Administrative Remedies

Gwendolyn Savitz and Marc Roark

Because you can't fix what you don't understand. The rules governing your daily life - from the medications you take to the air you breathe, from workplace safety to financial regulation - weren't made by Congress. They were made by federal agencies operating under delegated authority. And there's an entire body of law governing how that power works, when it can be challenged, and what happens when it goes wrong. Administrative Remedies explains that law. Professor Gwendolyn Savitz and Dean Marc Roark of the University of Tulsa College of Law break down the doctrines behind the headlines - Chevron, the major questions doctrine, Jarkesy, due process, agency enforcement - using real-world analogies and current Supreme Court cases. For law students, practitioners, and anyone who wants the administrative state to actually make sense. New episodes weekly.

  1. 1 DAY AGO

    The Lifecycle of an Administrative Case: How the Record Gets Built Before You Walk Into the Room

    An insurance adjuster spends thirty minutes on your roof, photographs what they photograph, and writes "minor cosmetic damage" instead of "structural compromise." That characterization is now in the record — and every reviewer after that is seeing the damage through that adjuster's eyes. Gwen and Marc follow a single person — Kathleen, a warehouse supervisor with degenerative disc disease — through every stage of the Social Security disability system, from the field office application to federal court review. Along the way, every doctrine from Season 2 shows up on the timeline: the Roth property interest gap that leaves initial applicants without constitutional protection, the Mathews balancing test that said live hearings weren't required, the inquisitorial model that makes the ALJ simultaneously investigator and judge, and the substantial evidence standard that makes the record nearly untouchable on appeal. The episode then contrasts Kathleen's years-long journey with the enforcement side — what happens when the government comes after a company — where constitutional protections, legal counsel, and procedural leverage appear from day one. The hearing matters. But the case was shaped long before anyone walked into the room.

    26 min

  2. 14 APR

    Jarkesy Jumps to the FTC

    Jarkesy Jumps to the FTC Less than two years after the Supreme Court's decision in SEC v. Jarkesy, the Fifth Circuit has applied the same constitutional logic to the FTC — and the implications are far bigger than one agency. In Intuit v. FTC, the court vacated a cease-and-desist order against TurboTax's "free" advertising, holding that the FTC's in-house adjudication of deceptive advertising claims violates the separation of powers. The agency that Congress deliberately designed in 1914 to adjudicate cases in-house — with bipartisan structure, Senate-debated architecture, and over a century of practice — just had that design declared unconstitutional in the Fifth Circuit. In this episode, Gwen and Marc break down: Why deceptive advertising under Section 5 shares enough of a "common core" with common law fraud to require an Article III courtThe Fifth Circuit's significant extension of Jarkesy: the private rights analysis follows the claim, not the remedy — meaning even cease-and-desist orders (equitable relief) can trigger the Article III requirementWhy the FTC's 110-year history of in-house adjudication didn't save itThe deception/unfairness distinction — and why how the FTC frames a complaint may now be the constitutional questionThe real-world tradeoff: more process for regulated parties means slower, costlier, and fewer enforcement actions for consumersThis decision is binding only in the Fifth Circuit, but it's grounded in Supreme Court precedent — giving any respondent in an FTC administrative proceeding nationwide a roadmap to challenge in-house adjudication of deception claims. Jarkesy was never just an SEC case. The next domino could be the CFPB, the FDA, or any agency whose enforcement authority traces back to common law wrongs. Released the day before Tax Day — which, for the record, hasn't actually fallen on April 15th since 2021.

    21 min

  3. 7 APR

    The Right to a Jury: SEC v. Jarkesy and the Limits of Agency Enforcement

    The parents leave a rule: milk with dinner. The babysitter enforces it — no problem. But when one kid hits the other, does the babysitter handle that too? She saw the whole thing, she knows the context, and she's been managing exactly these situations for years. But hitting was wrong before she ever showed up. In SEC v. Jarkesy, the Supreme Court drew that same line through agency enforcement. Gwen and Marc trace the public rights doctrine from Murray's Lessee in 1855 through Atlas Roofing in 1977 — the case agencies relied on for nearly fifty years — to explain why the Court decided that when the SEC pursues civil penalties for securities fraud, the Seventh Amendment requires a jury trial. The problem: the opinion never clearly explains why fraud causing financial loss is closer to the common law core than negligence causing death, which Atlas Roofing had called a public right. The result is a new boundary that no one can precisely locate, with every enforcement agency left wondering which of its cases can stay in-house and which now have to go to federal court — and a likely reduction in enforcement that protects innocent defendants and guilty ones alike.

