Administrative Law Commons^™

You're Fired: Why The Alj Multi-Track Dual Removal Provisions Violate The Constitution And Possible Fixes, Linda Jellum

Articles

No abstract provided.

The Federal Circuit As An Institution, Ryan G. Vacca

Law Faculty Scholarship

The Court of Appeals for the Federal Circuit is a unique institution. Unlike other circuit courts, the Federal Circuit’s jurisdiction is bound by subject area rather than geography, and it was created to address a unique set of problems specific to patent law. These characteristics have affected its institutional development and made the court one of the most frequently studied appellate courts. This chapter examines this development and describes the evolving qualities that have helped the Federal Circuit distinguish itself, for better or worse, as an institution.

This chapter begins with an overview of the concerns existing before creation of …

Administrative Law: The Trouble With Counting, Jodi L. Short

The Judges' Book

No abstract provided.

Technology Assisted Review (Tar) Guidelines, Bolch Judicial Institute

Bolch Judicial Institute Publications

In the winter of 2016, more than 50 e-discovery experts volunteered to develop and draft guidelines providing guidance to the bench and bar on the use of technology assisted review (TAR).

This document explains the TAR process and offers “best practices,” which are intended to provide a protocol on whether and under what conditions TAR should be used. It provides a strong record and roadmap for the bench and bar, which explain and support the use of TAR in appropriate cases.

As with any group product of this nature, where some consensus must be reached, the drafters and other participants …

Are Administrative Law Judges Officers Of The State: Constitutional Considerations In The Selection And Tenure Of Administrative Law, Eric H. Miller

St. Thomas Law Review

One of the hallmarks of the Florida Administrative Procedure Act is the creation of a pool of hearing officers independent from any agency or the direct control of any political figure. Since its substantial revision in 1974, the statute has always provided for the selection and hiring of administrative law judges ("ALJ") by the Director of the Division of Administrative Hearings. ALJs hear almost every type of case, from licensure denials to environmental permitting challenges. In most cases, the ALJ weighs the evidence and legal arguments before recommending findings of fact, conclusions of law, and proposed final disposition to the …

The Depravity Of The 1930s And The Modern Administrative State, Steven G. Calabresi, Gary Lawson

Notre Dame Law Review

Gillian Metzger’s 2017 Harvard Law Review foreword, entitled 1930s Redux: The Administrative State Under Siege, is a paean to the modern administrative state, with its massive subdelegations of legislative and judicial power to so-called “expert” bureaucrats, who are layered well out of reach of electoral accountability yet do not have the constitutional status of Article III judges. We disagree with this celebration of technocratic government on just about every level, but this Article focuses on two relatively narrow points.

First, responding more to implicit assumptions that pervade modern discourse than specifically to Professor Metzger’s analysis, we challenge the normally …

A Step Too Far: Matter Of A-B-, "Particular Social Group," And Chevron, Jaclyn Kelley-Widmer, Hillary Rich

Cornell Journal of Law and Public Policy

Every day, thousands of Central American asylum seekers, many fleeing persecution from domestic abusers and gangs, attempt to seek refuge in the United States. To receive asylum, those escaping such violence typically must show membership in a "particulars social group." In Matter of A-B-, issued in June 2018, then-Attorney General Jefferson B. Sessions III attempted to destroy the viability of domestic-violence-related particular social groups altogether. As we demonstrate in this Article, this far-reaching decision should not receive Chevron deference from reviewing courts.

