Administrative Law Commons^™

Knick V. Township Of Scott, Alizabeth A. Bronsdon

Public Land & Resources Law Review

The Supreme Court overruled a 34-year-old precedent and sparked a sharp dissent by holding that a landowner impacted by a local ordinance requiring public access to an unofficial cemetery on her property could bring a takings claim directly in federal court. The decision eliminated a Catch-22 state-litigation requirement that effectively barred local takings plaintiffs from federal court, but raised concerns about government land use and regulation, judicial federalism, and the role of stare decisis.

Sturgeon V. Frost, Layne L. Ryerson

Public Land & Resources Law Review

After two trips to the United States Supreme Court, an Alaskan moose hunter secured motorized access to his hunting ground while establishing Alaska as the exception, rather than the rule, regarding federal land management. In a much-anticipated holding, the Court determined that the surface waters of the Nation River within the Yukon-Charley Rivers National Preserve qualify as “private” land and therefore fall beyond the control of the National Park Service. The decision stripped the Park Service of normal regulatory authority over navigable waters within Alaska’s national parks, prompting a concurrence urging Congress to clarify resulting ambiguities.

League Of Conservation Voters V. Trump, Adam W. Johnson Mr.

Public Land & Resources Law Review

A consortium of environmental groups brought suit challenging an executive order opening millions of acres of continental shelf lands to oil and gas leasing. The Court held that the President’s actions exceeded his statutory authority and intruded on Congress’s power under the Property Clause, violating the separation of powers doctrine.

Regarding Docket No. Fr-6111-P-02, Hud’S Implementation Of The Fair Housing Act’S Disparate Impact Standard, Sonia Gipson Rankin, Alfred Mathewson, Melanie Moses, G. Matthew Fricke, Kathy Powers, Gabriel R. Sanchez, Christopher Moore, Elizabeth Bradley, Mirta Galesic, Joshua Garland

Faculty Scholarship

The is a Comment on the Department of Housing and Urban Development (HUD) Proposed Rule: FR-6111-P-02 HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard . This comment examines how algorithms in housing applications may be inherently biased against certain groups of people.

Their arguments against the proposed legislation:

1. To ensure that an algorithm does not have disparate impact, it is not enough to show that individual input factors are not “substitutes or close proxies” for protected characteristics.

2. It is impossible to audit an algorithm for bias without an adequate level of transparency or access to the …

Georgia V. Public.Resource.Org, Inc.: Brief Of Amici Curiae Law Professors Nina Mendelson, Alan Morrison, Anne Joseph O'Connell, And Peter Strauss In Support Of Respondent, Nina A. Mendelson

Appellate Briefs

Amici are professors of administrative law with particular expertise in government transparency, including issues such as the incorporation by reference of private standards into over 9,000 federal regulations. Amici have a strong interest in the development of administrative and copyright law in a manner that enables simple and universal access without charge to regulatory law. As scholars of federal incorporation by reference of private standards, amici write separately to urge the Court to reaffirm the application of the government edicts doctrine to all text that a government has adopted as the law. In particular, the government edicts doctrine applies to …

Too Big And Unable To Fail, Stephen J. Lubben, Arthur E. Wilmarth, Jr.

Florida Law Review

Financial regulation after the Dodd-Frank Act has produced a blizzard of acronyms, many of which revolve around the “too big to fail” (TBTF) problem. OLA, OLF, SPOE, and TLAC are new regulatory tools that seek to build a new regime for resolving failures of systemically important financial institutions (SIFIs). The explicit goal of this new regime is to enable a SIFI to fail, just like United Airlines or Blockbuster Video, without requiring a government bailout. This Article expresses significant doubts about the new regime’s ability to work as advertised. The “single point of entry” (SPOE) resolution strategy, which focuses all …

Tax Attorneys As Defenders Of Taxpayer Rights, Michelle Lyon Drumbl

Scholarly Articles

What is the modern role of a tax practitioner, in particular a tax attorney, in the United States? In an era in which the Internal Revenue Service (IRS) is underfunded, understaffed, and struggles to address its mission, tax attorneys play an important role as advocates for taxpayer rights.

