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 […]
I’ll start this post with a bold claim: The core models of analysis in administrative law are inflexible and entrenched, and the scope, quality, and materiality of administrative law scholarship has stagnated as a result. Why (you might ask)? Because outdated beliefs about what constitutes objective legal analysis and intellectual rigor continue to mold research […]
Some doctrinal courses like property or contracts that involve a “racially-charged history” and “doctrine [that] is inextricably linked to race” lend themselves more readily to the inclusion of issues of race and class. Even so, the inclusion of socioeconomic issues in traditional doctrinal courses, though growing more common, remains relatively rare, driven by notions of neutrality and “perspectivelessness” that mask […]
The protest movement that coalesced this summer around #BlackLivesMatter galvanized a long overdue public conversation about race in the United States. Students across the country are demanding that their professors reexamine their textbooks and revise their course materials to grapple with the ways that structural racism has shaped our various disciplines. Administrative law is no […]
As of this writing, the federal government is considering using race and ethnicity to allocate access to a new Coronavirus vaccine to combat Covid-19 when one becomes available. More specifically, the government is considering giving preference to African Americans and Latinos because they have been disproportionately affected by the pandemic. Dean Dayna Bowen Matthew of the […]
The pandemic hit the United States two years into a trade war, in which President Trump promised to “tax the hell out of China.” One casualty is that Americans pay more for Personal Protective Equipment (PPE), like face masks, medical gowns, and gloves. PPE helps prevent COVID infections. Meanwhile, the pandemic response suffers from racial disparity, a “crisis within a […]
Immigration law has contributed to shaping and reinforcing the construct of race more than any other area of administrative law. Congress and the Executive have shaped immigration law via express and implicit racial restrictions on membership in the United States political community, and with respect to the allocation of rights, such as racial restrictions on naturalization and […]
Racist, regressive leaders around the world have been instrumentalizing racism, discrimination, and “othering” to further their nativist goals. As I have argued elsewhere, regressive governments increase their own power by suppressing the rights of their opposition and subverting the rule of law often by invoking national emergency or national security rhetoric. The starting point to circumventing […]
Federal administrative agencies have existed since this nation’s founding – the First Congress created the Patent Office, the Departments of War, Foreign Affairs, and Treasury, and more. But in the century that followed, Congress rarely tasked any of those agencies with adjudicating the status of individuals so as to hand out benefits and burdens.[1] The Fugitive […]
This is not a picture one would have seen during the battles over Memphis’s Overton Park. When planning for Interstate 40’s route through Memphis began in the 50’s, one could have found Blacks in parts of that park only on Tuesdays; the park was for Whites only on other days. An urban oasis near downtown, largely surrounded […]
The rule of law applies to all government actions, and the promulgation of regulations and the administration of those rules must also strictly follow the rule of law to have “a government of laws not of men.”[1] With the administration of these rules, a sense of selective enforcement based on prejudices can creep into a system […]
Research in the 1980s confirmed what everyone already suspected: People of color bear a disproportionate share of environmental harms. For example, in 1987 a major national study concluded: “Race proved to be the most significant among variables tested in association with the location of commercial hazardous waste facilities.”[1] After citing numerous studies, Luke Cole concluded in 1992 that […]