Administrative Law Commons^™

Centralized Review Of Tax Regulations, Clinton G. Wallace

Faculty Publications

Centralized oversight of agency policymaking and spending by the President’s Office of Management and Budget is a hallmark of the modern administrative state. But tax regulations have almost never been subject to centralized review. The Trump administration recently proposed to require centralized review of tax regulations, but it is unclear what regulations would be subject to such review or how it would be conducted.

This Article examines the normative desirability of the longstanding approach of exempting tax regulations from centralized review, and the alternative of imposing such review. Scholars and policymakers have provided various incomplete justifications for excepting tax policy …

Deliberative Public Engagement With Science: An Empirical Investigation, Lisa M. Pytlikzillig, Myiah J. Hutchens, Peter Muhlberger, Frank J. Gonzalez, Alan Tomkins

Lisa PytlikZillig Publications

The purpose of this book is to share some results and the data from four studies in which we used experimental procedures to manipulate key features of deliberative public engagement to study the impacts in the context of deliberations about nanotechnology. In this chapter, we discuss the purpose of this book, which is to advance science of public engagement, and the overarching question motivating our research: What public engagement methods work for what purposes and why? We also briefly review existing prior work related to our overarching goal and question and introduce the contents of the rest of the book. …

Framing Contemporary U.S. Wild Horse And Burro Management Processes In A Dynamic Ecological, Sociological, And Political Environment, J. Derek Scasta, Jacob D. Hennig, Jeffrey L. Beck

Human–Wildlife Interactions

The Wild Free-Roaming Horses and Burros Act (WFRHBA) of 1971 established all “unbranded or unclaimed” equids on U.S. public lands as “living symbols of the historic and pioneer spirit of the West.” Today, >72,000 feral horses (Equus ferus caballus) and burros (E . asinus ; WHB) live on western U.S. public rangelands. The number of WHBs exceeds the Bureau of Land Management’s maximum Appropriate Management Level (AML) of 26,715 by a factor of approximately 2.7 and has nearly doubled from 2007–2015. The AML was set to balance WHB numbers with rangeland health and support other uses such as wildlife habitat …

Uber’S Arbitration Trickery: Mohamed’S Holding, The New Era Of Limiting The Scope Of Administrative Protection And The Vindication Of Rights Doctrine, 51 J. Marshall L. Rev. 439 (2018), Kerby Kniss

UIC Law Review

No abstract provided.

Risks Faced By Foreign Lawyers In China, Chenglin Liu

Faculty Articles

This article provides an objective assessment of the potential risks that foreign lawyers face in China as they push the boundaries of the limits on their activities set by Chinese law. When the Shanghai Bar Association (SBA), a government-controlled organization, accused foreign lawyers of violating Chinese law and called for official action, some scholars dismissed the threat, claiming that there was no legal basis for a crackdown on foreign lawyers. These scholars erroneously maintained that the Chinese laws that regulate foreign lawyers are ambiguous and create "gray areas." In fact, the claims of the SBA are justified because the applicable …

Understanding Administrative Sanctioning As Corrective Justice, Eithan Y. Kidron

University of Michigan Journal of Law Reform

When should a regulator prefer criminal sanctions over administrative sanctions? What procedural protections should apply if a process is labeled civil but the sanctions are, in fact, criminal in type? And can the state justifiably conduct parallel proceedings for punitive sanctions against the same person or entity for the same conduct?

Throughout the years, judges and scholars alike have tried to understand and classify administrative sanctioning. Common to all of these conceptions is their failure to provide a complete normative framework for this unique body of law, which in turn makes it difficult to identify its practical limits and to …

Why Guidance From The Supreme Court Is Required In Redefining The Particular Social Group Definition In Refugee Law, Liliya Paraketsova

University of Michigan Journal of Law Reform

One of the most debated topics in refugee law has been the meaning of particular social group (PSG)—one of the five categories used to claim refugee status. In 2006, the Board of Immigration Appeals (BIA) adopted a narrower PSG definition. Since that adoption, a circuit split has persisted over the meaning of PSG. Two circuits in particular have continually refused to adopt this definition—even when the BIA attempted to revise the definition in response to their criticism. This Note proposes a reform that would include a compromise between the two current definitions of PSG by rejecting the BIA’s particularity requirement …

Regulation By Database, Nathan Cortez

Faculty Journal Articles and Book Chapters

The federal government currently publishes 195,245 searchable databases online, a number of which include information about private parties that is negative or unflattering in some way. Federal agencies increasingly publish adverse data not just to inform the public or promote transparency, but to pursue regulatory ends ⎯ to change the underlying behavior being reported. Such "regulation by database" has become a preferred method of regulation in recent years, despite scant attention from policymakers, courts, or scholars on its appropriate uses and safeguards.

