How Long Is Long Enough? Judicial Review of Agency Comment Periods
Rachel Layne 93 Geo. Wash. L. Rev. 1238 Federal agencies are granted discretion to shape their rulemaking procedures within the confines of the Administrative Procedure... Read More
The Necessary and Proper Clause and the Law of Administration
Ilan Wurman 93 Geo. Wash. L. Rev. 1196 The Necessary and Proper Clause authorizes Congress to establish and shape the administrative state. But the Necessary... Read More
Administrative Law as a Choice of Business Strategy: Comparing the Industries Who Have Routinely Sued Their Regulators with the Industries Who Rarely Have
Nicholas R. Parrillo 93 Geo. Wash. L. Rev. 1031 For some large and powerful industries, it has long been normal and even routine for businesses... Read More
Presidential Brokering in the Regulatory State
Jennifer Nou 93 Geo. Wash. L. Rev. 971 Presidents seeking to make regulatory policy face formidable hurdles—most recently, heightened litigation risk, reduced judicial deference, and... Read More
The Ordinary Questions Doctrine
Lisa Schultz Bressman 92 Geo. Wash. L. Rev. 985 In Loper Bright Enterprises v. Raimondo, the Supreme Court overruled Chevron as inconsistent with the Administrative... Read More
Chenery II Revisited
Daniel T. Deacon 92 Geo. Wash. L. Rev. 1050 Ever since the Supreme Court’s 1947 decision in SEC v. Chenery Corporation, known as Chenery II,... Read More
What the New Major Questions Doctrine Is Not
Anita S. Krishnakumar 92 Geo. Wash. L. Rev. 1117 The major questions doctrine has undergone a sea change in prominence within the span of two... Read More
Judicial Review of Agency Noncompliance with Presidential Administrative Orders and OMB Circular A-4
Eitan Sirkovich 92 Geo. Wash. L. Rev. 1163 President Biden’s Executive Order 14,094, Modernizing Regulatory Review, continues the line of presidential directives dating back to... Read More
The Mathematical Question: Defining “Relatively Easy” Political Questions
Nathaniel Schwamm 92 Geo. Wash. L. Rev. 1182 Justiciability doctrines are intertwined with constitutional commands and prudential concerns. They weave together text and history; they... Read More
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... Read More
Beyond APA Section 553: Hayek’s Two Problems and Rulemaking Innovations
Yoon-Ho Alex Lee 91 Geo. Wash. L. Rev. 1215 Section 553 of the Administrative Procedure Act of 1946 is hailed as “one of the greatest... Read More
Pharmaceutical Patents and Adversarial Examination
Dmitry Karshtedt 91 Geo. Wash. L. Rev. 1259 Proposals to improve the work quality of the U.S. Patent and Trademark Office (“PTO” or “USPTO”) continue... Read More
Set Up to Fail: National Labor Relations Board
Mher Mkrtchian 91 Geo. Wash. L. Rev. 1330 The National Labor Relations Board (“NLRB”) can no longer be described as an independent agency. The structural... Read More
Drawing a Line: How Energy Law Can Provide a Practical Boundary for the Rapidly Expanding Major Questions Doctrine
Kyle Pasucci 91 Geo. Wash. L. Rev. 1360 Administrative agencies must respond to innovation in their field of expertise to keep their regulatory approach efficient... Read More
Testing Textualism’s “Ordinary Meaning”
Tara Leigh Grove 90 Geo. Wash. L. Rev. 1053 The statutory interpretation literature has taken an empirical turn. One recent line of research surveys the... Read More
The New Separation of Powers Formalism and Administrative Adjudication
Robert L. Glicksman & Richard E. Levy 90 Geo. Wash. L. Rev. 1088 The Supreme Court has entered a new era of separation of powers... Read More
Statute-Focused Presidential Administration
Bijal Shah 90 Geo. Wash. L. Rev. 1165 When the President directs agency action, this is known as “presidential administration.” Without fail, presidential administration furthers... Read More
Supervising Guantanamo Tribunals: Appointments Clause Challenges After Arthrex
Laura Stanley 90 Geo. Wash. L. Rev. 1265 Recent Supreme Court jurisprudence suggests courts may begin to play a greater role in scrutinizing congressional statutes... Read More
