Administrative Law Commons^™

Regulating From The Ground Up: Controlling Financial Institutions With Bank Workers’ Unions, Emma Cusumano

Law Student Publications

In the Wells Fargo accounts scandal, millions of banking accounts were created for customers without their consent. The scandal cost Wells Fargo customers millions of dollars in direct and indirect charges. Investigations revealed that employees were pressured into creating these false accounts through abusive banking practices promulgated from the top. These practices are not unique to Wells Fargo; instead, they are ubiquitous in the financial services industry.

Current financial regulations do not adequately address how to mitigate banks’ harmful practices. This comment explores the premise that bank worker unionization could serve as a much-needed check on the power of financial …

The Travel Ban Decision, Administrative Law, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Balancing Political Power: Community Economic Development And Institutional Design, K. Sabeel Rahman

Faculty Scholarship

No abstract provided.

Hiding The Ball: The Proposed Regulatory Accountability Act & Restricting Agency ‘Propaganda’, Benjamin A. Torres

Georgia Law Review

The Senate’s Regulatory Accountability Act (RAA)
seeks to substantially amend the Administrative
Procedure Act, the law governing federal agency
processes. The bill’s sponsors argue, in part, that the
RAA would improve administrative transparency and
accountability. One of the least-discussed provisions,
§ 3(c)(6), “Prohibition on Certain Communications,”
would prohibit agencies from advocating for or against
a proposed regulation during the comment period, an
indispensable component of notice-and-comment
rulemaking that affords the public a voice in the
rulemaking process. This Note recommends that
agencies should be able to exhibit their preferences at all
stages of rulemaking, because, as policymakers, agencies
should inform …

Taxing Combat, Samuel Kan

Dickinson Law Review (2017-Present)

When you are being shot at or dodging landmines you are in a combat zone. Diplomatic niceties aside, these brave warriors are in danger because of the policies of their Government and we must take care of them. Quite frankly, we must act to insure that we do not have a repeat of what happened in Somalia. In Somalia, the families of the soldiers who lost their lives could not receive the benefits that should have gone to them under the Tax Code because the President never declared it a combat zone.

We don’t know exactly where we’re at in …

Predetermined? The Prospect Of Social Determinant-Based Section 1115 Waivers After Stewart V. Azar, Griffin Schoenbaum

Dickinson Law Review (2017-Present)

Section 1115 of the Social Security Act allows the Secretary of Health and Human Services (the “Secretary”) to waive some of Medicaid’s requirements so states can enact “demonstration projects.” A demonstration project is an experiment a state can conduct by modifying aspects of its Medicaid program. To waive Medicaid’s requirements for this purpose, the Secretary must determine that the proposed demonstration project will likely assist in promoting Medicaid’s objectives.

Using this standard, President Trump’s Secretary has approved waiver requests to enact demonstration projects that contain “community engagement” requirements. The U.S. District Court for the District of Columbia has heard each …

Searching For Humanitarian Discretion In Immigration Enforcement: Reflections On A Year As An Immigration Attorney In The Trump Era, Nina Rabin

University of Michigan Journal of Law Reform

This Article describes one of the most striking features of the Trump Administration’s immigration policy: the shift in the way discretion operates in the legal immigration system. Unlike other high-profile immigration policies that have been the focus of class action lawsuits and public outcry, the changes to the role of discretion have attracted little attention, in part because they are implemented through low-visibility individualized decisions that are difficult to identify, let alone challenge systemically. After providing historical context regarding the role of discretion in the immigration system before the Trump Administration, I offer four case studies from my immigration practice …

Administrative Power And Religious Liberty At The Supreme Court, Mark L. Rienzi

Scholarly Articles

The Supreme Court has recently seen an increase in the number of religious exercise cases in which the conflict was caused by an act of administrative power, rather than an act of legislative power. There are probably several reasons for this increase, including the growth, size, and flexibility of the administrative state, political convenience, and the fact that administrators tend to be specialists who may be unaware of or undervalue competing interests like religious liberty.

While the sheer size, reach, flexibility, and specialization of the administrative state means we will likely continue to see more religious exercise conflicts caused by …

A Cure Worse Than The Disease? The Impact Of Removal On Children And Their Families, Vivek Sankaran, Christopher Church, Monique Mitchell

Marquette Law Review

Removing children from their parents is child welfare’s most drastic

intervention. Research clearly establishes the profound and irreparable

damage family separation can inflict on children and their parents. To ensure

that this intervention is only used when necessary, a complex web of state and

federal constitutional principles, statutes, administrative regulations, judicial

decisions, and agency policies govern the removal decision. Central to these

authorities is the presumption that a healthy and robust child welfare system

keeps families together, protects children from harm, and centers on the needs

of children and their parents.

Yet, research and practice—supported by administrative data—paint a

different …

Stepping Up Access To The Indiana Code: Partnering For Increased Access And Preservation, Susan David Demaine, Benjamin J. Keele, Hannah Alcasid

Articles by Maurer Faculty

No abstract provided.

