Administrative Law Commons^™

How Much Procedure Is Needed For Agencies To Change “Novel” Regulatory Policies?, Ming Hsu Chen

Publications

The use of guidance documents in administrative law has long been controversial and considered to be one of the most challenging aspects of administrative law. When an agency uses a guidance document to change or make policy, it need not provide notice to the public or allow comment on the new rule; this makes changes easier and faster and less subject to judicial review. Under the Obama Administration, guidance documents were used to implement policy shifts in many areas of administrative law, including civil rights issues such as transgender inclusion and campus sexual harassment and immigration law issues such as …

Making Litigating Citizenship More Fair, Ming H. Chen

Publications

No abstract provided.

Remutualization, Erik F. Gerding

Publications

Policymakers need to rediscover the organizational form of business entity as a tool of financial regulation. Recent and classic scholarship has produced evidence that financial institutions organized as alternative entity forms – including investment bank partnerships and banks and insurance companies organized as mutual or cooperatives – tend to take less risk, exploit customers/consumer less, or commit less misconduct compared to counterparts organized as investor-owned corporations. This article builds off the work of Hill and Painter on investment banks organized as partnerships, Hansmann on the history and economics of banks and insurance companies organized as mutuals and cooperatives, and other …

Regulatory De-Arbitrage In Twenty-First Century Cures Act's Health Information Regulation, Craig Konnoth

Publications

Health data regulation can be thought of at two levels. First, the micro- level of regulation has to do with Electronic Health Records (EHRs). Second, the macro-level concerns the networks on which EHRs are transmitted. The micro- and macro-levels of regulation interact. For example, EHRs need to be configured so that they can be transmitted on mandated networks. As a result, the lines do sometimes blur.

That said, the 21st Century Cures Act (Cures) clearly takes a dual approach to regulation. Cures was passed in December 2016 on a bipartisan basis. Its mandate was to address health data regulation at …

Critical Developments In Housing Policy, Kat Meyers, Cheryl Gonzales, Edward Josephson, Andrew Scherer, Michael Pollack

Cardozo Journal of Equal Rights & Social Justice

The symposium discusses the New York Housing Stability and Tenant Protection Act of 2019, highlighting its role in enhancing tenant protections by limiting rent increases and eviction practices, thereby addressing the housing crisis in NYC.

Delegation And Time, Jonathan H. Adler, Christopher J. Walker

Faculty Publications

Most concerns about delegation are put in terms of the handover of legislative power to federal agencies and the magnitude of the legislative policy decisions made by such agencies. Likewise, most reform proposals, such as the Congressional Review Act and the proposed REINS Act, address these gap-filling, democratic deficit concerns. The same is true of the judicially created nondelegation canons, such as the major questions doctrine and other clear statement rules. This Article addresses a different, underexplored dimension of the delegation problem: the temporal complications of congressional delegation. In other words, broad congressional delegations of authority at one time period …

Fixing America's Founding, Maeve Glass

Faculty Scholarship

The forty-fifth presidency of the United States has sent lawyers reaching once more for the Founders’ dictionaries and legal treatises. In courtrooms, law schools, and media outlets across the country, the original meanings of the words etched into the U.S. Constitution in 1787 have become the staging ground for debates ranging from the power of a president to trademark his name in China to the rights of a legal permanent resident facing deportation. And yet, in this age when big data promises to solve potential challenges of interpretation and judges have for the most part agreed that original meaning should …

Judicial Credibility, Bert I. Huang

Faculty Scholarship

Do people believe a federal court when it rules against the government? And does such judicial credibility depend on the perceived political affiliation of the judge? This study presents a survey experiment addressing these questions, based on a set of recent cases in which both a judge appointed by President George W. Bush and a judge appointed by President Bill Clinton declared the same Trump Administration action to be unlawful. The findings offer evidence that, in a politically salient case, the partisan identification of the judge – here, as a “Bush judge” or “Clinton judge” – can influence the credibility …

Delegating Or Divesting?, Philip A. Hamburger

Faculty Scholarship

A gratifying feature of recent scholarship on administrative power is the resurgence of interest in the Founding. Even the defenders of administrative power hark back to the Constitution’s early history – most frequently to justify delegations of legislative power. But the past offers cold comfort for such delegation.

