approach, Jianchao Lai, Michelle Graef, Todd Franke

Center on Children, Families, and the Law: Faculty Publications

Background: Engaging families effectively in child welfare services remains a persistent challenge, shaped by complex interactions between agency practices and family circumstances. While existing research has explored this issue, it has predominantly relied on data from agency and caseworker perspectives, often overlooking the crucial viewpoint of the families. Objectives: This study investigates families’ subjective experiences and perceptions within the child welfare system, focusing on their satisfaction with child welfare workers and overall engagement. Methods: The study draws on data collected through an evaluation of the implementation of Alternative Response in a Midwestern state. Agency administrative data is integrated with additional …

Public Patent Powers, Laura E. Dolbow

Publications

Congress has created multiple structures for agencies to control how patents are used, but that institutional design choice has received little academic attention. This Article provides the first comprehensive survey of existing laws that expressly authorize agencies to control patents. I locate 113 express conditions across 68 laws that expressly authorize executive actors to make some form of decision about patents. These powers, which I refer to as “public patent powers,” allow the government to use patented inventions, to obtain patents, to authorize third parties to use patented inventions, and to regulate how patents are used. Agencies have used many …

Middlemen At A Price: The Role Of State-Level Laws In Restricting Pharmacy Benefit Managers, Patrick W. Schrader

Lewis & Clark Law Review

Pharmacy Benefit Managers (PBMs) have evolved from simple third-party payors into powerful intermediaries controlling prescription drug access for over 289 million Americans. Operating with minimal federal oversight, just six PBMs dominate 96% of the market, employing practices that systematically increase drug costs while claiming to reduce them. This Comment examines four primary mechanisms through which PBMs exploit the pharmaceutical supply chain: rebate manipulation, spread pricing, step therapy requirements, and formulary control. Federal regulatory efforts remain nascent and ineffective. The Centers for Medicare and Medicaid Services requires only basic reporting without substantive restrictions. Proposed federal legislation has repeatedly stalled, leaving states …