Nondelegation Blues

Philip Hamburger 91 Geo. Wash. L. Rev. 1083 The nondelegation doctrine is in crisis. For approximately a century, it has been the Supreme Court’s answer...
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Early Customs Laws and Delegation

Jennifer Mascott 87 Geo. Wash. L. Rev. 1388 This past Term the Supreme Court reexamined the nondelegation doctrine, with several justices concluding that in the proper case, the Court should consider significantly strengthening the doctrine in its contemporary form. Adherents to the doctrine question whether Congress has developed a practice...
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Codifying the Agency Class Action

James Hannaway 87 Geo. Wash. L. Rev. 1451 Through devices like class actions and other consolidation procedures, agencies have developed several tools to manage large numbers of cases involving similar claims. While this effort to create more effective agency class actions is in its nascent stages, some form of codification...
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What Is an ICO? Defining a Security on the Blockchain

Seth Holoweiko 87 Geo. Wash. L. Rev. 1472 2017 brought the rise of the initial coin offering (“ICO”), a novel fundraising concept that enables organizations to raise funds from anyone with an internet connection and a cryptocurrency wallet by selling tokens that will have some future purpose related to the...
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The American Nondelegation Doctrine

Cass R. Sunstein 86 Geo. Wash. L. Rev. 1181 An American nondelegation doctrine is flourishing. Contrary to the standard account, it does not forbid Congress from granting broad discretion to executive agencies. Instead it is far narrower and more targeted. It says, very simply, that executive agencies cannot make certain kinds of decisions unless Congress has...
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Optimal Ossification

Aaron L. Nielson 86 Geo. Wash. L. Rev. 1209 One of the dirtiest words in administrative law is “ossification”—the term used for the notion that procedural requirements force agencies to spend a long time on rulemakings. Ossification, however, is misunderstood. Even leaving aside the other benefits of procedures, delay itself can be...
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Topic Modeling the President: Conventional and Computational Methods

J.B. Ruhl, John Nay & Jonathan Gilligan 86 Geo. Wash. L. Rev. 1243 Law is generally embodied in text, and lawyers have for centuries classified large bodies of legal text into distinct topics—that is, they “topic model” the law. But large bodies of legal documents present challenges for conventional topic modeling methods. The task of...
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Lying in Wait: How a Court Should Handle the First Pretextual For-Cause Removal

Richard Rothman & Katelin Shugart-Schmidt 86 Geo. Wash. L. Rev. 1348 The legal limits of for-cause removal protections for executive officials have barely been defined, even as the current presidential administration considers removing protected officials. Open questions include whether and how courts will choose to define “cause,” as well as whether courts will inquire into the...
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Chartering Fintech: The OCC’s Newest Nonbank Proposal

Elizabeth J. Upton 86 Geo. Wash. L. Rev. 1392 The Office of the Comptroller of the Currency is responsible for ensuring federally chartered banks’ safety and soundness, compliance with federal banking laws, and compliance with federal laws regarding fair access to financial services and fair treatment of customers. The states have historically overseen and regulated nonbank...
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“Good Cause” Is Cause for Concern

James Yates 86 Geo. Wash. L. Rev. 1438 The Administrative Procedure Act (“APA”) generally requires that all federal administrative rules undergo public “notice and comment.” The “good cause” exception allows an agency to bypass this requirement where it would be “impracticable, unnecessary, or contrary to the public interest.” In recent years, good cause has been increasingly...
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Statutory Interpretation in the Context of Federal Jurisdiction

Debra Lyn Bassett · November 2007 76 GEO. WASH. L. REV. 52 (2007) Article III of the United States Constitution and by the statutory architecture set out in the Judicial Code. By longstanding and deeply entrenched interpretive practice, federal courts have erected a singular approach to statutory interpretation involving the...
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The President’s Secrets

Gia B. Lee · February 2008 76 GEO. WASH. L. REV. 197 (2008) When congressional committees sought information relating to the U.S. attorney firings and Hurricane Katrina, when the 9/11 Commission called for the National Security Advisor to testify, when Senators requested memoranda authored by judicial nominees while working as...
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The Silicon Bullet: Will the Internet Kill the NLRA?

