Administrative Law Commons^™

Evolving Legal Issues In Higher Education: Introduction To The Higher Education And The Law Symposium, Patricia E. Salkin

Touro Law Review

The Touro Law Review could not have selected a better time to highlight many of the evolving legal issues in higher education. It can be both an exciting time to practice law in this space and one that challenges the creative problem-solving skills of lawyers and their clients. This issue of the Law Review highlights a number of key developments and trends.

Loper Bright Enterprises V. Raimondo And The Prospect Of “Management By Judiciary”, Rodger D. Citron

Touro Law Review

In January 2025, Touro University, Touro Law Center, and Touro Law Review held a wide-ranging conference on higher education in the 21st century. The timing could not have been more apt. We were days away from the inauguration of Donald Trump’s second term as President. The ferment in higher education would continue, only more so. In addition, in its 2023-24 term, the Supreme Court had decided a number of important administrative law cases, none more significant than Loper Bright Enterprises v. Raimondo (“Loper Bright”).1 Although I did not speak at the panel session on “The Changing Regulatory Landscape in Higher …

Anatomy Of A Successful College Closure, Kevin P. Mcdonough

Touro Law Review

Alarming forecasts of mass closures of colleges and universities in the United States have been part of the higher education landscape for many years now. Unfortunately, such prognosticators have been proven largely correct as college closures have been occurring with increasing regularity. The closure process has been carried out with varying degrees of success. At one end of the spectrum lies the poorly planned, precipitous closure, which often garners the most attention because of its devastating impact on students and their families. This Article examines certain actions and strategies that the leadership of a college compelled to cease operations can …

Unprecedented Leadership For Unprecedented Times: The Ethical Imperative For Transformational Change In American Higher Education, Andrés Acebo

Touro Law Review

Many eras quietly yield to another while its institutions continue speaking the language of a world that no longer exists. Such moments expose the widening distance between inherited assumptions and emerging realities, between institutional memory and societal need, between what once served the public well and what the future now requires. American higher education has arrived at such a moment. For more than a decade, its challenges have been described through the language of crisis. The prevailing literature has documented enrollment decline, demographic transformation, fiscal instability, technological disruption, political polarization, declining public confidence, and institutional fragility with increasing sophistication. Yet …

The Role Of Legal Uncertainty, Risk, Institutional Size, And Mission In Presidential Selection: Is The Trend To Lawyer-Presidents An Unmitigated Good?, Nora V. Demleitner

Touro Law Review

This Article builds on Patricia Salkin’s May It Please the Campus which documents the extent to which legally trained persons have led U.S. institutions of higher education since colonial times. It explains the perennial attraction of lawyer-presidents despite substantial changes in legal training, in the professional formation of attorneys, and the transformation of higher education, especially with the rise of the modern research university, governmental investment, and heightened regulation of colleges and universities. Governing boards are increasingly attracted to the skills ascribed to lawyers and their personal characteristics, including the common law appreciation for slow change. This Article highlights how …

Who’S In Charge Here?: Collegiate Athletics After The House Settlement, Pamela Ko

Touro Law Review

The House v. NCAA settlement, which was approved in June 2025, paved the way for groundbreaking changes to the National Collegiate Athletic Association (NCAA) and the implementation of its rules and regulations related to athlete rights, including transformative levels and types of student-athlete compensation that have never been permitted in the history of college sports. These changes fundamentally altered the relationship between many Division I student-athletes, educational institutions, athletic conferences, and the NCAA. This Article will discuss both the short and long-term impacts of the House settlement while analyzing both the continuing role of the NCAA and the role of …

Higher Education’S Legal Reckoning: The Institutional Lawyer—More Than A Trend, Jenean Taranto

Touro Law Review

Higher education institutions (IHEs) operate in an increasingly complex legal and regulatory environment that has transformed institutional governance, administration, and leadership. Since the enactment of the Higher Education Act of 1965, colleges and universities have experienced growing federal, state, and quasi-regulatory oversight, a phenomenon commonly described as the “lawyerization” of higher education. This process has resulted in expanded compliance obligations, increased litigation risks, and greater reliance on legal expertise within institutional operations. Recent federal actions following the inauguration of President Donald Trump in January 2025— including executive orders, agency guidance, policy memoranda, and related litigation—have intensified regulatory uncertainty and further …

The American Dream And The Politics Of Promise: Presidential Rhetoric Against Reality On Inequality, Education, And Assistance Since 2000, Abigail Demonte

Touro Law Review

No abstract provided.

