Administrative Law Commons^™

The Trump Administration And Administrative Law, Peter L. Strauss

Faculty Scholarship

Shortly after the 2018 mid-term elections ended a two-year period of "unified government," under the Republican party,1 twenty one law professors from around the country met at Chicago-Kent College of Law to discuss the seven papers contained in this edition of its Law

Review. Commentaries written in response to each of these papers will appear in the next edition of the Law Review. For those reading any of these essays in the interval between publication of this and the commentary issue, this necessary inconvenience is regrettable; the commentaries (and ensuing open discussion) were enriching and, indeed, have contributed to the …

Unjust Cities? Gentrification, Integration, And The Fair Housing Act, Olatunde C.A. Johnson

Faculty Scholarship

What does gentrification mean for fair housing? This article considers the possibility that gentrification should be celebrated as a form of integration alongside a darker narrative that sees gentrification as necessarily unstable and leading to inequality or displacement of lower-income, predominantly of color, residents. Given evidence of both possibilities, this article considers how the Fair Housing Act might be deployed to minimize gentrification’s harms while harnessing some of the benefits that might attend integration and movement of higher-income residents to cities. Ultimately, the article urges building on the fair housing approach but employing a broader set of tools to advance …

Kisor, Gundy, Mead, Chevron, Skidmore, Hearst, Peter L. Strauss

Faculty Scholarship

Kisor v. Wilkie, in which the Court narrowly declined to overrule Auer deference while distinctly constraining its reach, shares with United States v. Mead Corp. and Skidmore v. Swift & Co. — so prominently mentioned in its opinions—the characteristic of being about an administrative action that, at root, is soft law, guidance. Quite appropriately, it did not address Chevron deference, although readers of the opinions, with Justices’ prior opinions in mind, will have no problem foreseeing a similar confrontation in the coming Term of Court, or perhaps the one to follow.

Soft Law Often Should Be Permitted To Bind Agency Staff, Peter L. Strauss

Faculty Scholarship

For an event honoring the scholarship of Professor Bill Funk, another contributor to this on-line symposium, I have written an essay, Domesticating Guidance, summarizing my thinking about the use and misuse of agency guidance documents. No one doubts that that the soft law of guidance documents, which do not require notice and comment under the APA, should not veer into the hard law of legislative rules, which generally do require that procedure. Unfortunate confusion, though, arises from lower court concerns that purported guidance documents may be “binding in practice” — thus, they reason, functionally, an invalid legislative rule that …

The Reality Of Indian Regulation, Devesh Kapur, Madhav Khosla

Faculty Scholarship

In this introductory chapter, we have chosen to resist exploring some of the general themes associated with regulation, from its capacity to respond to market failures and market limitations, to the ways to make it accountable. Instead, we have chosen to turn to certain features of Indian regulation that are distinctive. Our basic premise is that, for all the legal ambiguities and institutional weaknesses, studying the Indian regulatory state is unavoidable, and may even be the inevitable starting point for numerous other issues, from economic growth to inequality to democratic accountability. This premise is only strengthened by the fact that, …

Eroding "Checks" On Presidential Authority – Norms, The Civil Service, And The Courts, Peter L. Strauss

Faculty Scholarship

Susan Rose-Ackerman's "Executive Rulemaking and Democratic Legitimacy: 'Reform' in the United States and the United Kingdom's Route to Brexit" insightfully illuminates important differences between parliamentary and presidential systems of government in relation to executive bodies' production of the large volume of secondary legislation common, indeed inevitable, for both. Agreeing heartily with her conclusion that the weakness of parliamentary engagement with secondary legislation, and limited judicial review of its production, counsels greater provision for public participation and transparency of action at the agency level, there is little for me to add. Aware, too, as she remarks, that others have dealt more …

Machine Learning At The Patent Office: Lessons For Patents And Administrative Law, Arti K. Rai

Faculty Scholarship

The empirical data indicate that a relatively small increment of additional U.S. Patent and Trademark Office (“Patent Office” or “USPTO”) investment in prior art search at the initial examination stage could be a cost-effective mechanism for improving accuracy in the patent system. This contribution argues that machine learning provides a promising arena for such investment. Notably, the use of machine learning in patent examination does not raise the same potent concerns about individual rights and discrimination that it raises in other areas of administrative and judicial process. To be sure, even an apparently easy case like prior art search at …

Legislation And Comment: The Making Of The § 199a Regulations, Shu-Yi Oei, Leigh Osofsky

Faculty Scholarship

In 2017, Congress passed major tax legislation at warp speed. After enactment, it fell to the Treasury Department to write regulations clarifying and implementing the new law. To assure democratic legitimacy in making regulations, administrative law provides that an agency must issue a notice of proposed rulemaking, followed by an opportunity for the public to comment (so-called “notice and comment”). But, after the 2017 tax overhaul, many sophisticated actors did not wait until the issuance of a notice of proposed rulemaking to comment, instead going to the Treasury Department immediately with comments designed to influence the regulations.

