Administrative Law Commons^™

Same As It Ever Was : The Tijuana River Sewage Crisis, Non-State Actors, And The State, James M. Cooper

Faculty Scholarship

Sewage—a scary mixture of human waste and industrial toxins—flows into the Tijuana River Valley, an environmentally sensitive watershed that straddles the United Mexican States ("Mexico") and the United States of America. Treatment plants, a deteriorating one in Punta Bandera with limited capacity south of the border, and another in San Diego County completed in 1997, are inadequate to process the volume of sewage. So much sewage made its way into the Tijuana River that CBS 60 Minutes broadcast a special report on the binational environmental disaster in 2020.

Border factories and a population spike contribute to the sewage. Maquiladoras, …

Procedural Environmental Justice, Jonathan Skinner-Thompson

Publications

Achieving environmental justice—that is, the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies—requires providing impacted communities not just the formal right, but the substantive ability, to participate as equal partners at every level of environmental decision-making. While established administrative policy purports to provide all people with so-called “meaningful involvement” in the regulatory process, the public participation process often excludes marginalized community members from exerting meaningful influence on decision-making. Especially in the environmental arena, regulatory decisions are often buried …

Fda As Food System Stewards, Margot J. Pollans, Matthew F. Watson

Elisabeth Haub School of Law Faculty Publications

The Food and Drug Administration (“FDA”) is one of the primary regulators of the U.S. food system, yet it all but ignores the food system's vast environmental footprint. Although the agency is not technically an environmental agency, it could and should view redressing the food system's significant environmental footprint as part of its health and safety mission. In this Article, we review FDA's history of National Environmental Policy Act (“NEPA”) compliance. This history affirms our hypothesis that FDA does not view its own work as environmental. The review, along with assessment of some of FDA's core food programs, reveals that …

Cost-Based California Effects, Jens Frankenreiter

Scholarship@WashULaw

The “California Effect” is a recurring trope in discussions about regulatory interdependence. This effect predicts that businesses active in multiple jurisdictions sometimes adopt the strictest standards that they face in any jurisdiction globally, even if the law does not require global compliance. There is a substantial literature that assumes the existence of California Effects both at the interstate level in the United States and the international level. However, empirical evidence documenting their existence and strength is scarce. This paper investigates the existence of California Effects in data privacy law, a field in which these effects have been said to be …

The Evolving Apa And The Originalist Challenge, Ronald M. Levin

Scholarship@WashULaw

This article, written for a symposium marking the seventy-fifth anniversary of the Administrative Procedure Act (APA), discusses the manifold ways in which courts have creatively interpreted the APA’s provisions on rulemaking, adjudication, and judicial review. Many of these interpretations seem to be barely, if at all, consistent with the intentions of the Act’s drafters and with standard principles of statutory construction. They can, however, be defended as pragmatic judicial efforts to keep up with the evolving needs of the regulatory state, especially in light of Congress’s persistent failure to take charge of updating the Act on its own. At this …

Understanding American Privacy, Neil M. Richards, Andrew B. Serwin, Tyler Blake

Scholarship@WashULaw

This Article is an explanation of some of the key features of American privacy law for a general audience. In particular, it tries to explain American privacy law against the critique that because the US currently lacks a European-style privacy law, the United States lacks much in the way of privacy law. We argue that the lack of a European-style data protection law in the United States is not the end of the analysis. This article therefore offers a basic roadmap to American privacy law for the uninitiated. In order to understand American privacy, we believe that it is important …

Defending The Defenders: Why Bureaucratic Independence Is A Necessary Supplement To Judicial Defense Of Democracy The Specter Of Dictatorship: Judicial Enabling Of Presidential Power, Andrea Scoseria Katz

