Administrative Law

Online
Essay
Tiktok Bans: A Takings Clause Blunder?
Bridget Gilchrist
Bridget Gilchrist is a J.D. Candidate at the University of Chicago Law School, Class of 2025.

She thanks Henry Gilchrist, Timothy Burke, Kimberly Burke, and Alexis Berg for their support, and the University of Chicago Law Review Online team for all their hard work.

This Case Note explores the possibility that, in a world where TikTok is banned or heavily regulated, individual TikTok users could sue states under a Takings Clause theory. Any such cases would have to wrestle with two core questions (1) whether the account holders hold an actionable property interest in their accounts; and (2) if so, whether permanently and totally depriving users of access to their accounts constitutes a taking.

Administrative Law Constitutional Law First Amendment Regulation
Online
Essay
Venue Transfers of Administrative Litigation and the Neglected Percolation Argument
Andrew Meyer
Andrew Meyer is a J.D. Candidate at The University of Chicago Law School, Class of 2026.

He thanks Russ Ryan, Will Horvath, and the University of Chicago Law Review Online team.

District courts should consider the value of percolation in a given case as part of their analysis in deciding whether to grant a § 1404(a) motion. The value of doing so is even more pronounced in cases with a clear pattern of repeat-player defendants moving for transfer for no apparent reason other than convenience—and perhaps a more amenable court. In such cases, district courts should directly weigh the benefits of percolation against those of judicial economy.

Administrative Law Corporate Governance Corporations
Online
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.

Administrative Law Constitutional Law
Online
Post
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.

Administrative Law Criminal Law
Online
Essay
Agency Lumping and Splitting
Jennifer Nou
Jennifer Nou is a Professor of Law at the University of Chicago Law School.

Regulations, like other legal instruments, often arrive in lumps. An agency, for example, can issue a rule addressing many different subjects, each of which could be split off and issued as a separate regulation.

Administrative Law
Print
Article
85.1
Sticky Regulations
Aaron L. Nielson
Associate Professor, J. Reuben Clark Law School, Brigham Young University

The author thanks Stephanie Bair, Jim Brau, Emily Bremer, Brigham Daniels, Daniel Hemel, David Moore, Carolina Núñez, Jarrod Shobe, Paul Stancil, Lisa Grow Sun, Christopher Walker, the participants in the 2017 Center for the Study of the Administrative State’s Research Roundtable on Rethinking Due Process and accompanying public policy conference held at the Antonin Scalia Law School, George Mason University, and the participants in the 2016 Rocky Mountain Junior Scholars Forum held at the S.J. Quinney College of Law, University of Utah. Michael A. Stevens provided helpful research assistance. Financial support was provided by Brigham Young University and the Center for the Study of the Administrative State.

Modern administrative law is often said to present a dilemma.

Administrative Law Behavioral Economics
2
Essay
75.1
Privacy Decisionmaking in Administrative Agencies
Kenneth A. Bamberger
Assistant Professor of Law, UC Berkeley School of Law
Deirdre K. Mulligan
Clinical Professor of Law; Director, Samuelson Law, Technology & Public Policy Clinic; Director, Clinical Program, UC Berkeley School of Law

Much appreciation to Colin Bennett, Malcolm Crompton, Peter Cullen, Lauren Edelman, Robert Gellman, Chris Hoofnagle, Robert Kagan, Jennifer King, Anne Joseph O’Connell, Fred B. Schneider, Ari Schwartz, Paul Schwartz, and the participants at The University of Chicago Law School’s Surveillance Symposium for insight, comment, and discussion; Nuala O’Connor Kelly and Peter Swire for consenting to be interviewed about their experience in privacy leadership roles within the United States government; Sara Terheggen, Marta Porwit Czajkowska, Rebecca Henshaw, and Andrew McDiarmid for their able research.

Administrative Law Privacy Technology
2
Article
75.2
The New Legal Realism
Thomas J. Miles
Assistant Professor of Law, The University of Chicago
Cass R. Sunstein
Karl N. Llewellyn Distinguished Service Professor, The Law School and Department of Political Science, The University of Chicago

We are grateful to Susan Bandes, Elizabeth Foote, Jacob Gersen, Brian Leiter, Anup Malani, Richard McAdams, Elizabeth Mertz, Jonathan Nash, Eric Posner, Adam Samaha, Larry Solum, David Strauss, Noah Zatz, and participants in a work-inprogress lunch at The University of Chicago Law School for valuable comments. We are also grateful to the Chicago Judges Project, and in particular to Dean Saul Levmore, for relevant support.

Administrative Law Empirical Analysis
2
Article
75.2
The Real World of Arbitrariness Review
Thomas J. Miles
Assistant Professor of Law, The University of Chicago
Cass R. Sunstein
Karl N. Llewellyn Distinguished Service Professor, The Law School and Department of Political Science, The University of Chicago

We thank Eric Posner, Richard Posner, Peter Strauss, and Adrian Vermeule for helpful comments. We are also grateful to Rachael Dizard, Casey Fronk, Darius Horton, Matthew Johnson, Bryan Mulder, Brett Reynolds, Matthew Tokson, and Adam Wells for superb research assistance.

Administrative Law Empirical Analysis Judicial Decision-Making

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