Administrative Law Commons^™

I’M Not Lovin’ It: Re-Thinking Fast Food Advertising, Brody Shea, Michael S. Sinha

All Faculty Scholarship

In 1971, the Federal Trade Commission (“FTC”) and the Food and Drug Administration (“FDA”) agreed to prevent injury and deception to the consumer in advertising, detailing their respective roles in a Memorandum of Understanding (“MOU”).¹ The MOU proscribes that the FTC regulates truth in advertising relating to foods, drugs, devices and cosmetics while the FDA controls labeling and the misbranding of foods, drugs, devices, and cosmetics shipped in interstate commerce.² The MOU has been amended and an addendum added since 1971, but the material provisions have remained consistent for over a half-century.³

Importantly, the FDA and the …

Application And Effectiveness Of Artificial Intelligence For The Border Management Of Imported Frozen Fish In Taiwan, Wen-Chin Tu, Wan-Ling Tsai, Chi-Hao Lee, Chia-Fen Tsai, Jen-Ting Wei, King-Fu Lin, Shou-Mei Wu, Yih-Ming Weng

Journal of Food and Drug Analysis

In Taiwan, the number of applications for inspecting imported food has grown annually and noncompliant products must be accurately detected in these border sampling inspections. Previously, border management has used an automated border inspection system (import food inspection (IFI) system) to select batches via a random sampling method to manage the risk levels of various food products complying with regulatory inspection procedures. Several countries have implemented artificial intelligence (AI) technology to improve domestic governmental processes, social service, and public feedback. AI technologies are applied in border inspection by the Taiwan Food and Drug Administration (TFDA). Risk management of border inspections …

An Unfair Method Of Rulemaking: An Application Of Constitutional Doctrines That Oppose The Ftc Rule Banning Non-Competition Agreements, Jared Yaggie

University of Cincinnati Law Review

No abstract provided.

Affirmatively Furthering Health Equity, Mary Crossley

Brooklyn Law Review

Pervasive health disparities in the United States undermine both public health and social cohesion. Because of the enormity of the healthcare sector, government action, standing alone, is limited in its power to remedy health disparities. This article proposes a novel approach to distributing responsibility for promoting health equity broadly among public and private actors in the healthcare sector. Specifically, it recommends that the Department of Health and Human Services issue guidance articulating an obligation on the part of all recipients of federal healthcare funding to act affirmatively to advance health equity. The Fair Housing Act’s requirement that recipients of federal …

Emerging Technologies And Perfection Of Security Interests: A Financial University Of Uncertainty, Elizabeth M. Wagenbach

Brooklyn Law Review

Since the founding of Bitcoin in 2009, digital assets, such as cryptocurrency, have exploded in popularity. Cryptocurrency has been associated with stories of immense profit and immense loss. The lucky transactors have been able to capitalize on the price fluctuations of cryptocurrency, while the unlucky transactors became victims of the same volatility, losing tremendous amounts of money. The novelty and ingenuity of cryptocurrency has been coupled with mass confusion to transactors and regulators alike. These early days of cryptocurrency have been characterized by a sort of regulatory tug of war that is a direct result of confusion of what cryptocurrency …

Essentializing Cultures In Us Asylum Law, Jaclyn Kelley-Widmer, Estelle Mckee

Brooklyn Law Review

Asylum applicants must tell a story about their home country that reduces and problematizes its culture. The requirements of asylum law demand that an applicant show why they will suffer persecution in their home country and that their government will not protect them from it. This legal framework prompts applicants to present a narrative in which their home culture plays the role of the ultimate antagonist, the force that propels the applicant’s persecutors to single them out for harm and renders their government passive—or even complicit—in the face of it. Such a narrative necessarily reduces the applicant’s culture to its …

Wyoming V. Environmental Protection Agency, Ayden D. Auer

Public Land & Resources Law Review

Wyoming v. EPA consolidated two petitions for review of a portion of Wyoming’s plans to reduce visibility impacts from two powerplants, Wyodak and Naughton. First, the Tenth Circuit held EPA was incorrect to disapprove Wyoming’s best available retrofit technology determination for Wyodak because EPA based its disapproval on noncompliance with guidelines that are optional to determine the best available retrofit technology for Wyodak. These same guidelines are nonbinding on Naughton as well, and the court held the petitioners failed to persuade the court that EPA’s approval of Naughton was arbitrary and capricious because the petitioners did not establish why Wyoming’s …

The Administrative State And Artificial Intelligence: Toward An Internal Law Of Administrative Algorithms, Amit Haim

UC Irvine Law Review

The administrative state is gradually embracing artificial intelligence (AI) algorithms. The advent of the so-called automated state has raised concerns over accountability, transparency, and fairness and engendered proposals for legal regulation. Yet the notion that algorithms are not merely technical instruments but encode social behavior embedded in a bureaucratic context has largely been missing from the discourse. This Article identifies algorithms as sociotechnical systems embedded in an organizational context, which can function as bureaucratic governance instruments. It argues that external legal institutions, whether legislative endeavors or judicial review, lack the capacity, insight, and perspective to achieve meaningful accountability in reviewing …

