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Barring Judicial Review
Full text linkWhether judicial review is available is one of the most hotly contested issues in administrative law. Recently, laws that prohibit judicial review have sparked debate in the Medicare, immigration, and patent contexts. These debates are continuing in challenges to the recently created Medicare price negotiation program. Yet despite debates about the removal of judicial review, little is known about how often, and in what contexts, Congress has expressly precluded review. This Article provides new insights about express preclusion by conducting an empirical study of the U.S. Code. It creates an original dataset of laws that expressly preclude judicial review of agency action, which this Article refers to as “judicial review bars.” The findings reveal that express preclusion is a phenomenon: at least 190 statutory provisions expressly bar judicial review of agency actions. This Article then creates a taxonomy of actions barred from review. Most review bars target internal management decisions, such as decisions about how to allocate resources, set priorities, and manage personnel.
Because judicial review has traditionally been considered a core tool for overseeing agencies, this Article next investigates alternative oversight tools for actions barred from judicial review. When judicial review is barred, other structures often exist for political oversight, internal supervision, and public participation. Strikingly, review bar statutes often expressly create structures to facilitate such oversight. Alternative oversight structures include requirements to send reports to Congress, establish internal procedures, consult with stakeholders, and publish decisions. Furthermore, many review bars involve government spending programs, which are subject to appropriations oversight. Like judicial review, alternative oversight tools play an important role in promoting democratic values of deliberation, inclusiveness, and public accountability in the administrative state. A recent example at the Patent Office illustrates how the combination of review bars and alternative oversight tools can balance efficient implementation of programs with the need to protect individual interests and democratic values. Given the significance of alternative oversight tools in monitoring agencies, this Article argues that courts should consider the availability of alternative oversight tools when construing review bars, and policymakers should do the same when designing regulatory programs
Radical Administrative Law
Full text linkThe administrative state is under attack. Judges and scholars increasingly question why agencies should have such large powers to coerce citizens without adequate democratic accountability. Rather than refuting these critics, this Article accepts that in scrutinizing the massive powers that agencies hold over citizens, these critics have a point. However, their solution—to augment the powers of Congress or the President over agencies to instill indirect democratic accountability—is one step too quick. We should first examine whether direct democratic accountability of agencies by the citizenry is possible.
This Article excavates the nineteenth-century European intellectual history following the rise of the modern administrative state as inspiration to illuminate how agencies can improve their democratic credentials to justify their powers over the citizenry. While such thinkers might seem far afield of current public law discussions, this unlikely group of nineteenth-century legal and political theorists has already extensively theorized contemporary concerns about agencies coercing citizens without proper democratic accountability. These theorists, whom I call administrative “radicals,” presented a much bolder conception of the role of agencies in governance than contemporary critics. Instead of stripping agencies of their powers, the radicals proposed democratizing the administrative state so the citizens could instill direct democratic accountability over the agencies that coerced them. Importantly, the radicals influenced the first generation of American administrative law scholars, who looked to these radicals to figure out how to democratize the nascent American administrative state.