(Con)textual Interpretation: Applying Civil Rights to Healthcare in Section 1557 of the Affordable Care Act
Heather Skrabak 90 Geo. Wash. L. Rev. 1291 When Congress passed the Affordable Care Act in 2010, Section 1557 of the legislation promised powerful nondiscrimination... Read More
A New CFIUS: Refining the Committee’s Multimember Structure with For-Cause Protections
Vania Wang 90 Geo. Wash. L. Rev. 1316 Foreign investment in the United States has always been an important element of the nation’s economy, but... Read More
Carrot & Stick: Reorganizing and Empowering the Election Assistance Commission
Jessie Ojeda 90 Geo. Wash. L. Rev. 1354 The U.S. Election Assistance Commission (“EAC” or “Commission”) is failing in its duties to shepherd and assist... Read More
Nondelegation as Constitutional Symbolism
Kristin E. Hickman 89 Geo. Wash. L. Rev. 1079 The divided Supreme Court in Gundy v. United States and subsequent events have given rise to... Read More
How Chevron Deference Fits into Article III
Kent Barnett 89 Geo. Wash. L. Rev. 1143 U.S. Supreme Court Justices Clarence Thomas and Neil Gorsuch, along with Professor Philip Hamburger, assert that Chevron... Read More
Remand and Dialogue in Administrative Law
Christopher J. Walker & James R. Saywell 89 Geo. Wash. L. Rev. 1198 A bedrock principle of administrative law is that when a court finds... Read More
Permissible Derogation: The Common Law and Agency Interpretations Under Chevron
Jalen LaRubbio 89 Geo. Wash. L. Rev. 1261 The common law has undergirded American society since the founding. In recent decades, however, the law surrounding... Read More
Delegating and Regulating the President’s Section 232 and IEEPA Trade Powers
Jacob Reiskin 89 Geo. Wash. L. Rev. 1280 Congress has provided the President extraordinary authority to enact emergency trade remedies. Throughout the Trump Administration, American... Read More
Promises Unfulfilled: Did the Trump Administration Substantially Change the Administrative State?
Amy Orlov 89 Geo. Wash. L. Rev. 1306 In 2019, Professors Robert L. Glicksman and Emily Hammond of The George Washington University Law School examined... Read More
An Article I Body to Issue Declaratory Advisory Opinions on Competitor Challenges to Tax Regulations
Lily Ting Hsu 89 Geo. Wash. L. Rev. 1333 Caselaw demonstrates that Article III courts are unwilling to entertain claims brought by third parties that... Read More
Administrative Law’s Shadow
Jacob E. Gersen 88 Geo. Wash. L. Rev. 1071 This Essay explores the shadow of administrative law. A good deal of government authority that is... Read More
The “Ambiguity” Fallacy
Ryan D. Doerfler 88 Geo. Wash. L. Rev. 1110 This Essay considers a popular, deceptively simple argument against the lawfulness of Chevron. As it explains,... Read More
The Power to Vacate a Rule
Mila Sohoni 88 Geo. Wash. L. Rev. 1121 A vigorous debate has emerged concerning the legality and desirability of the “universal” or “nationwide” injunction. A... Read More
Time Is Not the Enemy
John M. Hindley 88 Geo. Wash. L. Rev. 1193 The conservative members of the Supreme Court desire to radically reshape the status quo of administrative... Read More
Interfering with the Watchman: OLC Disruption of the Statutory Whistleblower Process
Christine L. Coogle 88 Geo. Wash. L. Rev. 1221 In September 2019, the Department of Justice Office of Legal Counsel (“OLC”) issued an opinion concluding... Read More
Supporting the Agency “Designed to Do Nothing”: Creating a Regulatory Safety Net for the FEC
Arnab Datta 88 Geo. Wash. L. Rev. 1259 To say the Federal Election Commission (“FEC”) is in crisis would be a remarkable understatement. The agency... Read More
Tenure of Office and the Treasury: The Constitution and Control over National Financial Policy, 1787 to 1897
Aditya Bamzai 87 Geo. Wash. L. Rev. 1299 The disputed scope of the President’s authority to remove subordinates in the executive branch, and to direct them in the performance of their functions, is one of the central issues of federal constitutional law. On the one hand, some argue that Article... Read More
