Administrative Remedies

Gwendolyn Savitz and Marc Roark
  • 5.0 (4)
  • GOVERNMENT
  • UPDATED WEEKLY

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. 1D AGO

    Nobody Said Deny More Cases: How Agency Preferences Reach the Hearing Room

    In the final episode of a three-part series on how agencies actually produce outcomes, Gwen and Marc trace the mechanisms that did the work — all of them upstream of the hearing room and mostly invisible from outside: Case completion targets that measure speed but not thoroughness — and a Seventh Circuit concurrence warning that even well-intentioned production pressure "can alter the essential function of adjudication"Quality review rubrics that aren't published, shift with administrations, and can't be appealed — but feed into performance evaluations that have real career consequencesSocial Security Rulings that describe themselves as not having "the force and effect of law" and in the same sentence say they are "binding on all components" — binding policy issued without notice and commentThe 1984 case that saw it coming: Association of Administrative Law Judges v. Heckler, where the court found outcome-based targeting of ALJs "violated the spirit of the APA, if no specific provision thereof"Immigration as the amplified version: 700-case-per-year quotas for judges without APA independence protections, deciding cases where the stakes are deportationSomewhere out there is a claimant with the same diagnosis as someone approved three years ago by the same ALJ in the same office. That claimant gets denied — not because the case changed, but because the system around the judge changed. And nobody outside the agency can see why.

    28 min

  2. MAY 12

    The Review Layer Doesn't Fix It — Three Things Agency Review Does Instead

    In 2018, Attorney General Jeff Sessions reached into a single immigration case, certified it to himself, and overruled the precedent that had let domestic violence survivors qualify for asylum. In 2021, Garland certified it back. In 2025, Bondy certified it away again. Three reversals on the same doctrine in seven years — no statute changed, no rulemaking happened. One signature each time. In this episode — the second in a three-part series on how agencies actually produce outcomes — Gwen and Marc move up a level from the hearing room and ask whether internal appellate review fixes the variation E13 documented. The textbook answer is yes: that's what review is for. The real answer is that "internal review" describes three very different machines, and none is primarily in the business of producing consistency. The APA baseline is permissive. 5 USC 557 gives the reviewing body "all the powers which it would have in making the initial decision" — including the power to redo credibility findings from a cold transcript. The ALJ who sat three feet from the witness gets reversed; the federal court then defers to the agency under substantial evidence review. The one person who actually saw the testimony is the one whose findings get displaced.Three agencies, three pullbacks. Social Security walks the default back via 20 CFR 404.970 — the Appeals Council acts only on legal error or want of substantial evidence. Immigration walks it back furthest via 8 CFR 1003.1 — IJ fact findings get clear-error review. The SEC operates closest to the default, where "all the powers" actually bites.Model 1 — Social Security: review mostly doesn't happen. The Appeals Council grants review in roughly 15-20% of cases. The rest get a one-paragraph denial. That denial opens the 60-day window to federal court, but reads to a lay claimant like a final rejection — because in ordinary English "denied" means you lost, while in admin-law English it means you've exhausted and the clock is running. Represented claimants know this. Unrepresented claimants miss the window and lose by default.Model 2 — Immigration: review is a policy instrument. The BIA designates decisions as precedential, binding every IJ in the country. Under 8 CFR 1003.1(h), the Attorney General can pull any case — pending or decided — and write a precedential opinion on it. Matter of A-R-C-G (2014), Matter of A-B- (2018), Garland's vacatur (2021), Matter of S-F-M (2025): the same doctrine swung four times across four administrations through a single referral mechanism. That isn't error correction. It's substantive policymaking through the review channel.Model 3 — Enforcement (SEC, FTC, NLRB): review is automatic and institutionally tilted. Every ALJ decision goes up. About three-quarters of SEC reversals favor the enforcement division — finding violations the ALJ didn't or raising penalties the ALJ imposed. The Commission supervises the enforcement staff, sets priorities, allocates their budget, and then sits as the appellate tribunal reviewing whether that same staff proved its case. No bad faith required; the incentives only run one way.Three failure modes, one conclusion: SSA fails by not reviewing; immigration fails by reviewing through a politically directed mechanism whose priorities shift with administrations; enforcement fails by reviewing through a body with an institutional stake in the result. Review corrects some errors and generates precedent where precedent gets designated. What it does not do — anywhere — is pull similar cases toward similar outcomes. Next episode: agencies don't shape outcomes by correcting decisions. They shape the conditions under which decisions get made.

