Administrative Law Commons^™

The Equity E.O.: Building A Regulatory Infrastructure Of Inclusion, Olatunde C.A. Johnson

Faculty Scholarship

Among his first acts, President Biden signed Executive Order 13,985 to advance “Racial Equity and Support for Underserved Communities Through the Federal Government.” Alongside an order directing regulatory review to include “social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations” and an ambitious infrastructure plan, this Equity E.O. signals a new engagement of the administrative state in proactively promoting racial equity and other dimensions of inclusion. The outlines of the infrastructure initiative are still emerging, but what appears key is its conceptualization of infrastructure as extending beyond roads and buildings to the social and …

The Federal Reserve And The 2020 Economic And Financial Crisis, Lev Menand

Faculty Scholarship

This Article provides a comprehensive legal analysis of the Federal Reserve's response to the 2020 economic and financial crisis. First, it examines the sixteen ad hoc lending facilities that the Fed established to fight the crisis and sorts them into two categories. Six advance the Fed's monetary mission and were designed to halt a run on financial institutions. Ten go beyond the Fed's traditional role and are designed to directly support financial markets and the real economy. Second, it maps these programs onto the statutory framework for money and banking. It shows that Congress's signature crisis legislation, the CARES Act, …

Who Determines Majorness?, Chad Squitieri

Scholarly Articles

The major questions doctrine is said to assist courts in identifying whether Congress has delegated authority to administrative agencies. A closer look at the doctrine, however, reveals that it has been used by courts to tell Congress how it can delegate authority. What is more, some textualists have proposed strengthening the major questions doctrine into a revived nondelegation doctrine, which speaks to whether Congress can delegate authority. This Article argues that the major questions doctrine, particularly in its strengthened form, runs afoul of key commitments of textualism.

Health Reform Reconstruction, Lindsay F. Wiley, Elizabeth Y. Mccuskey, Matthew B. Lawrence, Erin C. Fuse Brown

Faculty Articles

This Article connects the failed, inequitable U.S. coronavirus pandemic response to conceptual and structural constraints that have held back U.S health reform for decades and calls for reconstruction. For more than a half-century, a cramped “iron triangle” ethos has constrained health reform conceptually. Reforms aimed to balance individual interests in cost, quality, and access to health care, while marginalizing equity, solidarity, and public health. In the iron triangle era, reforms unquestioningly accommodated four legally and logistically entrenched fixtures — individualism, fiscal fragmentation, privatization, and federalism — that distort and diffuse any reach toward social justice. The profound racial disparities and …

Payment For Order Flow And The Great Missed Opportunity, Joel Seligman

Scholarship@WashULaw

In late January and early February 2021, an astounding story of stock market price volatility captivated the nation. GameStop, a corporation that in recent years had prodigiously lost money – $492 million two years earlier, $296 million the last year for which it reported data – rose from a low of $2.57 to a high of $483. In January 2021 alone, GameStop had risen from a closing price of $17.25 on January 4 to a close of $347.61 on January 27 before falling 44 percent to a close of $193.60 on January 28, rising 68 percent to a close of …

The Key To Solving Agency Lock-In: Prepublication Regulatory Discussions (Pre Reg), Gwendolyn Savitz

Articles, Chapters in Books and Other Contributions to Scholarly Works

Most legally binding administrative rules emerge from the notice-and-comment process, which explicitly requires the agency to consider input from the general public. However, by the time the opportunity for public input occurs, the agency is already substantially locked into its chosen approach and cannot act on new information in the comments. This is true even though its chosen approach was decided upon with input from only those the agency routinely deals with. This process entrenches already established interests and prevents those without existing agency connections from meaningfully contributing earlier in the process.

This problem could be solved by holding public …

Judicial Review In Expedited Removal Proceedings: Applying Sims V. Apfel To Assess The Role Of Issue Exhaustion, Emily C. Snow

Georgia Law Review

For noncitizens in expedited removal proceedings, obtaining
judicial review of removal orders is an uphill battle. Some
barriers to judicial review are statutory: noncitizens must first
exhaust their administrative remedies, and they may seek
review only in a federal circuit court of appeals. Other barriers
are judicial—i.e., imposed by courts, not statutes.
A circuit split has emerged over one of these judicially
imposed barriers to judicial review. Some courts have held that
expedited removal proceedings do not accommodate legal
challenges to removal. In those circuits, noncitizens preserve the
opportunity for judicial review even when they do not raise a
legal …

