Administrative Law in the News – Recent Articles
This post links to a wide variety of articles reflecting the breadth and depth of administrative law: a North Carolina entity’s administrative law-related legislative agenda; a new governor’s rule-repeal executive order; AI and regulation; the little-known role of contractors in federal rulemaking; and a Wall Street Journal article about a recent Ohio Supreme Court case eliminating judicial deference to agency interpretations.
For each article, we have provided a link, the title and author, and the opening paragraph or sentence to help you decide if you want to read the article. Note that for some of these articles, a subscription may be required. And, thanks to everyone who suggested articles to include in this post.
In the following article, note the proposed legislative agenda seeking a change to Existing Rules Review:
Guest Opinion: How North Carolina can expand opportunitySpecial interests Should Not Control Licensing Board Appointmentsreport by Pacific Legal Foundation has identified an additional and lesser-known form of licensing board control by these active market participants: They have the power to directly choose who sits on these boards in nearly half of all U.S. states.”
Take the Sen. Mike Lee Challenge: Name a federal regulatory agency that’s made your life better, Daily Kos Staff, January 17, 2023
“Utah Sen. Mike Lee has been somewhat adrift since losing his old identity as the only person in Washington who could stand Ted Cruz. On Monday, however, he prodded the public with a new challenge based on his malleable-libertarian beliefs: ‘Please (1) name any federal regulatory agency whose elimination would negatively impact your life, and then (2) specify whether that agency’s necessary functions couldn’t be performed at least as well at the state or local level, or by a non-governmental body,’ Lee tweeted.”
Minor, faceless federal officials would be stripped of their power to regulate in new bipartisan billACUS Adopts Recommendation to Improve Precedential Decision Making in Agency Adjudicationhere.”
Rapid Responses to Major QuestionsOutcome-Based Cooperative RegulationWhat is the Future of Regulatory Policy? Claudio Radaelli and Lorenzo Allio
“The OECD’s latest Regulatory Policy Outlook is the most forward-looking yet.
The Organization for Economic Cooperation and Development’s (OECD) core principles of regulatory reform date back to the mid-1990s, with a major consolidation of the policy principles achieved in 2012 with the OECD recommendation on regulatory policy and governance. At that time, the goal of the OECD was twofold: to define good regulatory principles and practices, and to set out a programmatic vision on regulatory reform.”
AI Is Here. How Will Government Use It — and Regulate It?Lombardo orders freeze on new state regulations, cuts to professional licensing rulesArticle: Rulemaking By Contract, 74 Admin. L. Rev. 703, by Bridget C.E. Dooling & Rachel Augustine Potter (Footnotes omitted from the quotation.)
“Introduction. The strained – some might even say beleaguered – condition of administrative capacity in the United States is widely acknowledged. Despite steady increases in federal spending, the size of the federal civilian workforce has remained relatively level since about 1960. Faced with growing demands for government services and scarce bureaucratic labor, government has increasingly come to rely on the services of private sector contractors. Contractors have become a significant presence in federal agencies, taking on numerous functions like professional services, logistics, general health care, and information technology.
Contractors’ reach into government is deep – some scholars even describe them as the “shadow” of the federal civilian workforce. Their reach is so deep, in fact, that it touches the notice-and-comment rulemaking process, the core policymaking apparatus within the administrative state. Yet little is known about contractors’ roles in rulemaking. What rulemaking tasks do [*706] contractors actually perform? Do all agencies use contractors to help with their rules? And how does this all intersect with the legal limits in place with respect to both rulemaking and procurement?
This Article summarizes findings from an empirical study we conducted that examined how federal agencies use contractors to support the rulemaking process.”
Panel I: Professors Gillian Metzger, William Buzbee, and Aram Gavoor discussed the issue of deregulation through the lens of judicial decisions, methods of statutory interpretation, and executive actions taken during the Trump and Biden Administrations to modify the scope of administrative authority.
Panel II: Administrative Law Judge Doug Rawald, Professors Kimberly Wehle and Jonas Monast discussed the ways in which uncertainty regarding the administrative state has affected agencies “in real time.”
Judicial Thunder Out of Ohio. The state Supreme Court shreds Chevron-style deference to regulators.
“Judges across the country are rethinking their deference to regulators who stretch the law, and the latest example is thunder out of the Ohio Supreme Court. The Dec. 29 decision deserves more notice as a powerful statement of judicial principles in dealing with an unrestrained bureaucracy.”