Administrative Law Commons^™

The Ideology Of Legal Interpretation, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

This Article questions whether consistency in legal interpretation is truly a manifestation of the influence of law or instead a means to a preferred policy end. Part I of this Article discusses the legal interpretive tools of originalism and legislative history and how they might influence outcomes in cases. Part II discusses judicial decision-making in the U.S. Courts of Appeals and justifies their use in the analysis. Parts III and IV offer information on our data and methodology, as well as a discussion of the results. Finally, in Part V, we find that the use of legal interpretive strategies are …

The Failure Of Adversarial Process In The Administrative State, Bryan T. Camp

Indiana Law Journal

No abstract provided.

The Implications Of Post-Phase 1 And "Off-Label" Treatment Use Of Experimental Drugs: How Expansive Should Expanded Access Be?, Patricia J. Zettler

Faculty Publications By Year

No abstract provided.

The Regulation Of Nanomedicine: Will The Existing Regulatory Scheme Of The Fda Suffice?, Shanna Harris

Richmond Journal of Law & Technology

Nanotechnology is the science and technology of manipulating molecules and atoms at the molecular level to create devices with new molecular properties, organizations and functions.1 Devices such as new computers that are billions of times more powerful than any currently available2 and boxes the size of sugar cubes that can hold the entire content of the Library of Congress are examples of the power of nanotechnology.

The Fair Labor Standards Act Exemptions And The Pharmaceuticals Industry: Are Sales Representatives Entitled To Overtime?, Steven I. Locke

Barry Law Review

This article discusses the battle in the courts as to whether highly compensated pharmaceutical sales representatives are entitled to overtime pay under the Fair Labor Standards Act, or whether they are excluded from such an entitlement under one or more of the Act’s “exemptions.” This article also conducts a review of the courts’ various conflicting positions and charts a course for addressing the issue before the Courts of Appeals and ultimately the Supreme Court.

Personal Liability As Administrative Law, David Zaring

Washington and Lee Law Review

Administrative Law has almost exclusively concerned itself with Lawsuits against agencies as collective entities, under the auspices of the Administrative Procedure Act. In light of the growing number and prominence ofsuits by war on terror plaintiffs against senior government officials, this Article considers the use ofpersonal liability to discipline government officials and assesses it as an alternative to traditional administrative Law. It compares the civil suits to criminal prosecutions of these officials and compares both of them to lessobviously Law related scandal campaigns. Personal sanctions--of which Bivens complaints are a principal example-are worth more attention. These mechanisms, and the constitutional …

The Politics Of Administrative Law: New York's Anti-Bureaucracy Clause And The O'Brian-Wagner Campaign Of 1938, Daniel R. Ernst

Georgetown Law Faculty Publications and Other Works

The controversy over administrative law in New York in 1938 was a decisive moment in the emergence of procedural Diceyism in the United States. On a stage crowded with partisan and legal performers, the politics of administrative law played out in two acts. In the first, the state's trial lawyers mounted a campaign to heighten judicial review of the state's administrative agencies. Their efforts culminated in the adoption of the anti-bureaucracy clause at the state constitutional convention when regular factions in the state's two major parties decided it would serve their purposes. New Yorkers rejected the measure after liberal politicians …

Asylum In A Different Voice: Judging Immigration Claims And Gender, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

An extensive statistical study of disparities in asylum adjudication throughout the United States reveals gross disparities in rates of asylum grants by region of country, experience of adjudicators, prior employment, and other factors. One of the most robust findings was one of gender disparities in adjudication rates. If the adjudicator of claims for asylum was female there was a 44% greater likelihood that asylum would be granted. This chapter in the book reporting these findings reflects on this significant finding of gender differences in judging and discusses, in light of the author's prior work on gender differences in lawyering, whether …

Deconstructing The Bill Of Rights In Administrative Adjudication--Enfranchising Constitutional Principles In The Process, Shiv Narayan Persaud

Journal Publications

With the increased tendency toward governmental oversight in modern society, Congress deemed it fit to delegate some of its lawmaking authority to the other branches of government. While this action has effectuated the promulgation of regulations and resolution of disputes through adjudicatory proceedings, the area of administrative law continues to be challenging, especially where it poses concerns regarding an individual’s basic rights. This Article will focus discussion on some fundamental issues relating to the administrative process and explore the ramifications on the individual.