Pricing Lies: Government Contracts And The False Claims Act, Fernando Mendoza López

Marquette Law Review

Courts have recognized the federal government’s use of government contracts not only as a commercial transaction but also as an instrument of policy. Governments routinely seek to promote small business interests, domestic industry, women-owned, minority-owned, and veteran-owned businesses. However, in cases of fraud involving these policy provisions, courts have consistently failed to recognize this dual nature of government contracts.

The intangible benefits that governments gain from these preferential policies complicate damage calculations for courts when dealing with fraud. Such complications have led to inconsistencies and the emergence of three main approaches. First, some courts have assessed that the government …

At The Intersection Of Property And Disaster Recovery, Jeanne Ortiz-Ortiz

Faculty Publications

(Excerpt)

When disaster strikes, communities rally to meet urgent, short-term needs—food, shelter, and medical care that keep people alive and safe in the immediate aftermath. For days, we see images of flooded streets, emergency shelters, and calls to support fundraising campaigns in the media cycle. Long-term recovery after a disaster often depends on something less visible: the ability of people, especially those experiencing economic insecurity, to rebuild or return to stable, functional homes.

The outcome of this largely depends on whether families can navigate and access assistance programs like those offered by the Federal Emergency Management Agency (FEMA). Can you …

Building Shields: Accreditation, Insurance, And Public-Private Partnerships As Tools To Safeguard Critical Race Theory And Democracy In Higher Education, Taifha Natalee Alexander

Faculty Publications

(Excerpt)

Following the racial justice uprisings of 2020, universities have become increasingly vulnerable to coordinated political campaigns aimed at dismantling antiracist teaching, training, and research. These attacks, ranging from legislative bans on Critical Race Theory (“CRT”) to executive efforts to dismantle the U.S. Department of Education, expose the fragility of higher education’s role as a guardian of democratic pluralism. This Essay demonstrates that universities cannot rely solely on moral suasion or First Amendment litigation to resist these escalating, structural assaults. Instead, colleges and universities must build a multilayered legal strategy that renders the teaching of CRT and the pursuit of …

Immigration Adjudication, Judicial Review, And The Uneven Incorporation Of Administrative Law Norms, John Harland Giammatteo

Journal Articles

This article examines the interaction between immigration law and administrative law. Scholars and courts regularly treat immigration as outside of, or exceptional to, the normal operation of administrative law and its norms of judicial review. Yet in the past decade, the Roberts Court has radically reshaped administrative law. This broader administrative law project has largely emphasized the primacy of the federal courts and judicial review, enlarging the putative rights of regulated parties, at the cost of agency power. Within that project, immigration adjudication is a frequent conversation partner. Immigration adjudication is used to undermine the administrative state’s claim to policymaking …

The Elusive Nexus Standard: Differing Approaches To The Asylum Nexus Standard As Applied To Religious Persecution Perpetrated By Gangs, Chloe Schalit

American University Journal of Gender, Social Policy & the Law

In 2015, Ms. Odalis Mireida Chicas-Machado, the secretary of an evangelical church in El Salvador, started getting harassed by members of the MS-13 gang during her walks to and from the church. Chicas-Machado believed that the harassment began because the gang considered her to be an enemy due to her work spreading the message of God to young people who otherwise might have joined the gang. Approximately one year after the harassment commenced, gang members threatened Chicas-Machado with death if she refused to alert the gang when police cars drove by a local store. The gang sought out Chicas-Machado for …

U.S. Administrative Law: A Casebook (6th Ed.), Jud Mathews

Faculty Scholarship

The number of administrative law texts is vast. The approach of this one, now in its fifth edition, is simple. It is: (1) to focus on the richest and most canonical cases; (2) to provide more extensive extracts of them than most casebooks; and (3) to keep the notes to a bare minimum. Updated through October 2025, the book contains a number of significant decisions from recent Supreme Court terms, as well as foundational classics that many contemporary casebooks cut, and much in between.

