Administrative Law

Super Deference and Heightened Scrutiny

Jonathan H. Adler

Abstract Judicial review of federal agency action is systematically deferential. Such deference is arguably at its peak where agencies address scientific and highly technical matters within their area of expertise. This is what some call “super deference.” While there may be strong arguments for deferential review of agency scientific determinations as a general matter, there […]

Examining the Committee on Infractions’s Affirmation Rate of NCAA Enforcement Staff Allegations of Rules Violations

Josh Lens

Abstract The NCAA, the national governing body for college athletics, is in a precarious position. Battered by recent lawsuits, the NCAA is undergoing a self-initiated review designed to modernize and transform its operations through updating its constitution and rules.The enforcement process through which the NCAA enforces its myriad regulations has proven central to this review […]

Too Big and Unable to Fail

Written by: Stephen J. Lubben & Arthur E. Wilmarth, Jr.

Abstract Financial regulation after the Dodd-Frank Act has produced a blizzard of acronyms, many of which revolve around the “too big to fail” (TBTF) problem. OLA, OLF, SPOE, and TLAC are new regulatory tools that seek to build a new regime for resolving failures of systemically important financial institutions (SIFIs). The explicit goal of this […]

Emily S. Bremer, The Unwritten Administrative Constitution

It is widely accepted that the powers of the federal government flow from the U.S. Constitution. Yet in practice, most federal power is exercised through administrative agencies, institutions not mentioned in the Constitution. Since the New Deal Era, administrative law—the seemingly disparate set of rules governing agency action that are found in statutes, judicial decisions, […]

Ellen English, “Camels Agree with your Throat" and Other Lies: Why Graphic Warnings are Necessary to Prevent Consumer Deception

The government’s latest attempt to protect consumers from the perils of tobacco use is in jeopardy. In 2009, Congress enacted the Family Smoking Prevention and Tobacco Control Act, which requires cigarette advertisements and packages to bear nine new textual health warnings and gives the FDA authority to regulate tobacco products. In 2011, in compliance with the Act, the FDA issued […]

Robert J. Pushaw, Jr., The Paradox of the Obamacare Decision: How Can the Federal Government have Limited Unlimited Power?

National Federation of Independent Business v. Sebelius, the Supreme Court’s decision upholding the landmark Patient Protection and Affordable Care Act (ACA or “Obamacare”), sets forth the most important judicial examination of constitutional power since the New Deal era. The political and media frenzy over the Obamacare case has obscured its actual legal analysis and larger constitutional implications, which warrant more reflective […]