Administrative Law

6 posts

Rethinking Judicial Review of Arbitration

By Nico Gurian

Mandatory arbitration is everywhere in the daily life of most Americans — when they sign a cell phone contract, buy a cable subscription, or sign up for a checking account. For most Americans, there is no avenue to acquire these basic goods and services without giving up the right to litigate disputes before a court of law. The increased use of mandatory arbitration clauses is not an accident. Buoyed by the Supreme Court’s expansive interpretation of the Federal Arbitration Act over the last few decades, businesses have used mandatory arbitration clauses to insulate themselves from liability by, for example, including class-action waiver provisions in arbitration agreements that can make it financially impossible for plaintiffs to bring substantive claims.

A key aspect of the current arbitral system is that arbitrators’ decisions are subject to extremely limited judicial review, which is an underlying assumption of both Supreme Court jurisprudence and scholarship in this area. This Note seeks to question that assumption. First, it considers traditional rationales for limited judicial review of arbitral decisions and argues that these justifications fail to take into account the realities of the current arbitral system. Second, borrowing from administrative law, it offers a proposal for how states could tailor a system of increased judicial review of arbitration decisions that would better promote fairness while preserving the positive effects of arbitration.

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Operationalizing the Third Prong of the Federal Trade Commission’s 2015 Statement Regarding “Unfair Methods of Competition”

By Harris S. Rothman

Courts have long held that the Federal Trade Commission’s authority to prohibit “unfair methods of competition” embraces not only the enforcement of the prohibitions of the Sherman and Clayton Acts, but also a “standalone” mandate to challenge practices that violate the spirit but not the letter of these laws. In a 2015 Statement, the Commission announced that it “is less likely to challenge an act or practice as an unfair method of competition on a standalone basis if enforcement of the Sherman Act or Clayton Act is sufficient to address the competitive harm arising from the act or practice.” The meaning of the “sufficient to address” condition is not immediately obvious, and the statement’s critics have pointed to it as just one respect in which the statement is unhelpfully vague. Despite a recent surge in scholarship arguing that the Clayton and Sherman Acts as applied are insufficient to promote the original goals of antitrust law, scholars have not devoted extensive analysis to the interpretation of the third prong’s language.

This Note argues that the third prong reflects the Commission’s determination that the most appropriate use of standalone authority is to fill gaps in the “traditional” antitrust regime of the Sherman and Clayton Acts. The Note proceeds to propose a decision-making framework that the Commission could use to actuate that interpretation. Part II introduces the basic policies of the antitrust laws and the provisions of the Sherman, Clayton, and Federal Trade Commission Acts. Part III reviews the scope of the Commission’s standalone authority under Section 5 of the FTC Act. Part IV analyzes the third prong of the Commission’s 2015 Statement, and argues that it is best interpreted as favoring gap-filling uses of standalone authority relative to other applications. It then develops a framework to guide the Commission in identifying legitimate gaps in the antitrust regime, identifies circumstances in which standalone enforcement may be most appropriate outside of such gaps, and demonstrates how the Commission might apply the framework in weighing a standalone complaint against Google’s allegedly anticompetitive implementation of “Universal Search.”

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Immigration Court is Out of Sessions: Restoring Nonregulatory Termination to Immigration Judges Post–Matter of S-O-G- & F-D-B-

By Susanna Booth

In 2018, Attorney General Jeff Sessions promulgated three Board of Immigration Appeals (BIA) decisions that sharply curtailed the power of immigration judges (IJs) to manage their own dockets and safeguard the due process rights of immigrant respondents. One such decision, Matter of S-O-G- & F-D-B-, eliminated IJs’ ability to terminate proceedings outside of specific circumstances, removing a traditional tool IJs used to dispense with unnecessary or unconstitutional proceedings.

Yet recent circuit court decisions undergird the conclusion that Matter of S-O-G- & F-D-B-’s reasoning is incorrect. This Note first traces the long history of expanding IJ authority, highlighting IJs’ gradual recognition of a discretionary termination power. After examining the reasoning of S-O-G- & F-D-B-, this Note then argues that, contrary to the Attorney General’s interpretation, IJs do possess the inherent authority to terminate removal proceedings, even outside of circumstances specifically identified by statute. Finally, this Note considers the viability of eventual challenges to S-O-G- & F-D-B- and argues that either executive, legislative, or judicial action is necessary to restore IJs’ power to discretionarily terminate proceedings and protect the rights of immigrant respondents.