Beyond Economics: The U.S. Recognition Of International Financial Reporting Standards As An International Subdelegation Of The Sec's Rulemaking Authority, Jacob L. Barney

Vanderbilt Journal of Transnational Law

A final rule promulgated by the Securities and Exchange Commission (SEC) in 2008 allowing foreign private securities issuers to prepare SEC-required financial disclosures under international financial reporting standards (IFRS) as promulgated by the International Accounting Standards Board (LASB) is a highly significant event for U.S. and global capital markets. However, surprisingly few questions have been asked regarding the SEC's legal authority to take such an unprecedented step.

This Note assesses the recent SEC action with regard to IASB from two perspectives--traditional administrative law, with particular emphasis on delegations by government entities to private parties, and international law, with particular emphasis …

Tuck-It-Away Associates, L.P. V. Empire State Development Corp., Kelly D. Fisher

NYLS Law Review

No abstract provided.

The Emergent Logic Of Health Law, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

The American health care system is on a glide path toward ruin. Health spending has become the fiscal equivalent of global warming, and the number of uninsured Americans is approaching fifty million. Can law help to divert our country from this path? There are reasons for deep skepticism. Law governs the provision and financing of medical care in fragmented and incoherent fashion. Commentators from diverse perspectives bemoan this chaos, casting it as an obstacle to change. I contend in this Article that pessimism about health law’s prospects is unjustified, but that a new understanding of health law’s disarray is urgently …

Global Governance: The World Trade Organization's Contribution, Andrew D. Mitchell, Elizabeth Sheargold

Georgetown Law Faculty Publications and Other Works

Democracy and administrative law concern ideas of governance, legitimacy, and accountability. With the growth of bureaucracy and regulation, many democratic theorists would argue that administrative law mechanisms are essential to achieving democratic objectives. This article considers the World Trade Organization’s (WTO) contribution to governance both in terms of global administrative law and democracy. In relation to administrative law, it first explores the extent to which the WTO’s own dispute settlement process contributes to this area. Second, it considers the operation of administrative law principles embedded within the WTO Agreements on Members. For example, the WTO Agreements require that certain laws …

Representation Reinforcement: A Legislative Solution To A Legislative Process Problem, Anita S. Krishnakumar

Faculty Publications

One of the most valuable—and disturbing—insights offered by public choice theory has been the recognition that wealthy, well-organized interests with narrow, intense preferences often dominate the legislative process while diffuse, unorganized interests go under-represented. Responding to this insight, legal scholars in the fields of statutory interpretation and administrative law have suggested that the solution to the problem of representational inequality lies with the courts. Indeed, over the past two decades, scholars in these fields have offered up a host of John Hart Ely-inspired representation reinforcing "canons of construction," designed to encourage judges to use their role as statutory interpreters to …

A Discourse On The Public Nature Of Research In Contemporary Life Science: A Law-Policy Proposal To Promote The Public Nature Of Science In An Era Of Academia-Industry Integration, Michael J. Malinowski

Journal Articles

This article addresses the impact of integration of academia, industry, and government on the public nature of research. The article concludes that, while the integration has benefited science immensely, regulatory measures should be taken to restore the public nature of research in an age of integration.

Embracing Paradox: Three Problems The Nlrb Must Confront To Resist Further Erosion Of Labor Rights In The Expanding Immigrant Workplace, Michael C. Duff

All Faculty Scholarship

This article discusses the Supreme Court's 2002 Hoffman Plastic Compounds opinion, normally considered in terms of its social justice ramifications, from the different perspective of NLRB attorneys tasked with pursuing enforcement of the National Labor Relations Act (NLRA) under the conceptually (and practically) odd rubric that some NLRA employees (unauthorized workers) have no remedy under the NLRA. The article focuses on three problems evincing paradox. First, NLRB attorneys prosecuting cases involving these workers will probably gain knowledge of unlawful background immigration conduct. To what extent must the attorneys disclose it, and to whom? Second, NLRB attorneys are extraordinarily reliant on …

