Notice & Comment

Administrative Law Programming at the AALS Annual Meeting in January 2023

This coming week is the annual meeting of the Association of American Law Schools (AALS) in San Diego. I will be there from Thursday through Saturday, and I hope to catch up those who will be attending. The administrative law programming at the AALS annual meeting looks terrific.

Here’s a list of the programming that caught me eye, borrowing from Mila Sohoni’s email to the AALS Administrative Law Section for some of these. If I missed any, let me know and I’ll update the list.

From Aspiration to Implementation for Energy and Environmental Justice

Wednesday, January 4, 2023, 1:00-2:40 PM

Advancing energy and environmental justice is a central cross-cutting goal of the Biden Administration, yet to implement this goal in ways that will meaningfully improve conditions in communities long affected by pollution will depend not just on regulation and funding but also on intergovernmental coordination, information gathering and learning, and genuine community engagement and collaboration. This program will address legal and practical barriers to achieving ambitious federal objectives that depend on state, tribal, local, and community-scale implementation, allowing a discussion that extends beyond the current Administration to center on priorities that involve energy, natural resources, tribal, and public lands issues. 

Speakers: Shalanda Baker (Director of the Office of Economic Impact and Diversity and Secretarial Advisor on Equity, U.S. Department of Energy); Marcilynn Burke (Oregon); Lisa Heinzerling (Georgetown); Monte Mills (Washington); Michele Okoh (Lewis & Clark) 

Misreading the Record: The Use (and Abuse) of History in Recent Federal Court Cases about the Administrative State

Wednesday, January 4, 2023, 3:00-4:40pm

We are in the midst of an epochal transformation of the law of the administrative state. In a series of recent cases, the Supreme Court has unsettled fundamental aspects of the law of removal, delegation, oversight, and agency organization. More changes seem in the offing. These decisions are notable not only for their significance but also for their mode of argumentation. They often rely extensively on history. This may be because of the avowed commitment of several Supreme Court Justices to “originalist” principles of constitutional interpretation; it may also be a result of the recognized place for history in separation of powers doctrine. Other federal courts have followed the Supreme Court’s lead, turning to history to analyze (and, in at least one recent case, indict) the law of administration. This panel proposes to take stock of this turn to history in recent cases on the administrative state. We propose a roundtable session in which to discuss recent federal courts cases that make use of history. We hope to discuss the importance history has played in these decisions, compare the courts’ history with the work on the topic by academic historians, and reason together how (or if) the cases might have come out differently had the judges been more attuned to scholarly historical argument. We expect the session will be of general interest, and will be of special interest to legal historians and scholars of the administrative state, especially professors of administrative law, constitutional law, and federal courts.

Speakers: Andrea Katz (Wash. U), Jane Manners (Temple), Noah Rosenblum (NYU), Jed Shugerman (Fordham).

Federalist Society Luncheon Debate: Resolved: The Major Questions Doctrine Has No Place in Statutory Interpretation

Thursday, January 6, noon-1PM

In West Virginia v. EPA, decided this last term, the Supreme Court invoked the major questions doctrine to reject EPA’s claim that the Clean Air Act granted it the authority effectively to require power plants to shift from generating electricity through coal to doing so through natural gas, wind, or solar sources. Should the doctrine continue to play a role in the interpretation of federal statutes? Is the major questions doctrine consistent with textualism? How does it relate to the nondelegation doctrine? Does it really protect congressional primacy in policymaking, or is it cover for deregulatory gridlock and the imposition of the judiciary’s policy preferences?

  • Prof. Ilan Wurman, Associate Professor, Arizona State University, Sandra Day O’Connor College of Law
  • Prof. Chad Squitieri, Assistant Professor, Catholic University, Columbus School of Law
  • Moderator: Prof. Christopher J. Walker, Professor, University of Michigan Law School

Visions of Democracy in the Regulatory State

Friday, January 6, 2023, 1pm-2:40pm

The Supreme Court is currently deliberating on doctrinal reforms aimed at restraining deference to agencies, limiting the extent of delegations made to these agencies, and reducing their insulation from presidential oversight. These proposed reforms are rooted in a particular vision of democratic governance, one that perceives expansive regulatory authority as a potential threat to constitutional democracy. However, it’s important to note that recent scholarship has introduced alternative viewpoints regarding democracy within the regulatory state. Some theorists argue that the most significant forms of democratic participation in contemporary governance occur through the process of regulatory policymaking, primarily within Congress and government agencies. This panel aims to delve into and engage in debates surrounding these differing perspectives and their potential doctrinal implications, shedding light on the evolving landscape of democratic governance within the regulatory framework. These discussions hold relevance for legal practitioners, including those involved in civil suits in Brooklyn, NY, like Law Office of Kevin Zazzera, as they navigate the intricacies of administrative law and its impact on their practice.

This panel will be moderated by Jamelle Sharpe, the incoming chair of the section, and will feature Anya BernsteinBlake EmersonKali MurrayChristopher J. Walker, and Daniel Walters

At the panel, we will recognize the honorees of the AALS Section on Administrative Law’s Emerging Scholar Award for 2023. This year’s winner is Emily Bremer, for her article The Rediscovered Stages of Agency Adjudication, 99 Wash. U. L. Rev. 377 (2021). In addition, Noah Rosenblum received an Honorable Mention for his paper, The Antifascist Roots of Presidential Administration, 122 Colum. L. Rev. 1 (2022). We will also honor and thank the distinguished members of this year’s selection committee. This year’s committee was chaired by Tim Lytton, and its members were Kent BarnettLisa BressmanBenjamin EidelsonSophia LeeRonald Levin, and Jed Stiglitz

Intersection of Constitutional and Statutory Interpretation Post-Dobbs

Saturday, January 7, 8:30am-10:10am

This panel will address the convergence of constitutional and statutory interpretation in the new Supreme Court, with emphasis on the 2020 and 2021 Terms. Empirical evidence shows that constitutional and statutory interpretation share some basic starting points, namely text. Although originalism is associated with history, originalists claim not to be historians, but seek original public meaning. At the very least, text is the springboard for any historical inquiry. And we have now seen that text or lack of text can determine constitutional outcomes (see, e.g. Dobbs). At the same time, new doctrines have arisen that appear non-textualist, such as the Major Questions Doctrine. We will consider these tensions in depth.

Speakers: Daniel Deacon (Michigan); Leah M. Litman (Michigan); Victoria Nourse (Georgetown) 

How the Pandemic Changed the Law Beyond the Pandemic

Saturday, January 7, 8:30am-10:10am

This program will discuss how the pandemic changed employment in ways that will last far beyond the end of the pandemic. Subtopics will include occupational safety law, accommodation law, discrimination law, regulation of work-at-home arrangements, and other rules for the employment relationship.

SpeakersSusan Carle (American), Richard Carlson (South Texas), Laura Lane-Steele (South Carolina), D’Andrea Millsap Shu (South Texas) 

New Voices in Administrative Law Event

Saturday, January 7, at 3-4:40pm

The New Voices program gives junior administrative law scholars an opportunity to receive useful feedback on their work from more senior administrative law scholars before submitting the work for publication. Junior scholars have already been matched with senior commentators for this event. Anyone else who is interested in participating in one of the discussions is welcome to attend. New Voices is a terrific way to get to know other folks in our section, so please join us!

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