A case in point is Delegation at the Founding by Professors Julian Davis Mortenson and Nicholas Bagley. Not content to defend the Supreme Court’s current nondelegation doctrine, the article employs history to challenge the doctrine – arguing that the Constitution does not limit Congress’s delegation of legislative power. But the article’s most …

Administrative Discrimination, Philip A. Hamburger

Faculty Scholarship

It has been good to read Notice and Comment’s symposium on racism in administrative power. Questions of prejudice and discrimination have long been left at the margins of the academic study of such power, and the symposium is a gratifying signal that such concerns are at last being accepted as more central.

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 …

Say “No” To Discrimination, “Yes” To Accommodation: Why States Should Prohibit Discrimination Of Workers Who Use Cannabis For Medical Purposes, Anne Marie Lofaso, Lakyn D. Cecil

Seattle University Law Review

This Article addresses the question of how the law should treat medical cannabis in the employment context. Using Colorado as a primary example, we argue that states such as Colorado should amend their constitutions and legislate to provide employment protections for employees who are registered medical cannabis cardholders or registered caregivers.

Part I briefly traces the legal regulation of cannabis from an unregulated medicine known as cannabis to a highly regulated illicit substance known as marijuana under the Controlled Substances Act. Our travail through this history reveals, unsurprisingly, an increasing demonization of cannabis throughout the twentieth century. That socio-legal demonization …

Seeing Transparency More Clearly, David E. Pozen

Faculty Scholarship

In recent years, transparency has been proposed as the solution to, and the cause of, a remarkable range of public problems. The proliferation of seemingly contradictory claims about transparency becomes less puzzling, this essay argues, when one appreciates that transparency is not, in itself, a coherent normative ideal. Nor does it have a straightforward instrumental relationship to any primary goals of governance. To gain greater purchase on how transparency policies operate, scholars must therefore move beyond abstract assumptions and drill down into the specific legal, institutional, historical, political, and cultural contexts in which these policies are crafted and implemented. The …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Critical Developments In Housing Policy, Kat Meyers, Cheryl Gonzales, Edward Josephson, Andrew Scherer, Michael C. Pollack

Articles

The 2019 Cardozo Journal of Equal Rights and Social Justice Symposium, Critical Developments in NY Housing Policy, brought leaders in NYC housing law to campus for a discussion on recent changes to tenants’ rights in the 2019 New York Housing Stability and Tenant Protection Act.

The event began with a keynote introduction by Kat Meyers, Staff Attorney in the Law Reform Unit of the Legal Aid Society, explaining the context of the new laws.

After a short break, Cardozo's Professor Pollack moderated a panel with participants Honorable Cheryl Gonzales, Supervising Judge in Kings County, Edward Josephson, Director of Litigation …

The Roberts Court And Administrative Law, Gillian E. Metzger

Faculty Scholarship

Administrative law today is marked by the legal equivalent of mortal combat, where foundational principles are fiercely disputed and basic doctrines are offered up for “execution.” Several factors have led to administrative law’s currently fraught status. Increasingly bold presidential assertions of executive power are one, with President Trump and President Obama before him using presidential control over administration to advance controversial policies that failed to get congressional sanction. In the process, they have deeply enmeshed administrative agencies in political battles – indeed, for President Trump, administrative agencies are the political battle, as his administration has waged an all-out war on …

Why Financial Regulation Keeps Falling Short, Dan Awrey, Kathryn Judge

Faculty Scholarship

This article argues that there is a fundamental mismatch between the nature of finance and current approaches to financial regulation. Today’s financial system is a dynamic and complex ecosystem. For these and other reasons, policy makers and market actors regularly have only a fraction of the information that may be pertinent to decisions they are making. The processes governing financial regulation, however, implicitly assume a high degree of knowability, stability, and predictability. Through two case studies and other examples, this article examines how this mismatch undermines financial stability and other policy aims. This examination further reveals that the procedural rules …

Ambiguity About Ambiguity, Philip A. Hamburger

Faculty Scholarship

Petitions for certiorari from the Supreme Court typically raise legal questions that are all too familiar, as cert ordinarily is available only to resolve circuit splits. Now and then, however, a case is “cert-worthy” precisely because it turns on something novel—even astonishing. Such is Monex v. Commodity Futures Trading Commission, in which the CFTC has been relying on ambiguity about the type of ambiguity that justifies its enforcement actions.

