Administrative Remedies

Gwendolyn Savitz and Marc Roark

Administrative Remedies Because you can't fix what you don't understand. Join Professor Gwendolyn Savitz and Interim Dean Marc Roark from the University of Tulsa College of Law as they demystify the world of administrative law. Most people don't realize that the rules governing their daily lives—from the medications we take to the air we breathe, from workplace safety standards to financial regulations—aren't created by Congress. They're created by federal agencies using delegated authority. And there's a whole body of law governing how agencies can (and can't) exercise that power. In each episode, Gwen and Marc break down complex legal doctrines using real-world examples, timely analogies, and actual regulatory documents. To help things make sense for lawyers and non-lawyers alike. Whether you're a law student trying to understand the Administrative Procedure Act, a business owner navigating regulatory compliance, or just a curious citizen wondering how the TSA decided on exactly 3.4 ounces, this podcast makes administrative law accessible, relevant, and even fascinating. From the nondelegation doctrine to rulemaking procedures, from the major questions doctrine to modern debates about agency power, Administrative Remedies gives you the background knowledge you need to understand the way the federal government actually gets things done. New episodes weekly.

  1. 6D AGO

    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

  2. MAR 17

    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

  3. MAR 10

    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

  4. MAR 3

    Not All Judges Are Equal: The Hidden Spectrum of Federal Adjudicators

    When you challenge a government decision, the outcome may depend less on the facts of your case than on which kind of judge you happen to get. Federal administrative adjudication runs on a spectrum — and most people don't know where they fall on it until they're already in the room. In this episode, Gwen and Marc map that spectrum. Administrative law judges (ALJs) sit at the top, with salary protections, for-cause removal protections enforced by an independent body, and no performance reviews tied to how often they side with the agency. At the other end, immigration judges are DOJ attorneys who can be fired mid-hearing — and in 2025, that's exactly what's been happening, with over 125 immigration judges removed and military lawyers being brought in as replacements with no immigration law experience required. In between sits the IRS Independent Office of Appeals, where settlement officers conduct collection due process (CDP) hearings with real structural protections — including a ban on ex parte contact with other IRS employees — but without the same removal insulation as ALJs. The episode's sharpest finding: Social Security disability ALJ approval rates vary by as much as 80 percentage points depending on which judge you're assigned. Same statute. Same definition of disability. Different judge, different outcome. That's not judicial discretion — that's a judge lottery. And now the Supreme Court, following the logic of Lucia v. SEC and the unitary executive theory, may be moving toward stripping ALJs of their independence protections entirely — returning federal adjudication to something resembling the pre-APA world Congress designed the Administrative Procedure Act of 1946 to fix.

    26 min

  5. FEB 24

    Learning Resources v. Trump Part 2 - The Major Questions Doctrine and the Airing of Judicial Grievances

    Seven opinions. One hundred and seventy pages. Six justices agree the tariffs are unlawful — but they can't agree on why, and the reason matters for every future case where the executive claims sweeping power from an old statute. In Part 2, we walk through all seven opinions in Learning Resources v. Trump. Roberts applies the major questions doctrine for the first time against a Republican president — but only three justices sign on. Barrett writes to say the doctrine is just textualism done right. Gorsuch writes a Festivus concurrence going after every other justice on the Court. Kagan says she doesn't need the doctrine at all. Kavanaugh — who helped build the major questions doctrine — abandons it. And Thomas stakes out a solo position on nondelegation that could resurface for years. This is the clearest map yet of where every justice stands on the most contested question in administrative law.

    25 min

  6. FEB 24

    Learning Resources v. Trump Part 1 - The Actual Holding (No Major Questions Doctrine)

    On February 20, the Supreme Court ruled 6-3 that the International Emergency Economic Powers Act does not authorize the President to impose tariffs. In Part 1 of our emergency coverage, we break down the textual holding that all six majority justices agreed on — why "regulate" has never meant "tax" anywhere in the U.S. Code, why IEEPA's fifty-year history cuts against the government, and why the greater-includes-the-lesser argument doesn't work when you're comparing regulation to taxation. We also explain why we split this into two episodes: the distinction between the binding holding and the plurality's major questions doctrine analysis matters enormously a distinction a lot of the commentary is missing.