Billion Dollar Orphans: Tension Between The Legal Intent And Social Purpose Of The Orphan Drug Act, John Sheridan

Texas A&M Law Review

This Comment examines the extent to which Congress empowered the FDA to address the increase in petitions and the general accessibility of orphan drug remedies. Specifically, this Comment seeks to understand why the FDA’s interpretation of the purpose of the ODA seems to conflict with the statutory intent as interpreted by federal courts. This Comment considers a statute’s ultimate goal or social purpose to be the purpose of the statute, whereas the express mechanisms by which Congress seeks to bring about these goals is best understood as the statute’s intent. To understand the FDA and judiciary’s differing interpretations of the …

The Eu’S Struggles With Collective Action For Securities Fraud: An American Perspective, Dan Morrissey

Texas A&M Law Review

Notwithstanding the apparent exit of the United Kingdom, the European Union (“EU”) has grown in membership and power since its modest beginnings after World War II, now rivaling the U.S. in economic strength. With the goal of promoting the security and prosperity of all the citizens of the countries that belong to it, the EU is pressing ahead to adopt laws that will promote their political and financial integration. Along those lines, it has also recently acknowledged a deficiency in the legal systems of its member states when it comes to allowing collective actions for victims of various types of …

Regulating From The Ground Up: Controlling Financial Institutions With Bank Workers’ Unions, Emma Cusumano

University of Richmond Law Review

In the Wells Fargo accounts scandal, millions of banking accounts were created for customers without their consent. The scandal cost Wells Fargo customers millions of dollars in direct and indirect charges. Investigations revealed that employees were pressured into creating these false accounts through abusive banking practices promulgated from the top. These practices are not unique to Wells Fargo; instead, they are ubiquitous in the financial services industry.

Current financial regulations do not adequately address how to mitigate banks’ harmful practices. This comment explores the premise that bank worker unionization could serve as a much-needed check on the power of financial …

Abolish Ice . . . And Then What?, Peter L. Markowitz

Articles

In recent years, activists and then politicians began calling for the abolition of the United States’s interior immigration-enforcement agency: U.S. Immigration and Customs Enforcement (ICE). Many people have misinterpreted the call to “Abolish ICE” as merely a spontaneous rhetorical device used to express outrage at the current Administration’s brutal immigration policies. In fact, abolishing ICE is the natural extension of years of thoughtful organizing by a loose coalition of grassroots immigrant-rights groups. These organizations are serious, not only about their literal goal to eliminate the agency, but also about not replacing it with another dedicated agency of immigration police. Accordingly, …

An Evolutionary Theory Of Administrative Law, Karrigan S. Bork

SMU Law Review

Law evolves to accommodate change—this is axiomatic in most academic legal traditions. But in the era of the administrative state, with congressional gridlock and a judiciary hesitant to address policy questions, evolution of statutory law has become much more difficult. This leads to pent up demand for change in legal regimes. If the legislature and the courts cannot provide an outlet for this pressure, where does it go? How does the law continue to change? Although other scholars have looked to agencies as engines of legal change, we lack a theoretical framework to understand how that change happens. I argue …

Patent Trial And Appeal Board's Consistency-Enhancing Function, Michael D. Frakes, Melissa F. Wasserman

Faculty Scholarship

Agency heads, who have the primary responsibility for setting an agency's policy preferences, have a variety of tools by which they attempt to minimize the discretion of their staff officials in an effort to ensure agency policy preferences are consistently applied. One such mechanism is subjecting agency official's determinations to higher-level agency review. While scholars have long surmised that judges seek to minimize reversal of their decisions by a higher-level court, how agency officials' decisions are influenced by higher-level agency reconsideration has mostly eluded analysis.

In this Essay, we begin to fill this gap by examining the extent to which …

The Exceptionalism Norm In Administrative Adjudication, Emily S. Bremer

Journal Articles

The standard narrative envisions administrative law as a quasi-constitutional field with the Administrative Procedure Act (APA) as its superstatute backbone. In rulemaking and judicial review, this narrative is compelling and has facilitated judicial and scholarly rejection of agency claims to “exceptionalism,” i.e., exception from uniform, cross-cutting administrative law principles. This Article argues that there is a significant omission from the standard narrative: adjudication. Here, Congress, the courts, agencies, and scholars have embraced the use of unique institutional structures and procedural rules tailored to suit the needs of individual agencies and regulatory programs. As a consequence, most adjudication is conducted outside …

Transgender Tropes & Constitutional Review, Jennifer Levi, Kevin M. Barry

Faculty Scholarship

The Trump administration is aggressively and systematically rolling back policies that protect transgender people. History teaches that these governmental attacks are not new, but instead represent the latest salvo in a long but losing battle to disparage transgender people, who have been ruthlessly depicted as criminals, deviants, and selfish iconoclasts. Notwithstanding the current administration's open hostility toward transgender people, constitutional protections endure. This Article discusses the evolution of government discrimination against transgender people-from laws that criminalized the violation of gender norms in the late twentieth century to the present-day exclusion of transgender people from the U.S. military-and transgender people's continued …

Sustainability Values Of Students As Influences On The Image Of A University Transitioning To Sustainability, Anna A. Mendiola

Marketing and Law Faculty Publications

The journey toward sustainability is a difficult process for a university given the complex requirements necessary for becoming sustainable. To implement sustainability initiatives effectively, therefore, it is important to obtain the support and commitment of university stakeholders. Having a good image as far as the school’s efforts at sustainability are concerned engages stakeholders and encourages that commitment. It is an important element of change as it provides evidence that the school is indeed serious in its activities. Yet is the perception of the school’s image influenced by the students’ sustainability values? A survey of 798 college students at a private …

The Costs Of Uncertainty: The Doj’S Stalled Progress On Accessible Medical Equipment Under The Americans With Disabilities Act, Elizabeth Pendo

Articles

Imagine seeking medical care for serious pressure sores for a year, but your doctor never examining the sores because you could not get on the examination table in her office. Or imagine going more than fifteen years without an annual well-woman examination for the same reason, or your doctor guessing at the right dosage for a prescription because there was no scale that she could use to weigh you.

Although these scenarios may be difficult for many to imagine, they are common experiences for individuals with mobility disability. The Trump administration’s attacks on the Patient Protection and Affordable Care Act …