Scholarship@WashULaw

A familiar story is being observed in countries ranging from Brazil to Australia, the United States, and Poland, as elected executives deploy a populist threat narrative to politicize the rule of law and entrench themselves in power. Out of the academy, a growing literature on democratic “backsliding” or “decline” proposes a menu of “guardrails” for shoring up democracy from gradual collapse. Broadly, these guardrails fall under two headings: I call one judicial, the other bureaucratic. The former looks to the power of judicial review, under which courts may invalidate enactments that threaten, not just the Constitution, but the very democratic …

Reforming Reimbursement For The Us Food And Drug Administration’S Accelerated Approval Program To Support State Medicaid Programs, Rachel Sachs, Julie M. Donohue, Stacie B. Dusetzina

Scholarship@WashULaw

Importance The US Food and Drug Administration (FDA) has an accelerated approval program that has become the subject of scholarly attention and criticism, not only for the FDA’s oversight of the program but also for its implications for payers.

Observations State Medicaid programs’ legal obligations to provide reimbursement for accelerated approval products have created fiscal challenges for Medicaid that have been exacerbated by industry’s changing use of the accelerated approval program over time. Although strategies for accelerated approval reforms have been proposed, most focus on reforming the FDA’s accelerated approval pathway and product regulation without taking into account the implications …

The Rise And Fall Of Cryptocurrency: The Three Paths Forward, Joel Seligman

Scholarship@WashULaw

In a crash reminiscent of the 1929-1933 Stock Market crash in which prices on the New York Stock Exchange fell 83 percent between September 1929 and July 1932 or the 2007-2009 Financial Debacle in which the Dow Jones Industrial Average declined 54 percent between October 9, 2007 and March 9, 2009, crypto market capitalization fell 61 percent between November 2021 and May 2022, collapsing from an aggregate value of $2.9 trillion to $1.24 trillion. Bitcoin, the leading cryptocurrency which in late 2021 traded near $68,000 in November 2021 traded as low as $25,402 on May 10, 2022 (a decline of …

The Undemocratic Roots Of Agency Rulemaking, Emily S. Bremer

Journal Articles

Americans often credit—or blame—Congress for the laws and policies that govern their lives. But Congress enacts broad statutes that give federal administrative agencies the primary responsibility for making and enforcing the regulations that control American society. These administrative agencies lack the political accountability of those in public office. To address this democratic deficit, an agency seeking to adopt a new regulation must publish a notice of proposed rulemaking and provide an opportunity for the public to comment on the proposal. Heralded as “one of the greatest inventions of modern government,” the Administrative Procedure Act’s (APA) notice-and-comment rulemaking procedure is understood …

A Congressional Review Act For The Major Questions Doctrine, Christopher J. Walker

Articles

Last Term, the Supreme Court recognized a new major questions doctrine, which requires Congress to provide clear statutory authorization for an agency to regulate on a question of great economic or political significance. This new substantive canon of statutory interpretation will be invoked in court challenges to federal agency actions across the country, and it will no doubt spark considerable scholarly attention. This Essay does not wade into those doctrinal or theoretical debates. Instead, it suggests one way Congress could respond: by enacting a Congressional Review Act for the major questions doctrine. In other words, Congress could establish a fast-track …

Bridges To A New Era Part 2: A Report On The Past, Present, And Potential Future Of Tribal Co-Management On Federal Lands In Alaska, Monte Mills, Martin Nie

Articles

Nowhere else in the United States are tribal connections and reliance on federal public lands as deep and geographically broad-based as in what is now Alaska. The number of Tribes—229 federally recognized tribes—and the scope of the public land resource—nearly 223 million acres—are simply unparalleled. Across that massive landscape, federal public lands and the subsistence uses they provide remain, as they have been since time immemorial, “essential to Native physical, economic, traditional, and cultural existence.”^[1] Alas, the institutions, systems, and processes responsible for managing those lands, protecting those uses, and honoring those connections are failing Alaska Native Tribes.

