Administrative Law Commons^™

Probabilistic Compliance, Alex Raskolnikov

Faculty Scholarship

Uncertain legal standards are pervasive but understudied. The key theoretical result showing an ambiguous relationship between legal uncertainty and optimal deterrence remains largely undeveloped, and no alternative conceptual approaches to the economic analysis of legal uncertainty have emerged. This Article offers such an alternative by shifting from the well-established and familiar optimal deterrence theory to the new and unfamiliar probabilistic compliance framework. This shift brings the analysis closer to the world of legal practice and yields new theoretical insights. Most importantly, lower uncertainty tends to lead to more compliant positions and greater private gains. In contrast, the market for legal …

Freedom Of Information Beyond The Freedom Of Information Act, David Pozen

Faculty Scholarship

The U.S. Freedom of Information Act (FOIA) allows any person to request any agency record for any reason. This model has been copied worldwide and celebrated as a structural necessity in a real democracy. Yet in practice, this Article argues, FOIA embodies a distinctively “reactionary” form of transparency. FOIA is reactionary in a straightforward, procedural sense in that disclosure responds to ad hoc demands for information. Partly because of this very feature, FOIA can also be seen as reactionary in a more substantive, political sense insofar as it saps regulatory capacity; distributes government goods in an inegalitarian fashion; and contributes …

The Management Side Of Due Process In The Service-Based Welfare State, Charles F. Sabel, William H. Simon

Faculty Scholarship

The American social welfare system is evolving away from the framework established by the New Deal and elaborated during the civil rights era. It is becoming less focused on income maintenance and more on capacitation. Benefits thus more often take the form of services. Such benefits are necessarily less standardized and stable than monetary ones. Their design is more individualized and provisional. The new trends favor different organizational forms, and they imply a different ideal of procedural fairness.

Jerry L. Mashaw’s work of the 1970s and 1980s provided the deepest and most comprehensive analysis of the New Deal regime from …

Chevron In The Circuit Courts: The Codebook Appendix, Kent Barnett, Christopher J. Walker

Michigan Law Review Online

For our empirical study on the use of Chevron deference in the federal courts of appeals, we utilized the following Codebook. This Codebook draws substantially from the codebook appended to William Eskridge and Lauren Baer’s pathbreaking study of administrative law’s deference doctrines at the Supreme Court. Our research assistants and we followed the instructions below when coding judicial decisions. To address questions as they arose and to ensure consistent coding, we maintained close contact with each other and our research assistants throughout the project and clarified the Codebook to address additional issues. Further details concerning our methodology (and its limitations) …

V.23-1, 2017 Masthead

California Regulatory Law Reporter

No abstract provided.

Legislative Committee Abbreviations

California Regulatory Law Reporter

No abstract provided.

Dental Board Of California, Jena Scarborough, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.

Department Of Managed Health Care, Jennifer Pardue, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.

Board Of Pharmacy, Mariam J. Saleh, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.

Medical Board Of California, Kayla Watson, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.

California Board Of Accountancy, Anna V. Randall, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.

State Bar Of California, Edith Jimenez, Andrew J. Van Arsdale, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.

Public Utilities Commission, Jessica Kirshner, Faye Winkler, R. C. Fellmeth, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.

Board Of Registered Nursing, Ashkan Hayatdavoudi, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.

Department Of Insurance, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.

Veterinary Medical Board, Bryan Yerger, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.

Putting Yourself In The Shoes Of A Patent Examiner: Overview Of The United States Patent And Trademark Office (Uspto) Patent Examiner Production (Count) System, 17 J. Marshall Rev. Intell. Prop. L. 32 (2017), Naira Rezende Simmons

UIC Review of Intellectual Property Law

The mission of the United States Patent and Trademark Office (USPTO) is to ensure that the Intellectual Property system contributes to a strong global economy, encourages investment in innovation, and fosters entrepreneurial spirit. In order to ensure that the large volume of newly filed patent applications are examined in a reasonable timeframe, the USPTO has a system for determining the average amount of time an examiner should spend examining a patent application. Under the current production system, productivity is assessed based on Production Units (“PUs”) achieved relative to the Examiner’s production goal. The production goal is calculated for each examiner …

The Administrative State In America, William J. Novak

Book Chapters

The purpose of this contribution is to examine the idea of the Continental State in a common-law context. To that effect, the focus of this essay is the American state. Typically, in comparing the American regime to the Continental idea of the state, much has been made of a so-called tradition of ‘American exceptionalism’. Alexis de Tocqueville perhaps started this trend when he observed in the United States distinctive qualities of individualism, associationalism, localism, and decentralization, but not many inklings of a modern state. ‘The federal government of the United States’, he mistakenly surmised in the early nineteenth century, ‘is …

Putting The 'Public' In Public Administration: The Rise Of The Public Utility Idea, William J. Novak

Book Chapters

From the perspective of American legal history, one of the most important and lasting themes in the work of Jerry L. Mashaw is his definitive establishment of the long and deep historical origins of American administrative law and the administrative state. Mashaw's remarkable charting of “The Lost One Hundred Years of American Administrative Law” is a monumental achievement that forever alters the established chronology and history of the administrative regulatory state in the USA. Through his emphasis on what Bruce Wyman dubbed the “internal law” of administration, Mashaw identified a new route into a previously undiscovered (or at least underacknowledged) …