This Article, then, evaluates the aspirations and burdens of regulation by database. Based on case studies of six …

Food, Fracking, And Folly, Melissa Mortazavi

Faculty Articles

Few industries in the United States carry the clout and capital of the oil and gas and agricultural sectors. Economic behemoths, their booms and busts shape the destinies of states, define national policy, and secure the life or death of small towns across the United States. Like it or not, the agriculture and oil and gas industries have strong lobbies and vehement and mobilized constituencies. Recent years have seen both sectors facing public push-back on modern trends in extraction, growth, and methods of production. In response to these developments, these industries have used their considerable political capital to seek new …

Ripeness In The Administrative Context: Total Gas & Power Of North America, Inc. V. Ferc, Zachary Sterling

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Indeconstructible: The Triumph Of The Environmental “Administrative State”, Stephen M. Johnson

Articles

Shortly after the 2017 Presidential inauguration, a senior advisor to the President proclaimed that a top priority of the Administration would be the “deconstruction of the administrative state.” A primary target of the Administration’s deconstruction efforts was the U.S. Environmental Protection Agency (“EPA”) and federal environmental regulations.

While the President can use a variety of tools, including the appointment power, budget power, treaty power, and executive orders, to influence the manner in which the EPA and other agencies interpret and enforce laws, the President has very little power to unilaterally “deconstruct the administrative state.” The “administrative state” is a creation …

Quacks Or Bootleggers: Who’S Really Regulating Hedge Funds?, Jeremy Kidd

Articles

Influential scholars of corporate law have questioned previous federal interventions into corporate governance, calling it quackery. Invoking images of medical malpractice, these critiques have argued persuasively that Congress, in responding to crises, makes policy that disrupts efficient private rules and established state laws. This Article applies the Bootleggers and Baptists theory to show that Dodd–Frank’s hedge fund rules are more than just negligent or reckless, but designed to benefit special interests that compete with the hedge fund model. Those rules offer no solutions to any real or perceived risks arising from hedge fund investing, but might offer an advantage to …

The Administrative Evasion Of Procedural Rights, Philip A. Hamburger

Faculty Scholarship

Administrative power does profound harm to civil liberties, and nowhere is this clearer than in the administrative evasion of procedural rights. All administrative power is a mode of evasion, but the evasion of juries, due process, and other procedural rights is especially interesting as it most concretely reveals the administrative threat to civil liberties.

In contemporary doctrine, due process and most other procedural rights are understood mainly as standards for adjudication in the courts. Traditionally, however, they were understood, at least as much, to bar adjudication outside the courts. That is, they were understood to block evasions of the courts …

Why Jurisdiction Over Airmen Enforcement And Certificate Cases Should Be Transferred From The National Transportation Safety Board To Federal District Court, Alan Armstrong

Journal of Air Law and Commerce

No abstract provided.

Here Comes The Boom: Reevaluating The Merits Of Faa Prohibition On Civil Supersonic Flight, Jonathan Petree

Journal of Air Law and Commerce

No abstract provided.

Our Regionalism, Jessica Bulman-Pozen

Faculty Scholarship

This article provides an account of Our Regionalism to supplement the many accounts of Our Federalism. After describing the legal forms regions assume in the United States — through interstate cooperation, organization of federal administrative agencies, and hybrid state-federal efforts — it explores how regions have shaped American governance across the twentieth and early twenty-first centuries.

In the years leading up to the New Deal, commentators invoked regions to resist centralization, arguing that state coordination could forestall expansion of the federal government. But regions were soon deployed to a different end, as the federal government relied on regional administration to …

Improving Regulatory Analysis At Independent Agencies, Cary Coglianese

American University Law Review

No abstract provided.

The Landscape Of Modern Patent Appeals, Jason Rantaned

American University Law Review

No abstract provided.

The Regulation Of Trading Markets: A Survey And Evaluation, Paul G. Mahoney, Gabriel V. Rauterberg

Book Chapters

This chapter was prepared for a conference exploring the desirability and structure of a new special study of the securities markets. Our objective is not to resolve all of the questions that commentators have raised about the new equity markets, but to lay the groundwork for a new special study by surveying the state of market regulation, identifying issues, and offering preliminary evaluations.