The radical tradition inspires us to transform the relationship between agencies and the citizenry and rethink how agencies fit within the separation of powers and administrative law. Instead of viewing agencies as stuck in the middle of a perpetual tug-of-war between Congress and the President, the radical tradition encourages us to focus on agencies themselves by shaping the relationships between agencies and the citizenry to instill direct democratic accountability. Under this radical separation of powers framework, the people serve as the common source of accountability for Congress, the President, and the administrative state. In doing so, embracing radical administrative law mitigates scholarly and judicial concerns that have inspired the revival of the nondelegation doctrine, elimination of removal protections, and the expansion of the major questions doctrine. The radical tradition also reinvigorates discussions of political equality in administrative law and suggests a reduced judicial role in policing the substance of agency decisions
Mass Tort Bankruptcy Goes Public
Full text linkLarge companies like 3M, Johnson & Johnson, Purdue Pharma, and others have increasingly, and controversially, turned from multidistrict litigation to bankruptcy to resolve their mass tort liability. While corporate attraction to bankruptcy’s unique features partially explains this evolution, this Article reveals an underexamined driver of this trend and its startling results: government intervention. Governments increasingly intervene in high-profile bankruptcies, forcing firms into insolvency and dictating the outcomes in their bankruptcy cases. Using several case studies, this Article demonstrates why bankruptcy law should subject such governmental actions to greater scrutiny and procedural protections. Governments often assume multiple incompatible roles in these cases, appearing simultaneously as representatives of injured citizens, creditors in their own right, and sovereigns with broader social duties and regulatory powers. These overlapping identities create conflicts of interest that bankruptcy law does not currently police, which can encourage governments to coercively privilege their monetary recoveries over the monetary and dignitary claims of their citizens. This Article argues that bankruptcy law should apply the aggregate litigation concepts of exit, voice, and loyalty to ensure that bankruptcy outcomes are not distorted by governmental intervention. Reciprocally, if mass tort liability does not migrate entirely to bankruptcy, the fiduciary duties and consensual restructuring support agreements of bankruptcy can improve other forms of mass tort resolution
Painting a Clearer Picture: Introducing New Federal Rule of Evidence 107 Regulating Illustrative Aids
Full text linkThey say a picture is worth a thousand words—and charts, drawings, diagrams, computer animations, and even tangible items are utilized at trial in virtually every case tried in the federal and state court systems. Litigants have come to depend heavily upon such aids to engage visual learners in the jury box and to present a compelling narrative. And the creative use of trial aids has only increased with the rapid technological advancements of recent decades. The ubiquity of such aids notwithstanding, there is no written standard governing their use, no agreed-upon lexicon for describing them, and no set of uniform principles guiding courts and litigants in navigating their presentation at trial. Instead, trial lawyers and judges rely on a murky set of latent norms that can be learned only through literal trial—and unavoidable error. When difficult questions arise that require litigants to make concrete arguments about the use of such aids and trial judges to issue definitive rulings and to craft comprehensible jury instructions, those vague norms often prove inadequate to the task.
The increasing reliance on illustrative aids in the courtroom has only amplified the risks inherent in vague and inconsistent standards. As PowerPoint presentations, interactive charts, graphs, and computer animations and recreations have become pervasive, the need for clear and predictable standards governing their use has grown An elegant and promising solution to the problems created by the nebulous and inconsistent common law standards governing the use of illustrative aids is a new Federal Rule of Evidence. The Federal Rules were tailor-made to provide an antidote to the complexity and inconsistency of the common law. And a new evidence rule is an optimal vehicle for creating a shared vernacular that distinguishes trial aids from evidence and that sets a uniform standard guiding the deployment of illustrative aids in every federal court. To help bring much-needed coherence to trial practice surrounding illustrative aids, the federal Evidence Advisory Committee has proposed Federal Rule of Evidence 107, the first brand-new provision since 2008. Rule 107 is on track to take effect on December 1, 2024, under the rulemaking procedures established by the Rules Enabling Act. This Article unveils new Federal Rule of Evidence 107, offering insights into the significant modifications made to proposals originally published for notice and comment and revealing the critical features of the final provision that promise to bring clarity and uniformity to the regulation of illustrative aids, while preserving the creativity and flexibility prized by trial counsel
Why Tennessee\u27s ELVIS Act Is the King of Artificial Intelligence Protections