A-B- is concerning both for its potentially calamitous effect on individuals fleeing domestic and gang violence and for …

Faithful Nonexecution, Peter M. Shane

Cornell Journal of Law and Public Policy

Decisions by the federal executive branch to under-enforce statutes, whether on a case-by-case or programmatic basis, are a commonplace feature of the modern administrative state. Critics may challenge "nonexecution" decisions in court or otherwise as inconsistent with the President's constitutional duty to "take care that the laws be faithfully executed." Such decisions, however, are most helpfully viewed not as instances of the executive's failure to act, but rather as part and parcel of an agency's affirmative strategies for implementing its statutory mandates. As such, their legality is appropriately judged not under the terms of Article II, but rather according to …

Digital Health And Regulatory Experimentation At The Fda, Nathan Cortez

Faculty Journal Articles and Book Chapters

For well over a decade the U.S. Food and Drug Administration (FDA) has been told that its framework for regulating traditional medical devices is not modern or flexible enough to address increasingly novel digital health technologies. Very recently, however, the FDA introduced a series of digital health initiatives that represent important experiments in medical product regulation, departing from longstanding precedents applied to therapeutic products like drugs and devices. The FDA will experiment with shifting its scrutiny from the pre-market to the post-market phase, shifting the locus of regulation from products to firms, and shifting from centralized government review to decentralized …

Early Customs Laws And Delegation, Jennifer L. Mascott

Scholarly Articles

Last Term the Supreme Court reexamined the nondelegation doctrine, with several justices concluding that in the proper case, the Court should consider significantly strengthening the doctrine in its contemporary form. Adherents to the doctrine question whether Congress has developed a practice of improperly delegating to administrative agencies the legislative power that Congress alone must exercise under the Vesting Clause of Article I of the Constitution. Many scholars have debated the extent of the historical or textual basis for the doctrine. Instead, this Article examines interactions between executive and legislative actors during the first congressional debates on the Impost, Tonnage, Registration, …

Board Of Editors

Public Land & Resources Law Review

No abstract provided.

Crowley Acknowledgement

Public Land & Resources Law Review

No abstract provided.

Table Of Contents

Public Land & Resources Law Review

No abstract provided.

Letter To The Reader

Public Land & Resources Law Review

No abstract provided.

Indigenous Law At The Supreme Court Of Canada, Russell Brown

Public Land & Resources Law Review

No abstract provided.

Brief Of Amici Curiae Indian Law Professors In Support Of Petitioner, Monte Mills

Public Land & Resources Law Review

No abstract provided.

Loyalties And Royalties: The Osage Nation’S Energy Sovereignty Plan And Wind Farm Opposition, Summer L. Carmack

Public Land & Resources Law Review

No abstract provided.

Enough Is Enough : Ten Years Of Carcieri V . Salazar, Bethany C. Sullivan, Jennifer L. Turner

Public Land & Resources Law Review

Ten years ago, the United States Supreme Court issued its watershed decision in Carcieri v. Salazar, landing a gut punch to Indian country. Through that decision, the Supreme Court upended decades of Department of the Interior regulations, policy, and practice related to the eligibility of all federally recognized tribes for the restoration of tribal homelands through the Indian Reorganization Act (IRA) of 1934. The Court held that tribes must demonstrate that they were “under federal jurisdiction” in 1934 to qualify for land into trust under the first definition of “Indian” in the IRA. Carcieri has impacted all tribes by upending …

Board Of Editors

Public Land & Resources Law Review

No abstract provided.

Table Of Contents

Public Land & Resources Law Review

No abstract provided.

Letter To The Reader

Public Land & Resources Law Review

No abstract provided.

The Interaction Of U.S. Public Lands, Water, And State Sovereignty In The West: A Reassessment And Celebration, John D. Leshy

Public Land & Resources Law Review

No abstract provided.

Constitutional Protections Of Property Interests In Western Water, James L. Huffman, Hertha L. Lund, Christopher T. Scoones

Public Land & Resources Law Review

No abstract provided.

The Good, The Bad, And The Unnecessary : Forest Fire Suppression Funding And Forest Management Provisions Of The Consolidated Appropriations Act Of 2018, Peter B. Taylor

Public Land & Resources Law Review

No abstract provided.

