Category Archives: Administrative Law
Jun 17, 2013 Anne Joseph O'ConnellAdministrative Law
Jon D. Michaels, Privatization’s Progeny, 101 Georgetown Law Journal (forthcoming 2013), available at SSRN.
Administrative law loves binaries. There are executive agencies and independent regulatory commissions. There are federal bureaucratic organizations and state entities. There are public agencies and private firms. In recent years, scholars have examined organizations from different sides of a “boundary” working together – for instance, executive agencies and private firms in the new governance literature and separate federal and state agencies in federalism work. There is little discussion, however, on organizations essentially operating at or near the boundary.
Jon Michaels’s previous work has focused on national security agencies turning outward from the public sphere, specifically using government contracting, for classic government tasks. In his forthcoming piece, Privatization’s Progeny, Michaels turns inward, exploring how privatization is reshaping a wider class of public institutions themselves, through “the marketization of bureaucracy” and “government by bounty.” Continue reading "Public Agencies Going Private"
May 10, 2013 Peter ShaneAdministrative Law
In July, 2012, the Obama administration invited states, which administer the Temporary Assistance for Needy Families (TANF) program, to apply for waivers from some federal requirements for that program. The states would have to have alternative programs in place for increasing employment among the poor. In short order, the presidential campaign of Republican candidate Mitt Romney charged the President with gutting federal law. Campaign commercials alleged that Obama was illegally ending the work requirements that had been a centerpiece of federal welfare reform in the 1990s.
Although the commercials had little political impact, they did bring to public attention a little-noticed feature of a surprising number of federal statutes – a feature that Professors David Barron and Todd D. Rakoff call “big waiver.” In their superb paper, “In Defense of Big Waiver,” they analyze a fascinating phenomenon. Congress sometimes will enact “a fully reticulated, legislatively defined regulatory framework” that contains within it a delegation of “broad, discretionary power to determine whether the rule or rules that Congress has established should be dispensed with.” Continue reading "“Big Waiver” as a Constructive New Tool of the Administrative State"
Apr 10, 2013 Linda JellumAdministrative Law
When I returned from the 2013 AALS Annual Meeting, I discovered Professor Kevin M. Stack’s latest article, Interpreting Regulations, 111 Mich. L. Rev. 355 (2012), waiting patiently for me. As someone who teaches both Administrative Law and Statutory Interpretation/Legislation, I picked it up with interest; although, given all that has been written about statutory interpretation, I must confess that I really couldn’t imagine that there would be anything new to say about interpreting regulations. Yet, I remembered that each year, around the time my students realize that they will certainly be tested with a Chevron-like hypothetical on their final exam, I’m asked how to approach the analysis. After they’ve determined that Chevron applies (Chevron step zero), that Congress did not have an intent as to the precise issue before the court (Chevron step one), and that the agency’s interpretation of the statute is reasonable (Chevron step two), I have always told them that the final step is simply to apply the regulation to the fact pattern using the traditional tools of statutory interpretation. Was my direction wrong? I wondered.
Lest I hold you in suspense, let me explain Professor Stack’s thesis immediately. He believes that courts should use regulatory purposivism to interpret regulations. He defines regulatory purposivism in this way: a court should ask whether an interpretation of a regulation is (1) permitted by the regulation’s text, and (2) consistent with the purposes as stated in the regulation’s statement of basis and purpose (and/or text). If a court answers yes to both questions, then the interpretation is “reasonable,” “permissible,” “plainly” right, at essence, controlling. (If I may digress, I wondered, was he advocating a new two-step deference approach? God forbid!) He suggests that courts should not give meaning to a regulation that the text will not bear, but he adds that neither should courts give a regulation a meaning that the written statement of basis and purpose will not bear. In essence then, he advocates for a text-based approach to purposivism! Continue reading "A Textualist Approach to Purposivism in the Regulatory Arena"
Mar 6, 2013 Mark SeidenfeldAdministrative Law
Jennifer Nou, Agency Self-Insulation under Presidential Review, ___ Harv. L. Rev. ___ (forthcoming 2013), available at SSRN.
Perhaps the hottest topic in administrative law of late is the propriety of presidential influence on agency action. To its credit, that literature distinguishes between the agencies and the White House as two distinct institutions that may not agree on particular regulatory outcomes. But, the literature does not go much beyond this simple distinction in its picture of the executive branch, treating both White House and agencies as black boxes, each of which acts with a consistent purpose. At the same time, scholarship has focused on agencies as strategic actors vis-à-vis the judiciary, choosing methods of policymaking to minimize the potential for courts to interfere with that endeavor. In “Self-Insulation under Presidential Review,” Jennifer Nou investigates the extent to which agencies might act strategically amidst resource constraints as a means of minimizing White House influence on their policymaking discretion. In so doing, Nou considers the internal structure and decisionmaking processes of both agencies and the “institutional presidency” to paint a sophisticated picture of their interaction. The result is an article that provides insight into the decisionmaking of both these institutions, and provokes much thought about how their interaction might affect administrative law.
