Administrative Law Commons^™

Efta Coverage Of Modern Consumer Wire Transfers: Consumer Financial Regulation In The Wake Of Loper Bright, Benjamin Gygi

Fordham Law Review

The rise of online banking has led to a proliferation of consumer fraud. Schemes aimed at stealing consumer funds using wire transfers executed through online banking portals have proven particularly devastating to consumers because of a perceived loophole in the Electronic Fund Transfer Act (EFTA) that leaves consumers with full liability for funds stolen through wire transfers. Consumer advocacy groups, and most notably the New York Attorney General, have recently argued that this loophole does not really exist; they claim that the EFTA’s text conclusively covers certain parts of modern wire transfer processes initiated through online banking portals. Considering the …

Lawyering As A Public Health Tool: Enforcing Title Ii Of The Americans With Disabilities Act With Preventative Litigation, Elena Cohen

Fordham Law Review

A recent ruling by the U.S. Court of Appeals for the Fifth Circuit held that plaintiffs cannot bring a claim alleging a risk of unnecessary institutionalization under Title II of the Americans with Disabilities Act (ADA). This directly contradicts the holdings of six other circuit courts and guidance issued by the Department of Justice (DOJ)—all of which maintain that Title II of the ADA (Title II), the integration mandate, and the U.S. Supreme Court’s decision in Olmstead v. L.C. ex rel. Zimring permit these claims. This Note explores how the circuit courts have evaluated risk of unnecessary institutionalization claims, including …

The Dormant Power Of State Agencies To Fight Environmental Racism, David Handelman-Holmes

Michigan Law Review

Despite repeated promises by Democratic presidents to address environmental justice (EJ), meaningful federal action on the issue remains elusive. The EJ obligations that have been imposed on federal agencies are all purely procedural, not substantive. Such procedural obligations—like filing environmental impact statements and providing forums for community feedback—may facilitate greater transparency and accountability from industry and government agencies. But in the absence of more substantive obligations—like stricter emissions caps in highly burdened communities of color—these procedural requirements are often satisfied through mere box-checking. Meanwhile, litigants pursuing relief through the U.S. Constitution’s Equal Protection Clause face closed courthouse doors unless they …

Legislating For The Future, Jonathan S. Gould, Rory Van Loo

Faculty Scholarship

Public policy must address threats that will manifest in the future. Legislation enacted today affects the severity of tomorrow’s harms arising from biotechnology, climate change, and artificial intelligence. This Essay focuses on Congress’s capacity to confront future threats. It uses a detailed case study of financial crises to show the limits and possibilities of legislation to prevent future catastrophes. By paying insufficient attention to Congress, the existing literature does not recognize the full nature and extent of the institutional challenges in regulating systemic risk. Fully recognizing those challenges reveals important design insights for future-risk legislation.

We first examine Congress as …

Presidential Oversight Of Independent Agency Rulemaking: A Literature Review, Matthew R. Osuch

Notre Dame Law Review Reflection

Over the course of the last several decades, the role of the President vis-à-vis the administrative state has undergone a profound evolution. Central to this development is President Clinton’s Executive Order (EO) 12866, issued in 1993—a landmark directive that modernized and reinvigorated the process by which federal agencies promulgate significant regulations. Like his predecessors, President Clinton declined to extend EO 12866’s cost-benefit analysis and centralized review requirements to independent agency rulemakings. This Note provides a literature review of the competing perspectives regarding the legal permissibility and desirability of that choice and the choice of every President since to do the …

Registration As Consent: Patching Jarkesy's Hole In Sec Enforcement, Alexander I. Platt

Notre Dame Law Review Reflection

In SEC v. Jarkesy, the Supreme Court held that whenever the SEC seeks to impose monetary penalties on enforcement targets for securities fraud, it must proceed in federal court and not its own administrative forum. Many observers predict this will significantly impact SEC enforcement.

But not necessarily. A simple legal patch might repair the hole Jarkesy opened up: parties who register with the SEC may thereby consent to its administrative jurisdiction. (Because Jarkesy and the funds he managed were not registered, his case did not resolve the issue.)

