13 Recent Administrative Law Articles
By the Communications Committee
In this post, we provide several recent articles related to administrative law. We have not highlighted articles in quite a while, so some of these articles may be older. In addition, note that some articles may be behind paywalls, but usually, the paywalls allow one to four articles to be viewed before you “hit the wall.”
Is Enhanced Judicial Review the Correct Antidote to Excessive State Preemption? Paul A. Diller, June 2022
This article is part of the 100th volume of the North Carolina Law Review, from the University of North Carolina School of Law. The focus of the volume is local government law. This article specifically addresses legislative preemption of local governments’ actions.
A blog that may be new to you: “Notice & Comment” is a blog from the Yale Journal on Regulation and the ABA Section of Administrative Law & Regulatory Practice. For example, it appears to have a weekly post on recent admin law cases.
A new podcast series: Connecting Race and Regulation, Penn Program on Regulation
This new podcast series examines how regulation has reinforced racism — and how it might combat it, too.
Your plane landed safely — thank the bureaucrats at the FAA by J. Patrick Coolican, August 8, 2022
The article talks about the positives of the “administrative state.”
How Regulators Should Supervise Software by Hilary J. Allen, Aug 1, 2022, opinion
From the opening paragraphs: “How should regulators supervise the software that run automated systems? . . . Software has been part of many industries’ business models for a long time, but critical regulated activities can now be carried out without human intervention. Just as courts are trying to figure out how to apportion liability for automated decisions with humans increasingly “out of the loop,” regulators must grapple with a new reality about their role: instead of just supervising humans, they are increasingly supervisors of software.”
DC Circ. Says Agencies Must Allow Comments Before Rule Ax by Donald Morrison, July 22, 2022
First sentence of the article: “A divided D.C. Circuit panel on Friday ruled agencies cannot simply withdraw a new rule, even if it has not yet been published in the Federal Register, once that rule has been subject to public inspection.”
Transferring Military Skills to Civilian Employment by William Tunney, May 30, 2022
This article discusses recent GAO recommendations that the U.S. Department of Defense improve service member credentialing programs.
The Supreme Court’s 2021-2022 Regulatory Term, a Series of Essays
This series of essays covers a wide range of issues raised by the recent Supreme Court administrative law cases, including “Nostalgia for Agency Expertise” and “Constitutional Commitments to Aspirational Principles.”
State Failures to Survey Nursing Homes by Grace Hartnett, June 22, 2022
A report recommends ways CMS can address the states’ failures to meet nursing home survey requirements.
How the Supreme Court’s West Virginia v. EPA Decision Will Upset the Administrative World by Donald F. Kettl, July 18, 2022
This article has an interesting take on the recent West Virginia v. EPA Supreme Court case.
‘We’re All Going to Be in a Lot of Trouble:’ Officials Warn of Far-Reaching Impacts of Recent Supreme Court Decision by Eric Katz, July 11, 2022
Agencies leaders and employees will have to think twice about how, and when, to carry out their missions, experts say.
This article looks at specific agencies like the CFPB and FDA, and how the West Virginia v. EPA Supreme Court case may affect them.
Regulatory Government is Democratic Government by James Goodwin, February 5, 2022
The premise of this article is this: “[i]ndeed, the regulatory system is quite literally democracy in action, as it invites and empowers members of the public to work with their government to implement policies . . .”
Federal Judge Says Courts Don’t Have To Buy ‘Nonsensical Explanations’ for Bad Regulations by Eric Boehm, January 21, 2022
Mississippi has banned new home health care licenses for more than 40 years, despite mounting evidence that the state’s CON laws are raising prices and limiting access to care.
The judge’s decision allows the challenge to proceed on the merits.
Embedded Rules by Matthew C. Stephenson, November 8, 2021
From the opening paragraphs: “Rules are rules and orders are orders, and never the twain shall meet. . . . But it’s not quite right. ‘Rules’ and ‘orders’ are not, in fact, completely separate and non-overlapping categories. Sometimes an administrative action that is properly classified as an order contains within it — usually in the portion explaining the order’s legal basis — a statement that qualifies as a rule and ought to be treated as such.”
Regulating Representatives in Agency Adjudicative Proceedings by George Cohen, May 17, 2022
The premise of the article is this: “Agencies can promote ethical practices by adopting rules of conduct for attorneys and other representatives in adjudication.”