Coordinating Injunctions, Bert I. Huang

Faculty Scholarship

Consider this scenario: Two judges with parallel cases are each ready to issue an injunction. But their injunctions may clash, ordering incompatible actions by the defendant. Each judge has written an opinion justifying her own intended relief, but the need to avoid conflicting injunctions presses her to make a further choice – “Should I issue the injunction or should I stay it for now?” Each must make this decision in anticipation of what the other will do.

This Article analyzes such a judicial coordination problem, drawing on recent examples including the DACA cases and the “sanctuary cities” cases. It then …

Recovering The Lost History Of Presidential Removal Law, Jane Manners, Lev Menand

Faculty Scholarship

On March 3, 2020, the Supreme Court heard argument in Seila Law v. CFPB, the biggest removal law case since Free Enterprise Fund v. PCAOB was decided a decade ago. The petitioner challenges the constitutionality of the Consumer Financial Protection Bureau, the independent agency established by the 2010 Dodd-Frank Act (DFA) to protect consumers from harmful financial products. Seila Law, a California firm under investigation by the CFPB for its debt-relief marketing practices, argues that statutory limits specifying that the president can fire the CFPB director only for “inefficiency, neglect of duty, or malfeasance in office” (INM) violate the …

The Case For "Unfair Methods Of Competition" Rulemaking, Rohit Chopra, Lina M. Khan

Faculty Scholarship

A key feature of antitrust today is that the law is developed entirely through adjudication. Evidence suggests that this exclusive reliance on adjudication has failed to deliver a predictable, efficient, or participatory antitrust regime. Antitrust litigation and enforcement are protracted and expensive, requiring extensive discovery and costly expert analysis. In theory, this approach facilitates nuanced and fact-specific analysis of liability and well-tailored remedies. But in practice, the exclusive reliance on case-by-case adjudication has yielded a system of enforcement that generates ambiguity, drains resources, privileges incumbents, and deprives individuals and firms of any real opportunity to participate in the process of …

The Automated Administrative State: A Crisis Of Legitimacy, Danielle K. Citron, Ryan Calo

Faculty Scholarship

The legitimacy of the administrative state is premised on our faith in agency expertise. Despite their extra-constitutional structure, administrative agencies have been on firm footing for a long time in reverence to their critical role in governing a complex, evolving society. They are delegated enormous power because they respond expertly and nimbly to evolving conditions.

In recent decades, state and federal agencies have embraced a novel mode of operation: automation. Agencies rely more and more on software and algorithms in carrying out their delegated responsibilities. The automated administrative state, however, is demonstrably riddled with concerns. Legal challenges regarding the denial …

Bali Mawacara: Is A Quasi-Common Law System Developing In Balinese Customary Law?, Danial Kelly, Wayan P. Windia

Indonesia Law Review

The Indonesian island of Bali is internationally renowned as a popular tourist destination. Tourists from around the world have been attracted to Bali’s rich and colourful displays of culture and its friendly people for many decades. Intertwined with the predominately Hindu culture that is so readily visible is the invisible customary legal system of Bali that regulates much of the daily life of the Balinese. This autochthonous legal system exists in plurality with the Indonesian state legal system. As with all legal systems, the Balinese customary law system is in a state of flux. This article will examine the foundational …

Perlindungan Terhadap Simpanan Pernah Tercatat Pada Bank, Bukan Suatu Keniscayaan, Yudha Ramelan

Jurnal Hukum & Pembangunan

Many types of crimes occur in the banking sector, which has implications for losses suffered by people who save their money in banks. One example of crime is taking deposits out from the bank by breaking the law. It causes deletion data of customer deposits from the bank's balance sheet or a list of third party funds. Customers are declared to have already received payment from the bank, and hence the agreement to deposit funds between the customer and the bank is reported to have ended. This condition can make customers’ right to get a refund of their money from …