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... Read More
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... Read More
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... Read More
Fine-Tuning: Why Extending the Public Performance Right in Sound Recordings Would Require Changes for the Copyright Royalty Board
Samuel E. Meredith 87 Geo. Wash. L. Rev. 1518 Imagine yourself getting into your car and tuning in to a local radio station so you can listen to Cardi B’s latest track while you drive to work. Now imagine yourself doing the same thing, only this time you choose to... Read More
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... Read More
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... Read More
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... Read More
Defying Debarment: Judicial Review of Agency Suspension and Debarment Actions
Samantha Block 86 Geo. Wash. L. Rev. 1316 Judicial review of agencies’ suspension and debarment decisions is currently in flux. Recently, courts are more closely scrutinizing such decisions, potentially altering the way these tools are used. Both Congress and the courts need to consider creating a clear and consistent standard for agency review of suspension and... Read More
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... Read More
Use of the Congressional Review Act at the Start of the Trump Administration: A Study of Two Vetoes
Stephen Santulli 86 Geo. Wash. L. Rev. 1373 Once regarded as a legislative dead letter, the Congressional Review Act (“CRA”) gained new vitality in 2017 as President Trump and Republicans in Congress used the Act to veto more than a dozen regulations issued late in the Obama Administration. The reemergence of the CRA renewed debate... Read More
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... Read More
“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... Read More
Two Zones of Prophylaxis: The Scope of the Fourteenth Amendment Enforcement Power
Calvin Massey · November 2007 76 GEO. WASH. L. REV. 1 (2007) Although City of Boerne v. Floresestablished that Congress has nly a remedial power to enforce the Fourteenth Amendment and may not define for itself the substance of the Amendment’s guarantees, it left the boundaries of that power ill-defined.... Read More
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... Read More
The Constitutionality of an Expedited Rescission Act: The New Line Item Veto or a New Constitutional Method of Achieving Deficit Reduction
Seema Mittal · November 2007 76 GEO. WASH. L. REV. 141 (2007) In 1998, the Supreme Court considered a challenge to the Line Item Veto Act of 1996, which gave the President unilateral authority to rescind certain spending provisions already enacted into law, and found it unconstitutional. Nonetheless, in March... Read More
Foreign Antisuit Injunctions: Taking a Lesson from the Act of State Doctrine
Kathryn E. Vertigan · November 2007 76 GEO. WASH. L. REV. 172 (2007) First, this Note examines the general problem of parallel litigation and the particular problem of parallel litigation involving international rather than interstate lawsuits. Whereas parallel litigation between two U.S. states implicates federalism and the Full Faith and... Read More
Reasoned Administration: The European Union, the United States, and the Project of Democratic Governance
Jerry L. Mashaw · November 2007 76 GEO. WASH. L. REV. 99 (2007) The right to be heard and to have decisions on one’s interests made fairly and impartially are embodied in the Due Process Clauses of the U.S. Constitution and in a wide range of statutes, including the Administrative... Read More
James F. Humphreys Complex Litigation Lecture: The Adversary System and Modern Class Action Practice
Roger H. Transgrud · February 2008 76 GEO. WASH. L. REV. 181 (2008) My topic today is modern class action practice and how Rule 23 of the Federal Rules of Civil Procedure has come to be interpreted in our federal courts in ways that I believe mask the proper criteria... Read More
