“Good Cause” Is Cause for Concern
James Yates 86 Geo. Wash. L. Rev. 1438 The Administrative Procedure Act (“APA”) generally requires that all federal administrative rules undergo public “notice and comment.” The “good cause” exception allows an agency to bypass this requirement where it would be “impracticable, unnecessary, or contrary to the public interest.” In recent years, good cause has been increasingly used to excuse “major” rules,... Read More
Chartering Fintech: The OCC’s Newest Nonbank Proposal
Elizabeth J. Upton 86 Geo. Wash. L. Rev. 1392 The Office of the Comptroller of the Currency is responsible for ensuring federally chartered banks’ safety and soundness, compliance with federal banking laws, and compliance with federal laws regarding fair access to financial services and fair treatment of customers. The states have historically overseen and regulated nonbank companies, including nonbank financial services providers... Read More
Use of the Congressional Review Act at the Start of the Trump Administration: A Study of Two Vetoes
Stephen Santulli 86 Geo. Wash. L. Rev. 1373 Once regarded as a legislative dead letter, the Congressional Review Act (“CRA”) gained new vitality in 2017 as President Trump and Republicans in Congress used the Act to veto more than a dozen regulations issued late in the Obama Administration. The reemergence of the CRA renewed debate over a vague provision at the... Read More
Lying in Wait: How a Court Should Handle the First Pretextual For-Cause Removal
Richard Rothman & Katelin Shugart-Schmidt 86 Geo. Wash. L. Rev. 1348 The legal limits of for-cause removal protections for executive officials have barely been defined, even as the current presidential administration considers removing protected officials. Open questions include whether and how courts will choose to define “cause,” as well as whether courts will inquire into the authenticity of a President’s stated... Read More
Defying Debarment: Judicial Review of Agency Suspension and Debarment Actions
Samantha Block 86 Geo. Wash. L. Rev. 1316 Judicial review of agencies’ suspension and debarment decisions is currently in flux. Recently, courts are more closely scrutinizing such decisions, potentially altering the way these tools are used. Both Congress and the courts need to consider creating a clear and consistent standard for agency review of suspension and debarment actions. To illuminate the... Read More
Topic Modeling the President: Conventional and Computational Methods
J.B. Ruhl, John Nay & Jonathan Gilligan 86 Geo. Wash. L. Rev. 1243 Law is generally embodied in text, and lawyers have for centuries classified large bodies of legal text into distinct topics—that is, they “topic model” the law. But large bodies of legal documents present challenges for conventional topic modeling methods. The task of gathering, reviewing, coding, sorting, and assessing... Read More
Optimal Ossification
Aaron L. Nielson 86 Geo. Wash. L. Rev. 1209 One of the dirtiest words in administrative law is “ossification”—the term used for the notion that procedural requirements force agencies to spend a long time on rulemakings. Ossification, however, is misunderstood. Even leaving aside the other benefits of procedures, delay itself can be valuable. For instance, procedural delay... Read More
The American Nondelegation Doctrine
Cass R. Sunstein 86 Geo. Wash. L. Rev. 1181 An American nondelegation doctrine is flourishing. Contrary to the standard account, it does not forbid Congress from granting broad discretion to executive agencies. Instead it is far narrower and more targeted. It says, very simply, that executive agencies cannot make certain kinds of decisions unless Congress has explicitly authorized them to do... Read More
On the Docket’s Preview of the October Supreme Court Arguments
The Supreme Court has dominated the news cycle lately, and yet none of it has had anything to do with the Court’s jurisprudence. Instead, all the attention has been focused on Judge Brett Kavanaugh, whose confirmation prospects have diminished in the wake of allegations of sexual misconduct. Following a set of extremely contentious hearings, some... Read More
Drone Trespass and the Line Separating the National Airspace and Private Property
Lane Page 86 Geo. Wash. L. Rev. 1152 On August 29, 2016, the Federal Aviation Administration (“FAA”) released a small-drone rule that will substantially increase the number of commercial drones flying throughout the national airspace. This new rule fails to specifically regulate or define when a drone is trespassing over a landowner’s private property. Moreover, since the development of drone technology,... Read More