Tax attorneys act as advocates who represent ordinary individual taxpayers in controversies with the IRS. These controversies include post-filing disputes, such as audits, as well as issues arising with the collection of assessed taxes. Many of these cases are resolved at the administrative level; those that cannot be resolved are litigated, most …

Tax Incentives For Attracting Foreign Direct Investment In Sub-Saharan Africa: A Comparative Study Of Ghana And Kenya, Patrick Ofori

LLM Theses

Developing countries have increasingly resorted to the use of tax incentives to attract FDI, despite existing evidence of the shortcomings of tax incentives. In sub-Saharan Africa, tax incentives are a prominent feature of many investment codes. Sub-Saharan African countries find tax incentives as a means of attracting FDI because there are no viable alternatives per se, and they believe that tax incentives can be structured to ensure that FDI advances socio-economic and technological development. But the reliance on tax incentives at the expense of maximizing domestic tax revenue poses a challenge to sustainable development. This study examines Ghana and Kenya …

Can And Should Universal Injunctions Be Saved?, Szymon S. Barnas

Vanderbilt Law Review

The practice of a federal district court judge halting the government's enforcement of an executive action against not only the parties before the court but against anyone, anywhere, may be coming to an end. Multiple Supreme Court Justices have expressed their skepticism in the propriety of universal injunctions. The growing scholarly consensus is that there should be a brightline rule against them. If the universal injunction's demise is impending and the class action's demise continues unabated, obtaining systemwide relief may be difficult when such relief may be most needed.

This Note considers whether universal injunctions can and should be saved. …

Department Of Homeland Security V. Regents Of The University Of California, Et Al.: Brief For Administrative Law Scholars As Amici Curiae In Support Of Respondents, Nina A. Mendelson

Appellate Briefs

Amici are professors of administrative law and related public law subjects at institutions across the United States. In their scholarship and their teaching, they have carefully considered the legal doctrines implicated by this case. They submit this brief to address arguments and precedent that are relevant to a central question presented by this appeal: whether the Department of Homeland Security's decision to rescind the Deferred Action for Childhood Arrivals (DACA) policy is judicially reviewable. Amici join this brief solely on their own behalf and not as representatives of their universities. A full list of amici appears in Appendix A.

Under …

Children Of A Lesser God: Reconceptualizing Race In Immigration Law, Sarah L. Hamilton-Jiang

Northwestern Journal of Law & Social Policy

The increased public exposure to the experiences of Latinx unaccompanied children seeking entry at the United States southern border has revealed the lived reality of the nation’s pernicious immigration laws. The harrowing experiences of unaccompanied children are amplified by their interaction with a legal system plagued by a legacy of systemic racism and sustained racial caste. While immigration law currently affords minimal legal protections for these children, in application, the law continues to fall egregiously short of providing for the safety of unaccompanied children. Though critics have long attested to the legal system’s neglect of unaccompanied children, subsequent legal analysis …

The Promise And Challenge Of Humanitarian Protection In The United States: Making Temporary Protected Status Work As A Safe Haven, Andrew I. Schoenholtz

Northwestern Journal of Law & Social Policy

The humanitarian program Congress created in 1990 to allow war refugees and those affected by significant natural disasters to live and work legally in the United States has only partially achieved its goals. More than 400,000 individuals have received temporary protected status (TPS). In many cases, the crisis ended, along with temporary protection. However, in about half of the designated nationalities—including the largest groups—conflict and instability continued, making this humanitarian protection program anything but temporary. Unfortunately, Congress did not provide the Department of Homeland Security (DHS) with the tools it needed to address such long-term crises. That was purposeful—Congress worried …

Private Prisons, Private Governance: Essay On Developments In Private-Sector Resistance To Privatized Immigration Detention, Danielle C. Jefferis

Northwestern Journal of Law & Social Policy

No abstract provided.

