Administrative Law Commons^™

Administrative License Renewal And Due Process -- A Case Study, Delcianna J. Winders

Florida State University Law Review

Scholars have recently noted the paucity of scholarship on administrative licenses as especially significant given the prevalence-indeed ubiquity-of administrative licenses today.This Article contributes to filling that void by tackling an aspect of administrative licensing that has received especially little attention and, as a result, has been a source of serious confusion: license renewals. As this Article details, administrative license renewal practices raise interesting and important questions about administrative law and procedural due process. Does one have a property interest in a license after that license expires by its terms? Is an agency's decision not to renew a license more akin …

The Tortoise And The Hare Of International Data Privacy Law: Can The United States Catch Up To Rising Global Standards?, Matthew Humerick

Catholic University Journal of Law and Technology

Technological developments spur the development of big data on a global scale. The breadth of data companies collect, maintain, process, and transmit affects nearly every country and organization around the world. Inherent to big data are issues of data protection and transfers to third countries. While many jurisdictions emphasize the importance of protecting consumer data, such as the European Union, others, like the United States, do not. To circumvent this issue, the United States and European Union contracted around data privacy standard discrepancies through the Safe Harbor Agreement, which eased cross-border data transfers. However, the Court of Justice of the …

The Limits Of Copyright Office Expertise, Aaron K. Perzanowski

Faculty Publications

The mismatch between the expanding administrative and regulatory obligations of the United States Copyright Office and its limited institutional expertise is an emerging problem for the copyright system. The Office’s chief responsibility—registration and recordation of copyright claims—has taken a back seat in recent years to a more ambitious set of substantive rulemakings and policy recommendations. As the triennial rulemaking under the Digital Millennium Copyright Act highlights, the Office is frequently called upon to answer technological questions far beyond its plausible claims of subject matter expertise. This Article traces the Office’s history, identifies its substantial but discrete areas of expertise, and …

Auer Evasions, Jonathan Adler

Faculty Publications

Auer v. Robbins requires federal courts to defer to federal agency interpretations of ambiguous regulations. Auer built upon, and arguably expanded, the Court’s long-standing practice of deferring to agency interpretations of their own regulations born in Bowles v. Seminole Rock. Although initially uncontroversial, the doctrine has come under fire from legal commentators and prominent jurists, including Auer’s author, the late Justice Antonin Scalia. As Justice Scalia came to recognize, Auer deference enables agencies to evade a wide range of legal constraints that are otherwise imposed upon agency behavior, the ability of agencies to take action with the force …

Masterpiece Cakeshop: “Does Anybody Really Know What Time It Is?”, 52 Uic J. Marshall L. Rev. 83 (2018), Ted Hong

UIC Law Review

The purpose of this article is to highlight the less controversial part of the Court’s opinion. This article is intended for counsel representing parties before federal, state, municipal and local administrative agencies, counsel representing administrative agencies and people serving on administrative agencies. The article discusses how the Masterpiece Cakeshop opinion was the culmination of discussing the role of procedural due process in the administrative agency process. The Court’s opinion has “real time” application in a current case before the Intermediate Court of Appeals, State of Hawai`i. This article also highlights the difference in appointment of boards and commissioners in three …

Clowning Around With Final Agency Action, Beau J. Baumann, Greg Mina

Cornell Journal of Law and Public Policy

While Chevron and Auer deference dominate the administrative law literature, another doctrine—the final agency action requirement—has been perverted by the lower federal courts. Several circuits have developed an undergrowth of formalistic rules that tighten the Supreme Court’s standard, as it was laid out in Bennett v. Spear. This development ignores the Court’s decades-old refrain that the final agency action requirement should be flexible. Unfortunately, this development comes at the worst possible time. The interconnectedness of federal and state agencies has led to a sort of division of labor. Data collection, designations, and enforcement are increasingly divided across different agencies. Because …

State Standing In United States V. Texas: Opening The Floodgates To States Challenging The Federal Government Or Proper Federalism?, Bradford Mank

Faculty Articles and Other Publications

In United States v. Texas, the Supreme Court by an equally divided vote, 4 to 4, affirmed the decision of the U.S. Fifth Circuit Court of Appeals that the State of Texas had Article III standing to challenge in federal court the Department of Homeland Security’s (DHS) directive establishing a Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program to grant lawful immigration status to millions of undocumented immigrants. A serious question is whether state standing in this case will open the floodgates to allow states to challenge virtually every federal executive action. On the other hand, …

Federal Circuit Jurisdiction: Looking Back And Thinking Forward, Timothy B. Dyk

American University Law Review

No abstract provided.

Who Are “Officers Of The United States”?, Jennifer L. Mascott

Scholarly Articles

For decades courts have believed that only officials with “significant authority” are “Officers of the United States” subject to the Constitution’s Article II Appointments Clause requirements. But this standard has proved difficult to apply to major categories of officials. This Article examines whether “significant authority” is even the proper standard, at least as that standard has been applied in modern practice. To uncover whether the modern understanding of the term “officer” is consistent with the term’s original public meaning, this Article uses two distinctive tools: (i) corpus linguistics-style analysis of Founding-era documents and (ii) examination of appointment practices during the …

The Missing Element Of Environmental Cost-Benefit Analysis: Compensation For The Loss Of Regulatory Benefits, Karl S. Coplan

Elisabeth Haub School of Law Faculty Publications

Despite its critics, cost-benefit analysis remains a fixture of the environmental regulation calculus. Most criticisms of cost-benefit analysis focus on the impossibility of monetizing environmental and health amenities protected by regulations. Less attention has been paid to the regressive wealth-transfer effects of regulations foregone based on cost-benefit analysis. This regressive effect occurs as long as downwind communities that suffer health and harms from environmental contamination are generally less wealthy than the owners of pollution sources that avoid regulatory-compliance costs. The availability of compensation to pollution-victims has the potential to ameliorate this regressive effect. This Article recommends that the availability of …

Fail To Comment At Your Own Risk: Does Issue Exhaustion Have A Place In Judicial Review Of Rules, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

Lubbers discusses whether issue exhaustion have a place in judicial review of rules.