In this Article, …

Regulatory Monitors: Policing Firms In The Compliance Era, Rory Van Loo

Faculty Scholarship

Like police officers patrolling the streets for crime, the front line for most large business regulators — Environmental Protection Agency (EPA) engineers, Consumer Financial Protection Bureau (CFPB) examiners, and Nuclear Regulatory Commission (NRC) inspectors, among others — decide when and how to enforce the law. These regulatory monitors guard against toxic air, financial ruin, and deadly explosions. Yet whereas scholars devote considerable attention to police officers in criminal law enforcement, they have paid limited attention to the structural role of regulatory monitors in civil law enforcement. This Article is the first to chronicle the statutory rise of regulatory monitors and …

Indonesia And Its Reluctance To Ratify The United Nations Convention On Contracts For The International Sale Of Goods (Cisg), Surya Oktaviandra

Indonesia Law Review

There is still a huge debate on business policy in Indonesia pertaining the fact that the Government of Indonesia is still reluctance to ratify one of the important conventions for the business world namely CISG (Convention on Contracts for the International Sale of Goods). This paper attempts to discuss the issues which will deliver inter-disciplinary areas such as law, economics, and public policy. By analyzing this matter with a comprehensive measure, it will ensure an appropriate understanding and thus create more precise analysis to serve a contribution in suggesting solve-problem. Despite having its particular point of view, the author based …

Against Aviation Orthodoxy: India's Foreign Investment Regime For The Airline Industry, Jae Woon Lee, Umakanth Varottil

Brooklyn Journal of International Law

The foreign investment regime governing the airline industry has been the subject matter of considerable debate. Our goal in this article is to supplement the literature by embarking on an analysis of the foreign investment regime in India and to cautiously suggest that India’s new regulatory reforms could be a harbinger for other states. A study of the foreign investment regime in the airline industry in India is both interesting and timely, for at least two reasons. First, India has nearly everything that bodes well for the growth of an aviation market, and it is one of the fastest growing …

Urgensi Bantuan Hukum Relawan Pendamping, Pekerja Sosial Dan Serikat Buruh Setelah Putusan Ma No. 22 P/Hum/ 2018, Jorawati Simarmata

Jurnal Hukum & Pembangunan

The Supreme Court Decision No.22 P / HAM / 2018 has canceled Permenkumham Number 1 Year 2018 because it contradicts Law Number 18 Year 2003. However, there are several implementations and provisions of the Law that show the urgency of paralegal functions. The urgency of the paralegal function is shown by the high number of domestic violence cases caused by various aspects of life and the existence of the Domestic Violence Law and The Convention on All Forms of Discrimination Against Women which mandates the need for voluntary assistants function to handle domestic violence problems. Besides that it is proven …

Wacana Pemerintah Untuk Mereposisi Kelembagaan Inspektorat: Tindak Lanjut, Tanggapan, Serta Inisiasi Kedepan, Richo A. Wibowo, Mailinda E. Yuniza, Rizky S. Widyaningtyas, Hendry Julian Noor

Jurnal Hukum & Pembangunan

This research aims (i) to elaborate about a central government plan on repositioning the structure of inspectorate; (ii) to explain responses of some inspectorate officers regarding the plan; and (iii) to provide suggestions on the adjustment plan that should be taken into consideration by the central government. This research found that, different with the public perception, the plan is not intended to reposition all the inspectorates, rather to inspectorates attached to local governments. These inspectorates are designed to be what the-called ‘kuasi vertical institution’. Meaning, it has a mixed character of both central and local government institution. This initiation increases …

Polemik Pengaturan Kepemilikan Data Pribadi: Urgensi Untuk Harmonisasi Dan Reformasi Hukum Di Indonesia, Setyawati Fitri Anggraeni

Jurnal Hukum & Pembangunan

Big data is the large volume of data available in information traffic and is considered to have economic value in the present. The data is collected, stored, and sometimes analyzed for the purpose of providing economic benefits to certain organizations. As individuals who provide the data to an organization, we believe that the data will be protected and kept confidential. However, the reality is sometimes different. Laws and regulations that specifically regulate the collection, storage, publication and protection of personal data very needed. This paper will discuss the legal framework for personal data and their protection in Indonesia. At the …

Penyelesaian Sengketa Konsumen Akibat Perjanjian Baku Dan Klausula Baku Pasca Keberlakuan Undang-Undang Nomor 21 Tahun 2011 Tentang Otoritas Jasa Keuangan, A. Dwi Rachmanto