Jeffrey M. Hirsch · February 2008 76 GEO. WASH. L. REV. 262 (2008) The National Labor Relations Act’s (“Act”) increasing obsolescence in the modern workplace is well documented. Nowhere is this problem more apparent than where unions and employees use the Internet and other electronic communications to further employees’ collective...
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Chevron Bias

Philip Hamburger · 84 Geo. Wash. L. Rev. 1187 · This Article takes a fresh approach to Chevron deference. Chevron requires judges to defer to agency interpretations of statutes and justifies this on a theory of statutory authorization for agencies. This Article, however, points to a pair of constitutional questions about the...
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Preambles as Guidance

Kevin M. Stack · 84 Geo. Wash. L. Rev. 1252 · Debates over administrative agencies’ reliance on guidance documents have largely neglected the most authoritative source of guidance about the meaning of agency regulations: their preambles. This Article examines and defends the guidance function of preambles. Preambles were designed not only to...
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The Future of Deference

Richard J. Pierce, Jr. · 84 Geo. Wash. L. Rev. 1293 · In this Essay, Professor Richard Pierce describes the history of the deference doctrines the Supreme Court has announced and applied to agency interpretations of ambiguous statutes and rules over the last seventy years. He predicts that the Court will continue...
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Revisiting the Public Rights Doctrine: Justice Thomas’s Application of Originalism to Administrative Law

Laura Ferguson · 84 Geo. Wash. L. Rev. 1315 · Administrative agencies today adjudicate vastly more disputes than do Article III courts. The constitutional underpinnings of the administrative agency’s adjudicative power remain somewhat murky, however, as does today’s conception of which cases administrative agencies can appropriately adjudicate. The Supreme Court has said...
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The American Bar Association Section of Administrative Law and Regulatory Practice held their Administrative Law Conference of 2015 on October 29th and 30th at the Walter E Washington Convention Center. On the morning of October 29th, The George Washington University Law Review (Law Review) hosted one of the panels based on the journal’s Annual Review of Administrative Law titled “Chevron Bias, Preambles as Guidance, Oversight of Agency Enforcement Discretion, and Other Contemporary Issues”. The Law Review’s Senior Projects Editor, Maxwell Weiss organized the panel in conjunction with ABA Section. A summary of the panel appears below.

Observations from the GWLR Administrative Law Panel

On Friday, October 20, 2017, The George Washington Law Review (“Law Review”) hosted a panel titled, “Evaluating Federal Actions: The Powers, Processes, and Proclamations of Administrative Agencies and the Oval Office” as part of the American Bar Association Section of Administrative Law and Regulatory Practice’s 2017 Administrative Law Conference. The...
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Observations from the GWLR Administrative Law Panel

            The American Bar Association Section of Administrative Law and Regulatory Practice held their annual Administrative Law Conference beginning on October 29, 2015.   The George Washington University Law Review (Law Review) hosted one of the opening breakout sessions, the journal’s Annual Review of Administrative Law. This year, the panel was...
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Historical Supplement

Prepared by David M. Pritzker, Deputy General Counsel of the Administrative Conference of the United States · Introduction · 83 Geo. Wash. L. Rev. 1705 · The Historical Supplement to this issue of the George Washington Law Review contains an overview of the history of the Administrative Conference of the United States, together...
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The Administrative Conference at Fifty: An Agency Lives Twice

Professor David C. Vladeck · 83 Geo. Wash. L. Rev. 1689 · This Article traces the successful resurrection of the Administrative Conference of the United States (“ACUS”), a federal agency uniquely dedicated to improving the efficiency and fairness of administrative agencies to better serve the American public. The Article begins by recounting...
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The Administrative Conference and the Political Thumb

Professor Peter L. Strauss · 83 Geo. Wash. L. Rev. 1668 · In his valuable contribution to this special issue, Richard Pierce underscores the role the Administrative Conference of the United States (“ACUS”) has played over the years in encouraging on-theground fact-finding by its consultants, who have usually been academics consulted at...
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ACUS and Suits Against Government

Professor Jonathan R. Siegel · 83 Geo. Wash. L. Rev. 1642 · The Administrative Conference of the United States (“ACUS”) has played an important role in improving the system of lawsuits against the federal government. ACUS should continue to play this role, for which it is uniquely well suited. Because it does...
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States vs. FDA