The …

Reconsidering The Legal Regulation Of The Usage Of Administrative Policies, Wei Yao, Kenny Chng

Research Collection Yong Pung How School Of Law

Policies are of great practical importance in administrative governance. Yet, doctrinal and normative ambiguities remain in the law regulating the usage of administrative policies. Specifically, there exists a well-known tension between the rule against fettering and the legitimate expectations doctrine. Approaching this issue from a normative angle and drawing upon T.R.S. Allan’s reflections on the rule of law, the paper will argue that a unified legal approach governing the usage of administrative policies, premised on the normative objective of furthering the rule of law as the rule of reason, will go a significant way towards resolving this tension and addressing …

Super Deference And Heightened Security, Jonathan H. Adler

Faculty Publications

Judicial review of federal agency action is systematically deferential. Such deference is arguably at its peak where agencies address scientific and highly technical matters within their area of expertise. This is what some call “super deference.” While there may be strong arguments for deferential review of agency scientific determinations as a general matter, there are reasons to question such deference when agency action implicates constitutional concerns. In particular, where agency actions trigger heightened scrutiny, such as occurs when agency actions intrude upon expressly enumerated or otherwise recognized fundamental rights or adopt constitutionally suspect classifications, courts should not apply traditional levels …

Post-Grant Adjudication Of Drug Patents: Agency And/Or Court?, Arti K. Rai, Saurabh Vishnubhakat, Jorge Lemus, Erik Hovenkamp

Articles

The America Invents Act of 2011 (AIA) created a robust administrative system-the Patent Trial and Appeal Board (PTAB)-that provides a route for challenging the validity of granted patents outside of district courts. Congress determined that administrative adjudication of the validity of initial patent grants could be cheaper and more scientifically accurate than district court adjudication of such validity.

For private economic value per patent, few areas of technology can match the biopharmaceutical industry. This is particularly true for small-molecule drugs. A billion-dollar drug monopoly may be protected from competition by a relatively small number of patents. Accordingly, the social cost …

The Right To Effective Self-Government, Katharina Pistor

Faculty Scholarship

Protecting individual rights is a core feature of democratic constitutionalism. The centralization of the means of coercion gave rise to the Hobbesian dilemma, the fear that this enormous power might be abused unless it be effectively controlled. In addition to dividing power among different branches of government or sharing it between the federation and its units, constitutions have fortified individual rights with judicial review and enforcement mechanisms against the executive branch to rein in state power.

Proposing a collective right to effective self-government sits oddly with a vision that pitches free individuals against an all-powerful state. Such a right can, …

A Scholarly Error And A Larger Truth, Philip A. Hamburger

Faculty Scholarship

Can Congress delegate its legislative power? The question has stimulated much recent scholarship, including Professor Nicholas Parrillo’s detailed study of the 1798 federal tax act. According to his article, the statute delegated binding rulemaking power. My recent SSRN draft Nondelegation Blues questions Parrillo’s conclusion. But now in this blog, he suggests that my article misreads his argument.

New Democracy: Finding Hope In The Past And Heavy Lifting For The Future, Kate Andrias

Faculty Scholarship

Bill Novak has written a remarkable book that debunks the myth that the American state was weak and unconcerned with providing for social welfare until it was transformed by the extraordinary leadership of President Franklin Delano Roosevelt. He shows with compelling detail that the New Deal was not a magical or anomalous moment, but rather came about because of legal, institutional, socioeconomic, and democratic “heavy lifting” that occurred over the course of the preceding seventy years.

Of Presidents, Democracy, And Congress, Gillian E. Metzger

Faculty Scholarship

Put one good thing down for the Trump presidency: It inspired Peter Shane to take up the pen to detail the fallacies of unitary executive theory and other forms of aggressive presidentialism. In Democracy’s Chief Executive, Shane provides a clear and powerful account for why unitary executive theory — the claim that the president can control the entire federal bureaucracy, which Shane notes usually includes the propositions that the president can fire any subordinate executive branch officer at will and determine how any discretion delegated to the executive branch is exercised — fails. As he explains, such propositions are …

Ships Passing In The Night: The Communications Act And The Convergence On Broadband, Stuart Minor Benjamin

