Administrative Law Commons^™

Regulating Ai Therapy Chatbots: A Call For Federal Oversight, Carolyn V. Wheeler

Texas A&M Law Review

While artificial intelligence therapy chatbots continue to develop and increase in popularity, there is little regulatory oversight for this burgeoning industry. Regulation is needed because there is a high probability for harm when artificial intelligence is used in the mental health therapy industry, yet there is no consensus on standards that apply. Artificial intelligence therapy chatbots are currently only regulated by indirect, suboptimal liability schemes. State governments could regulate them by considering them human practitioners or telehealth services, or the federal government could regulate them as medical devices. This Comment examines the pitfalls of the lack of artificial intelligence therapy …

West Virginia’S Major Questions: Agency Deference, Nondelegation, And The Epa, Julian Klein

St. John's Law Review

(Excerpt)

In the landmark case Chevron v. Natural Resources Defense Council, the Supreme Court established that deference is shown to an agency’s reasonable construction of a statute where Congress has not directly addressed the precise issue. Since the 1984 decision, the Supreme Court had consistently applied the Chevron standard to EPA actions. It was not until West Virginia that the Court invoked the seldom used major questions doctrine to determine whether the EPA’s actions were legal.

This Note will explore key issues arising from the Court’s recent decision in West Virginia, including the major questions doctrine and its …

Regulatory Personhood: The Elixir For Redundancy Between The Sec And The Pcaob, Sarah J. Williams

St. John's Law Review

(Excerpt)

This Article analyzes enforcement activity against public company auditors during the agencies’ coexistence for the purpose of unmasking the alleged villainous duplication, budgetary waste, and agency in-fighting that was purportedly created by Congress when it endowed the PCAOB with enforcement powers already existing in the SEC’s arsenal. The Article examines enforcement cases brought by the SEC and the PCAOB against accounting firms and accountants associated with such firms that relate to poor performance in conducting public company audits during the period in which both agencies were in existence. Such research bears upon the effectiveness of the current system of …

How Active Cftc Enforcement Could Benefit Crypto, Carol R. Goforth

Pace Law Review

Commodity Futures Trading Commission (CFTC) crypto enforcement rose to record levels in 2023, prompting applause from some observers and criticism from others. In fact, the CFTC’s enforcement agenda is not out of step with other federal agencies such as the Securities and Exchange Commission (SEC), which has also been incredibly active in the crypto industry. It might seem that this is bad news for crypto, given that both the CFTC and SEC have been angling to become the primary regulator for these new assets. In reality, proof that the CFTC is active in enforcing the law against crypto entrepreneurs and …

Efta Coverage Of Modern Consumer Wire Transfers: Consumer Financial Regulation In The Wake Of Loper Bright, Benjamin Gygi

Fordham Law Review

The rise of online banking has led to a proliferation of consumer fraud. Schemes aimed at stealing consumer funds using wire transfers executed through online banking portals have proven particularly devastating to consumers because of a perceived loophole in the Electronic Fund Transfer Act (EFTA) that leaves consumers with full liability for funds stolen through wire transfers. Consumer advocacy groups, and most notably the New York Attorney General, have recently argued that this loophole does not really exist; they claim that the EFTA’s text conclusively covers certain parts of modern wire transfer processes initiated through online banking portals. Considering the …

Lawyering As A Public Health Tool: Enforcing Title Ii Of The Americans With Disabilities Act With Preventative Litigation, Elena Cohen

Fordham Law Review

A recent ruling by the U.S. Court of Appeals for the Fifth Circuit held that plaintiffs cannot bring a claim alleging a risk of unnecessary institutionalization under Title II of the Americans with Disabilities Act (ADA). This directly contradicts the holdings of six other circuit courts and guidance issued by the Department of Justice (DOJ)—all of which maintain that Title II of the ADA (Title II), the integration mandate, and the U.S. Supreme Court’s decision in Olmstead v. L.C. ex rel. Zimring permit these claims. This Note explores how the circuit courts have evaluated risk of unnecessary institutionalization claims, including …

The Dormant Power Of State Agencies To Fight Environmental Racism, David Handelman-Holmes

Michigan Law Review

Despite repeated promises by Democratic presidents to address environmental justice (EJ), meaningful federal action on the issue remains elusive. The EJ obligations that have been imposed on federal agencies are all purely procedural, not substantive. Such procedural obligations—like filing environmental impact statements and providing forums for community feedback—may facilitate greater transparency and accountability from industry and government agencies. But in the absence of more substantive obligations—like stricter emissions caps in highly burdened communities of color—these procedural requirements are often satisfied through mere box-checking. Meanwhile, litigants pursuing relief through the U.S. Constitution’s Equal Protection Clause face closed courthouse doors unless they …