Professor Catherine M. Sharkey · 83 Geo. Wash. L. Rev. 1609 · In the United States, food and drug safety is regulated in two ways: a stringent ex ante, national regime led by the Food and Drug Administration (“FDA”) and a robust ex post system of state-law enforcement. This federalist structure of...
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A Government Success Story: How Data Analysis by the Social Security Appeals Council (with a Push from the Administrative Conference of the United States) is transforming Social Security Disability Adjudication

Administrative Appeals Judge Gerald K. Ray and Professor Jeffery S. Lubbers · 83 Geo. Wash. L. Rev. 1575 · This Article for the special issue on the Administrative Conference of the United States (“ACUS”) focuses on how a collaboration between ACUS and the Social Security Administration (“SSA”) has helped SSA use data...
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The Administrative Conference and Empirical Research

Professor Richard J. Pierce, Jr. · 83 Geo. Wash. L. Rev. 1564 · This article describes the ways in which ACUS has encouraged scholars to engage in empirical research and some of the results of those efforts. It then discusses the many important characteristics of the notice and comment rulemaking process and...
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The Administrative Conference of the United States and Its Work on the Freedom of Information Act: A Look Back and a Look Forward

Dean Alan B. Morrison · 83 Geo. Wash. L. Rev. 1540 · The Administrative Conference of the United States (“ACUS”) celebrated its fiftieth anniversary in 2014 (disregarding a fifteen-year period of congressionally induced hibernation), and the Freedom of Information Act (“FOIA”) will celebrate a similar milestone either in 2016, fifty years after...
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Political Control and the Forms of Agency Independence

Professors David E. Lewis and Jennifer L. Selin · 83 Geo. Wash. L. Rev. 1487 · The legitimacy of the federal executive establishment’s administrative policies hinges on the ability of democratically elected officials to hold federal agencies accountable. While both the President and Congress have a variety of tools they can employ...
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The REINS Act: Unbridled Impediment to Regulation

Professor Ronald M. Levin · 83 Geo. Wash. L. Rev. 1446 · The Regulations from the Executive In Need of Scrutiny Act (“REINS Act”) is a legislative proposal that would greatly increase congressional control over administrative agency rulemaking. Under the bill, no “major rule” (a rule with a large economic impact) could...
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James Landis and the Dilemmas of Administrative Government

Associate Justice Mariano-Florentino Cuéllar · 83 Geo. Wash. L. Rev. 1330 · In the late 1930s, the administrative state was becoming an increasingly important component of American national government as the country recovered from the Depression and emerged as a preeminent geopolitical power. Amidst these changes, James Landis had a distinctive perspective...
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Public Participation and the Transatlantic Trade and Investment Partnership

Research Chief Reeve T. Bull · 83 Geo. Wash. L. Rev. 1262 · In the last several years, regulators in major industrialized states have increasingly focused on achieving greater integration between international regulatory regimes and eliminating unnecessary regulatory divergences that create barriers to trade. So-called international regulatory cooperation, which the Administrative Conference...
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ACUS—And Administrative Law—Then and Now

Professor Michael Herz · 83 Geo. Wash. L. Rev. 1217 · The Administrative Conference of the United States (“ACUS”) both shapes and reflects the intellectual, policy, and practical concerns of the field of administrative law. Its recommendations are therefore a useful lens through which to view that field. Also, because of an...
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Reflections on the Administrative Conference

Justice Antonin Scalia and Justice Stephen G. Breyer · 83 Geo. Wash. L. Rev. 1205 · Testimony Before Subcommittee on Commercial and Administrative Law of the House Committee (2010). Just over five years ago we testified together before a subcommittee of the House of Representatives’ Judiciary Committee to comment on the Administrative...
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The Administrative Conference and the Federal Judiciary

Executive Director Matthew Lee Wiener · 83 Geo. Wash. L. Rev. 1142 · Introduction to Panel entitled The Administrative Conference of the United States: The View from the Federal Bench What follows is a transcript of a discussion moderated by Chairman of the Administrative Conference of the United States (“ACUS” or “Conference”)...
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ACUS 2.0: Present at the Recreation

Chairman Paul R. Verkuil · 83 Geo. Wash. L. Rev. 1133 · By a variety of circumstances and some good fortune, I seem to have been connected to the Administrative Conference of the United States for much of its fifty-year life. This has given me a distinctive perspective on the Conference’s value,...
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