Between the Lines

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Latest Episodes:

Non-lawyer assistance in adjudication and a life in administrative law Jan 25, 2025

On this episode of Between the Lines host Andy Fois talks to an academic expert and an attorney from the Administrative Conference about the use of non-lawyers to represent and assist parties in agency adjudication.

In the second half, we meet an attorney who has had an exceptional career in and around administrative law and who talks about his life and the state of administrative law past, present, and future.

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Talking Administrative Law Dec 07, 2024

In this episode of Between the Lines, ACUS Chair Andrew Fois interviews two leading experts in administrative law about their careers and views on contemporary ad law issues.

In the first half of the show, we'll meet Alan Morrison, a professor and associate dean at the George Washington University School of Law, who has had an exceptional 50-year career in the law as a professor and litigator.

In the second half, Fois will talk with Adam White of the American Heritage Institute and the C. Boyden Gray Center for the Study of the Administrative State.

Morrison and White will weigh in on Chevron, Loper Bright, Chada and other major ad law cases.

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Contractors in Rulemaking and a Life in Administrative Law Nov 08, 2024

In this episode of Between the Lines with ACUS, host Andrew Fois looks “between the lines” of the issues surrounding administrative agency use of contractors in rulemaking.

Contractors are ubiquitous in the federal government performing a wide range of functions in the rulemaking process. Two academic experts, who wrote a report for ACUS in 2022 on the subject will discuss the way agencies use contractors in rulemaking, the advantages and disadvantages of doing so, and the legal and other obligations that such use involves. The report informed an official ACUS Recommendation on the subject.

In the second half, we will meet Chai Feldblum, an accomplished attorney and a public ACUS member who has had an amazing career in administrative law.

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Lives in administrative law Oct 12, 2024

This episode will again take us Between the Lines of administrative law and agency procedures through talks with two notable people, both good friends of ACUS, who have had accomplished careers in administrative law and agency porcedures.

Host Andrew Fois will guide our guests through the work they have done throughout their careers as well as their thoughts on the development and present state of administrative law.

In the first half of the show Fois will be joined by professor Jeff Lubbers of the Washington College of Law and former ACUS research director.

In the second half, we will meet Susan Dudley, professor at the George Washington University Law School and former director of the Office of Information and Regulatory Affairs.

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Individualized Guidance and A Life in Administrative Law Sep 12, 2024

On this episode of Between the Lines, host Andy Fois and his guests will delve into the question of “individualized guidance.”

Under what circumstances do - and should - agencies provide requestors with guidance about compliance with their programs? And, if given, can requestors, and even third parties, rely on that guidance?

An academic expert and ACUS attorney will discuss a report and the ACUS recommendation on the subject. Then, BTL will begin a new feature of the show called “A Life in Administrative Law” which will interview people with significant experience in administrative law and agency processes. We will discuss guests’ careers and their views on administrative law. Our first guest will be the Hon. John Vittone.

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Recent administrative law cases decided by the US Supreme Court Jul 19, 2024

In this episode of Between the Lines with the Administrative Conference of the United States, host Andrew Fois and his guests will discuss the three significant administrative law cases decided by the United States Supreme Court at the end of its 2023-2024 term.

These are: Loper Bright Enterprises v. Raimondo, SEC v. Jarkesy, and Corner Post v. Federal Reserve. These decisions were previewed in an earlier episode of Between the Lines.

On this program, an expert guest will address his theory of the meaning and future application of the Loper Bright case, which overruled a long-standing Supreme Court case called Chevron v. NRDC. The professor’s take on the case differs from that of most observers so far.

In the second half of the show, we explore the question of how federal administrative agencies can best manage the congressional constituent services requests that are regularly referred to them by members of Congress. This subject, also known as casework, will be discussed with the author of a recent report to ACUS and the attorney advisor who shepparded the resulting ACUS recommendation informed by that report.

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Lessons learned in international regulatory cooperation Jun 25, 2024

On this episode of Between the Lines with the Administrative Conference, host Andrew Fois takes a look at a vital issue in an interconnected world: international regulatory cooperation.

Other nations are issuing regulations, or not doing so, on the same things that the United States is. How do those regulations or lack thereof become reconciled? Lots of countries build airplanes and issue regulations regarding their construction and use. But these planes fly into and out of countries all over the world.