Legislating For The Future, Jonathan S. Gould, Rory Van Loo

Faculty Scholarship

Public policy must address threats that will manifest in the future. Legislation enacted today affects the severity of tomorrow’s harms arising from biotechnology, climate change, and artificial intelligence. This Essay focuses on Congress’s capacity to confront future threats. It uses a detailed case study of financial crises to show the limits and possibilities of legislation to prevent future catastrophes. By paying insufficient attention to Congress, the existing literature does not recognize the full nature and extent of the institutional challenges in regulating systemic risk. Fully recognizing those challenges reveals important design insights for future-risk legislation.

We first examine Congress as …

Presidential Oversight Of Independent Agency Rulemaking: A Literature Review, Matthew R. Osuch

Notre Dame Law Review Reflection

Over the course of the last several decades, the role of the President vis-à-vis the administrative state has undergone a profound evolution. Central to this development is President Clinton’s Executive Order (EO) 12866, issued in 1993—a landmark directive that modernized and reinvigorated the process by which federal agencies promulgate significant regulations. Like his predecessors, President Clinton declined to extend EO 12866’s cost-benefit analysis and centralized review requirements to independent agency rulemakings. This Note provides a literature review of the competing perspectives regarding the legal permissibility and desirability of that choice and the choice of every President since to do the …

Registration As Consent: Patching Jarkesy's Hole In Sec Enforcement, Alexander I. Platt

Notre Dame Law Review Reflection

In SEC v. Jarkesy, the Supreme Court held that whenever the SEC seeks to impose monetary penalties on enforcement targets for securities fraud, it must proceed in federal court and not its own administrative forum. Many observers predict this will significantly impact SEC enforcement.

But not necessarily. A simple legal patch might repair the hole Jarkesy opened up: parties who register with the SEC may thereby consent to its administrative jurisdiction. (Because Jarkesy and the funds he managed were not registered, his case did not resolve the issue.)

This Essay shows how registration may constitute consent to SEC administrative …

Expansion Of Accessibility: A Survey Of Alternatives V. Department Of Human Services, Keri L. Nace

Widener Commonwealth Law Review

For decades, the size of government in the United States has grown. Simultaneously, technology has created a more informed, and more interested, general public. The Pennsylvania legislature responded to ever increasing requests for information by expanding transparency in government and access to records through the Right to Know Law (RTKL). Every Pennsylvania agency is required to have an open-records officer. The open-records officer is the agency representative tasked with receiving and responding to RTKL requests, including the decision of whether the agency provides or denies the requested record. Not surprisingly, questions regarding a government agency’s failure to provide documents are …

Procedural Learning And Reform In Federal Administrative Adjudication, Jeremy S. Graboyes

Widener Commonwealth Law Review

In the mid-twentieth century, in cases like Goldberg v. Kelly, the Supreme Court found a right to “some kind of hearing” in program after program and set about constructing a “fixed list of procedural protections required by due process.” Constitutionalizing procedural choices in this manner gave courts substantial control over how administrative adjudication operated. However, the approach was criticized. Dissenting in Goldberg, Justice Hugo Black wrote that by imposing significant procedural requirements on agencies without a clear constitutional or statutory basis for doing so, courts “wander[ed] out of their field of vested powers and transgress[ed] into the area constitutionally assigned …

The Not-So-Obvious And Inconvenient Truth: Reexamining A Right To Counsel For Parents And Children In Abuse And Neglect Administrative Proceedings, Tiffany Williams Brewer

Widener Commonwealth Law Review

The right to counsel for parents in administrative abuse and neglect cases, as well as for the children that are the subject of these matters, is a necessity that may not be obvious. This Article seeks to elucidate the fundamental interests that are at stake and justify why the sacrosanct protections of the landmark Gideon v. Wainwright right to counsel case should be extended to an administrative proceeding involving parents who are facing inclusion on a state child abuse and neglect registry. The Article also reveals an inconvenient truth–that communities of color are disproportionately impacted by the consequence of adverse …

Congress And The Shifting Sands In Administrative Law, Christopher J. Walker

Widener Commonwealth Law Review

In recent years, we have seen an anti-administrativist turn in the federal judiciary, with the Supreme Court limiting agency power in important respects. These shifting sands in administrative law seem to be motivated, at least in part, by the Court’s perception of the rise of presidential administration and decline in legislative activity. As part of the Widener Commonwealth Law Review Judging in Administrative Law Symposium, this Essay assesses how the Court has responded to concerns about overpresidentialism and then sketches out several ways Congress can respond to reassert itself in federal lawmaking.