    24 min

  7. FEB 17

    On the Record or Out of Luck: The Adjudication Spectrum

    When an agency decides your case, what kind of process do you get? Sometimes it’s a full trial-type hearing with witnesses, cross-examination, an independent decisionmaker, and a written opinion. Other times it’s a paper review and a short explanation. In this episode, we map the adjudication spectrum under the Administrative Procedure Act (APA) — from “straight to your room” to a full family meeting. What We Cover The difference between formal and informal adjudicationThe “magic words” that trigger full procedural protections: “on the record after opportunity for agency hearing”Why most agency decisions — roughly 90% or more — are informalWhat formal adjudication actually includes:NoticeRight to counselPresentation of evidenceCross-examinationDecision based exclusively on the recordAdministrative Law Judge (ALJ)Why the APA says almost nothing about informal adjudicationThe “black hole” of informal processHow due process, organic statutes, and agency regulations fill the gapWhy courts generally cannot impose extra procedures beyond what the APA requires (Vermont Yankee)The massive volume problem: millions of decisions, only about 2,000 ALJsThe justice gap created by delay and procedural filteringKey Cases United States v. Florida East Coast Railway A statute that says “hearing” is not enough. Without the magic words, you don’t get formal adjudication.Vermont Yankee Nuclear Power Corp. v. NRDC Courts cannot add procedural requirements beyond those required by statute.Real-World Examples Passport applicationsSocial Security disability determinationsImmigration interviewsStudent loan discharge decisionsBorrower defense claimsPublic Service Loan ForgivenessThe same APA framework governs all of them. Why This Matters Your rights depend on where you fall on the spectrum — and you don’t get to choose. Formal hearings are expensive and slow. Informal decisions are fast but thin. The system is built around tradeoffs: speed versus accuracy, efficiency versus fairness. For many people, the informal stage filters out their claim before they ever reach a hearing. The structure of the system — not just the merits of the case — often determines the outcome.

    28 min

  8. FEB 10

    Rulemaking and Adjudication - the Two Engines of Agency Power

    This episode introduces one of the most important structural distinctions in administrative law: the difference between rulemaking and adjudication. Agencies don’t just enforce law — they also create policy. Sometimes they do it prospectively through general rules. Other times they do it case-by-case while deciding what happens to a specific party. That choice affects procedure, fairness expectations, and how quickly entire industries can change. The Core Distinction Rulemaking Forward-lookingGeneral applicabilitySets standards before conduct happensTypically uses notice-and-comment proceduresAdjudication Backward-looking (or present-focused)Applies to specific parties and factsDetermines liability, rights, or obligations in individual casesProcedural protections vary widelyWhy This Distinction Exists Government can’t realistically give individualized hearings before adopting rules that affect millions of people. But when the government is deciding what happens to a specific person or company, due process concerns become much stronger. Constitutional Foundation Londoner v. Denver (1908) Individualized determinations → hearing requiredBi-Metallic Investment Co. v. State Board of Equalization (1915) General rules affecting many people → no individual hearing requiredThese cases still structure how courts think about procedural rights today. The Gray Area: Agencies Can Make Policy Through Adjudication Under Supreme Court precedent (Chenery), agencies can choose whether to announce policy through rulemaking or through individual cases. That means agencies can: Announce a new standardApply it in the same caseEffectively change national policy overnightReal-World Example: Browning-Ferris (NLRB, 2015) The NLRB expanded the definition of “joint employer” through a single adjudication. Why it mattered: Affected staffing agencies, franchises, contractors, and supply chainsTriggered years of litigation, rulemaking reversals, and political conflictShows how one case can reshape an entire sectorWhy This Matters Outside Law School This structure affects: Labor rightsEnvironmental regulationData security expectationsFinancial regulationHealthcare complianceLicensing and professional disciplineOften, regulated parties don’t get a clean rulebook. They piece together standards from enforcement actions. Key Takeaway Agencies exercise two fundamentally different kinds of power: Setting general rules for the futureDeciding what happens to specific partiesWhich path they choose determines procedure, fairness expectations, and how predictable regulation feels. Coming Next Next episode: The spectrum of adjudication procedures — from trial-like hearings to simple denial letters — and why the same statute can produce radically different levels of process.

    27 min
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About

Administrative Remedies Because you can't fix what you don't understand. Join Professor Gwendolyn Savitz and Interim Dean Marc Roark from the University of Tulsa College of Law as they demystify the world of administrative law. Most people don't realize that the rules governing their daily lives—from the medications we take to the air we breathe, from workplace safety standards to financial regulations—aren't created by Congress. They're created by federal agencies using delegated authority. And there's a whole body of law governing how agencies can (and can't) exercise that power. In each episode, Gwen and Marc break down complex legal doctrines using real-world examples, timely analogies, and actual regulatory documents. To help things make sense for lawyers and non-lawyers alike. Whether you're a law student trying to understand the Administrative Procedure Act, a business owner navigating regulatory compliance, or just a curious citizen wondering how the TSA decided on exactly 3.4 ounces, this podcast makes administrative law accessible, relevant, and even fascinating. From the nondelegation doctrine to rulemaking procedures, from the major questions doctrine to modern debates about agency power, Administrative Remedies gives you the background knowledge you need to understand the way the federal government actually gets things done. New episodes weekly.

Information

  • Creator
    Gwendolyn Savitz and Marc Roark
  • Years Active
    2025 - 2026
  • Episodes
    24
  • Rating
    Clean
  • Copyright
    © Gwendolyn Savitz and Marc Roark
  • Show Website
    Administrative Remedies

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