Jurnal Hukum & Pembangunan

After the enactment of Act Number 11 of 2011 concerning the Financial Services Authority (UUOJK), there are 2 (two) of law that regulate the settlement of disputes between business actors and consumers. First, Act Number 8 of 1999 concerning Consumer Protection (UUPK), and the second Act Number 11 of 2011 concerning the Financial Services Authority (UUOJK). This paper will discuss and analyze the resolution of disputes between business actors and consumers after the enactment of Act Number 11 of 2011 concerning the Financial Services Authority by using jurudical normative/dogmatic approach. In the end of the article a number of conclusions …

Peran Pemerintah Daerah Dalam Pelaksanaan Pemerintahan Yang Baik (Good Governance) Dibidang Pembinaan Dan Pengawasan Indikasi Geografis, M. Rendi Aridhayandi

Jurnal Hukum & Pembangunan

The Regional Government is the regional head as an element of the Regional Government organizing the execution of government affairs which is the authority of the autonomous regions. In the implementation of government affairs must implement the principles of good governance. One of the roles of Regional Government is in the field of guidance and supervision of Geographical Indication in accordance with the mandate of Articles 70 and 71 Undang-Undang Nomor 20 Tahun 2016 tentang Merek dan Indikasi Geografis. This is important in legal protection of products that are characterized by the geographic area of a region, only in the …

Analysis Of Modern “E-Government” Models In The World, S.M. Adilkhodjayeva

Review of law sciences

In article the models of “electronic government” in the world are analysed, 4 main models of “electronic government" exist : continental model; Anglo-American model which reflects specific features of becoming of electronic government in USA and Great Britain; Asian model; Russian model. Each of these models has its feature. Continental model of electronic government is characterised by presence of above-state institutes (European Parliament, European Comission, European court), recommendations of which are compulsory for execution by all countries of EU. Anglo-American model of electronic government is advanced in USA, Canada and Great Britain. In USA the main accent is made to …

Tourism Development As An Actual Task Of The Society, H.B. Abdurahmonova

Review of law sciences

This article examines legislative and legal acts on the development of tourism in the Republic of Uzbekistan, legal and practical reforms in tourism and their results. There are also benefits to tourists visiting the Republic of Uzbekistan, as well as visas and electronic visas. In addition, some countries (USA, China, Malaysia, Spain) examined and analyzed the tourism practice.

The Issues Of Legal Support Of State Innovation Policy In The Republic Of Uzbekistan, A.A. Li

Review of law sciences

the article presents the analysis the theoretical and practical aspects of the state innovation policy in the Republic of Uzbekistan and its legal support. The article provides a peculiar definition of the concept of "state innovation policy" and the key directions of its legal regulation. It presents thorough analysis of the necessity of adopting the Concept of innovation policy of the Republic of Uzbekistan, containing its long-term strategic goals, main objectives and mechanisms for the implementation. It provides suggestions regarding the ways of using legal measures to accelerate the introduction of the most advanced domestic and foreign scientific, technical and …

Some Issues Of Perception, Interpretation Of Administrative Law And Legal Education In Modern Uzbekistan, J.N. Nematov

Review of law sciences

This article reveals a brief historical development of administrative law in Uzbekistan. Also analyzed the implemented reforms in the field of administrative law. In particular, the introduction of a system of administrative courts, the adoption of the Law “On Administrative Procedures” and the Code of Administrative litigation. In addition, this article reveals the main directions of development of the theory of administrative law in Uzbekistan, which, until now, has mostly been limited to administrative offenses. The article presents the thesis that in developed foreign countries judicial practice and the development of the interpretation of laws in judicial practice play an …

Crow Indian Tribe V. United States, Hallee Kansman

Public Land & Resources Law Review

The protection status of the Greater Yellowstone grizzly bear continues to elicit debate and find its way into the courtroom. In Crow Indian Tribe v. United States, for the second time in the last decade, a court held the Service’s attempt to delist the Yellowstone Grizzly arbitrary and capricious. Specifically, the court found the Service’s evaluation of remnant populations, recalibration, and genetic health deficient. This case demonstrates the importance in and the resilient motivation behind preserving grizzly bear populations and genetics. As the practice of delisting a species under the Endangered Species Act continues, this case will provide important …

Standing To Appeal At The Federal Circuit: Appellants, Appellees, And Intervenors, Matthew J. Dowd, Jonathan Stroud

Catholic University Law Review

The America Invents Act of 2011 created three administrative patent review regimes that have flooded the rechristened Patent Trial and Appeal Board with almost 7,000 new matters in just under five years. The flood of matters—primarily, inter partes reviews (IPRs)—has led to more than 1,000 appeals to the U.S. Court of Appeals for Federal Circuit from administrative proceedings, eclipsing any other forum of origin. With the flood of administrative appeals, questions of first instance on appellate standing have arisen, resulting in a handful of important panel decisions.