Re-Framing Biotechnology Regulation, Alison Peck

Law Faculty Scholarship

Biotechnology is about to spill the banks of federal regulation. New genetic engineering techniques like CRISPR-Cas9 promise revolutionary breakthroughs in medicine, agriculture, and public health-but those techniques would not be regulated under the terms of the Coordinated Framework for Regulation of Biotechnology. This revolutionary moment in biotechnology offers an opportunity to correct the flaws in the framework, which was hastily patched together at the advent of the technology. The framework has never captured all relevant technologies, has never satisfied the public that risk is being effectively managed, and has never been accessible to small companies and publicly-funded labs that increasingly …

The Indirect Consequences Of Expanded Off-Label Promotion, Patricia J. Zettler

Faculty Publications By Year

The U.S. Food and Drug Administration’s (FDA) policies have been a battleground for litigation about First Amendment protections for commercial speech. In the last five years, the FDA’s position that “off-label” promotion of approved prescription drugs—when a manufacturer promotes a drug for a use for which the FDA has not approved it—leads to violations of the Federal Food, Drug, and Cosmetic Act has been subject to successful legal challenges. Although the merits of these off-label promotion decisions are well traversed in the literature, this Article explores the potential indirect consequences of recently-recognized protections for off-label promotion. This Article demonstrates that—as …

The Human Side Of Public-Private Partnerships: From New Deal Regulation To Administrative Law Management, Alfred C. Aman, Joseph C. Dugan

Articles by Maurer Faculty

During the New Deal era, Congress created a then-unprecedented program of economic and regulatory reforms, establishing independent agencies, and empowering them to shape and enforce pragmatic industrial policies. Twenty-first century regulation looks strikingly different from the New Deal vision. While New Deal agencies continue to perform some regulatory functions, market approaches have replaced many traditional command-and-control formulations, with private entities stepping in to perform tasks historically reserved to government.

Though government-by-contract is becoming the new normal, neither the Administrative Procedure Act ("APA") nor many of its state equivalents provide adequate guidance to ensure that individual rights are protected and democratic …

Benchmark Regulation, Gina-Gail S. Fletcher

Articles by Maurer Faculty

Benchmarks are metrics that are deeply embedded in the financial markets. They are essential to the efficient functioning of the markets and are used in a wide variety of ways-from pricing oil to setting interest rates for consumer lending to valuing complex financial instruments. In recent years, benchmarks have also been at the epicenter of numerous, multi-year market manipulation scandals. Oil traders, for example, deliberately execute trades to drive benchmarks lower artificially, allowing the traders to capitalize on the manipulated benchmarks. This ensures that later trades relying on the benchmarks will be more profitable than they otherwise would have been. …

Comment: Maryland State Drone Law Puts Residents At Risk Of Privacy Intrusions From Drone Surveillance By Law Enforcement Agencies, Wayne Hicks

University of Baltimore Law Forum

As technology rapidly advances, society is becoming more efficient and interconnected than ever before. Unmanned Aircraft Systems ("UAS"), more frequently referred to as "drones," have taken on an increasingly involved role in the progression towards a more interconnected society. For example, drones are presently capable of improving our ability to monitor potentially devastating storms, improving wildlife conservation efforts, increasing efficiency in agriculture, transporting goods to underdeveloped countries, and providing several forms of vital assistance to law enforcement.

Although the potential for drones appears promising, the advancements of drone capabilities have been met with increasing concerns regarding the government's ability to …

Policymaking By Proposal: How Agencies Are Transforming Industry Investment Long Before Rules Can Be Tested In Court, James W. Coleman

Faculty Journal Articles and Book Chapters

The conventional wisdom is that an executive agency’s scope of action and power depends on how easy it is to reverse agency decisions in court. If non-deferential judges provide industry with prompt review of agency decisions, the agency’s power is limited. And if courts are unlikely to second-guess the agency’s interpretations, then private actors have little choice but to comply. But in recent years, agencies have begun to rely on a new weapon in this struggle with courts and industry — the power of proposed rules to achieve regulatory outcomes. When regulations will affect long-term capital investments, companies must set …

Proportionality Review In Administrative Law, Jud Mathews

Contributions to Books

At the most basic level, the principle of proportionality captures the common-sensical proposition that, when the government acts, the means it chooses should be well-adapted to achieve the ends it is pursuing. The proportionality principle is an admonition, as German administrative law scholar Fritz Fleiner famously wrote many decades ago, that “the police should not shoot at sparrows with cannons”. The use of proportionality review in constitutional and international law has received ample attention from scholars in recent years, but less has been said about proportionality’s role within administrative law. This piece suggest that we can understand the differences in …

Bureau For Private Postsecondary Education, Daniel Ballinger, R. C. Fellmeth, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.

Commentary

California Regulatory Law Reporter

No abstract provided.

On Health, Law, And Religion, Stacey A. Tovino

Scholarly Works

The Supreme Court recently decided a number of cases involving health, law, and religion, including Whole Woman's Health v. Hellerstedt, Zubik v. Burwell, and Burwell v. Hobby Lobby Stores, Inc. These cases were important for understanding constitutional undue burden limitations and the boundaries of religious exercise during the Obama Administration. Unfortunately, the Supreme Court's recent opinions addressing health, law, and religion have little value for many health law professors and most practicing health care attorneys. These individuals, tasked with teaching and applying the thousands of federal and state statutes, regulations, and government guidance documents that address a wide …

Designing Administrative Justice, Lorne Sossin

Articles & Book Chapters

This article explores the adaptation of design thinking to administrative justice. The human centred design perspective has been missing from most debates surrounding the design and reform of administrative tribunals in Canada. As a result, the author asserts that the administrative justice system in Canada at all levels of government (federal, provincial, municipal, and Indigenous) is generally fragmented, poorly coordinated, and under-resourced in relation to the needs of its users and has multiple barriers of entry.

This article is divided into two parts. The first part reviews the development of design thinking in the context of legal services and legal …