    29 min

  4. 2 APR ·  BONUS

    Mathews Applied: Due Process, Habeas Corpus, and Immigration

    Can the government send you to a foreign prison without giving you any way to say, "You've got the wrong person"? In this companion episode to their Matthews v. Eldridge discussion, Gwen and Marc apply the due process framework to three developments unfolding in real time: the administration's use of the 1798 Alien Enemies Act to deport Venezuelan nationals without individualized hearings, the Abrego Garcia case — where a man with a court order protecting him ended up in the exact prison an immigration judge said he couldn't be sent to — and a new rule that would have made meaningful immigration appeals nearly impossible before a federal court blocked it. They run the Matthews factors on each, showing how a Bloomberg investigation found roughly 90% of those deported had no criminal record, why the government's "administrative error" defense proves the need for pre-removal checkpoints, and what happens when the government acts first and argues courts can't fix it later. This episode isn't about whether borders should be secure or whether gangs are dangerous — it's about the constitutional principle, enshrined before the Bill of Rights even existed, that the government must let you challenge your detention. Because when that breaks down, it doesn't just affect the people in custody. It threatens the structure that protects everyone.

    21 min

  5. 31 MAR

    How Much Process Are You Actually Due: The Mathews Balancing Test

    Tornado watches, warnings, and sirens don't all mean the same thing — and if you live in Oklahoma, you know you don't even run to a shelter every time a siren goes off. You calibrate your response to the actual level of threat. The Supreme Court says due process works the same way. In this episode, Gwen and Marc break down Mathews v. Eldridge — the due process balancing test that has governed how every federal agency designs its procedures for the past fifty years. The test asks three questions: How serious is what you stand to lose? How likely is the government to get it wrong without more process? And what would it actually cost to do more? The answers determine how much process the Constitution requires before the government acts — and whether you get a hearing at all before your benefits stop, your license is suspended, or you're barred from flying. Working through Social Security disability terminations, ten-day school suspensions (Goss v. Lopez), civil service firings (Loudermill), and the no-fly list, they show how the same three-factor framework produces dramatically different results depending on context — from a full evidentiary hearing to a conversation in a principal's office. The sharpest tension: Mathews said that paper review of medical evidence was good enough to terminate disability benefits without a prior hearing. But for conditions like chronic pain, depression, and fibromyalgia — where credibility is everything — a paper review misses exactly what a hearing would catch. The constitutional minimum and the practical reality diverged, and eventually Congress had to step in. Mathews doesn't just tell courts how to evaluate procedures after the fact. It's the design specification agencies are supposed to use when they build their systems in the first place — and when they don't, courts use it to force a redesign.

    28 min

  6. 24 MAR

    The License You Have vs. The License You Want: Roth, Sindermann, and What Counts as Property for Due Process Purposes

    Gwen and Marc cover the cases that define what counts as "property" for due process purposes—and why the answer to that question determines whether the Constitution shows up at all. They contrast two nurses: Linda, who has her license suspended without a hearing, and Kevin, who is denied a license application with no explanation. Same state, same nursing board, same situation—but Linda gets constitutional protection while Kevin gets nothing. The difference? Linda has a property interest; Kevin has only a "unilateral expectation." Gwen and Marc work through Board of Regents v. Roth, which establishes that property interests aren't created by the Constitution—they're created by state law, statutes, regulations, and contracts. They examine Perry v. Sindermann, where the Supreme Court said agencies can't make promises with one hand and disclaim them with the other. They discuss Cleveland Board of Education v. Loudermill, which holds that once a state creates an entitlement, it can't strip away the procedural protections that come with it. They also tackle Town of Castle Rock v. Gonzales, the tragic case where three children were murdered after police failed to enforce a restraining order—and the Supreme Court said there was no property interest in police enforcement, even when the statute said "shall arrest." Gwen and Marc explore the uncomfortable reality that due process protects you when the government takes something you have, but doesn't require the government to act for you. Through examples ranging from hair braiding licenses to civil service employment, they show how program design isn't neutral—it's constitutional architecture. They Cover Board of Regents v. Roth: "legitimate claim of entitlement" versus "unilateral expectation"Perry v. Sindermann: how mutually explicit understandings create property interestsCleveland Board of Education v. Loudermill: why states can't define away procedural protectionsTown of Castle Rock v. Gonzales: the narrow gate for entitlements and the limits of mandatory languageLiberty interests and the stigma-plus requirementHow agencies design programs to create or avoid constitutional protectionsReal-world examples: professional licensing, government employment, welfare benefitsFeatured Cases Board of Regents v. Roth (1972)Perry v. Sindermann (1972)Cleveland Board of Education v. Loudermill (1985)Town of Castle Rock v. Gonzales (2005)Key Concepts Legitimate claim of entitlement: The standard from Roth that determines whether you have a property interestConstitutional architecture: How agencies design programs to trigger or avoid due process requirementsStigma-plus test: Reputation damage alone isn't enough—you need tangible harmShall versus may: Why mandatory statutory language doesn't always create entitlements