Perlindungan Hukum Nasabah Dalam Perjanjian Telemarketing Bank, Sri Lestari Poernomo

Jurnal Hukum & Pembangunan

Telemarketing is one of the banking products. This research is conducted to analyze the validity of the agreement that was born and the offering of banking products through telemarketing, transactions made in telemarketing activities almost entirely do not fulfill the legal agreement requirements, namely contracts because if there are elements of oversight and fraud, the Bank must be responsible if a loss occurs because the bank uses customer data to be referenced to the insurance company that works with the bank. The problem examined is how the validity of the agreement that was born from bank telemarketing activities and the …

Model Pembentukan Peraturan Daerah Yang Ideal Dalam Penyelenggaraan Otonomi Daerah, Marten Bunga

Jurnal Hukum & Pembangunan

This study aims to analyze the model formation of regional regulations in the implementation of regional autonomy. This research method used is included in the type of normative legal research that uses secondary data obtained from library materials in the form of primary legal material. The results of the study indicate that regional regulations in the implementation of regional autonomy are a policy instrument in the implementation of the regional government. Establishment of regional regulations that are in accordance with the interests of the community must implement the principles of regional autonomy and the content of regional regulations must not …

Ketetapan Mpr Dalam Tata Urutan Peraturan Perundang-Undangan Di Indonesia, Nisrina Irbah Sati

Jurnal Hukum & Pembangunan

As a result of deliberation and representation based democracy in Indonesia, the UUD 1945 before the amendment presented MPR as the highest state institution that absorbed people's sovereignty, so it gained legitimacy to be a superordinate of state institutions in various branches of power. The MPR’s position as the highest state institution was also accompanied by a legislative function, in which the MPR was able to make its legal product known as Tap MPR. The change in the position of the MPR, which was no longer the highest institution of the state in the constitutional structure since the enactment of …

Dewan Perwakilan Rakyat Dan Majelis Permusyawaratan Rakyat Dalam Proses Impeachment Presiden Abdurrahman Wahid, Kukuh Bergas

Jurnal Hukum & Pembangunan

As a country that uses presidential systems, Indonesia realizes that the role of the president as an executive is powerful. Therefore it is necessary to establish legal rules or supervisory institutions as a counterweight to avoid abuse of authority. The DPR and MPR are legislative institutions whose task is to oversee the performance of the president. If a suspected violation is found, the DPR may submit a proposal for the dismissal of the president. Indonesia's 4th President experienced this case, K. H. Abdurrahman Wahid is also known as Gus Dur, because he was considered to have committed a violation which …

Corporate Social Responsibility Sebagai Promosi Perseroan Terbatas, Chandra Yusuf, Endang Purwaningsih

Jurnal Hukum & Pembangunan

The application of Corporate Social Responsibility (CSR) and Fiduciary Duty in Law No. 40 of 2007 concerning Limited Liability Companies creates a conflict of interest. The problem that arises is the placement of CSR in the company's income statement that will reduce the company's dividend distribution. This violates the principle of "fiduciary duty". Directors of Limited Liability Company must maximize shareholder prosperity. So far, CSR is considered a social activity. To avoid conflicts of interest, CSR must be classified into a promotional account in the financial statements, especially the Balance Sheet. The method used to assess CSR refers to the …

Polemik Jangka Waktu Pengajuan Gugatan Ke Pengadilan Tata Usaha Negara, Renius Albert Marvin, Anna Erliyana Prof.

Jurnal Hukum & Pembangunan

The period of 90 (ninety) days to file a claim in the Administrative Court (PTUN) plays an important role because if the period is passed, the Administrative Decision (KTUN) can not be claimed even if the KTUN contains defects. The basic principle of regulation the period for filing a claim to the Administrative Court is determined explicitly in Article 55 of the Law of Administrative Courts, which is 90 (ninety) days after the KTUN is received or announced which can be applied in several variables that prove the opportunity for everyone can take legal action if the Administrative Decision issued …