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... Read More
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... Read More
Too Clever By Half: The Unconstitutionality of Partial Representation of the District of Columbia in Congress
Jonathan Turley · February 2008 76 GEO. WASH. L. REV. 305 (2008) When the Democratic majority took control of the 110th Congress, one of the first matters on the agenda was one of its the oldest controversies: the representational status of the District of Columbia in Congress. In a bipartisan... Read More
Is This Your Bedroom?: Reconsidering Third-Party Consent Searches Under Modern Living Arrangements
Russell M. Gold · February 2008 76 GEO. WASH. L. REV. 375 (2008) Americans live in countless different types of housing arrangements. Whether for convenience, financial necessity, companionship, or other reasons, nearly ten percent of American households include at least one nonrelative. This variety of living arrangements has increased significantly... Read More
Overseeing Agency Enforcement: A Foreword to the Annual Review of Administrative Law
Rachel E. Barkow · 84 Geo. Wash. L. Rev. 1129 · A big part of what agencies do—indeed, the core of their executive power—is law enforcement. Whether it is a statute or an agency regulation, agencies make sure that individuals and entities comply with the law. In the case of some agencies, such... Read More
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... Read More
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... Read More
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... Read More
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... Read More
Using Interpretive Methodology to Get Out from Seminole Rock and a Hard Place
Matthew Mezger · 84 Geo. Wash. L. Rev. 1335 · Though not directly at issue in Perez v. Mortgage Bankers Association, several of the Supreme Court Justices felt compelled to question the legal validity of Auer deference. This rule granting agencies deference when interpreting their ambiguous regulations has been a longstanding precedent... Read More
In Defense of Churches: Can the IRS Limit Tax Abuse by “Church” Impostors?
Lidiya Mishchenko · 84 Geo. Wash. L. Rev. 1361 · A large gap in our Tax Code allows certain religious organizations to amass extraordinary riches while preying on the faithful. Their conduct is causing damage to the church as an institution and is inconsistent with the purpose of tax exemptions—to provide a... Read More
Disclosure, Eventually: A Proposal to Limit the Indefinite Exemption of Federal Agency Memoranda from Release Under the Freedom of Information Act
Kyle Singhal · 84 Geo. Wash. L. Rev. 1388 · On June 30, 2016, President Barack Obama signed into law the FOIA Improvement Act of 2016, which made some headway towards increasing agency compliance and efficiency with Freedom of Information Act (“FOIA”) requests. The Act requires, among other things, the creation of... Read More
The Constitutionality of SEC Administrative Law Judges: Exploring Hill v. SEC
Maxwell Weiss · 84 Geo. Wash. L. Rev. 1407 · There has recently been a series of challenges to the U.S. Securities and Exchange Commission’s (“SEC”) use of Administrative Law Judges (“ALJs”) to preside over enforcement actions. In one of those challenges, Hill v. SEC, Judge Leigh Martin May of the Northern... Read More
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... Read More
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... Read More
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... Read More
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... Read More
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... Read More
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... Read More
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... Read More
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... Read More
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... Read More
ACUS 2.0: Bridging the Gap Between Administrative Law and Public Administration