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Remedying Public-Sector Algorithmic Harms: The Case for Local and State Regulation via Independent Agency

By Noah Bunnell

Algorithms increasingly play a central role in the provision of public benefits, offering government entities previously unimaginable ways of optimizing public services, but they also pose risks of error, bias, and opacity in government decision-making. At present, many publicly-deployed algorithms are created by private companies and sold to government agencies. Given robust protections for trade secrets in the courts and feeble state open records laws, such algorithms, even those with fundamental flaws or biases, may escape regulatory scrutiny. If state and local governments are to avail themselves of the benefits of algorithmic governance without triggering its potential harms, they will need to act quickly to design regulatory systems that are flexible enough to respond to continual innovation yet durable enough to withstand regulatory capture. This Note proposes a novel regulatory solution in the form of a new, independent agency at the state or local level — an Algorithmic Transparency Commission — devoted to the regulation of publicly-deployed algorithms. By establishing such an agency, tailored to the needs of each jurisdiction, state and local governments can continue to enhance their efficiency and safeguard companies’ proprietary information, while also fostering a greater degree of algorithmic transparency, accountability, and fairness.

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Putting the Blindfolds on Driverless Panopticons

By Alastair Pearson

Autonomous vehicle (AV) deployment will radically reshape the relationship between Americans and their cars. A society which has long prized private car ownership will see riders transition to dramatically cheaper robotaxi services. Cities will regulate AVs in real time, using a sophisticated new regulatory technology called Mobility Data Specification (MDS). The widespread use of AVs owned by impersonal operators and regulated by municipal governments will bring to the fore privacy questions which were more easily ignored when cities were using MDS to regulate more niche modes of transportation like e-scooters. Mass adoption of AVs will elevate the stakes of Fourth Amendment concerns about the collection and analysis of anonymous geolocation data.

This Note aims to answer the important question of whether commercially deployed AVs can constitutionally be subjected to regulatory programs that mirror MDS as currently applied to the regulation of e-scooters. Robust scholarship is emerging about the scope of the concept of inescapability, first introduced in Carpenter v. United States, the Supreme Court’s most meaningful effort to erect guardrails around location data. Scholars are also exploring how the third-party doctrine undermines Fourth Amendment values, and the breadth of modern administrative search doctrine. This Note builds on these critiques and proposals to argue that the Fourth Amendment will impose limits on cities seeking to track real-time location data from AVs. AVs are likely to become inescapable, and the data collected from the public will be uniquely sensitive. If cities want the power to demand real-time data from AVs, they will need to rigorously justify their collection of such data and take concrete steps to anonymize it.

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Shielding Science: The Scientific Integrity Act and Enforcing Firewalls Between Science and Politics

By Emily J. Berman

During the Trump administration, civil servants, watchdogs, and elected officials repeatedly accused political appointees of censoring, altering, or otherwise interfering with the work of scientists and civil servants at federal scientific agencies. In deliberate contrast to his predecessor, from his first day in office, President Biden has stated his commitment to restoring scientific integrity. But is executive action enough? Should Congress complement these executive actions with legislation? If so, how may Congress best provide firewalls between staff at scientific agencies and those who would improperly hinder their work?

This Note analyzes the historical context of, limits to, and potential for legislative protections for civil servants at scientific agencies, with particular focus on the recent Scientific Integrity Act. This Act, which has been introduced in each of the three prior Congresses, would insulate staff at scientific agencies from certain kinds of improper political interference. To be more effective, however, a future version of the Act should be revised to include stronger enforcement provisions.

To explore the need for and promise of the Scientific Integrity Act, this Note first places the Act in its historical context. This Note then explores limits to other existing protections. Finally, this Note examines the Act itself, arguing that the Act includes key protective provisions but that it will fail to achieve its full purpose unless it adds stronger enforcement mechanisms. These proposed tools would empower relevant officials to better investigate accusations against high-level political officials and create possible consequences for those who violate the Act.

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