The Choice Between Single Director Agencies And Multimember Commissions, Ganesh Sitaraman, Ariel Dobkin

Vanderbilt Law School Faculty Publications

The question ofhow best to design a new agency is of immense public importance. Congress creates new agencies and reforms agency structures with some regularity, while commentators frequently callfor the creation of new or redesigned agencies. Scholars have, as a result, increasingly turned to studying the diversity of agency structures and questions of agency design.

In this Essay, we tackle one of the decisions that must be made in designing any new agency--the choice between a single-director agency and a multimember commission-and we make a general case against multimember commissions. For the most part, scholarly discussion of these structures is …

A Wall Runs Through It: Comparing Mexican And Californian Legal Regimes In The California Floristic Province, Joseph E. Farewell

Loyola of Los Angeles International and Comparative Law Review

Habitats are often divided by international borders, leaving ecosystems in varying states of protection, development, and danger. The California Floristic Province, which traverses the United States-Mexico border, is one such example. This border, which divides a once-continuous ecological region, not only represents an international crossing, but also a shift in legal, land, and conservation regimes. These differences reveal particular vulnerabilities for California Floristic Province habitat on the Mexican side of the border region, showing that the ecosystem is in danger because of rapid real estate development pressures and unfavorable environmental laws. Accordingly, this note recommends three main changes to Mexican …

Disguised Patent Policymaking, Saurabh Vishnubhakat

Faculty Scholarship

Patent Office power has grown immensely in this decade, and the agency is wielding its power in predictably troubling ways. Like other agencies, it injects politics into its decisions while relying on technocratic justifications. It also reads grants of authority expansively to aggrandize its power, especially to the detriment of judicial checks on agency action. However, this story of Patent Office ascendancy differs from that of other agencies in two important respects. One is that the U.S. patent system still remains primarily a means for allocating property rights, not a comprehensive regime of industrial regulation. Thus, the Patent Office cannot …

Federal Criminal Risk Assessment, Brandon L. Garrett

Cardozo Law Review

No abstract provided.

The Complexity Dilemma In Policy Market Design, Todd S. Aagaard, Andrew N. Kleit

Faculty Publications

Regulators are increasingly pursuing their policy objectives by creating markets. To create a policy market, regulators require firms to procure a product that is socially useful but that confers little direct private benefit to the acquiring party. Examples of policy markets include pollutant emissions trading programs, renewable energy credit markets, and electricity capacity markets. Existing scholarship has tended to analyze policy markets simply as market-based regulation. Although not inaccurate, such inquiries are necessarily incomplete because they do not focus on the distinctive traits of policy markets. Policy markets are neither typical regulations nor typical markets. Concentrating on policy markets as …

The Missing Regulatory State: Monitoring Businesses In An Age Of Surveillance, Rory Van Loo

Faculty Scholarship

An irony of the information age is that the companies responsible for the most extensive surveillance of individuals in history—large platforms such as Amazon, Facebook, and Google—have themselves remained unusually shielded from being monitored by government regulators. But the legal literature on state information acquisition is dominated by the privacy problems of excess collection from individuals, not businesses. There has been little sustained attention to the problem of insufficient information collection from businesses. This Article articulates the administrative state’s normative framework for monitoring businesses and shows how that framework is increasingly in tension with privacy concerns. One emerging complication is …

Problematika Lembaga Mahkamah Agung Dalam Penegakan Hukum Di Indonesia, Muntaha -

Jurnal Hukum & Pembangunan

A process of law enforcement was considerably as part of system of judicature as well as a part of procedure of justice. The issue on this research is “What is the problematic in Supreme Court related to law enforcement in Indonesia”. This study principally aimed: a. Academically, as further base data. b. Practically, as evaluated material for Supreme Court in adjusting related to law enforcement in institutional jurisdiction. The used method in this research is by means of conceptual approach. Subsequently, the outcome is that problematic of law enforcement toward Supreme Court are: a. Integrity of law enforcer that has …