Funmi E. Olorunnipa · 83 Geo. Wash. L. Rev. 1555 · Although both operate in the public sphere, administrative law and public administration are two distinct disciplines and a wide gap, both in theory and in practice, exists between the two. This Article briefly examines that gap and explains how the Administrative... Read More
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... Read More
Administrative Law, Public Administration, and the Administrative Conference of the United States
Professor Gillian E. Metzger · 83 Geo. Wash. L. Rev. 1517 · From its birth, administrative law has claimed a close connection to governmental practice. Yet as administrative law has grown and matured it has moved further away from how agencies actually function. The causes of administrative law’s disconnect from actual administration... Read More
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... Read More
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... Read More
An Informal Legislative History of the Reauthorization of the Administrative Conference of the United States
Susan Jensen · 83 Geo. Wash. L. Rev. 1410 · The Administrative Conference of the United States is an independent, nonpartisan federal agency established by Congress in 1964. Although it technically marked its fiftieth anniversary last year, for fifteen of those years it was not in existence. Drawing on the author’s personal... Read More
The Problem with Words: Plain Language and Public Participation in Rulemaking
Professor Cynthia R. Farina, Professor Mary HJ. Newhart, and CeRI e-Government Fellow Cheryl Blake · 83 Geo. Wash. L. Rev. 1358 · This Article, part of the special issue commemorating the fiftieth anniversary of the Administrative Conference of the United States (“ACUS”), situates ACUS’s recommendations for improving public rulemaking participation in the... Read More
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... Read More
Vive la Deference?: Rethinking the Balance Between Administrative and Judicial Discretion
Dean Emeritus Ronald A. Cass · 83 Geo. Wash. L. Rev. 1294 · America’s constitutional structure relies on checks and balances to prevent a concentration of excessive discretionary power in the hands of any individual governmental official or body, promoting effective government while protecting individual liberty and state sovereignty. Federal courts have... Read More
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... Read More
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... Read More
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... Read More
Opinions on ACUS: The Administrative Conference’s Influence on Appellate Administrative Jurisprudence
Stephanie J. Tatham · 83 Geo. Wash. L. Rev. 1186 · The Administrative Conference of the United States (“ACUS” or the “Conference”) has been charged by Congress with studying “the efficiency, adequacy, and fairness of the administrative procedure used by administrative agencies in carrying out administrative programs,” as well as with making... Read More
The Administrative Conference of the United States: The View from the Federal Bench
The Honorable Patricia McGowan Wald, The Honorable Stephen F. Williams, The Honorable S. Jay Plager, and The Honorable John M. Walker, Jr. · 83 Geo. Wash. L. Rev. 1186 · Transcript of Panel Discussion entitled “The Administrative Conference of the United States: The View from the Federal Bench,” moderated by Chairman Paul... Read More
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”)... Read More
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,... Read More
Rethinking Auer Deference: Agency Regulations and Due Process Notice
Derek A. Woodman · October 2014 82 GEO. WASH. L. REV. 1721 (2014) Since 1945, the Supreme Court has struggled to determine... Read More
Changing the D.C. Circuit’s Approach to Changes in Interpretive Rules
Rebecca Wernicke · October 2014 82 GEO. WASH. L. REV. 1699 (2014) In Mortgage Bankers Ass’n v. Harris, the D.C. Circuit applied... Read More
Requiring Meaning for the Affordable Care Act’s Prohibition on Annual Limits