This Essay shows how registration may constitute consent to SEC administrative …

Expansion Of Accessibility: A Survey Of Alternatives V. Department Of Human Services, Keri L. Nace

Widener Commonwealth Law Review

For decades, the size of government in the United States has grown. Simultaneously, technology has created a more informed, and more interested, general public. The Pennsylvania legislature responded to ever increasing requests for information by expanding transparency in government and access to records through the Right to Know Law (RTKL). Every Pennsylvania agency is required to have an open-records officer. The open-records officer is the agency representative tasked with receiving and responding to RTKL requests, including the decision of whether the agency provides or denies the requested record. Not surprisingly, questions regarding a government agency’s failure to provide documents are …

Procedural Learning And Reform In Federal Administrative Adjudication, Jeremy S. Graboyes

Widener Commonwealth Law Review

In the mid-twentieth century, in cases like Goldberg v. Kelly, the Supreme Court found a right to “some kind of hearing” in program after program and set about constructing a “fixed list of procedural protections required by due process.” Constitutionalizing procedural choices in this manner gave courts substantial control over how administrative adjudication operated. However, the approach was criticized. Dissenting in Goldberg, Justice Hugo Black wrote that by imposing significant procedural requirements on agencies without a clear constitutional or statutory basis for doing so, courts “wander[ed] out of their field of vested powers and transgress[ed] into the area constitutionally assigned …

The Not-So-Obvious And Inconvenient Truth: Reexamining A Right To Counsel For Parents And Children In Abuse And Neglect Administrative Proceedings, Tiffany Williams Brewer

Widener Commonwealth Law Review

The right to counsel for parents in administrative abuse and neglect cases, as well as for the children that are the subject of these matters, is a necessity that may not be obvious. This Article seeks to elucidate the fundamental interests that are at stake and justify why the sacrosanct protections of the landmark Gideon v. Wainwright right to counsel case should be extended to an administrative proceeding involving parents who are facing inclusion on a state child abuse and neglect registry. The Article also reveals an inconvenient truth–that communities of color are disproportionately impacted by the consequence of adverse …

Congress And The Shifting Sands In Administrative Law, Christopher J. Walker

Widener Commonwealth Law Review

In recent years, we have seen an anti-administrativist turn in the federal judiciary, with the Supreme Court limiting agency power in important respects. These shifting sands in administrative law seem to be motivated, at least in part, by the Court’s perception of the rise of presidential administration and decline in legislative activity. As part of the Widener Commonwealth Law Review Judging in Administrative Law Symposium, this Essay assesses how the Court has responded to concerns about overpresidentialism and then sketches out several ways Congress can respond to reassert itself in federal lawmaking.

Undo Process: Examining Agency Procedural Levers To Access To Counsel, Haiyun Damon-Feng

Widener Commonwealth Law Review

Every day, through internal adjudicative proceedings, agencies make thousands of rights determinations that affect critical matters such as financial security, family unity, personal safety, and individual liberty. Scholars and policymakers have recognized the significant impact that representation can have on adjudicative outcomes across the administrative state. Many agencies have implemented policies affirmatively seeking to boost an individual’s ability to bring an advocate to assist with the adjudication process. In the immigration context, however, agencies have enacted procedural hurdles that have made it more difficult for individuals to reap the benefits of this assistance.

This Essay uses recent developments in the …

Corporate Exceptionalism: What's Behind The Business Community's Newfound Love Of Jury Trials, Richard H. Frankel

Widener Commonwealth Law Review

2024 was another year of blockbuster Supreme Court decisions. These range from expanding presidential immunity from criminal prosecution, overruling the Chevron doctrine, addressing access to the abortion drug mifepristone, setting standards regarding the power of federal agencies, and others. One case that has flown under the radar, at least outside of administrative law circles, is SEC v. Jarkesy. On its surface, the Supreme Court narrowly held that “the Seventh Amendment entitles a defendant to a jury trial when the [Securities and Exchange Commission (SEC)] seeks civil penalties against him for securities fraud,” rather than being required to proceed in an …

The Disintegration Of Administrative Adjudicatory Enforcement Authority, Robert L. Glicksman

Widener Commonwealth Law Review

In Securities and Exchange Commission v. Jarkesy, the Supreme Court held that the SEC violated Mr. Jarkesy’s Seventh Amendment right to a jury trial by pursuing its charges that he engaged in securities fraud in an administrative forum rather than in federal court. This Essay reviews and critiques the Jarkesy decision, concluding that it ignores several important issues in boiling the case down to whether statutory securities fraud is sufficiently similar to common law fraud to demand attachment of the jury trial right. This decision also distorts decades’ worth of Supreme Court precedents concerning the Seventh Amendment and Article III, …

Navigating The New Loper Bright Regime, Adam G. Crews

Widener Commonwealth Law Review

For many ordinary Americans—the ones who do not spend their days concerned with the minutia of administrative law doctrine—the biggest release of 2024 might have been international pop sensation Taylor Swift’s eleventh studio album, The Tortured Poets Department. The album’s standard edition ends with the track “Clara Bow,” which reflects on the entertainment industry’s habit of cycling through young female performers. Swift’s own experiences inform the song: she has explained how powerful record label executives would compare her to some other artist who came before her, then gratuitously disparage that woman, and then assure Swift that she is an improvement …

Chevron On The Eve Of Loper Bright, Nicholas R. Bednar

Widener Commonwealth Law Review

Chevron is dead. What does this mean for judicial review of agency interpretations of statutes in the lower courts? Perhaps not much. Using new data of circuit court decisions from 2012 and 2022, this Essay examines how lower courts changed their decision-making as the Supreme Court became more skeptical of Chevron deference. This Essay finds that---contrary to the assertion of some justices-circuit courts had not stopped applying Chevron in the lead up to Loper Bright. Moreover, courts agreed with agency interpretations of statutes at similar rates in both 2012 and 2022.

