Administrative Law

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Volume 91.7
The New Capitalism, the Old Capitalism, and the Administrative State
Gregory A. Mark
Professor of Law, College of Law, DePaul University. B.A. Butler University 1979; M.A. American History, Harvard University 1980; J.D. University of Chicago 1988.

My thanks to Caitlin Hamilton and Emma Martinez for assistance with this Essay. For
Dennis Hutchinson, who embodies the essence of deep professional and personal friendship.

This Essay concerns the evolving relationship between the economy and the methods society deployed to legitimate, control, and channel economic behavior, especially religion and law. Using the recently published work of three eminent academics—Benjamin Friedman, Jonathan Levy, and William Novak—it addresses first the changes in thought necessary to legitimate acquisitive economic behavior and the consequent centering of law as the secular replacement for religion. As capitalism fostered wider markets, as its evolution embodied industrialism and commercialism, it created problems that the regulatory state could not handle. In America, the transition from regulatory to administrative state was complicated by its federal structure and background democratic egalitarian yearnings. Friedman, Levy, and Novak illustrate and elucidate aspects of that evolution. This Essay suggests that reading them together explains more than each separately, and ends by noting how the tensions they explain usefully add to our understanding of American law, and, coincidentally, the potentially transformational administrative law decisions of the Supreme Court in the 2023–2024 term.

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Article
The Truth of Erasure: Universal Remedies for Universal Agency Actions
T. Elliot Gaiser

T. Elliot Gaiser is the Solicitor General of Ohio. He previously clerked for Associate Justice Samuel A. Alito, Jr., at the Supreme Court of the United States; for Judge Neomi Rao on the U.S. Court of Appeals for the D.C. Circuit; and for Judge Edith H. Jones on the U.S. Court of Appeals for the Fifth Circuit. He holds a J.D. from The University of Chicago Law School and a B.A. in Political Economy and Rhetoric & Public Address from Hillsdale College.

Mathura Sridharan

Mathura J. Sridharan is the Director of Ohio’s Tenth Amendment Center and serves as a Deputy Solicitor General in the Ohio Attorney General’s Office. She previously clerked for Judge Steven J. Menashi on the U.S. Court of Appeals for the Second Circuit and Judge Deborah A. Batts on the U.S. District Court for the Southern District of New York. She holds a J.D. from New York University School of Law, and an M.Eng. in Electrical Engineering & Computer Science and a B.S. in Electrical Engineering & Computer Science and Economics from Massachusetts Institute of Technology.

Nicholas Cordova

Nicholas A. Cordova is an associate at Boyden Gray PLLC and former Simon Karas Fellow to the Ohio Solicitor General. He previously clerked for Judge Paul B. Matey on the U.S. Court of Appeals for the Third Circuit. He holds a J.D. from Harvard Law School and a B.A. in Political Science from Waynesburg University.

Courts, litigants, and scholars should not be confused by the ongoing debate about nationwide or so-called “universal” injunctions: the proper scope of remedies under the Administrative Procedure Act (APA) and other statutes providing for judicial review of agency action is “erasure.” This Article aims to save scholars’ recent progress in showing the legality of stays and vacatur under the APA from muddled thinking that conflates these forms of relief with other universal remedies that face growing criticism.

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Lobbying Language: How Supreme Court Opinions Invite Legislative Change
Jack Brake
Jack Brake is a J.D. Candidate at the University of Chicago Law School, Class of 2025.

The author thanks the University of Chicago Law Review Online team for their helpful feedback. 

How often do Supreme Court opinions include what might be called “lobbying language,” which endorses a policy position while calling for another government entity to realize it? Reviewing relevant cases, this Essay finds that the sample set includes at least a dozen examples of lobbying language. As it turns out, lobbying is not so unusual for the Supreme Court.

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v90.4
Here’s Your Number, Now Please Wait in Line: The Asylum Backlog, Federal Court Litigation, and Artificial Intelligence in Agency Adjudication
Youssef Mohamed
B.A. 2019, The Florida State University; J.D. Candidate 2023, The University of Chicago Law School.