Chevron's Mistake, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

"Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc." asks courts to determine whether Congress has delegated to administrative agencies the authority to resolve questions about the meaning of statutes that those agencies implement, but the decision does not give courts the tools for providing a proper answer. Chevron directs courts to construe statutory text by applying the traditional theories of statutory interpretation-whether intentionalism, purposivism, or textualism-and to infer a delegation of agency interpretive authority only if they fail to find a relatively specific meaning. But the traditional theories, despite their differences, all invite courts to construe statutory text as …

Managing Performance [In Child Welfare Supervision], Megan E. Paul, Michelle Graef, Erika J. Robinson, Kristin Saathoff

Center on Children, Families, and the Law: Faculty Publications

One of the primary roles of a supervisor is to manage worker performance. Performance management is the "continuous process of identifying, measuring, and developing the performance of individuals and teams and aligning performance with the strategic goals of the organization" (Aguinis, 2007, p. 2). Supervisors must regularly assess current performance levels and take steps to improve performance in a way that is congruent with agency goals. The ultimate goal is to achieve agency objectives through individual and team performance.

To effectively manage performance, supervisors must know what the performance expectations are for workers and clearly communicate these expectations to workers. …

The Future Of Internet Regulation, Philip J. Weiser

Publications

Policymakers are at a precipice with regard to Internet regulation. The Federal Communications Commission's ("FCC") self-styled adjudication of a complaint that Comcast violated the agency's Internet policy principles (requiring reasonable network management, among other things) clarified that the era of the non-regulation of the Internet is over. Equally clear is that the agency has yet to develop a model of regulation for a new era. As explained in this Article, the old models of regulation - reliance on command-and-control regulation or market forces subject only to antitrust law - are doomed to fail in a dynamic environment where cooperation is …

Institutional Design, Fcc Reform, And The Hidden Side Of The Administrative State, Philip J. Weiser

Publications

Legal scholars have long recognized the importance of the modern administrative state, focusing intently both on the substance of regulatory law and the process of administrative law. Neither focus, however, recognizes the importance of institutional design and institutional processes as determinants of the nature and shape of administrative regulation. The era of neglect towards institutional analysis by both scholars and policymakers may well be on its last legs, as it is increasingly clear that the institutional processes used by regulatory agencies - including when to act by rulemaking as opposed to by adjudication, how to engage the public, and how …

The Internet's Public Domain: Access To Government Information On The Internet, Susan Nevelow Mart

Publications

This article surveys the types and amounts of information that have been removed from the Internet since September 11th. Information has been removed in the name of national security as well as for reasons of seeming political expediency. After discussing the bases of some of the rationales for removing the information, and the legal underpinnings of continued access, the article suggests several forms of advocacy that could be used to return the information to the public's domain.

The Rest Is Silence: Chevron Deference, Agency Jurisdiction, And Statutory Silences, Jonathan H. Adler, Nathan Alexander Sales

Faculty Publications

Should agencies receive Chevron deference when interpreting the reach of their own jurisdiction? This Article argues that, in general, they should not. The authors begin by identifying and detailing the various different types of “jurisdictional questions” that may arise in statutory interpretation. The Article then surveys how courts have analyzed these different aspects of the jurisdiction problem, with a particular attention directed to statutory silences. The Court’s Chevron jurisprudence strongly suggests that deference to agency determinations of their own jurisdiction should be disfavored, particularly where a statute is silent (and not merely ambiguous) about the existence of agency jurisdiction. In …

Ad Law Incarcerated, Giovanna Shay

Faculty Scholarship

This Article examines one part of the legal regime administering "mass incarceration" that has not been a focus of legal scholarship: prison and jail policies and regulation. Prison and jail regulation is the administrative law of the "carceral state," governing an incarcerated population of millions, a majority of whom are people of color. The result is an extremely regressive form of policy-making, affecting poor communities and communities of color most directly. This Article proceeds in three parts. Part I first sketches the history of court involvement in prison reform, explaining that prison litigation made institutions more bureaucratic and increased the …