Full text linkArtificial intelligence (Al) is evolving and advancing quickly. As Aladvances, itpresents novel legal issues for individuals and industries alike. For example, Al can now mimic the voices of famous musicians so well that it can be almost impossible for listeners to discern whether the vocals are from those musicians or generated with Al. Yet under the current legal framework, new works that mimic a famous artist\u27s voice can be created and distributed by anyone without the consent of the musician and without any legal repercussions. Fortunately, lawmakers are proposing legislation to protect against the unauthorized use of another\u27s voice, image, or likeness in the face of AL The first Al-focused state law, Tennessee\u27s Ensuring Likeness Voice and Image Security Act (ELVIS Act), was passed on March 21, 2024, and went into effect on July 1, 2024. Multiple state and federal legislators have since proposed similar laws. This Article argues that the ELVISAct is agold standardfor Alprotections ingeneral andfor sound recording artists in particular, and that the protections that it provides should be incorporated into a federal right of publicity law. Indeed, many of the ELVIS Act\u27s key provisions are included in introduced federal legislation relating to Alprotection of voice, image, and likeness. Federal legislation that includes many of the themes from the ELVIS Act would protect artists from having their voice unfairly appropriated by emergent Al technology and used in ways that they did not authorize. It would provide uniform protections and thereby prevent the current patchwork system of publicity laws from growing even further apart. With Al evolving faster than any other sector in American society, including the law, lawmakers can shore up the gaps now by quickly passing national legislation
Addressing Unlawful Cyber Operations in Armed Conflict through Human Rights Bodies instead of the International Criminal Court
No full textAlthough the ICC-or other similarly-situated international criminal tribunals-could soon see the first cyber war crime prosecution, two glaring issues persist. First, the universe of conduct that could give rise to such a prosecution is limited. Second, heavy reliance on the war crimes framework fails to provide a forum for redress of many harms caused by other unlawful cyber operations in armed conflict. The fragmented nature of international law and its enforcement mechanisms requires solutions that harness the full range of the integrated architecture of the international system. Cyber operations might soon feature at the ICC, but only a fraction of their harm may- or can-be redressed there. Unless current law governing cyber operations in armed conflict evolves dramatically, most remedies must be found elsewhere. Certainly, there are unlawful cyber operations that human rights bodies cannot reach. This Note does not argue that human rights bodies are a silver bullet -no such thing exists in international law. Yet, the success of the international system depends on multifaceted complementarity. Just as the ICC is founded on the principle that domestic and international criminal systems must work together to end impunity for the gravest of crimes,269 international criminal tribunals and human rights bodies must both be engaged to redress the full range of harms from unlawful cyber operations. Like the principles of war crimes law, the right to life is a constant and potent principle during armed conflict-an emerging understanding that has tilled the ground for this moment. When cyber operations in armed conflict threaten civilians\u27 lives and physical security, human rights bodies should be a principal avenue of redress
Statutes Saving Statues: A Proposal to Reform U.S. Customs Laws to Better Protect Cultural Property
No full textAntiquity theft occurs all around the world. However, there is no consensus on how to stop it. Do source States strive to crack down on looters? Do States cooperate to stop the transit of antiquities? Or do we ask receiving States to punish the buyers? Given the difficulty of stopping looters and penalizing facilitators, the most effective route seems to be punishing the buyers. However, while the United States has enacted laws that are used to combat cultural property theft the Convention on Cultural Property Implementation Act, the National Stolen Property Act, and customs laws prosecutors have been hesitant to criminally charge buyers due to these laws\u27 demanding mens rea requirements. This Note argues that customs laws could become potent weapons against the theft of cultural property if the level of moral culpability required is reduced
A Profoundly Contractarian Predisposition : Delaware Courts Decide Recent Drafting Disputes by Limiting Their Review to Four Corners of Contracts
No full textIn the decisions discussed herein, both the Delaware Supreme Court ( Supreme Court ) and the Delaware Court of Chancery ( Chancery Court ) reaffirmed the Delaware judiciary\u27s commitment to honoring contract language, whenever possible, to settle contractual disputes. Absent irreconcilable ambiguity, no coloring outside the lines will be considered. The goal generally is to reflect the intent of the parties while avoiding absurd or illogical results. Ironically, in each of these cases, better drafting could have ensured the parties were on the same page: In Arwood v. AW Site Services, Vice Chancellor Slights, confirming Delaware\u27s status as \u27more contractarian\u27 than most states, declined to impose an anti-sandbagging provision where Seller neglected to negotiate for such protection in the APA. As such, Delaware respects contracting parties\u27 right to enter into good and bad contracts. Bottom line: (i) if contracting parties fail to include either a pro- or anti- sandbagging provision in a purchase agreement, Delaware will presume the agreement is pro-sandbagging, and (ii) sandbagging is not implicated by a purchaser\u27s negligence or recklessness-actual knowledge of the breach is required