Preempting Paradigms: Nsmia, Esg Investing, And The Search For Market Integration, Robert T. Hill

Catholic University Law Review

This Comment evaluates the recent lawsuit filed by the Securities Industry and Financial Markets Association (SIFMA) against the Missouri Secretary of State, alleging violations of the National Securities Markets Improvement Act (NSMIA), Employee Retirement Income Security Act of 1974 (ERISA), and commercial free speech. NSMIA significantly altered the regulatory landscape by preempting certain aspects of state securities laws, aiming to streamline regulations and foster national uniformity in securities markets. However, this federal preemption presents a complex dilemma when addressing the surge in ESG investing, where investors prioritize financial returns and social and environmental impacts. Accordingly, this Comment examines the interplay …

Autonomy Now?: Is It Time To Start Integrating (Autonomous) Urban Air Mobility Vehicles Into The National Airspace System?, Robert Notari

Texas A&M Law Review

Urban Air Mobility has the potential to radically change the fundamental nature of transportation within the United States. But challenges abound—from critical shortages of air traffic controllers and pilots and gaps in key technologies and infrastructure to the negative public perception of autonomous vehicles. FAA and industry, employing an evolutionary and safety-focused approach, can overcome these challenges through a combination of creative regulation, targeted technology development, and leveraging lessons learned through the FAA’s drone integration efforts. However, if drone integration is any guide, industry should be prepared for a long integration timeline, with autonomy still on the horizon.

Post West Virginia V. Epa The Administrative State’S Door Is Still Ajar, Jaclyn Lopez

St. John's Law Review

(Excerpt)

The Supreme Court’s decision in West Virginia v. EPA, which carves out a new rulemaking standard for Congress and federal agencies, may be as significant for its articulation of the Major Questions Doctrine (“MQD”) as it is for its treatment of Article III standing and jurisprudential mootness. This Essay examines lower courts’ subsequent treatment of West Virginia v. EPA to add dimension to the inquiry of whether the new MQD has upended the administrative state or if it is merely another arrow in the quiver for judges that prefer a weaker federal government or nondelegation altogether. It also …

West Virginia V. Epa: Maybe A Big Deal, But Maybe Not, Michael Lewyn

St. John's Law Review

(Excerpt)

In West Virginia v. EPA, the Supreme Court held that the Environmental Protection Agency (“EPA”) lacked statutory authority to enact the Clean Power Plan, an EPA rule that encouraged coal-fired power plants to use non-coal sources of energy. The Court’s decision relied on the “major questions doctrine.” Under this doctrine, even if an unclear statute does not directly prohibit an administrative agency’s action, courts will reject an agency’s action when it is “asserting highly consequential power beyond what Congress could reasonably be understood to have granted.” Because the major questions doctrine is itself unclear, a variety of commentators suggested …

A More Modest Major Questions Doctrine Rooted In The Appointments Clause, Yonatan Gelblum

St. John's Law Review

(Excerpt)

In this Essay, I explore how this constitutional mandate might guide courts adjudicating disputes that arise when agencies interpret ambiguous statutes in a manner granting them powers beyond those expressly vested by Congress. In Part I, I explain when such agency assertions of authority may implicate Appointments Clause limits on office creation. I also demonstrate how the test of Shoemaker v. United States, which assesses whether expanding an officer’s authority creates a new office for Appointments Clause purposes by adding duties not “germane” to existing duties, provides a standard for judicial review of such claims. Agency claims to …

“Major Questions” Malarkey: An Arbitrary And Capricious New Doctrine For Vetoing Controversial Agency Rules, Lars Noah

St. John's Law Review

(Excerpt)

In 2022, after years of hinting at the idea, the United States Supreme Court officially adopted the “major questions” doctrine in West Virginia v. EPA. Commentators have already spilled plenty of ink trying to make sense of what this might portend, but so far seemingly everyone has accepted at face value the Court’s framing of the issue that it confronted in that case. This essay offers a slightly different perspective on the decision and suggests that closer attention to the precise nature of the question posed therein might reveal a distinctive flaw at the heart of the majority’s newfangled …

Climate Change, Democracy, And The Major Questions Doctrine, Joshua Ulan Galperin

St. John's Law Review

(Excerpt)

