Administrative Law Commons^™

Symmetry’S Mandate: Constraining The Politicization Of American Administrative Law, Daniel E. Walters

Faculty Scholarship

Recent years have seen the rise of pointed and influential critiques of deference doctrines in administrative law. What many of these critiques have in common is a view that judges, not agencies, should resolve interpretive disputes over the meaning of statutes—disputes the critics take to be purely legal and almost always resolvable using lawyerly tools of statutory construction. In this Article, I take these critiques, and the relatively formalist assumptions behind them, seriously and show that the critics have not acknowledged or advocated the full reform vision implied by their theoretical premises. Specifically, critics have extended their critique of judicial …

The Conceptual Gap Between Doré And Vavilov, Mark Mancini

Dalhousie Law Journal

This paper argues that there is a fundamental conceptual gap between the cases of Doré and Vavilov. This is because both cases are motivated by different conceptions of administrative law. In Vavilov, the paper suggests that the Court melded together two theories of judicial review; a Diceyan theory based on a harmonious understanding of the principles of legislative sovereignty and the Rule of Law; and a “culture of justification” for administrative decision-makers. On the other hand, Doré is motivated by a functionalist understanding of administrative law, in which the expertise of decision- makers is emphasized. The paper explores the doctrinal …

Splendid Isolation: Va’S Failure To Provide Due Process Protections And Access To Justice To Veterans And Their Caregivers, Yelena Duterte

Journal of Law and Policy

Imagine you are a spouse and caregiver of a severely injured post-9/11 veteran. Your spouse served in the Marine Corps, with several deployments to Iraq. During their last deployment, your spouse sustained a severe traumatic brain injury and suffers from post-traumatic stress disorder. Due to these injuries, they need consistent care throughout the day. Thankfully, upon their return, the VA provided a caregiver program that allowed you to step away from your job and focus on caring for your spouse full time. As part of this program, you received a caregiver stipend of $2,400 per month, healthcare, and support from …

The Hunt For Loot: Proposed Solutions To More Effectively Regulate Addictive Gambling Mechanics In Video Games, Andrew Brewer

Journal of Law and Policy

Over the past decade, more and more video game developers have embraced “loot boxes” as a lucrative source of revenue. But recent concerns over the potential harms of loot boxes, particularly to children, have raised questions about their use and prompted attempts to regulate them throughout the world. This Note explores recent attempts—both foreign and domestic—to regulate loot boxes and proposes new solutions based on those strategies’ shortcomings. By carefully and competently defining terms and exceptions, and providing for more aggressive oversight of agency regulatory efforts, federally-crafted loot box legislation can more effectively protect children from predatory gambling mechanics in …

The Little Statute That Gets No Respect: How Courts Have Ignored The Administrative Procedure Act With Respect To Whether Pre-Enforcement Challenge Provisions Are Exclusive, Arthur Sapper

Brigham Young University Journal of Public Law

No abstract provided.

Reforming And Strengthening The Centers For Disease Control And Prevention: Five Key Reforms To Renew The Agency’S Stature And Effectiveness, Lawrence O. Gostin, Sandro Galea

Georgetown Law Faculty Publications and Other Works

The US Centers for Disease Control and Prevention (CDC) is the world’s leading public health agency, so admired that whole regions and countries have borrowed its name—in Africa, Europe, even China. In past epidemics, CDC’s expertise was transformative, such as in AIDS, Ebola, Zika, and Influenza H1N1. If there ever were a moment for the CDC to show leadership domestically and globally, it was the COVID-19 pandemic. Yet, the CDC’s stature was diminished—not enhanced—in an administration that not only eschewed science and politically pressured the CDC, but also gave notice of withdrawal from the World Health Organization (WHO), where CDC …

Air Traffic Safety Management: The Significance Of Voluntary Reporting And Data Distribution, Xavier M. Ashley

Beyond: Undergraduate Research Journal

This study primarily investigated inadequacies identified through the utilization of the Air Traffic Safety Action Program (ATSAP), a Voluntary Safety Reporting Program (VSRP) overseen by the U.S. Federal Aviation Administration (FAA). The primary objective of this research was to ascertain whether the FAA was properly managing the ATSAP and if the program was capable of effectively identifying safety hazards present in the national airspace. To assist in this determination, this study communicated the basic characteristics and significance of safety management and voluntary reporting in aviation. This served to clarify the intended function of the ATSAP and to articulate contributions that …

The Progressive Turn: Politics And Policy In The Movement, Zephyr Teachout, Heather Gautney, Todd Melnick

Posters

Maloney Library lecture series, Behind the Book

The Case Against Prosecuting Refugees, Evan J. Criddle

Northwestern University Law Review

Within the past several years, the U.S. Department of Justice has pledged to prosecute asylum-seekers who enter the United States outside an official port of entry without inspection. This practice has contributed to mass incarceration and family separation at the U.S.–Mexico border, and it has prevented bona fide refugees from accessing relief in immigration court. Yet, federal judges have taken refugee prosecution in stride, assuming that refugees, like other foreign migrants, are subject to the full force of American criminal justice if they skirt domestic border controls. This assumption is gravely mistaken.

This Article shows that Congress has not authorized …

Energy Emergencies, Amy L. Stein

Northwestern University Law Review

Emergency powers are essential to the proper functioning of the government. Emergencies demand swift and decisive action; yet, our system of government also values deliberation and procedures. To enable such agility in a system fraught with bureaucracy, Congress frequently delegates unilateral statutory emergency powers directly to its most nimble actor: the President. The powers Congress delegates to the President are vast and varied, and often sacrifice procedural requirements in favor of expediency. Most scholars and policymakers have come to terms with this tradeoff, assuming that the need to respond quickly is outweighed by any loss of accountability.

