Introduction The thesis of our symposium contribution, which builds on our prior scholarship critiquing the methodologies used in centralized regulatory review, is that agency reliance on fully quantitative cost-benefit analysis (CBA) to set regulatory limits on risk tends to generate racially biased outcomes in many areas of risk regulation. This worrisome pattern is present in—but […]
The administrative state has often been an engine of racial inequality. It is true that federal agencies have played key roles in implementing civil rights legislation and have sometimes attempted to dismantle entrenched racial disparities. But long before the enactment of modern civil rights laws—and extending long afterward—administrative agencies have helped mark people as racially […]
It has been good to read Notice and Comment’s symposium on racism in administrative power. Questions of prejudice and discrimination have long been left at the margins of the academic study of such power, and the symposium is a gratifying signal that such concerns are at last being accepted as more central. Of course, some of us have been […]
In his comprehensive work, A History of American Law, Lawrence M. Friedman identifies the roots of the modern welfare system in the poor laws of the colonies.[1] Descended from laws of Elizabethan England with the same label, colonial law established a system of “discriminating against the unfortunate stranger.”[2] New England towns would “warn out” new arrivals to disclaim […]
“It does not seem a great task to attend to the business of directing the management of about three hundred thousand Indians . . . .” — Dennis Cooley, Commissioner of Indian Affairs, 1866[1] One of history’s greatest powers is to alienate the present, showing how different life used to be, while implicitly asking whether […]
I once attended a conference in Canada that started with a Land Acknowledgement. A Land Acknowledgement is an official recognition that the land where we all stood was once occupied by an indigenous community. In many respects, this Symposium is undergoing a similar act of acknowledgment as it seeks to recognize how social identities, such […]
I know many law professors make an effort to highlight role models for our students, and to emphasize a diversity of legal luminaries during class. In this post I offer a few reflections on why I find it useful to do so, and share excerpts from my slides highlighting diverse role models that come up […]
In June 2020, the Supreme Court ruled on the Deferred Action for Childhood Arrivals (DACA) case, finding that the Trump administration was arbitrary and capricious in its rescission of the policy in violation of a core administrative law principle. According to the Court, the administration failed to consider the reliance interests of DACA recipients in its […]
In America, to be agnostic about place is likely being agnostic about race. As scholars grapple with racism in Administrative Law, it is important to consider place-based scholarship from the perspectives of Environmental Justice (EJ) and Geography. Both provide important insights into how administrative agencies can be instruments of strategic-structural racism and how administrative law can facilitate […]
The government might always struggle to determine, on its own, whether its regulatory choices reinforce racist structures and systems, such as those at work in the provision of health care. But the public need not passively wait for an agency to pay attention to these issues. The public comment process for rulemaking under the Administrative […]
In 1958, civil rights leaders, including Dr. Martin Luther King, Jr. and Andrew Young, met in New York with Reverend Everett Parker, who was the Director of the Office of Communications of the United Church of Christ. The Office was an advocacy arm of the church, whose members’ commitment to civil rights dated back to […]
Most of administrative law scholarship, and certainly the most widely cited and acclaimed scholarly contributions to the field, appear to be color-blind.[1] Most leading administrative law decisions seem to be so as well. Should we as scholars and thinkers in the field stand chastened by such a state of affairs? What role should race assume in administrative […]
Introduction In 2011, researchers found significant disparities in the National Institutes of Health (NIH) funding of minority researchers. In particular, their study determined that—even after controlling for education, country of origin, training, previous research awards, publication records, and employers—“[B]lack applicants remain 10 percentage points less likely than whites to be awarded NIH research funding.” This study spurred the […]
Immigration fuels the engine of corporate America. Fortune 500 corporations routinely recruit talented managers from their offices around the world to work in the United States. Smaller businesses operating in regional markets also rely on immigrant employees, who are willing to fill jobs when the domestic labor market cannot meet demand. Between 25 and 30 percent […]
The requirements for notice and comment rulemaking have been well established for decades. When an agency decides that a new rule should be promulgated, an initial version of that rule is published in the Federal Register. The public is then invited to comment on it for a period of time, typically 30 or 60 days. At the end […]