Faculty Scholarship

The Communications Act of 1934 and its amendments (the “Act”), and the regulations implementing them, have been enormously important to traditional telephony, broadcasting, and multichannel video. Meanwhile, the internet is barely mentioned in the Act. It thus might seem reasonable to conclude that the Act stands as a colossus and that the argument for overhauling it has grown much stronger as the Telecommunications Act of 1996 (the “1996 Act”) becomes ever more outdated. In this Article I suggest otherwise. Specifically, I make three claims—one descriptive, one a bit speculative, and one normative. The descriptive claim is that significant portions of …

Responding To Mass, Computer-Generated, And Malattributed Comments, Steven J. Balla, Reeve Bull, Bridget C.E. Dooling, Emily Hammond, Michael A. Livermore, Michael Herz, Beth Simone Noveck

Articles

A number of technological and political forces have transformed the once staid and insider dominated notice-and-comment process into a forum for large scale, sometimes messy, participation in regulatory decisionmaking. It is not unheard of for agencies to receive millions of comments on rulemakings; often these comments are received as part of organized mass comment campaigns. In some rulemakings, questions have been raised about whether public comments were submitted under false names, or were automatically generated by computer “bot” programs. In this Article, we examine whether and to what extent such submissions are problematic and make recommendations for how rulemaking agencies …

Pergeseran Kompetensi Absolut Dari Peradilan Umum Ke Peradilan Tata Usaha Negara: Gugatan Perbuatan Melawan Hukum Oleh Penguasa (Onrechtmatige Overheidsdaad), Muhamad Raziv Barokah, Anna Erliyana

Jurnal Hukum & Pembangunan

The absolute competency-shifting in adjudicating a lawsuits against the law by authorities from the general court to the state administration court suddenly based on Supreme Court Regulation No. 2/2019 raises 2 (two) issues regarding differences in the parameters of evaluating government actions in terms of civil law with state administration law and a significant reduction in the time period for filing a lawsuit from 30 (thirty) years to 90 (ninety) days. This research takes the form of a normative juridical approach to the rule of law. This study concludes there are differences in the parameters of the OOD Claims between …

Wasiat Wajibah Bagi Suami Murtad Dalam Pendekatan Teleologik Menuju Realisme Hukum (Suatu Analisis Terhadap Putusan Ma Nomor 331 K/Ag/2018), Raju Mohammad Hazmi, Nurul Adhha, - Kamarusdiana

Jurnal Hukum & Pembangunan

The Compulsory will (wasiyah wajibah) is one of the products of ijtihad in the field of contemporary Islamic jurisprudence. The case of compulsory wills is also included in the sub-discussion of inheritance in family or civil law in several countries with a majority Muslim community. The provision of a mandatory will appears as an alternative to several inheritance problems, such as the right to inheritance for heirs of different religions, children and adoptive parents. This condition is faced with the reality of the inheritance law of a society that cannot be separated from the structure, norms and traditions of a …

Implikasi Pilihan Metode Konversi Suara Terhadap Proporsionalitas Perolehan Kursi Dalam Pemilihan Umum Anggota Dewan Perwakilan Rakyat, Bimo Fajar Hantoro

Jurnal Hukum & Pembangunan

Choice of vote conversion method, as an element of the general election system, has implications for the degree of proportionality. The degree of proportionality in question is divided into two elements, namely between the percentage of seats acquired and the fairness to large and small parties. The author here is interested in measuring the degree of proportionality generated by each of the vote conversion methods. The author then performs a simulation to measure these two elements from two families of vote conversion methods, namely the Quota method and the Divisor method. The simulation results show that in terms of proportionality …

Tindak Pidana Pencucian Uang Yang Dilakukan Oleh Korporasi: Studi Kasus Putusan Pengadilan Negeri Nomor: 64/Pid.Sus/Tpk/2016/Pn.Bgl, Jeanny Jessica