أولاً†الحمد†لله†و†ثانيا†الحمد†لله†—I owe a debt of gratitude to Professor Jennifer Nou for pushing me and this piece to ask bigger questions. I would also like to thank Lauren Dunn, Dylan Salzman, Virginia Robinson, Brian Bornhoft, and the University of Chicago Law Review editors for their patience, hard work, and insights.

The U.N. High Commissioner for Refugees has estimated that, by the end of June 2021, there were nearly 4.4 million pending asylum applications worldwide. Many asylum seekers suffer heinous abuses in both the countries from which they flee and the countries through which they travel to reach sanctuary.

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Essay
Agency Problems and the Misappropriation Theory of Insider Trading in SEC v. Panuwat
Ryan Fane
Ryan Fane is a J.D. candidate at the University of Chicago Law School, Class of 2023.

He thanks the members of the University of Chicago Law Review Online team for their helpful feedback and suggestions.

This case raises some difficult theoretical questions about what harms insider trading laws are supposed to prevent and what benefits they are supposed to provide to the marketplace.

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Comment
In Defense of 5G: National Security and Patent Rights Under the Public Interest Factors
Kenny Mok
B.A. 2016, Northwestern University; J.D. Candidate 2021, The University of Chicago Law School.

A big thank you to Professor Jonathan Masur for his advice on this piece.

From 2017 to 2019, two U.S. technology giants, Apple and Qualcomm, engaged in a war of patent suits across the world. One battle took place at the International Trade Commission (ITC), a federal agency that prevents patent-infringing products from entering the United States.

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v88.6
The Scope of Evidentiary Review in Constitutional Challenges to Agency Action
Conley K. Hurst
B.A. 2017, Washington and Lee University; M.St. 2018, University of Oxford; J.D. Candidate 2022, The University of Chicago Law School.

Many thanks to Professors Ryan Doerfler and Jennifer Nou for their helpful feedback during the drafting process.

Presidents have increasingly turned to the administrative state to implement their political agendas.

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Essay
Against Immunizing Nursing Homes
Betsy J. Grey
Jack E. Brown Chair in Law, Sandra Day O’Connor College of Law at Arizona State University.

I thank Bob Dauber, Zachary Kramer, and Joel Nomkin for their valuable comments on earlier drafts and Sean Krieg for his outstanding research assistance. 

Although Congress has so far declined to enact any immunity protection specifically targeted at COVID-19 claims, that has not stopped the Executive Branch from responding to the pandemic with immunity measures.

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Essay
Justiciability and Remedies in Administrative Law Challenges
Tyler B. Lindley
Tyler B. Lindley is a J.D. Candidate at The University of Chicago Law School, Class of 2021, and graduated from Brigham Young University with a B.S. in 2018.

For very helpful feedback and discussion on previous drafts, he thanks Jonathan Mitchell, William Baude, Aziz Huq, Tom Ginsburg, Thomas Miles, Ernest Young, Jared Mayer, Micah Quigley, Eric Wessan, and the participants of the Canonical Ideas in American Legal Thought Seminar. He also thanks the editors of The University of Chicago Law Review for thoughtful comments and edits. Lastly, he thanks his wife, Katrina Lindley, for her indispensable discussion and support.

The Supreme Court’s changing composition and, relatedly, its increasing skepticism for the current structure and pervasiveness of the administrative state have given rise to increased constitutional challenges to agency actions that seem increasingly likely to be successful.

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87.8
Necessary “Procedures”: Making Sense of the Medicare Act’s Notice-and-Comment Requirement
Josh Armstrong
BA 2017, The University of Texas at Austin; JD Candidate 2021, The University of Chicago Law School.

Many thanks to Professor Jennifer Nou for her help and advice throughout the drafting process.

Perhaps no problem has caused more consternation and outright confusion in administrative law circles than the Ad-ministrative Procedure Act’s (APA) exemptions to notice-and-comment rulemaking, the process by which agencies present proposed rules to the public for feedback before issuing them in final form.