Nou explicitly limits her investigation of White House influence to its formal review of agency rules, as mandated by various executive orders, which she dubs “presidential review.” She makes clear that while the Office of Information and Regulatory Affairs (OIRA) coordinates such review, it can involve many entities, including those within the Executive Office of the President (EOP) and other agencies. She begins by explaining why agency staff and in many cases agency heads can disagree with the preferences of the institutional President on many regulatory policy issues. She next explains that, from an agency’s perspective, presidential review poses constraints similar to judicial review in that, generally, both require the agency to invest precious resources to avoid reversal of its decision. But, she notes that presidential review is also costly for the executive branch reviewers; this cost allows agencies some strategic latitude to minimize its chances of policy reversal by increasing the White House’s costs of review, rather than by investing in more comprehensive and higher quality decision-making. For example, agencies can avoid review altogether by simply abandoning a policy change, by making policy through adjudication and perhaps even by guidance document. They may be able to avoid review or minimize the level of scrutiny to which a rule is exposed by designating the rule as not economically significant or not significant at all, or by providing only opaque and general information about costs and benefits. Finally, they may be able to parlay statutory deadlines or the end of a President’s term effectively to shorten the period for OIRA review, thereby decreasing the level of scrutiny. Continue reading "Strategic Interactions Between Administrative Agencies and the White House: A Welcome Look into the Black Box of the Executive Branch"
Feb 8, 2013 Michael E HerzAdministrative Law
Bruce Kraus & Connor Raso,
Rational Boundaries for SEC Cost-Benefit Analysis, 30 Yale J. on Reg. 2 (2013 forthcoming),
available at SSRN.
A happy account of judicial review of agency action holds that courts and agencies enjoy a “partnership.” Judge Leventhal provided a classic statement:
[A]gencies and courts together constitute a “partnership” in furtherance of the public interest, and are “collaborative instrumentalities of justice.” The court is in a real sense part of the total administrative process, and not a hostile stranger to the office of first instance. Continue reading "The D.C. Circuit as “Hostile Stranger”"
Dec 17, 2012 Richard MurphyAdministrative Law
Richard H. Pildes & Samuel Issacharoff,
Targeted Warfare: Individuating Enemy Responsibility, New York University School of Law, Public Law & Legal Theory Research Paper Series, Working Paper No. 12-40,
available at SSRN. President Obama is a Nobel Peace Prize winner. He also orders missile strikes from drones against targeted individuals in Pakistan, Yemen, and Somalia. According to some vocal critics, such extra-judicial killing makes President Obama a murderer.
This conclusion rests in large part on the premise that the United States is not, properly speaking, in an armed conflict with al Qaeda, the Taliban, and associated forces. As such, the laws and norms of international human rights law (IHRL) and civil law enforcement should apply. Absent exigent circumstances, this legal regime expects judicial authorization of the use of lethal force. President Obama is not a judge, so, when he authorizes a killing, he commits murder. The picture looks different if we concede that the laws of armed conflict (LOAC) apply to the drone strikes. This legal regime requires an attacker to take feasible precautions to ensure that a target is legitimate but does not require judicial authorization for attacks. Continue reading "An Evolving Administrative Law of Targeted Warfare (and the Power of Londoner/BiMetallic)"
Oct 16, 2012 Kathryn WattsAdministrative Law
Joshua D. Wright & Angela M. Diveley,
Do Expert Agencies Outperform Generalist Judges? Some Preliminary Evidence from the Federal Trade Commission (2012),
available at SSRN.
Proponents of administrative agencies have long touted the expertise that specialized agencies enjoy. Indeed, perceived agency expertise helps to explain Congress’s willingness to delegate to agencies the authority to set policy through rulemaking, to render adjudicatory decisions, and to conduct other activities. Yet, as Joshua D. Wright and Angela M. Diveley point out in a study posted this past January to SSRN, the so-called “expertise hypothesis”—which posits that expert agencies will consistently produce higher quality outputs than generalists—lacks empirical support. In their recent study, Wright and Diveley seek to fill the void by conducting an empirical study that examines whether the Federal Trade Commission (FTC) performs as well as generalist judges in its adjudicatory antitrust decision-making role.