This brief Essay progresses in four parts. I will first argue that climate change is impacting the Court’s decisionmaking. Next, I will show that the significance of climate change as a modern political issue has caused the Court to downplay the statutory arrangement Congress created in the Clean Air Act. Third, I will suggest that the Court is not genuinely failing to appreciate the design of the Clean Air Act. Instead, the Court is aware of that design and feels the design goes beyond a constitutionally acceptable delegation of legislative power. Confronting the Nondelegation Doctrine head-on, however, would force …

Black Hole Of Administrative Law: The Threat Of An Ever-Expanding Major Questions Doctrine To The Judiciary, Fred B. Jacob

St. John's Law Review

(Excerpt)

Below, this essay explores how an aggressive major questions doctrine could extend its reach to judicial interpretation and the implications of doing so. Indeed, had the Court applied the major questions doctrine to its own judicial holdings in seminal cases such as Bostock v. Clayton County or Allen v. Milligan, it would have flunked. This is also true for West Virginia’s creation of the doctrine itself, which claimed newfound authority to transform administrative law despite Congress’s significant legislative attention to agency rulemaking.

Expansion of the major questions doctrine to cases arising in the courts’ original jurisdiction would …

Perspectives On West Virginia V. Epa, St. John’S Law Review Editorial Board

St. John's Law Review

No abstract provided.

Medicaid Unwinding: Due Process Violations And Impacts In Florida, Emma Page

University of Miami Race & Social Justice Law Review

No abstract provided.

What The Hell Is The Major Questions Doctrine?, Jack M. Beermann

Faculty Scholarship

Anita S. Krishnakumar, What the New Major Questions Doctrine Is Not, 92 Geo. Wash. L. Rev. 1117 (2024).

When the sun sets in New York City, it rises in Tokyo. Okay, maybe not exactly, but you get the idea: setting somewhere, rising somewhere else. Now substitute Chevron for N.Y.C. and the Major Questions Doctrine for Tokyo. For the past forty years, administrative law scholars have been arguing over Chevron, and now that the sun has set on that doctrine, it’s time to turn our attention to the new rising sun, the Major Questions Doctrine (“MQD”). The sudden emergence …

Public Patent Powers, Laura E. Dolbow

Michigan Law Review

Congress has created multiple structures for agencies to control how patents are used, but that institutional design choice has received little academic attention. This Article provides the first comprehensive survey of existing laws that expressly authorize agencies to control patents. I locate 113 express conditions across 68 laws that expressly authorize executive actors to make some form of decision about patents. These powers, which I refer to as “public patent powers,” allow the government to use patented inventions, to obtain patents, to authorize third parties to use patented inventions, and to regulate how patents are used. Agencies have used many …

The End Of Fda Exceptionalism? Dissecting Deference To The Fda In Drug Disputes, Anjali Deshmukh

Cardozo Law Review

On April 7, 2023, a federal judge issued a nationwide stay on the United States Food and Drug Administration (FDA) approval of the abortifacient medication mifepristone. It was instantly a landmark case, decried as the first time in over one-hundred years that a federal court nullified an FDA drug approval. A few hours later, a second federal district court enjoined FDA restrictions on mifepristone. Two federal courts substantively evaluating FDA drug approval data in one day is unprecedented. It begs the question: will courts overturn FDA drug approvals again?

Conventional wisdom says no. Abortion exceptionalism, the trend of legislatures and …

The Impact Of Job Rotation On The Constitutional Rights Of Public Employee: A Comparative Study, Baha’ Aldeen A. Al Hilat, Jehad D. Aljazi

An-Najah University Journal for Research - B (Humanities)

Objectives: This study aims to analyze the job rotation policy from a constitutional and legal perspective by evaluating the texts of this policy and its adherence to constitutional guarantees for public employees. It also seeks to establish a theoretical framework for this policy as a significant topic in modern administrative organization. Methodology: The study adopted a descriptive approach to analyze the issues related to job rotation based on legislative and judicial frameworks, alongside an analytical approach to evaluate the relationship between this policy and constitutional guarantees for public employees. Additionally, a comparative method was employed to study relevant legislation in …

How Safe Is Safe Enough? Analyzing The Incentive Structure Of The Products Liability Scheme On Commercial Aviation Manufacturers, Ethan Schwab

University of Miami Law Review

How do aviation manufacturers work to prevent tragedy? After tragedy strikes, how does the legal system’s imposition of a remedy change the operations and decision-making of these manufacturers, if at all? This Note explores whether the current products liability framework effectively achieves the goals of tort law—including whether it deters unsafe innovation in the high-risk commercial aviation manufacturing industry. The Note explores these topics through the lens of the recent Boeing 737 Max disasters of 2018 and 2019, using such disasters to exemplify the skewed incentive structure that manufacturers face in the modern products liability tort system. This Note argues …