Undo Process: Examining Agency Procedural Levers To Access To Counsel, Haiyun Damon-Feng

Widener Commonwealth Law Review

Every day, through internal adjudicative proceedings, agencies make thousands of rights determinations that affect critical matters such as financial security, family unity, personal safety, and individual liberty. Scholars and policymakers have recognized the significant impact that representation can have on adjudicative outcomes across the administrative state. Many agencies have implemented policies affirmatively seeking to boost an individual’s ability to bring an advocate to assist with the adjudication process. In the immigration context, however, agencies have enacted procedural hurdles that have made it more difficult for individuals to reap the benefits of this assistance.

This Essay uses recent developments in the …

Corporate Exceptionalism: What's Behind The Business Community's Newfound Love Of Jury Trials, Richard H. Frankel

Widener Commonwealth Law Review

2024 was another year of blockbuster Supreme Court decisions. These range from expanding presidential immunity from criminal prosecution, overruling the Chevron doctrine, addressing access to the abortion drug mifepristone, setting standards regarding the power of federal agencies, and others. One case that has flown under the radar, at least outside of administrative law circles, is SEC v. Jarkesy. On its surface, the Supreme Court narrowly held that “the Seventh Amendment entitles a defendant to a jury trial when the [Securities and Exchange Commission (SEC)] seeks civil penalties against him for securities fraud,” rather than being required to proceed in an …

The Disintegration Of Administrative Adjudicatory Enforcement Authority, Robert L. Glicksman

Widener Commonwealth Law Review

In Securities and Exchange Commission v. Jarkesy, the Supreme Court held that the SEC violated Mr. Jarkesy’s Seventh Amendment right to a jury trial by pursuing its charges that he engaged in securities fraud in an administrative forum rather than in federal court. This Essay reviews and critiques the Jarkesy decision, concluding that it ignores several important issues in boiling the case down to whether statutory securities fraud is sufficiently similar to common law fraud to demand attachment of the jury trial right. This decision also distorts decades’ worth of Supreme Court precedents concerning the Seventh Amendment and Article III, …

Navigating The New Loper Bright Regime, Adam G. Crews

Widener Commonwealth Law Review

For many ordinary Americans—the ones who do not spend their days concerned with the minutia of administrative law doctrine—the biggest release of 2024 might have been international pop sensation Taylor Swift’s eleventh studio album, The Tortured Poets Department. The album’s standard edition ends with the track “Clara Bow,” which reflects on the entertainment industry’s habit of cycling through young female performers. Swift’s own experiences inform the song: she has explained how powerful record label executives would compare her to some other artist who came before her, then gratuitously disparage that woman, and then assure Swift that she is an improvement …

Chevron On The Eve Of Loper Bright, Nicholas R. Bednar

Widener Commonwealth Law Review

Chevron is dead. What does this mean for judicial review of agency interpretations of statutes in the lower courts? Perhaps not much. Using new data of circuit court decisions from 2012 and 2022, this Essay examines how lower courts changed their decision-making as the Supreme Court became more skeptical of Chevron deference. This Essay finds that---contrary to the assertion of some justices-circuit courts had not stopped applying Chevron in the lead up to Loper Bright. Moreover, courts agreed with agency interpretations of statutes at similar rates in both 2012 and 2022.

Preempting Paradigms: Nsmia, Esg Investing, And The Search For Market Integration, Robert T. Hill

Catholic University Law Review

This Comment evaluates the recent lawsuit filed by the Securities Industry and Financial Markets Association (SIFMA) against the Missouri Secretary of State, alleging violations of the National Securities Markets Improvement Act (NSMIA), Employee Retirement Income Security Act of 1974 (ERISA), and commercial free speech. NSMIA significantly altered the regulatory landscape by preempting certain aspects of state securities laws, aiming to streamline regulations and foster national uniformity in securities markets. However, this federal preemption presents a complex dilemma when addressing the surge in ESG investing, where investors prioritize financial returns and social and environmental impacts. Accordingly, this Comment examines the interplay …