This Article challenges …

From Humphrey's Executor To Seila Law: Ending Dual Federal Antitrust Authority, Alyson M. Cox

Notre Dame Law Review

This Note catalogues and proposes solutions to both the traditional concerns of efficiency and fairness and the modern constitutional problems posed by the current dual enforcement structure. Part I will compare the two antitrust agencies on the basis of their structures, accountability, statutory authority, and enforcement procedures, as well as evaluate potential concerns with vesting either agency with the sole authority to enforce civil antitrust laws. Part II will evaluate the perils of the current dual enforcement structure, exploring both the traditional arguments about efficiency and fairness and the modern constitutional challenges. Part III will evaluate potential legislative solutions to …

The American Law Of Overruling Necessity: The Exceptional Origins Of State Police Power, William J. Novak

Book Chapters

One of the most significant legal-constitutional moments in the history of the American republic occurred in the Confederation Congress on September 26 and 27, 1787. On those dates, the handiwork of the historic Constitutional Convention in Philadelphia was now "laid before the United States in Congress assembled." And the momentous question for the extant official lawmaking body of the US government was what to do next. Under Article 1 3 of the Articles of Confederation, any alteration of the articles had to be agreed to by Congress and confirmed by the legislatures of every state. Notably, the Philadelphia convention had …

Dispute Settlement Under The African Continental Free Trade Area Agreement: A Preliminary Assessment, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The African Continental Free Trade Area Agreement (AfCFTA) will add a new dispute settlement system to the plethora of judicial mechanisms designed to resolve trade disputes in Africa. Against the discontent of Member States and limited impact the existing highly legalized trade dispute settlement mechanisms have had on regional economic integration in Africa, this paper undertakes a preliminary assessment of the AfCFTA Dispute Settlement Mechanism (DSM). In particular, the paper situates the AfCFTA-DSM in the overall discontent and unsupportive practices of African States with highly legalized dispute settlement systems and similar WTO-Styled DSMs among other shortcomings. Notwithstanding the transplantation of …

Deregulation And Private Enforcement, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

Many conservatives oppose much of the administrative state. But many also oppose much of our private enforcement regime. This raises the questions of whether conservatives believe the marketplace should be policed at all, and if so, who exactly should do that policing? In this Essay, based on my new book, The Conservative Case for Class Actions, I take a deep dive into conservative principles to try to answer these questions. I conclude that almost all conservatives believe the marketplace needs at least some legal constraints, and I argue that ex post, private enforcement is superior to the alternatives. Not only …

The Case Against Prosecuting Refugees, Evan J. Criddle

Faculty Publications

Within the past several years, the U.S. Department of Justice has pledged to prosecute asylum-seekers who enter the United States outside an official port of entry without inspection. This practice has contributed to mass incarceration and family separation at the U.S.–Mexico border, and it has prevented bona fide refugees from accessing relief in immigration court. Yet, federal judges have taken refugee prosecution in stride, assuming that refugees, like other foreign migrants, are subject to the full force of American criminal justice if they skirt domestic border controls. This assumption is gravely mistaken.

This Article shows that Congress has not authorized …

Good Governance Paper No. 17: How To Use The Bureaucracy To Govern Well, Rebecca Ingber

Online Publications

In every new presidential administration, the President and political appointees come to power with strong views about the policies they wish to enact and the substantive breaks they wish to make with the administration that came before – including views on where the U.S. government should change legal positions on key issues. But views on substantive positions alone are not enough preparation for a new administration seeking to impose its values on the government. And policy preparation on substance is especially insufficient when an incoming administration’s values include norms of process – such as adherence to the rule of law, …

The Transition Is Already Happening (And It’S Going Fine So Far), Michael Herz, Katherine A. Shaw

Online Publications

Even if Trump were resolved to thwart a smooth transition, much of the process lies entirely outside his control.

Sometime in early to mid-November, if October polling holds and the infrastructure of our democracy basically functions, Joe Biden is likely to be declared the winner of the 2020 presidential election. At that point, he will have just more than two months to prepare to take over the leadership of a country still in the grips of a once-in-a-century pandemic, with more than 12 million Americans unemployed, tens of millions of children out of school, and COVID-19 deaths barreling toward 300,000. …

The Case Against Lacroix: Moving Beyond The Ingredient List In "Natural" Litigation, Christy Wyatt

University of Cincinnati Law Review

No abstract provided.

The Weaponization Of The “Alien Harboring” Statute In A New-Era Of Racial Animus Towards Immigrants, Hannah Hamley

Seattle University Law Review

Federal law 8 U.S.C. § 1324(a)(1)(A)(iii), commonly referred to as the “Alien Harboring” statute, was passed sixty-eight years ago and has been used as a weapon against immigrants and their allies. Spanning back decades, numerous scholars, alarmed by the dangerous use of the statute, have written about its muddled congressional intent and the unclear definition of “harboring.” These issues continue to be relevant and are foundational concerns with the enforcement of the harboring statute. However, in the era of President Donald J. Trump, we are faced with a new danger. We are confronted with an Administration that is ferociously anti-immigrant …

Enough Is As Good As A Feast, Noah C. Chauvin

Seattle University Law Review

Ipse Dixit, the podcast on legal scholarship, provides a valuable service to the legal community and particularly to the legal academy. The podcast’s hosts skillfully interview guests about their legal and law-related scholarship, helping those guests communicate their ideas clearly and concisely. In this review essay, I argue that Ipse Dixit has made a major contribution to legal scholarship by demonstrating in its interview episodes that law review articles are neither the only nor the best way of communicating scholarly ideas. This contribution should be considered “scholarship,” because one of the primary goals of scholarship is to communicate new ideas.