Regulations regarding anti-terrorism regulations often differ. Many food and drug regulations differ from country to country and those differences may restrict free trade. The way these differences are reconciled is through international regulatory cooperation.

In this episode, three experts from academia will be discussing what international cooperation is, how it got started, its current status, and prospects for its future.

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Agency-imposed user fees and agency use of precedential decision-making May 24, 2024

On this episode of Between the Lines with the Administrative Conference of the United States, ACUS Chair Andrew Fois takes you between the lines of two important contemporary issues in administrative law: agency-imposed user fees and agency use of precedential decision-making.

ACUS has recently studied and issued recommendations to federal administrative agencies in both these areas. Its recommendation on user fees points to factors that agencies and Congress should consider when setting up a user fee program, including identifying the purposes of the fees, the potential for unintended consequences, and best ways to communicate with the public about them.

ACUS also identifies best practices for whether, when, and how agencies should make use of precedential decision-making in agency adjudications including identifying them both internally and publicly.

Academic experts and government guests will be on hand to discuss both issues.

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Improving the administrative adjudication process Apr 25, 2024

This episode of Between the Lines takes a look at an issue that affects tens of millions of Americans and American businesses each year who are subject to adjudication procedures with a federal administrative agency.

First, the episode explains what administrative adjudication is. Then it drills down on two timely issues: how can online processes be used to improve adjudications for all parties and what procedures should be provided to parties when the Administrative Procedure Act does not mandate a specific process for more informal adjudications. Both questions were the subject of recommendations to agencies by the Administrative Conference of the United States in 2023.

Three experts in the field, two from the federal government and one from academia, will discuss their reports and the recommendations on the subjects.

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Agency transparency and public engagement Apr 01, 2024

This month on Between the Lines with the Administrative Conference, host Andy Fois and a panel of experts will explore questions about the transparency of administrative agencies and how they can do a better job of providing for public participation and engagement.

Witnesses from the Office of Management and Budget will explain a recent request for information that it issued to receive input from the public on how to improve Public Participation and Community Engagement (PPCE) with federal agencies.

A law professor will discuss a study and recommendation from ACUS on how agencies can best conduct virtual public engagement.

A study and ACUS recommendation about agency transparency of legal materials will be the subject of the second half of the show. The guests are the author of the report and an ACUS member who led the adoption of the recommendation.

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The enforcement of adjudication decisions Mar 02, 2024

This episode of Between the Lines with the Administrative Conference (ACUS) explores two important cases in administrative law being considered by the United States Supreme Court in the 2023-2024 term.

The first, SEC v. Jarkesy, could make significant changes to how federal administrative agencies conduct enforcement adjudications. It raises three constitutional issues: the 7th amendment right to a jury trial, the “delegation doctrine,” and the constitutional appointment of administrative law judges.

In the second case, Corner Post v. Board of Governors, the Court will rule on when Americans and businesses may go to court to challenge rulemakings by administrative agencies that have caused them harm.

Host Andrew Fois will discuss these cases and the issues they raise with two respected experts in administrative law and procedure. The opinions will be issued by the Court before July 2024.

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Justice Delayed - Justice Denied: Timeliness of Agency Adjudication Feb 02, 2024

This episode of Between the Lines with the Administrative Conference of the US is titled: Justice Delayed/Justice Denied: Timeliness of Agency Adjudication.

The show tackles the all too persistent problem of backlogs and delays that people often face when required to deal with an agency adjudication. Millions of Americans do so every year to obtain benefits, services, permits, and licenses or to respond to accusations of lawbreaking. Delays resolving these matters can have significant consequences.

This episode explores the issue with four expert guests. The first two are ACUS attorneys who conducted an in-depth research report that resulted in an official recommendation, containing proposals for agencies and Congress, adopted by the ACUS assembly.

In the third segment we hear about that recommendation from tje chair of ACUS committee that developed it.

Finally, the acting chair of a small agency will describe how it addressed its recent problem of 'inherited inventory."

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Burdens in the administrative system Jan 05, 2024

This episode of “Between the Lines with the Administrative Conference of the United States (ACUS)” will investigate how federal administrative agencies can identify and reduce the burdens that the public faces when interacting with these agencies.