Securities Law And The New Deal Justices, Adam C. Pritchard, Robert B. Thompson

Articles

In this Article, we explore the role of the New Deal Justices in enacting, defending, and interpreting the federal securities laws. Although we canvass most of the Court's securities law decisions from 1935 to 1955, we focus in particular on PUHCA, an act now lost to history for securities practitioners and scholars. At the time of the New Deal, PUHCA was the key point of engagement for defining the judicial view toward New Deal securities legislation. Taming the power of Wall Street required not just the concurrence of the legislative branch, but also the Supreme Court, a body that the …

Political Control Of Federal Prosecutions: Looking Back And Looking Forward, Daniel C. Richman

Faculty Scholarship

This Essay explores the mechanisms of control over federal criminal enforcement that the administration and Congress used or failed to use during George W. Bush's presidency. It gives particular attention to Congress, not because legislators played a dominant role, but because they generally chose to play such a subordinate role. My fear is that the media focus on management inadequacies or abuses within the Justice Department during the Bush administration might lead policymakers and observers to overlook the hard questions that remain about how the federal criminal bureaucracy should be structured and guided during a period of rapidly shifting priorities …

Proposing A Place For Politics In Arbitrary And Capricious Review, Kathryn A. Watts

Articles

Current conceptions of “arbitrary and capricious” review focus on whether agencies have adequately explained their decisions in statutory, factual, scientific, or otherwise technocratic terms. Courts, agencies, and scholars alike, accordingly, generally have accepted the notion that influences from political actors, including the President and Congress, cannot properly help to explain administrative action for purposes of arbitrary and capricious review. This means that agencies today tend to sweep political influences under the rug even when such influences offer the most rational explanation for the action.

This Article argues that this picture should change. Specifically, this Article argues for expanding current conceptions …

A New Deal For End Users? Lessons From A French Innovation In The Regulation Of Interoperability, Jane K. Winn, Nicolas Jondet

Articles

In 2007, France created the Regulatory Authority for Technical Measures (lAutoritj de Rdgulation des Mesures Techniques or ARMT), an independent regulatory agency charged with promoting the interoperability of digital media distributed with embedded "technical protection measures" (TPM), also known as "digital rights management" technologies (DRM). ARMT was established in part to rectify what French lawmakers perceived as an imbalance in the rights of copyright owners and end users created when the European Copyright Directive (EUCD) was transposed into French law as the "Loi sur le Droit d'Auteur et les Droits Voisins dans la Société de l'Information" (DADVSI).

ARMT is both …

Administrative Detention Of Terrorists: Why Detain, And Detain Whom?, Matthew C. Waxman

Faculty Scholarship

This article aims to reframe the administrative detention debate, not to resolve it. In doing so, however, it aspires to advance the discussion by highlighting the critical substantive choices embedded in calls for legal procedural reform and by pointing the way toward appropriately tailored legislative options. It argues that the current debate’s focus on procedural and institutional questions of how to detain suspected terrorists has been allowed to overshadow the questions of why administratively detain, and whom to detain. Not only are the answers to these questions at least as important as the procedural rules in safeguarding and balancing liberty …

Rulemaking And The American Constitution, Peter L. Strauss

Faculty Scholarship

A Constitution that strongly separates legislative from executive activity makes it difficult to reconcile executive adoption of regulations (that is, departmentally adopted texts resembling statutes and having the force of law, if valid) with the proposition that the President is not ‘to be a lawmaker’. Such activity is, of course, an essential of government in the era of the regulatory state. United States courts readily accept the delegation to responsible agencies of authority to engage in it, what we call ‘rulemaking’, so long as it occurs in a framework that permits them to assess the legality of any particular exercise. …

Combating Midnight Regulation, Jack M. Beermann

Faculty Scholarship

The flurry of regulatory activity by the outgoing administration of President George W. Bush has raised, once again, the specter of midnight regulation. Whatever the reason for midnight regulation, there seems to be a general consensus that something has gone wrong when an outgoing administration takes important action while the incoming administration is essentially waiting to take over. Most late term action is subject to the obvious question of "if this action was so important, why didn't the administration take it in the last seven and three-quarters years or so?" Even though the Constitution leaves the incumbent in office for …