Administrative Law Commons^™

Leveraging Social Science Expertise In Immigration Policymaking, Ming H. Chen

Publications

The longstanding uncertainty about how policymakers should grapple with social science demonstrating racism persists in the modern administrative state. This Essay examines the uses and misuses of social science and expertise in immigration policymaking. More specifically, it highlights three immigration policies that dismiss social scientific findings and expertise as part of presidential and agency decision-making: border control, crime control, and extreme vetting of refugees to prevent terrorism. The Essay claims that these rejections of expertise undermine both substantive and procedural protections for immigrants and undermine important functions of the administrative state as a curb on irrationality in policymaking. It concludes …

Two Pedagogies In Search Of Synergy, Lisa Schultz, Susan Nevelow Mart

Publications

Anyone who has taught a first-year legal research course understands the dilemma: How do we weave research skills into the writing program without sacrificing the quality or quantity of either discipline? In fact, it is difficult and time consuming to interweave any serious legal research instruction into a first-year writing course. What the students need to know is not just how to do a little case law research or how to find a statute: they need to also know how to formulate a research plan, how to evaluate a database, what kind of search works in different information environments, and …

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

Washington and Lee Law Review

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 Supreme Court Puts The Brakes On Cuozzo Speed Technologies: Investigating The Intersection Of Administrative Law And The Judiciary, Jason Kuchar

Cybaris®

No abstract provided.

Drilling When The Well Goes Dry: The Oklahoma Corporation Commission & The Police Power Exception To The Automatic Stay, Connor R. Bourland

Oklahoma Law Review

No abstract provided.

The Commenting Power: Agency Accountability Through Public Participation, Donald J. Kochan

Oklahoma Law Review

No abstract provided.

Come Hell And High Water: Climate Change Policy In The Age Of Trump, Brigham Daniels

FIU Law Review

No abstract provided.

Climate Tort Federalism, Tracy Hester

FIU Law Review

No abstract provided.

Protecting The Environment In An Era Of Federal Retreat: The View From New York City, Rebecca Bratspies

FIU Law Review

No abstract provided.

The Grid And The Grouse: Cooperative Federal-State Conservation Planning In The Ages Of Obama And Trump, Bret Birdsong

FIU Law Review

No abstract provided.

The Many Sins Of Nepa, Richard A. Epstein

Texas A&M Law Review

Forthcoming

Growing The Resistance: A Call To Action For Transactional Lawyers In The Era Of Trump, Gowri Krishna

Articles & Chapters

his essay is a call to action for transactional lawyers looking to support vulnerable immigrants through non-litigation means. By providing a snapshot of an especially precarious time in history for immigrants in the U.S.—the period immediately after the 2016 presidential election—the essay illustrates future areas of opportunity for transactional attorneys.

The Gdpr’S Version Of Algorithmic Accountability, Margot Kaminski

Publications

No abstract provided.

Cartel Criminalization In Europe: Addressing Deterrence And Institutional Challenges, Francesco Ducci

Vanderbilt Journal of Transnational Law

This Article analyzes cartel criminalization in Europe from a deterrence and institutional perspective. First, it investigates the idea of criminalization by putting it in perspective with the more general question of what types of sanctions a jurisdiction might adopt against collusive behavior. Second, it analyzes the institutional element of criminalization by (1) discussing the compatibility of administrative enforcement with the potential de facto criminal nature of administrative fines under European law and (2) evaluating the trade-offs between an administrative and a criminal model of enforcement. Although a "panoply" of sanctions against both corporations and individuals may be necessary under a …

Regulating By Example, Susan C. Morse, Leigh Osofsky

Articles

Agency regulations are full of examples. Regulated parties and their advisors parse the examples to develop an understanding of the applicable law and to determine how to conduct their affairs. However, the theoretical literature contains no study of regulatory examples or of how they might be interpreted. Courts differ about whether examples serve as an independent source of law. There is uncertainty about the proper role of this frequently used regulatory tool.

In this Article, we argue that regulatory examples make law. Our claim is that, as a default rule, the legal content offered by regulatory examples is coequal with, …

The Icarus Syndrome: How Credit Rating Agencies Lost Their Quasi Immunity, Norbert Gaillard, Michael Waibel

SMU Law Review

Subsequent to the 2007–2008 subprime crisis, the SEC and the US Senate discovered that it was common practice for major credit rating agencies (CRAs) to produce inflated and inaccurate structured finance ratings. A host of explanations were posited on how this was able to happen from the “issuer pays” model of CRAs and conflicts of interest to underscoring the CRA’s regulatory license and their ensuing insulation from legal liability. Historically, credit ratings were akin to opinions. However, when courts started to consider structured finance ratings as commercial speech in the 2000s, CRAs became more vulnerable to litigation. This article studies …

Regulation By Database, Nathan Cortez

University of Colorado Law Review

The federal government currently publishes 196,284 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 evaluates the aspirations and burdens of regulation by database. Based on case studies of six important data sets …

Infrastructural Regulation And The New Utilities, K. Sabeel Rahman

Faculty Scholarship

No abstract provided.