Implementing A Public Health Perspective In Fda Drug Regulation, Patricia J. Zettler, Margaret Foster Riley, Aaron S. Kesselheim

Faculty Publications By Year

There is, without question, a public health crisis in the United States arising from both illicit and prescription opioid misuse, addiction, and overdose. The Food and Drug Administration (FDA) is one regulator with an important role to play in minimizing the harms associated with prescription opioids, while also ensuring that prescription opioids are available for the evidence-based management of pain. One question, however, is to what extent the agency can consider in its decisions to approve opioids and keep existing ones on the market the provider and patient behaviors contributing to the epidemic. This is, in part, because FDA’s approval …

Taking The Public Out Of Public Lands: Shifts In Coal-Extraction Policies In The Trump Administration, Jessica Owley

FIU Law Review

No abstract provided.

Regulatory Silence At The Fda, Jordan Paradise

Faculty Publications & Other Works

No abstract provided.

Exploring Precision Fda, An Online Platform For Crowdsourcing Genomics, Jordan Paradise

Faculty Publications & Other Works

The U.S. Food and Drug Administration has created an online platform for the next generation sequencing community, enabling users to evaluate biomarker information and share resources. This article examines this online platform and offers several observations about potential legal and regulatory implications.

Changing Hearts, Minds, And Structures: Advancing Equity And Health Equity In State Government Policies, Operations, And Practices In Minnesota And Other States, Susan R. Weisman, Ayah Helmy, Vayong Moua, Julie Ralston Aoki

Mitchell Hamline Law Review

No abstract provided.

Shared Goals: How The Hhs Office Of Inspector General Supports Health Care Industry Compliance Efforts, Gregory E. Demske, Geeta Taylor, James Ortmann

Mitchell Hamline Law Review

No abstract provided.

Loud And Soft Anti-Chevron Decisions, Michael Kagan

Scholarly Works

This Article proposes a methodology for interpreting the Supreme Court's long-standing inconsistency in the application of the Chevron doctrine. Developing such an approach is important because this central, canonical doctrine in administrative law is entering a period of uncertainty after long seeming to enjoy consensus support on the Court. In retrospect, it makes sense to view the many cases in which the Court failed to apply Chevron consistently as signals of underlying doctrinal doubt. However, to interpret these soft anti-Chevron decisions requires a careful approach, because sometimes Justices are simply being unpredictable and idiosyncratic. However, where clear patterns can be …

Toward Universal Deportation Defense: An Optimistic View, Michael Kagan

Scholarly Works

One of the most positive responses to heightened federal enforcement of immigration laws has been increasing local and philanthropic interest in supporting immigrant legal defense. These measures are tentative and may be fleeting, and for the time being are not a substitute for federal support for an immigration public defender system. Nevertheless, it is now possible to envision many more immigrants in deportation having access to counsel, maybe even a situation in which the majority do. In this paper, Professor Michael Kagan makes no real predictions. Instead, he offers a deliberately-perhaps even blindly optimistic assessment of how concrete steps that …

Game Of Drones: Rolling The Dice With Unmanned Aerial Vehicles And Privacy, Rebecca L. Scharf

Scholarly Works

This Article offers a practical three-part test for courts and law enforcement to utilize when faced with drone and privacy issues. Specifically addressing the question: how should courts analyze the Fourth Amendment’s protection against ‘unreasonable searches’ in the context of drones?

The Supreme Court’s Fourth Amendment jurisprudence produced an intricate framework to address issues arising out of the intersection of technology and privacy interests. In prominent decisions, including United States v. Katz, California v. Ciraolo, Kyllo v. United States, and most notably, United States v. Jones, the Court focused on whether the use of a single …

A Hiatus In Soft-Power Administrative Law: The Case Of Medicaid Eligibility Waivers, David A. Super

Georgetown Law Faculty Publications and Other Works

Administrative law is fundamentally a regime of soft power. Congress, the President, administrative agencies, civil servants, and the courts all operate within a broad consensus for rational, good-faith decisionmaking. Congress grants agencies discretion, and courts and civil servants defer to agencies’ political leadership based largely on the expectation that the latter are seeking to honor statutes’ purposes. That expectation of prudential restraint also allays concerns about delegations of legislative power. When the executive systematically disregards that expectation and seeks single-mindedly to maximize achievement of its policy objectives, deference’s justification breaks down.

Across agencies, the Trump administration has disregarded the assumptions …

R.I.P. To Rluipa: The Ongoing Debate Of Rluipa As Applied To Local Cemetery Ordinances Is Finally Laid To Rest, Alexandra C. Rawson

Roger Williams University Law Review

No abstract provided.