While the other regional Courts of Appeals have largely adopted legal tests, standards, …

Is A Delayed Result A Just Result? The Use Of Laches As An Equitable Defense To Remedial Back Pay Under The Eeoc's Sovereignty, Ruth Ann Mueller

Catholic University Law Review

The equitable defense of laches generally cannot be used against the sovereign. This broad proposition, adopted from English Courts of Equity, cements itself in United States federal case law. It is a longstanding principle that the federal government protects the public good and must be exempt from the defenses that could be brought up in a private suit. Administrative agencies bear a similar role, and exemption, when litigating as the United States on behalf of the public.

However, courts do not affirmatively restrict the use of laches against administrative agencies who may be acting on behalf of a private litigant. …

Brackeen V. Zinke, Bradley E. Tinker

Public Land & Resources Law Review

In 1978, Congress enacted the Indian Child Welfare Act to counter practices of removing Indian children from their homes, and to ensure the continued existence of Indian tribes through their children. The law created a framework establishing how Indian children are adopted as a way to protect those children and their relationship with their tribe. ICWA also established federal standards for Indian children being placed into non-Indian adoptive homes. Brackeen v. Zinke made an important distinction for the placement preferences of the Indian children adopted by non-Indian plaintiffs; rather than viewing the placement preferences in ICWA as based upon Indians’ …

Department Of Homeland Security V. Regents Of The University Of California: Brief In Opposition For Respondents Dulce Garcia, Miriam Gonzalez Avila, Saul Jimenez Suarez, Viridiana Chabolla Mendoza, Norma Ramirez, Jirayut Latthivongskorn, The County Of Santa Clara, And Service Employees International Union Local 521, Leah Litman

Appellate Briefs

Questions Presented: The Deferred Action for Childhood Arrivals (DACA) program enables nearly 700,000 undocumented individuals who were brought to the United States as children to live and work here without fear of deportation, so long as they play by the rules. In September 2017, the Acting Secretary of Homeland Security, on the advice of the Attorney General, abruptly decided to terminate the program.

Respondents brought suit to challenge that decision. The district court granted respondents' motion for a preliminary injunction and also denied the government's motion to dismiss for lack of jurisdiction. The court of appeals affirmed.

The questions presented …

Plus Ça Change: A Century-Old Removal For Cause, Michael E. Herz

Online Publications

Lots of ink has been spilled over when Congress can give federal officials for-cause protection. One would think that a necessary antecedent to that discussion would be a determination of exactly what for-cause protection entails. What is “inefficiency, neglect of duty, or malfeasance in office”? Yet no one knows; the debate over the permissibility of that restriction proceeds in blissful uncertainty as to its scope.

Martin V. United States, Mitch L. Werbell V

Public Land & Resources Law Review

In Martin v. United States, the Federal Circuit Court dismissed a Fifth Amendment regulatory takings and exaction claim for want of ripeness when the claimant failed to apply for a permit, which would have allowed for an assessment of the cost of compliance with governmentally imposed requirements. By finding the claim unripe, the court stood firm on the historical view that federal courts may only adjudicate land-use regulatory takings and inverse condemnation claims on the merits after a regulating entity has made a final decision. However, jurisprudential evolution of the ripeness doctrine and judicial review of takings claims may …

Planning For Excellence: Insights From An International Review Of Regulators’ Strategic Plans, Adam M. Finkel, Daniel E. Walters, Angus Corbett

Pace Environmental Law Review

What constitutes regulatory excellence? Answering this question is an indispensable first step for any public regulatory agency that is measuring, striving towards, and, ultimately, achieving excellence. One useful way to answer this question would be to draw on the broader literature on regulatory design, enforcement, and management. But, perhaps a more authentic way would be to look at how regulators themselves define excellence. However, we actually know remarkably little about how the regulatory officials who are immersed in the task of regulation conceive of their own success.

In this Article, we investigate regulators’ definitions of regulatory excellence by drawing on …

Standing Up For A Cleaner Town: How The Ehb's Broad Definition Of Standing In Friends Of Lackawanna V. Department Of Environmental Protection Expands Citizens' Appellate Rights, Zoey H. Lee

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Surrogate Science And Judicial Deference To Agency Findings: How The Ninth Circuit Keeps Exemptions For Bioenergy On Track In Helping Hand Tools V. Epa, Joshua Schmid

Villanova Environmental Law Journal (1991 - )

No abstract provided.