Matthew Thrasher · October 2014 82 GEO. WASH. L. REV. 1674 (2014) The Patient Protection and Affordable Care Act, commonly known as... Read More
Science in the Modern Administrative State: Examining Peer Review Panels and the Federal Advisory Committee Act
Gregory Morrison · October 2014 82 GEO. WASH. L. REV. 1654 (2014) The use of science is integral to the modern administrative... Read More
Presidential Influence Over Agency Rulemaking Through Regulatory Review
Peter Ketcham-Colwill · October 2014 82 GEO. WASH. L. REV. 1622 (2014) Under Executive Order 12,866, the Office of Information and... Read More
The Ordinary Remand Rule and the Judicial Toolbox for Agency Dialogue
Christopher J. Walker · October 2014 82 GEO. WASH. L. REV. 1553 (2014) When a court concludes that an agency’s decision is... Read More
Administrative War
Mariano-Florentino Cuéllar · October 2014 82 GEO. WASH. L. REV. 1343 (2014) This Article takes up an issue with major implications for... Read More
Chevron and Legislative History
John F. Manning · October 2014 82 GEO. WASH. L. REV. 1517 (2014) The Court’s decision in Chevron U.S.A. Inc. v. Natural... Read More
Why Who Does What Matters: Governmental Design and Agency Performance
David A. Hyman & William E. Kovacic · October 2014 82 GEO. WASH. L. REV. 1446 (2014) How should the federal government... Read More
Exclusion Is Not Automatic: Improving the Enforcement of ITC Exclusion Orders Through Notice, a Test for Close Cases, and Civil Penalties
Timothy Q. Li · September 2013 81 GEO. WASH. L. REV. 1755 (2013) The U.S. International Trade Commission (“ITC”) has become increasingly important in the... Read More
Self-Funding and Agency Independence
Charles Kruly · September 2013 81 GEO. WASH. L. REV. 1733 (2013) Self-funded agencies are a rarity in administrative law. Their freedom from both congressional... Read More
Preserving Trust: Overruling Carcieri and Patchak While Respecting the Takings Clause
Noah Nehemiah Gillespie · September 2013 81 GEO. WASH. L. REV. 1707 (2013) The potential benefit of new Bureau of Indian Affairs (“BIA”) regulations for... Read More
Rates of Dismissal in FTC Competition Cases from 1950–2011 and Integration of Decision Functions
Nicole Durkin · September 2013 81 GEO. WASH. L. REV. 1684 (2013) Congress created the Federal Trade Commission (“FTC”) to be an independent and expert... Read More
Tipping the Scales: Judicial Encouragement of a Legislative Answer to FTC Authority over Corporate Data-Security Practices
David J. Bender · September 2013 81 GEO. WASH. L. REV. 1665 (2013) For the first time in more than a decade of data-security enforcement... Read More
Privacy in Europe: Initial Data on Governance Choices and Corporate Practices
Kenneth A. Bamberger; Deirdre K. Mulligan · September 2013 81 GEO. WASH. L. REV. 1529 (2013) As this Article goes to press, the European Union... Read More
Direct Republicanism in the Administrative Process
David J. Arkush · September 2013 81 GEO. WASH. L. REV. 1458 (2013) This Article offers a new response to an old problem in administrative... Read More
The Role of Politics in a Deliberative Model of the Administrative State
Mark Seidenfeld · September 2013 81 GEO. WASH. L. REV. 1397 (2013) Since at least the mid-1980s, some scholars of United States administrative law have... Read More
The International Trade Commission and the Nonpracticing Entity: Reviving the Injury Requirement for Domestic Industries Based on Licensing
Thomas Yeh · July 2012 80 GEO. WASH. L. REV. 1574 (2012) The International Trade Commission (“ITC”) has recently become a popular venue for nonpracticing... Read More
Amending the EEOC’s Disability Discrimination Regulations to Protect Employees with Post-Traumatic Stress Disorder
Matthew Radler · July 2012 80 GEO. WASH. L. REV. 1546 (2012) When the Equal Employment Opportunity Commission (“EEOC”) issued its 2011 regulations implementing reforms... Read More
Affirming the Status Quo?: The FCC, ALJs, and Agency Adjudications Benjamin Kapnik