Is The Statutory 60-Day Deadline For Filing A Petition For Review Of A Final Mspb Order Jurisdictional?, Anne Marie Lofaso

Law Faculty Scholarship

Case at a Glance: The Department of Defense (DOD) furloughed employee Stuart R. Harrow in 2013. Harrow timely challenged DOD’s decision before an administrative judge, who affirmed it. Harrow timely appealed the judge’s decision to the Merit System Protection Board (MSPB or “Board”), which could not act on the appeal for over five years because it lacked a quorum. On May 11, 2022, the MSPB issued a final order, affirming the judge’s decision. However, Harrow did not learn of the decision until August 30. Harrow promptly filed a petition to review the Board’s order with the Federal Circuit, which denied …

From Crypto Wild West To Regulated Frontier: Unleashing The Potential Of Blockchain Technology, Pawan Jain

West Virginia Law Review

The emergence of blockchain technology has transformed the financial landscape in many ways. From creating new cryptocurrencies to facilitating decentralized exchanges and smart contracts, blockchain has the potential to disrupt traditional financial institutions and reshape the way we conduct business. However, the adoption of blockchain technology has also raised concerns about its potential risks and challenges, such as its susceptibility to fraud, market manipulation, and money laundering. These concerns have led to calls for regulating blockchain technology to mitigate these risks and ensure the integrity and stability of financial markets. Recent collapses in the crypto market caused by the bankruptcy …

Just How Paternalistic Is The Va? An Examination Of The Non-Adversarial" Veterans' Benefits System, Nino C. Monea

West Virginia Law Review

The veterans’ benefits system often describes itself as non-adversarial, meaning that the government is supposed to work with the claimant to provide them all benefits they are entitled to, rather than fighting to minimize what they receive. True enough, there are many unique features of the system that help veterans. But many of these features do not work as intended, and rules have developed at all stages that make it harder for veterans to recover. Moreover, as with any human institution, staff fall short, offices get overwhelmed, and gross delays pile up. This Article surveys the numerous ways that the …

Jarkesy V. Sec: Are Federal Courts Pushing The U.S. Toward The Next Financial Crisis?, Jennifer Hill

Pepperdine Law Review

In the wake of both the Great Depression and the Financial Crisis of 2008, Congress established and expanded the powers of the Securities and Exchange Commission (SEC). As part of this expansion, the SEC in-house administrative proceedings, designed to adjudicate SEC violations before the SEC’s administrative law judges (ALJs), were born. These in-house proceedings have faced multiple constitutional attacks in the past decade. In the most recent iteration of such challenges, Jarkesy v. SEC, the Fifth Circuit held that the SEC’s in-house proceedings were unconstitutional on three grounds: (1) the in-house proceedings deprived petitioners of their constitutional right to jury …

Gray Areas In Green Claims: Why Greenwashing Regulation Needs An Overhaul, Valerie J. Peterson

Villanova Environmental Law Journal

No abstract provided.

No Need To Reinvent The Wheel: The Positive Relationship Between Green Technology And Patient Enforcement, Addison S. Fowler

Villanova Environmental Law Journal

No abstract provided.

Can We Really Be The Change We Wish To See? The Inherent Limitations Of Citizen Suits In Remedying Environmental Injustice Under The Clean Air Act, Alexandra M. George

Villanova Environmental Law Journal

No abstract provided.

Arizona V. Navajo Nation, Sarah K. Yarlott

Public Land & Resources Law Review

Arizona v. Navajo Nation clarified the United States’ trust duties to protect tribal water rights under the Winters doctrine and the 1868 Treaty with the Navajo. Under the Winters doctrine, Indian reservations are permanent homes that include an implicit reservation of water rights. However, Winters did not elaborate on the United States’ role in securing those rights. In Navajo Nation, the Court settled whether the United States has an implied duty under its trust obligations to take affirmative steps in securing water rights for tribes; the Court held no such implied duty exists.

Sackett V. Environmental Protection Agency, Meridian Wappett

Public Land & Resources Law Review

In 2007, the Sacketts began developing a property a few hundred feet from Priest Lake in Northern Idaho by filling their lot with gravel. The EPA determined the lot constituted a federally protected wetland under the WOTUS definition because the lot was near a ditch that fed into a creek flowing into Priest Lake, a navigable intrastate lake. The EPA halted the construction. The Sacketts sued the EPA, arguing the CWA did not apply to their property. The Supreme Court held that the CWA did not apply to the Sacketts property because the CWA only covers wetlands and streams that …

Virtual Technology And The Changing Rituals Of Courtroom Justice, Meredith Rossner, David Tait

Chicago-Kent Law Review

No abstract provided.

How Can You Tell If There Is A Crisis? Data And Measurement Challenges In Assessing Jury Representation, Mary R. Rose, Marc A. Musick

Chicago-Kent Law Review

No abstract provided.

Beacons Of Democracy? A Worldwide Exploration Of The Relationship Between Democracy And Lay Participation In Criminal Cases, Sanja K. Ivkovic, Valarie P. Hans

Chicago-Kent Law Review

No abstract provided.