Administrative Guidance And Genetically Modified Food, Edward L. Rubin, Joanna K. Sax

Faculty Scholarship

One of the most controversial issues in administrative law, the use of guidance, is exemplified by the regulation of one of the most controversial areas in modern society: genetically modified (GM) food. The appropriate use of guidance versus notice and comment rulemaking is a much-debated issue in administrative law. While agency officials generally assert that they are using guidance to express an agency’s thoughts about how to comply with a specific statutory provision or agency rule, the practical consequence is that the regulated party will hesitate to disobey, even if it believes that the guidance goes beyond the requirements of …

Sg's Brief In Lucia Could Portend The End Of The Alj Program As We Have Known It, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Interminable Parade Rest: The Impossibility Of Establishing Service Connection In Veterans Disability Compensation Claims When Records Are Lost Or Destroyed, Jessica Lynn Wherry

Brooklyn Law Review

By statute, veterans are eligible for disability compensation benefits for illness or injury connected to the veteran’s service in the armed forces. The process of seeking benefits is intended to be non-adversarial and requires VA to assist veterans in developing their claims. Unfortunately, VA’s nagging problems including poor management and a lack of accountability produce well-documented and devastatingly negative effects on veterans. These effects are not limited to veterans receiving disability benefits but extends to veterans who never make it past the claim stage because their claims are denied. Typically, service medical records are used to establish service-connection. When those …

The “Deeming Rule”: The Fda’S Destruction Of The Vaping Industry, Lauren H. Greenberg

Brooklyn Law Review

The FDA has recently passed sweeping regulations, which classifies and then regulates electronic cigarettes as “tobacco products” in the same manner as traditional cigarettes. Though the agency reasons that unknowing adults and children may easily turn to e-cigarettes without fully understanding the potential health effects, there is a lack of conclusive evidence in this field to justify such a comprehensive regulatory scheme. Through the far-reaching “Deeming Rule,” e-cigarette manufacturers are forced to comply with financially burdensome and time-consuming requirements before taking most of their products to market. The channels by which the FDA proposes manufacturers and retailers gain permission from …

Centralized Review Of Tax Regulations, Clinton G. Wallace

Faculty Publications

Centralized oversight of agency policymaking and spending by the President’s Office of Management and Budget is a hallmark of the modern administrative state. But tax regulations have almost never been subject to centralized review. The Trump administration recently proposed to require centralized review of tax regulations, but it is unclear what regulations would be subject to such review or how it would be conducted.

This Article examines the normative desirability of the longstanding approach of exempting tax regulations from centralized review, and the alternative of imposing such review. Scholars and policymakers have provided various incomplete justifications for excepting tax policy …

Deliberative Public Engagement With Science: An Empirical Investigation, Lisa M. Pytlikzillig, Myiah J. Hutchens, Peter Muhlberger, Frank J. Gonzalez, Alan Tomkins

Lisa PytlikZillig Publications

The purpose of this book is to share some results and the data from four studies in which we used experimental procedures to manipulate key features of deliberative public engagement to study the impacts in the context of deliberations about nanotechnology. In this chapter, we discuss the purpose of this book, which is to advance science of public engagement, and the overarching question motivating our research: What public engagement methods work for what purposes and why? We also briefly review existing prior work related to our overarching goal and question and introduce the contents of the rest of the book. …

Uber’S Arbitration Trickery: Mohamed’S Holding, The New Era Of Limiting The Scope Of Administrative Protection And The Vindication Of Rights Doctrine, 51 J. Marshall L. Rev. 439 (2018), Kerby Kniss

UIC Law Review

No abstract provided.

Risks Faced By Foreign Lawyers In China, Chenglin Liu

Faculty Articles

This article provides an objective assessment of the potential risks that foreign lawyers face in China as they push the boundaries of the limits on their activities set by Chinese law. When the Shanghai Bar Association (SBA), a government-controlled organization, accused foreign lawyers of violating Chinese law and called for official action, some scholars dismissed the threat, claiming that there was no legal basis for a crackdown on foreign lawyers. These scholars erroneously maintained that the Chinese laws that regulate foreign lawyers are ambiguous and create "gray areas." In fact, the claims of the SBA are justified because the applicable …

Understanding Administrative Sanctioning As Corrective Justice, Eithan Y. Kidron

University of Michigan Journal of Law Reform

When should a regulator prefer criminal sanctions over administrative sanctions? What procedural protections should apply if a process is labeled civil but the sanctions are, in fact, criminal in type? And can the state justifiably conduct parallel proceedings for punitive sanctions against the same person or entity for the same conduct?

Throughout the years, judges and scholars alike have tried to understand and classify administrative sanctioning. Common to all of these conceptions is their failure to provide a complete normative framework for this unique body of law, which in turn makes it difficult to identify its practical limits and to …