    34 min

  3. MAY 5

    The Forty-Six Point Spread: Why Your Outcome Depends on Who You Get, Who Represents You, and Where You Live

    A 2017 GAO study found that Social Security disability outcomes could swing by forty-six percentage points based solely on which ALJ heard the case. Same claimant, same record, same hearing office, different judge. Individual ALJ approval rates range from under ten percent to over ninety. That's not noise — it's the system. In this episode — the first of a three-part series on how agencies actually produce outcomes — Gwen and Marc step outside the hearing room and examine the three variables that shape results before a single question gets asked: Judge assignment: Random allocation protects against selective routing, but paired with forty-six points of variation, it produces something that looks like a lottery. The system chose neutrality over consistency — and consistency doesn't get recovered downstream.Representation: Claimants with attorneys get roughly double the approval rate of those without — not mainly because of what happens in the hearing, but because of record-building beforehand and something more structural: since ALJ decisions aren't published, the only way to know how a specific judge handles specific issues is to have appeared in front of them. Experienced local attorneys hold what amounts to privatized law — accumulated operational knowledge that doesn't exist in any public source.Geography: Hearing offices differ by ten to fifteen points in approval rates beyond what the mix of judges explains, driven by local economic conditions, regional medical infrastructure, and office-level practice cultures that develop over time.A national program, a single statutory standard, and systematically different outcomes depending on which judge you draw, whether you can afford a lawyer who knows that judge, and which office covers your zip code. The binding agency-level law that does exist — Social Security Rulings, HALLEX — covers a narrow band of interpretive questions. Everything outside that band is where the variation lives. Next episode: if horizontal consistency doesn't exist at the hearing level, does top-down appellate review fix it? Spoiler — it doesn't.

    27 min

  4. APR 28

    Same Evidence, Different Outcomes: How Credibility and Burden of Proof Decide What Happens in the Hearing Room

    Two claimants walk into two hearing rooms in the same building on the same day. Same herniated disc, same imaging, same attorneys, same legal standard. One walks out with benefits. The other doesn't. The difference isn't the evidence — it's that one ALJ believed her claimant and the other didn't. In this episode, Gwen and Marc break down the two factors that most often explain why identical cases produce opposite outcomes: How Social Security overhauled its credibility framework in 2016 to shift from "do I believe this person" to "are these symptoms consistent with the record" — and why ALJs are still making character judgments anywayThe specificity principle: why "a sharp, stabbing pain that radiates down my right leg to my knee" carries more weight than "it really hurts" — and why admitting what you can do makes you more believable about what you can'tSocial media, surveillance, and the pattern problem — it's not the concert photo that destroys your case, it's the gap between the photo and what you told the judgeThe boilerplate credibility finding that showed up in thousands of decisions and why the Ninth Circuit said summarizing the medical evidence isn't the same as explaining why you don't believe the claimantThe structural tension at the heart of burden of proof: the APA says the proponent bears the burden, which means the claimant in a benefits case loses on a 50/50 record — even though the ALJ was supposed to be helping develop that recordWhy that interaction plays out completely differently in asylum, where the substantive standard is more generous but the evidence base can be so narrow that a single credibility finding is the entire caseCredibility determines how much of your evidence the judge credits. Burden determines how much credited evidence you need. And which ALJ ends up in the room with you may matter more than either — which is exactly where the next episode picks up.

    29 min

  5. APR 21

    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

  6. APR 14

    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

  7. APR 7

    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

  8. APR 2 ·  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
See All (33)

Trailer

Ratings & Reviews

5
out of 5
4 Ratings

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
    33
  • Rating
    Clean
  • Copyright
    © Gwendolyn Savitz and Marc Roark
  • Show Website
    Administrative Remedies