The Expressiveness Of Regulatory Trade-Offs, Benjamin M. Chen

Georgia Law Review

Trade-offs between a sacred value—like human life—
against a secular one—like money—are considered taboo.
People are supposed to be offended by such trade-offs and to
punish those who contemplate them. Yet the last decades in the
United States have witnessed the rise of the cost-benefit state.
Most major rules promulgated today undergo a regulatory
impact analysis, and agencies monetize risks as grave as those
to human life and values as abstract as human dignity.
Prominent academics and lawmakers advocate the weighing of
costs and benefits as an element of rational regulation. The
cost-benefit revolution is a technocratic coup, however, if …

Comments On Rights To Federally Funded Inventions And Licensing Of Government Owned Inventions, National Institute Of Standards And Technology (Nist), United States Department Of Commerce, Notice Of Proposed Rulemaking. 86 Fr 35. Agency/Docket Number: 201207-0327, Joshua D. Sarnoff, Liza Vertinsky, Yaniv Heled, Ana Santos Rutschman, Cynthia M. Ho

All Faculty Scholarship

This letter is written in response to the notice of proposed rulemaking published in the Federal Register on January 4, 2021, seeking public comments on the revised regulations proposed by NIST to the University and Small Business Patent Procedure Act of 1980 (the “Bayh-Dole Act”). We submit this letter as academics who engage in research on patent law and biomedical innovation. The arguments also reflect practical knowledge that one of us has acquired from a decade of working with U.S. universities and biotech companies in the process of technology transfer as a lawyer practicing in two highly regarded Boston law …

What People Want, What They Get, And The Administrative State, Cristie Ford

All Faculty Publications

Social perceptions of the state and of regulation are badly polarized right now. On one hand, the modern administrative state is under attack. Some modern populists criticize the modern state for being antidemocratic, unaccountable, even tyrannical. Paradoxically, others criticize it for very different reasons: because it is ineffective, or because it binds economies and societies up in “red tape”. On the other hand, the need for a modern, properly-resourced, effective administrative state is also clearer than ever. The financial crisis taught hard lessons about the limits of self-regulation and the need for public sector actors to safeguard the public interest. …

Majestic Law And The Subjective Stop, Kyron J. Huigens

Articles

Justice John Paul Stevens subscribed to "a majestic conception" of the Constitution. This Article articulates and defends that vision. Majestic law and legal reasoning characteristically involve frank moral reasoning, such as one finds in the Eighth Amendment's "evolving standards of decency" test for proportionate punishment, or in Due Process formulations such as an appeal to "immutable principles of justice, which inhere in the very idea of free government." Majestic law employs moral values, norms, and judgments in legal reasoning, taking them on their own terms. Majestic legal reasoning does not weigh revealed preferences for decency, for example. It asks whether …

A New Chapter In Veterans Law, The Honorable Margaret Bartley

American University Law Review

Chief Judge Bartley delivered these remarks on October 2, 2020 at the American University Law Review’s thirty-fifth annual Federal Circuit Symposium. The remarks have been minimally edited based on the event transcript.

Transparency And The First, Mark Fenster

FIU Law Review

No abstract provided.

Regaining Control Over The Climate Change Narrative: How To Stop Right-Wing Populism From Eroding Rule Of Law In The Climate Struggle In India, Binit Agrawal

Fordham Environmental Law Review

No abstract provided.

Innovative Regulatory And Financial Parameters For Advancing Carbon Capture And Storage Technologies, Zen Makuch, Slavina Georgieva & Behdeen Oraee-Mirzamani

Fordham Environmental Law Review

No abstract provided.

Textiles As A Source Of Microfiber Pollution And Potential Solutions, Lea M. Elston

Fordham Environmental Law Review

No abstract provided.

The Regulatory Production Of Vaccine Hesitancy, Eugene Mccarthy

Brooklyn Law Review

This article argues that U.S. vaccine law produces the “anti-vax” movement. The anti-vax movement is a growing problem, as more than half of American parents have concerns about vaccinating their children. Remarkably, these “vaccine-hesitant” individuals tend to be highly educated, wealthy, and experienced parents. Three legal structures cause vaccine hesitancy: strict immunization mandates, lax regulatory oversight, and blanket limited liability for vaccine manufacturers. The United States stands alone with regard to its vaccine mandates—no other developed democracy requires its citizens to receive such a large number of childhood vaccines. Meanwhile, the law permits financial conflicts of interest in vaccine approval …

Lessons From Renewable Energy Diffusion For Carbon Dioxide Removal Development, Anthony E. Chavez

Fordham Environmental Law Review

No abstract provided.

How Supreme Court Precedent Sheds Light On Corporate Bill Of Attainder Claims, Alina Veneziano

Seattle Journal for Social Justice

No abstract provided.

Ordered Into Oblivion: How Courts Have Rendered The Georgia Whistleblower Act Useless, And How To Fix It, Micah Barry

Seattle Journal for Social Justice

No abstract provided.