    20 min

  7. 17 MAR

    Before We Take Something Away: Why Due Process Is More Than Getting It Right

    Gwen and Marc cover the foundational question of procedural due process: Why does the Constitution require the government to give you notice and a hearing before taking something away? They distinguish procedural due process (how the government acts) from substantive due process (whether it can act at all), explaining why these terms constantly trip people up. They explore why accuracy isn't the only value—legitimacy and dignity matter even when the government gets the right answer. Through examples like welfare terminations and driver's license suspensions, they examine who bears the cost when government makes mistakes and why the timing of process matters as much as the amount of process. Gwen and Marc discuss Goldberg v. Kelly and Justice Brennan's recognition that cutting someone off from the means of survival while they wait for an appeal isn't just harsh—it undermines their ability to fight back. They also introduce the critical threshold question that controls everything: Does this action even count as a deprivation of life, liberty, or property? If not, the Constitution has nothing to say about it. They Cover The difference between procedural and substantive due processWhy legitimacy matters even when outcomes are correctHow risk allocation determines who pays for government mistakesThe timing problem: pre-deprivation versus post-deprivation hearingsGoldberg v. Kelly and welfare benefit terminationsReal-world examples: Social Security, driver's licenses, nursing licensesThe threshold question: What counts as life, liberty, or property?Featured Cases Goldberg v. Kelly (1970)Fuentes v. Shevin (1972)

    16 min

  8. 10 MAR

    The Judge Who Built Your Case: When the Judge is Also the Investigator

    You walk into a hearing expecting a neutral judge who will listen to both sides. Instead, you find a judge who spent months building your case file—ordering exams, gathering records, forming preliminary views. Is this a fair hearing or a predetermined outcome? This episode explores the Social Security disability system, the largest adjudication system in the United States, where administrative law judges both develop the evidence and decide the case. We contrast adversarial and inquisitorial models of justice, examine why the U.S. selectively borrowed from civil law systems without their safeguards, and unpack the cognitive risks—confirmation bias, ownership effects, and implicit prejudgment—that emerge when investigation and adjudication combine in a single person. We also grapple with a harder question: Was this system designed wrong, or is it actually the more humane choice for vulnerable claimants who can't afford lawyers and wouldn't survive a fully adversarial fight? Key Concepts Adversarial vs. Inquisitorial Systems: The fundamental difference between party-driven investigation (U.S. courts) and judge-driven investigation (civil law systems), and why mixing them creates new problemsThe Duty to Develop the Record: How ALJs are required to gather evidence to ensure claims are fairly decided, even when claimants are unrepresentedConfirmation Bias in Adjudication: Why forming preliminary views while building the record creates a cognitive loop that's difficult to escapeStructural Bias vs. Individual Bias: The difference between proving an individual judge is biased and identifying systemic risks in how roles are combinedConsultative Examinations: How ALJ-ordered medical exams can both help and hurt claimants, depending on what they revealCases & Regulations Discussed Withrow v. Larkin, 421 U.S. 35 (1975) Establishes that combining investigative and adjudicative functions doesn't automatically violate due processCreates a high bar: challengers must prove "actual bias" or overcome the "presumption of honesty and integrity"Sets the constitutional framework that allows Social Security's current structure20 C.F.R. § 404.944 - ALJ's Duty to Develop the Record Codifies the affirmative obligation to develop a complete recordRequires ALJs to request additional evidence, seek records, and order consultative exams when neededEpisode Highlights Why This Matters: Over 500,000 disability hearings occur annually—more than the entire federal court system combined. Most claimants have already been denied twice and are unrepresented. The structure of these hearings determines whether they get a fair shot. The Design Choice: The system wasn't broken by accident—it was intentionally designed to help claimants who couldn't navigate an adversarial process. The alternative would be government attorneys arguing against every disability applicant. The Cognitive Problem: Even well-intentioned ALJs face predictable psychological risks when they develop evidence and then judge it. The bias isn't malicious—it's structural. The Constitutional Standard: Courts have upheld this structure because proving "actual bias" is nearly impossible when the bias operates through investigation choices rather than overt prejudice.

    25 min
See All (29)

Trailer

About

Because you can't fix what you don't understand. The rules governing your daily life - from the medications you take to the air you breathe, from workplace safety to financial regulation - weren't made by Congress. They were made by federal agencies operating under delegated authority. And there's an entire body of law governing how that power works, when it can be challenged, and what happens when it goes wrong. Administrative Remedies explains that law. Professor Gwendolyn Savitz and Dean Marc Roark of the University of Tulsa College of Law break down the doctrines behind the headlines - Chevron, the major questions doctrine, Jarkesy, due process, agency enforcement - using real-world analogies and current Supreme Court cases. For law students, practitioners, and anyone who wants the administrative state to actually make sense. New episodes weekly.

Information

  • Creator
    Gwendolyn Savitz and Marc Roark
  • Years Active
    2025 - 2026
  • Episodes
    29
  • Rating
    Clean
  • Copyright
    © Gwendolyn Savitz and Marc Roark
  • Show Website
    Administrative Remedies

You Might Also Like