Benjamin Kapnik · July 2012 80 GEO. WASH. L. REV. 1527 (2012) This Essay presents the first study on the benefits of Administrative Law Judges... Read More
“Natural” Modifications: The FDA’s Need to Promulgate an Official Definition of “Natural” that Includes Genetically Modified Organisms
Erik Benny · July 2012 80 GEO. WASH. L. REV. 1504 (2012) Consumer demand for “natural” food and beverage products has never been higher. In... Read More
Rulemaking Ossification Is Real: A Response to Testing the Ossification Thesis
Richard J. Pierce, Jr. · July 2012 80 GEO. WASH. L. REV. 1493 (2012) This Article responds to Testing the Ossification Thesis, in which Professors... Read More
Testing the Ossification Thesis: An Empirical Examination of Federal Regulatory Volume and Speed, 1950–1990
Jason Webb Yackee & Susan Webb Yackee · July 2012 80 GEO. WASH. L. REV. 1414 (2012) Federal agencies promulgate hundreds of regulations per year,... Read More
PCAOB and the Persistence of the Removal Puzzle
Patricia L. Bellia · July 2012 80 GEO. WASH. L. REV. 1371 (2012) In Free Enterprise Fund v. Public Company Accounting Oversight Board (“PCAOB”), the... Read More
Embracing Administrative Common Law
Gillian E. Metzger · July 2012 80 GEO. WASH. L. REV. 1293 (2012) This Foreword begins with the descriptive claim that much of administrative law... Read More
MSHA’s Pattern of Violations Authority: Reviving An Untapped Resource of Enforcement Power
Alexa E. Welzien · July 2011 79 GEO. WASH. L. REV. 1613 (2011) On April 5, 2010, a deadly combination of methane gas and coal... Read More
Defining Executive Deference in Treaty Interpretation Cases
Joshua Weiss · July 2011 79 GEO. WASH. L. REV. 1592 (2011) From establishing partnerships to setting international norms, treaties have always played an important... Read More
Judicial Deference to Retroactive Interpretative Treasury Regulations
Andrew Pruitt · July 2011 79 GEO. WASH. L. REV. 1558 (2011) Can the Internal Revenue Service (“IRS”), by exercising its regulatory powers over the... Read More
Updating the SEC’s Exemptive Order Process Under the Investment Company Act of 1940 to Fit the Modern Era
Christopher P. Healey · July 2011 79 GEO. WASH. L. REV. 1535 (2011) In the late 1930s, the U.S. Securities and Exchange Commission (“SEC”) was... Read More
Saxe’s Aphorism
John Copeland Nagle · July 2011 79 GEO. WASH. L. REV. 1505 (2011) If “Laws, like sausages, cease to inspire respect in proportion as we... Read More
Seminole Rock’s Domain
Matthew C. Stephenson & Miri Pogoriler · July 2011 79 GEO. WASH. L. REV. 1449 (2011) In carrying out their duties, federal administrative agencies must... Read More
Agency Delays: How a Principal-Agent Approach Can Inform Judicial and Executive Branch Review of Agency Foot-Dragging
Michael D. Sant’Ambrogio · July 2011 79 GEO. WASH. L. REV. 1381 (2011) How long should it take a government agency to act on a... Read More
Rulemaking, Democracy, and Torrents of E-Mail
Nina A. Mendelson · July 2011 79 GEO. WASH. L. REV. 1343 (2011) Bold claims have been made for democracy and federal administrative agency notice-and-comment... Read More
Avoiding the Chill: A Proposal to Impose the Avoidance Canon on the FCC
Mark Taticchi · July 2010 78 GEO. WASH. L. REV. 1102 (2010) Imagine a local television station (W-UHOH), covering a minor league baseball game. The... Read More
Deference to Presidential Signing Statements in Administrative Law
Paul T. Stepnowsky · July 2010 78 GEO. WASH. L. REV. 1086 (2010) After President Obama questioned the use and frequency with which President Bush... Read More
Union Shops, Not Border Stops: Updating NLRB Sanctions to Help Organize Immigrant Workers After Hoffman
Peter E. Shapiro · July 2010 78 GEO. WASH. L. REV. 1069 (2010) In Hoffman Plastic Compounds, Inc. v. NLRB, the Supreme Court held that... Read More
The Meaningful Vote Commission: Restraining Gerrymanders with a Federal Agency
Joseph A. Peters · July 2010 78 GEO. WASH. L. REV. 1051 (2010) Federalist No. 51 could provide some guidance as America heads into the... Read More