Massachusetts Lobstermen’S Association V. Ross, Daniel Brister

Public Land & Resources Law Review

President Obama established the first––and only––national monument in the Atlantic Ocean on September 15, 2016. Located 130 miles southeast of Cape Cod, Massachusetts, and comprised of 4,913 square miles of marine ecosystems rich in biodiversity, the protected area includes four underwater mountains and three submarine canyons. Plaintiff commercial lobster and fishing associations, seeking to overturn the designation, asserted that the Antiquities Act does not permit a president to establish marine national monuments. The U.S. District Court for the District of Columbia disagreed, upholding a president’s authority to protect offshore areas and vast ecosystems as objects of scientific interest, and dismissing …

El Control De Convencionalidad En Sede Administrativa: Un Mecanismo Para La Defensa De Los Contribuyentes, Fernando Loayza Jordán, Julio César Casma Rocha

Scholarly Articles

A través de la sentencia recaída en el expediente 04293-2012-PA/TC, el Tribunal Constitucional dejó sin efecto el precedente vinculante que validaba la aplicación del control difuso en sede administrativa. Esto supuso para los contribuyentes una situación de indefensión frente a la potencial aplicación de normas tributarias inconstitucionales. Si bien existen vías alternativas para que estos puedan defenderse ante estas normas, estas no resultan igualmente idóneas para tutelar sus intereses y carecen de la rapidez que caracterizaba al control difuso en sede administrativa.

En este artículo, los autores proponen la aplicación del control de convencionalidad en sede administrativa como una solución …

Central Clearing Of Financial Contracts: Theory And Regulatory Implications, Steven L. Schwarcz

Faculty Scholarship

To protect economic stability, post-crisis regulation requires financial institutions to clear and settle most of their derivatives contracts through central counterparties, such as clearinghouses associated with securities exchanges. This Article asks whether regulators should expand the central clearing requirement to non-derivative financial contracts, such as loan agreements. The Article begins by theorizing how and why central clearing can reduce systemic risk. It then examines the theory’s regulatory and economic efficiency implications, first for current requirements to centrally clear derivatives contracts and thereafter for deciding whether to extend those requirements to non-derivative contracts. The inquiry has real practical importance because the …

Irrational Ignorance At The Patent Office, Michael D. Frakes, Melissa F. Wasserman

Faculty Scholarship

There is widespread belief that the Patent Office issues too many bad patents that impose significant harms on society. At first glance, the solution to the patent quality crisis seems straightforward: give patent examiners more time to review applications so they grant patents only to those inventions that deserve them. Yet the answer to the harms of invalid patents may not be that easy. It is possible that the Patent Office is, as Mark Lemley famously wrote, “rationally ignorant.” In Rational Ignorance at the Patent Office, Lemley argued that because so few patents are economically significant, it makes sense to …

Revolving Elites: The Unexplored Risk Of Capturing The Sec, James D. Cox, Randall S. Thomas

Faculty Scholarship

Fears have abounded for years that the sweet spot for capture of regulatory agencies is the "revolving door" whereby civil servants migrate from their roles as regulators to private industry. Recent scholarship on this topic has examined whether America's watchdog for securities markets, the Securities and Exchange Commission (SEC), is hobbled by the long-standing practices of its enforcement staff exiting their jobs at the Commission and migrating to lucrative private sector employment where they represent those they once regulated. The research to date has been inconclusive on whether staff revolving door practices have weakened the SEC' s verve. In this …

Patent Trial And Appeal Board's Consistency-Enhancing Function, Michael D. Frakes, Melissa F. Wasserman

Faculty Scholarship

Agency heads, who have the primary responsibility for setting an agency's policy preferences, have a variety of tools by which they attempt to minimize the discretion of their staff officials in an effort to ensure agency policy preferences are consistently applied. One such mechanism is subjecting agency official's determinations to higher-level agency review. While scholars have long surmised that judges seek to minimize reversal of their decisions by a higher-level court, how agency officials' decisions are influenced by higher-level agency reconsideration has mostly eluded analysis.

In this Essay, we begin to fill this gap by examining the extent to which …