Room To Breathe: The Surprising Capaciousness Of Osh Act Preemption, Michael C. Duff

All Faculty Scholarship

This essay is part of a Saint Louis University Law Journal seminar, conducted by the Wefel Center for Employment Law, titled "Shifting Workplace Law in an Era of Federal Vacuums: Business as Usual or Polycrisis?" The symposium presumed that the federal government would be scaling back workforce regulatory enforcement dramatically in the shadow of DOGE and several other developments. The essay focuses on OSHA and more narrowly questions the extent to which the OSH Act preempts state and local efforts to regulate workplace safety and health. The essay shows that unless OSHA promulgates a full-blown “standard” – a tedious form …

Bridging The Gap: Predictors Of Alignment Of Parent And Caseworker Perceptions Of Engagement, Jianchao Lai, Michelle I. Graef

Center on Children, Families, and the Law: Faculty Publications

This study examined predictors of alignment between parents’ and caseworkers’ perceptions of family engagement in child welfare services. Using data from 2,274 Alternative Response (AR)–eligible families randomized to AR or Traditional Response, engagement was assessed across the domains of Receptivity, Buy-in, Worker-family Relationship, and Mistrust using a modified Yatchmenoff (2005) scale. Multinomial logistic regression models identified factors associated with agreement and discrepancy between ratings of family engagement within the parent and worker dyad. While both parents and workers valued engagement, workers were more likely to provide higher overall engagement ratings, although the direction of discrepancy varied across specific subscales. Greater …

The Executive's Takeover Of Independent Agencies: How Institutional Design Gave Way To Political Will, Neal Devins

Faculty Publications

The anticipated demise of the independent agency is a saga that implicates Congress as much as it does the President or the Supreme Court. By capitulating to presidential initiatives and failing to defend their institutional prerogatives, Congress has facilitated presidential control of the administrative state. Indeed, irrespective of whether the Court formally repudiates Humphrey’s Executor, Congress has largely acquiesced to a regime whereby presidents essentially control independent agencies. By highlighting the competing incentives of Congress and the White House, this Essay explains the rise of presidential unilateralism vis-à-vis independent agencies. This Essay also casts light on a critically important but …

Rebooting Administrative Enforcement For The Information Economy, Nina-Simone Edwards

Library Scholarship

This concept paper considers how to strengthen the enforcement of public mandates to deter harmful practices and business models. The paper offers principles for reinvigorated enforcement such as enhanced visibility, the increased use of design as a remedial lever, and personal responsibility for responsible individuals, not only the corporations that employ them.

To advance these principles, we call for new or amended laws that require companies to document how policy becomes code, grant agencies authority to order design changes to products and services, create pathways for charging responsible individuals, and cabin some forms of prosecutorial discretion. We would support these …

Legitimacy And Accountability In The Information-Era Administrative State, Nina-Simone Edwards

Library Scholarship

The current assault on administrative institutions and the rapid influx of automated “solutions” have exacerbated the problems of a system that was already buckling under the strains of functional opacity, technical opacity, unequal access and influence, process proliferation and paralysis, and inaction. An overarching reason for the legitimacy and accountability challenges confronting the administrative state is a paradigm for administrative legitimacy and accountability that is court-centered and no longer fit for purpose.

In this concept paper, we describe two core requirements of legitimacy and accountability–which, as we will explain, are interdependent concepts–and then articulate three component requirements–transparency and demystification, care …

Trump V. Cook And The American Rule Of For-Cause Removal, Jane Manners, Lev Menand

Faculty Scholarship

No abstract provided.