Administrative Law
Pleading Poverty in Federal Court
Approximately forty million Americans live in poverty. Yet we know little about how they encounter the federal civil justice system. This Article provides the first survey of the in forma pauperis pleading standards of all ninety-four federal district courts. It reveals an inefficient and arbitrary system, and proposes some solutions.
Good and Bad Patient Involvement: Implementing the Patient-Involvement Provisions of the 21st Century Cures Act at the FDA
This Essay examines the FDA’s implementation of new statutory patient-involvement requirements in light of past problems with simlar initiatives atthe FDA. Despite the risks of repeating these mistakes, the Essay concludes that the Agency’s early implementation efforts are encouraging.
Regulatory Bundling
Administrative agencies can aggregate or disaggregate provisions during a single legislative rulemaking. Such regulatory bundling has been especially prevalent over the last two decades, with agencies including increasingly more subjects in their final rules. This Article explores this phenomenon, tracing its rise and beginning to draw out its normative implications.
An American Approach to Social Democracy: The Forgotten Promise of the Fair Labor Standards Act
This Article recovers an institutional experiment in the early history of the Fair Labor Standards Act as an example of democratic and egalitarian administrative law. The Act’s wage boards, the Article suggests, offer an alternative, participatory vision of governance in today’s age of growing political and social inequality.
Congressional Power over Office Creation
This Note argues that the Constitution gives Congress exclusive authority over office creation. This exclusive power has important and surprising implications for a series of live constitutional questions, such as the constitutionality of qualifications clauses, for-cause removal provisions, and temporary appointments, as well as the employee/officer distinction.
Transparency’s Ideological Drift
From the early twentieth century to the present, the concept of transparency in American law has drifted across the political spectrum. Originally linked with progressive causes, it is now associated primarily with libertarian or neoliberal aims. This Article traces this multigenerational transformation.
First-Person FOIA
This Article reveals that Freedom of Information Act requests at seven federal agencies are dominated by individuals seeking records about themselves, including immigration, investigation, and medical records. Yet FOIA is ill-suited to meet the vital needs of first-person requesters, and these requests may be crowding out FOIA’s intended purpose.
Timing Judicial Review of Agency Interpretations in Chevron’s Shadow
Administrative finality jurisprudence is mired in a doctrinal morass. Specifically, courts have not converged on a finality doctrine for interpretative rules. This Note integrates an historical analysis of the Administrative Procedure Act with the revolution that Chevron deference fostered to provide a coherent and workable finality doctrine for interpretative rules.
Petitioning and the Making of the Administrative State
This Article traces the roots of the modern administrative state to the petition process, drawing on an original database of over 500,000 petitions submitted to Congress from the Founding until 1950. This institutional history provides a deeper functional and textual understanding of the administrative state within our constitutional framework.
Dodd-Frank Is a Pigouvian Regulation
Although commentators have criticized Dodd-Frank for not solving the problem of "too big to fail" banks, this Note identifies one promising feature of the law. As a "Pigouvian regulation," Dodd-Frank imposed compliance costs that incentivized banks to divest risky assets while providing regulators the flexibility to tailor the legal regime.
Litigation Rulemaking
Courts and agencies are traditionally understood to interact in two ways: judicial review and agency determinations of which cases reach federal courthouses. This Note identifies and evaluates a third dynamic by which agencies across the federal bureaucracy shape how cases proceed in court using the various tools at their disposal.
Playing Nicely: How Judges Can Improve Dodd-Frank and Foster Interagency Collaboration
A Resurgence of Secret Law
This much should be uncontroversial: the public should have access to the law and to the government’s interpretations of it. This principle is an imperative not just of due process but also of republican governance. The Freedom of Information Act (FOIA), which the Eighty-ninth Congress enacted half a century ago, included a provision requiring federal agencies to disclose their effective law and policy. A decade after Congress enacted the FOIA, the Supreme Court’s unanimous decision in NLRB v. Sears, Roebuck & Co. construed this provision to require federal agencies to publish their “working law.” The Court explained that “the public is vitally concerned with the reasons which did supply the basis for an agency policy actually adopted,” and it held that the FOIA requires “[t]hese reasons, if expressed within the agency,” to be disclosed. In subsequent cases, lower courts enforced this rule, repeatedly requiring federal agencies to publish legal memoranda and opinions interpreting or applying the law.
Inside FOIA, Inc.
The Freedom of Information Act (FOIA) has a lofty goal: to open the doors of government offices and allow the public a front-row seat in watching over government affairs. In turn, this sort of bright transparency should enhance our participatory democracy and the accountability of our elected officials. To that end, Congress envisioned the news media as among the most important users of FOIA. No doubt, FOIA has served precisely that purpose on many occasions—examples which represent victories for openness and accountability. Yet, journalists and watchdog groups make up a tiny fraction of requesters seeking information under the law.
Is Open Data the Death of FOIA?
For fifty years, the Freedom of Information Act (FOIA) has been the platinum standard for open government in the United States. The statute isconsidered the legal bedrock of the public’s right to know about the workingsof our government. More than one hundred countries and all fifty states haveenacted their own freedom of information laws. At the same time, FOIA’s many limitations have also become evident: a cumbersome process, delays inresponses, and redactions that frustrate journalists and other informationseekers. Politically-motivated nuisance requestsbedevil government agencies. With over 700,000 FOIA requestsfiled every year, the federal government faces the costs of a mounting backlog.