Critical Race Ip, Anjali Vats, Deidré A. Keller

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Administrative Law's Political Dynamics, Kent H. Barnett, Christina L. Boyd, Christopher J. Walker

Scholarly Works

Over thirty years ago, the Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. commanded courts to uphold federal agency interpretations of ambiguous statutes as long as those interpretations are reasonable. This Chevron deference doctrine was based in part on the Court’s desire to temper administrative law’s political dynamics by vesting federal agencies, not courts, with primary authority to make policy judgments about ambiguous laws Congress charged the agencies to administer. Despite this express objective, scholars such as Frank Cross, Emerson Tiller, and Cass Sunstein have empirically documented how politics influence circuit court review of agency statutory …

Non-Alj Adjudicators In Federal Agencies: Status, Selection, Oversight, And Removal, Kent H. Barnett, Russell Wheeler

Scholarly Works

This article republishes—in substantively similar form—our 2018 report to the Administrative Conference of the United States (ACUS) concerning federal agencies’ adjudicators who are not administrative law judges (ALJs). (We refer to these adjudicators as “non-ALJ Adjudicators” or “non-ALJs.”) As our data indicate, non-ALJs significantly outnumber ALJs. Yet non-ALJs are often overlooked and difficult to discuss as a class because of their disparate titles and characteristics. To obtain more information on non-ALJs, we surveyed agencies on non-ALJs’ hearings and, among other things, the characteristics concerning non-ALJs’ salaries, selection, oversight, and removal. We first present our reported data on these matters, which …

Promoting Executive Accountability Through Qui Tam Legislation, Randy Beck

Scholarly Works

For hundreds of years prior to ratification of the U.S. Constitution, Anglo-American legislatures used qui tam legislation to enforce legal constraints on government officials. A qui tam statute allows a private informer to collect a statutory fine for illegal conduct, even if the informer lacks the particularized injury normally required for Article III standing. This essay explores whether qui tam regulation should be revived as a means of ensuring executive branch legal accountability."

Chevron Step Two's Domain, Kent H. Barnett, Christopher J. Walker

Scholarly Works

An increasing number of judges, policymakers, and scholars have advocated eliminating or narrowing Chevron deference—a two-step inquiry under which courts defer to federal agencies’ reasonable interpretations of ambiguous statutes the agencies administer. Much of the debate centers on either Chevron’s domain (i.e., when Chevron should apply at all) or how courts ascertain statutory ambiguity at Chevron’s first step. Largely lost in this debate on constraining agency discretion is the role of Chevron’s second step: whether the agency’s resolution of a statutory ambiguity is reasonable. Drawing on the most comprehensive study of Chevron in the circuit courts, this Essay explores how …

Fail To Comment At Your Own Risk: Does Issue Exhaustion Have A Place In Judicial Review Of Rules, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

Lubbers discusses whether issue exhaustion have a place in judicial review of rules.

Administrative Guidance And Genetically Modified Food, Edward L. Rubin, Joanna K. Sax

Faculty Scholarship

One of the most controversial issues in administrative law, the use of guidance, is exemplified by the regulation of one of the most controversial areas in modern society: genetically modified (GM) food. The appropriate use of guidance versus notice and comment rulemaking is a much-debated issue in administrative law. While agency officials generally assert that they are using guidance to express an agency’s thoughts about how to comply with a specific statutory provision or agency rule, the practical consequence is that the regulated party will hesitate to disobey, even if it believes that the guidance goes beyond the requirements of …

Sg's Brief In Lucia Could Portend The End Of The Alj Program As We Have Known It, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Interminable Parade Rest: The Impossibility Of Establishing Service Connection In Veterans Disability Compensation Claims When Records Are Lost Or Destroyed, Jessica Lynn Wherry

Brooklyn Law Review

By statute, veterans are eligible for disability compensation benefits for illness or injury connected to the veteran’s service in the armed forces. The process of seeking benefits is intended to be non-adversarial and requires VA to assist veterans in developing their claims. Unfortunately, VA’s nagging problems including poor management and a lack of accountability produce well-documented and devastatingly negative effects on veterans. These effects are not limited to veterans receiving disability benefits but extends to veterans who never make it past the claim stage because their claims are denied. Typically, service medical records are used to establish service-connection. When those …

The “Deeming Rule”: The Fda’S Destruction Of The Vaping Industry, Lauren H. Greenberg

Brooklyn Law Review

The FDA has recently passed sweeping regulations, which classifies and then regulates electronic cigarettes as “tobacco products” in the same manner as traditional cigarettes. Though the agency reasons that unknowing adults and children may easily turn to e-cigarettes without fully understanding the potential health effects, there is a lack of conclusive evidence in this field to justify such a comprehensive regulatory scheme. Through the far-reaching “Deeming Rule,” e-cigarette manufacturers are forced to comply with financially burdensome and time-consuming requirements before taking most of their products to market. The channels by which the FDA proposes manufacturers and retailers gain permission from …

Regulatory Cooperation In International Trade And Its Transformative Effects On Executive Power, Elizabeth Trujillo

Faculty Scholarship

As international trade receives the brunt of local discontent with globalization trends and recent changes by the Trump administration have put into question the viability of such trade arrangements moving forward, there has been a clear trend in using international trade fora for managing regulatory barriers on economic development. This paper will discuss this recent trend in international trade toward increased regulatory cooperation through the creation of formalized transnational regulatory bodies, such as the U.S.-EU Regulatory Cooperation Body that was being discussed in the TTIP negotiations and comparable ones in the Canadian-EU Trade Agreement as well as U.S.-Mexico and U.S.- …

Valuing Life: A Human Rights Perspective On The Calculus Of Regulation, William J. Aceves

Minnesota Journal of Law & Inequality

No abstract provided.