Reforming the Murky Depths of Wall Street: Putting the Spotlight on the Securities and Exchange Commission’s Regulatory Proposal Concerning Dark Pools of Liquidity
Robert Hatch · July 2010 78 GEO. WASH. L. REV. 1032 (2010) When the Securities Act of 1933 and the Securities Exchange Act of 1934... Read More
Reasonably Untimely: The Difficulty of Knowing When to File a Claim for Attorney’s Fees in Social Security Cases, and an Administrative Solution
Matthew Albanese · July 2010 78 GEO. WASH. L. REV. 1014 (2010) In 2008, over 13,000 claims under the Social Security laws were filed in... Read More
The Adam Walsh Act and the Failed Promise of Administrative Federalism
Wayne A. Logan · July 2010 78 GEO. WASH. L. REV. 993 (2010) With the realization that the Rehnquist Court’s judicial federalism revolution was perhaps... Read More
The American Model of Federal Administrative Law: Remembering the First One Hundred Years
Jerry L. Mashaw · July 2010 78 GEO. WASH. L. REV. 975 (2010) The conventional story of American administrative law dates its origin to a... Read More
A New Interpretation, an Absurd Result: How HHS is Short-Changing Children with Severe Mental Illness
Stephen Satterfield · June 2009 77 GEO. WASH. L. REV. 1114 (2009) In 2001, the Department of Health and Human Services’ Office of the Inspector... Read More
Patent Reexamination and the Seventh Amendment
Megan Keane · June 2009 77 GEO. WASH. L. REV. 1101 (2009) Because patents are increasingly valuable and the number of patents issued increases every... Read More
Independent Litigation Authority and Calls for the Views of the Solicitor General
Elliott Karr · June 2009 77 GEO. WASH. L. REV. 1080 (2009) The creation of independent agencies within the executive branch has produced a significant... Read More
The Fault, Dear PCAOB, Lies Not in the Appointments Clause, but in the Removal Power, That You Are Unconstitutional
Julian Helisek · June 2009 77 GEO. WASH. L. REV. 1063 (2009) Free Enterprise Fund v. Public Co. Accounting Oversight Board, easily one of “the... Read More
Medicare Part D: Rights Without Remedies, Bars to Relief, and Miles of Red Tape
Elliot Golding · June 2009 77 GEO. WASH. L. REV. 1044 (2009) Medicare Part D, enacted as part of the Medicare Prescription Drug, Improvement, and... Read More
Early Termination Fees: Fair game or Federally Preempted?
Ben Everard · June 2009 77 GEO. WASH. L. REV. 1033 (2009) Few technological developments in the modern era have impacted the day-to-day lives of... Read More
Challenges to Inclusion on the “No-Fly List” Should Fly in District Court: Considering the Jurisdictional Implications of Administrative Agency Structure
Shaina N. Elias · June 2009 77 GEO. WASH. L. REV. 1015 (2009) Alex Harris likes to travel with his family. In fact, Alex’s family,... Read More
Morrison, Edmond, and the Power of Appointments
Andrew Croner · June 2009 77 GEO. WASH. L. REV. 1002 (2009) The power of appointments under the Constitution is governed by the Appointments Clause. ... Read More
Early to Bed for Federal Regulations: A New Attempt to Avoid “Midnight Regulations” and Its Effect on Political Accountability
Christopher Carlberg · June 2009 77 GEO. WASH. L. REV. 992 (2009) After serving either four or eight years as the most powerful person in... Read More
Is a Competent Federal Government Becoming Oxymoronic?
Peter H. Schuck · June 2009 77 GEO. WASH. L. REV. 973 (2009) Thoughtful books on governmental effectiveness are always in short supply, and never... Read More
Transparency and Public Participation in the Federal Rulemaking Process: Recommendations for the New Administration
Cary Coglianese, Heather Kilmartin & Evan Mendelson · June 2009 77 GEO. WASH. L. REV. 924 (2009) Virtually every major aspect of contemporary life is... Read More
Are Administrative Patent Judges Unconstitutional?
John F. Duffy · June 2009 77 GEO. WASH. L. REV. 904 (2009) Under 35 U.S.C. § 6, administrative patent judges of the Board of... Read More
Agency Self-Regulation
Elizabeth Magill · June 2009 77 GEO. WASH. L. REV. 859 (2009) Discretion is at the center of most accounts of bureaucracy. It is no... Read More