Jurnal Hukum & Pembangunan

The typologies of money laundering are very closely related to corporate activities, which the activities of corporation are involved indirectly or are associated with financial institutions that made corporations very high risk as criminal offender of money laundering crimes. The handling of money laundering cases that corporation as subjects have only been carried out in Bengkulu with the corruption as primary criminal act, whereas will be expected that the application of corporations as subjects of money laundering crimes will also trigger other law enforcement agencies to uncover money laundering cases that made by corporations

Perkembangan Kedudukan Hukum (Legal Standing) Dalam Pengujian Administratif Di Pengadilan Tata Usaha Negara Dan Uji Materi Di Mahkamah Agung, Oce Madril, Jery Hasinanda

Jurnal Hukum & Pembangunan

Legal standing is one of the most important aspect accordance citizen legal protection from government act which is general or concrete . In implementation at Indonesia, there are many changes in the legal standing rule. Nevertheless, this changes of rule is considered not to clarify related legal standing aspect that has impact to citizen who are having trouble for access to justice through Administratif Judicial at Administratif Court and Judicial Review at Supreme Court. Plus, the emergence of many judge decision from Administrative Court and Supreme Court Judge that sometimes expanding the meaning of legal standing, but sometimes restricting the …

Kesepakatan Perjanjian Jual Beli Melalui Mesin Jual Otomatis (Vending Machine) Ditinjau Dari Aspek Hukum Perjanjian, Diah Anggraeni Ndaomanu, Indirani Wauran

Jurnal Hukum & Pembangunan

In the making of an agreement, it always refers to 4 (four) terms of the validity of the agreement which is regulated in Article 1320 of the Indonesian Civil Code. There is an important element from 4 (four) legal requirements named the agreement between the two parties. The background of this thesis writing is the development of technology where there are developments in the trade sector, namely buying and selling through vending machines without involving the seller directly or real. This research writing aims to determine the form of sale and purchase agreements through vending machines in terms of the …

Eksistensi Perlindungan Paten Atas Vaksin Covid-19, Adzhani Tharifah, Agus Sardjono

Jurnal Hukum & Pembangunan

The Covid-19 vaccine is expected to be a solution to return to normal life. However, the need for vaccines that are global in nature raises several questions in the community, especially regarding the existence of patent protection. For this reason, this paper will answer these questions by discussing the patentability of the Covid-19 vaccine as well as how to implement patent protection in the midst of a pandemic and public concerns about limited access to vaccines. The research method used in the writing of this thesis is normative juridical with a qualitative approach where the data comes from literature studies …

Evaluasi Kebijakan Peradilan Elektronik (E-Court) Mahkamah Agung Republik Indonesia, Abdul Rachmat Ariwijaya, Palupi Lindiasari Samputra

Jurnal Hukum & Pembangunan

This study aims to evaluate the administrative policies and electronic trial (E-Court) of the Supreme Court of the Republic of Indonesia and the judicial bodies under it in achieving the principles of administering judicial power, namely: simple, fast, and low-cost justice. The research method uses a retrospective evaluation theory that directs the present results after implementing the E-Court policy. The data used consisted of secondary data (documents) and primary data through in-depth interviews from experts and E-Court policymakers. The results showed that the E-Court policy succeeded in clarifying the Supreme Court of the Republic of Indonesia's organization in realizing simple, …

Penerapan Sanksi Pidana Terhadap Perbuatan Pengalihan Barang Jaminan Fidusia (Studi Kasus Pada Polres Serang Kota), Rahmat Wiguna, Benny Irawan, Rena Yulia

Jurnal Hukum & Pembangunan

At this time, many financial institutions (leasing) offer easy credit applications for potential customers. This has attracted consumers to apply for motor vehicle loans, both cars and motorbikes, in leasing companies. However, the problem that has occurred recently in financial institutions is the number of cases concerning the transfer of fiduciary collateral. In fact, the said act has been regulated in statutory regulations which have criminal consequences, namely if the debtor transfers goods or pawns the goods which are guaranteed to be Fiduciary without the creditor's permission, the debtor can be subject to a fiduciary crime. This research aims to …