Specifically, Wright and Diveley’s study tests the expertise hypothesis by comparing antitrust decisions before the FTC with those issued by Article III courts. They use “appeal” as their primary measure of quality performance—comparing the appeal rates of federal district court judges and FTC Commissioners. They explain that appeals are a “useful indicator for whether the initial court made an error” because “a higher appeal rate implies the decision-maker has issued more opinions that leave at least one party feeling strongly enough to invest in the opportunity for another decision-maker to decide that he has committed reversible error.” (P. 12) Nonetheless, because they acknowledge that reversal rates also can contain some information on the quality of the underlying decision, Wright and Diveley also report their results about the differences between the FTC and generalist judges using reversal rates. Continue reading "Testing the Expertise Hypothesis"
Sep 25, 2012 Richard PierceAdministrative Law
Cynthia Farina, Mary Newhart & Josiah Heid,
Rulemaking vs. Democracy: Judging and Nudging Public Participation that Counts, 2 Mich. J. Envtl. & Admin. L. (2012),
available at SSRN.
In Rulemaking vs. Democracy: Judging and Nudging Public Participation that Counts, Cynthia Farina, Mary Newhart, and Josiah Heidt explain why the initial efforts to encourage use of electronic media to broaden participation in rulemaking have not, and can not, work. The opening paragraph of the article describes and criticizes the reasoning process that has inspired the initial efforts:
Open government enthusiasts (among which we certainly count ourselves) seem prone to magical thinking—i.e., the building of if-then links that are not objectively justifiable. Open government magical thinking has several strands. If we give people the opportunity to participate, they will participate. If we alert people that government is making decisions important to them, they will engage with the decisionmaking process. If we make relevant information available, they will use that information to engage meaningfully. If we build it, they will come. If they come, we will get better government. (P. 1.) Continue reading "Efforts to Expand Public Participation in Rulemakings Have Been a Failure"
Aug 13, 2012 Peter ShaneAdministrative LawJotwell
• Harlan Yu & David G. Robinson,
The New Ambiguity of “Open Government”, 59 UCLA L. Rev. Disc. 178 (2012).
• Jennifer Shkabatur, Transparency With(out) Accountability: The Effects of the Internet on the Administrative State, 31 Yale L & Pol. Rev. — (forthcoming), available at
SSRN.
Jotwell prefers that its contributors “like” one piece of scholarship at a time. But (a) I have to atone for submitting my contribution late, and (b) the two manuscripts that have caught my fancy most recently are wonderfully complementary and deserve to be attended to jointly.
Literally from Day One, a welcome mantra of the Obama Administration has been “open government,” to which the Administration has variously linked the adjectives, “transparent,” “participatory,” and “collaborative.” As both conceptualized and practiced, however, the very idea of “open government” is highly ambiguous. Even its arguably most straightforward aspiration – transparency – is rife with uncertainties. Two important steps forward in understanding the Obama open government “moment” are The New Ambiguity of “Open Government”, by Princeton doctoral student Harlan Yu and Yale law student David G. Robinson, forthcoming in Discourse, the online journal of the UCLA Law Review, and Transparency With(out) Accountability: The Effects of the Internet on the Administrative State, by Jennifer Shkabatur, an SJD candidate at Harvard Law School, forthcoming in Vol. 31, No. 1, of the Yale Law & Policy Review. Each is a significant contribution to a much undertheorized domain. Continue reading "What Do We Want from Open Government – and What the Heck is “Open Government”?"
Jun 25, 2012 Gillian MetzgerAdministrative LawJotwell
In Deference and Dialogue in Administrative Law, Emily Meazell takes up the topic of serial administrative law litigation. These repeated rounds of challenges and remands, which Meazell finds are particularly prevalent in contexts of risk regulation, provide a new lens on court-agency relationships. Meazell closely reviews several instances of such litigation, spanning topics as diverse as endangered species, potential workplace carcinogens, and financial qualifications of nuclear plant operators. She argues that such close examination reveals a process of dialogue, with agencies ultimately (if not immediately) responding to judicial concerns and courts in turn acknowledging administrative responses.
According to Meazell, serial litigation merits attention because it demonstrates that judicial review may not function as we think it does. In particular, Meazell flags two features of serial litigation that deserve particular note. The first is that agencies frequently considered new information and evidence on remand, even though that might entail greater effort and new rounds of notice and comment. She argues that serial litigation thus can provide an opportunity for agencies to refine their analyses and gain greater expertise over time. The second is that, despite their initial sometimes stern rejections of agency determinations, courts often ultimately took quite a deferential stance. From this Meazell concludes that, when viewed over the long lifetime of some of this litigation, hard look review resembles more the soft look of constitutional rationality review than the more searching scrutiny administrative law cases and scholarship claim it to be. Continue reading "Serial Litigation in Administrative Law: What Can Repeat Cases Tell Us About Judicial Review?"