Tens of millions of Americans and small businesses must interact with federal administrative agencies every year. They must do so for a wide variety of reasons including seeking information -- claiming health, retirement, VA, housing, or other benefits -- securing permits and licenses -- paying taxes -- responding to enforcement or adjudication challenges and complying with agency rules and regulations.

Too often people and businesse face unacceptable amounts of “red tape” and other obstacles before they can achieve their goals with federal agencies.

This episode takes listeners “between the lines” of efforts to help agencies do a better job of identifying and then addressing and reducing the red tape that experts call an administrative burden.

Two university professors will discuss a report they provided to ACUS laying out the problem. An ACUS committee chair will then talk about a series of proposals, adopted by the Assembly, about how best to confront these problems of identifying and reducing administrative burden.

Finally an OMB attorney will tell us about the efforts it is making to tackle them.

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Supreme Court interpretations of the Chevron deference doctrine Dec 11, 2023

This episode of Between the Lines considers one of the most important cases in administrative law, namely, the Chevron deference doctrine.

Chevron, decided by the United States Supreme Court in 1985,and the subsequent cases that made it into a “doctrine,” deal with how courts should evaluate an administrative agency’s interpretation of its authorizing statute that it claims empowers it to issue the rules in question. Chevron requires courts to apply a two-step analysis that first considers whether the statute in question is clear. If so, the court must then apply that standard. If the statute is unclear, however, the second step requires the court to defer to the agency’s interpretation of the statute as long as that interpretation is reasonable.

The doctrine has been applied by the Supreme Court approximately 100 times in 35 years and not without controversy among legal scholars and practitioners. There are two cases pending before the court this term that offer it the opportunity to reverse or reform the Chevrondoctrine.

This episode discusses these issues with Columbia Law Professor Tom Merrill, author of a recent book on Chevron, Fernando Laguarda, general counsel of AmeriCorps who will provide a perspective from a federal agency, and University of Minnesota Law Professor Kristin Hickman who will bring us up to speed on the two pending cases.

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Episode 3: Federal agency use of machine learning and generative AI Nov 09, 2023

This episode of “Between the Lines with the Administrative Conference of the United States,” tackles the timely and complex issues regarding federal agency use of machine learning, generative AI, and other algorithmic tools in administrative proceedings. These procedures include regulation and rulemaking, enforcement, adjudication, and licensing.

Andrew Fois, host of the show and chair of the Administrative Conference, and his four expert and experienced guests consider such questions as definitions of AI and the other tools, how agencies have been using these tools already, potential benefits of their expanded use by agencies, and the risks associated with using these tools. These guests are all friends of ACUS, and they address the substantial body of work undertaken by ACUS on this subject. They also discuss President Biden's October 30th Executive Order to agencies directing them how to use AI and the accompanying OMB guidance assisting agencies on the best ways to execute that EO.

Guests include:

Professor Dan Ho of Stanford Law School
NYU law Professor Catherine Sharkey
Professor Cary Coglianese of the University of Pennsylvania School of Law
Alexandra Reeve Givens, president and CEO of the Center for Data and Technology.

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Episode 2: Access to justice in administrative procedure Oct 03, 2023

In this episode, host Andy Fois, Chair of the Administrative Conference of the United States, how the interests of regular people and small businesses are represented before federal administrative agencies take actions that effect their interests.

He is joined by:

Amy Widman, Law Professor, Rutgers University
Rachel Rossi, Director of the Office for Access to Justice, Department of Justice
Ron Flag, President of Legal Services Corporation
Lou Virelli, Law Professor, Stetson University Law School

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Episode 1: Introducing Between the Lines with the Administrative Conference of the United States Aug 29, 2023

This inaugural episode of the new FNN show Between the Lines with the Administrative Conference of the United States takes listeners “between the lines” of issues in administrative law and government procedures, as well as the work of the Administrative Conference (ACUS) on those issues.

This first episode will give you some background information to help you understand what ACUS is, what it does, and what issues its been working on recently and at present. Your host for this program is Andrew Fois, the current ACUS Chair. The guests include former ACUS Chair Paul Verkuil (2010-2015), long-time ACUS Council member Ron Cass, and Council member Funmi Olorunnipa Badejo.

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