Category Archives: Administrative Law
Aug 22, 2011 Richard PierceAdministrative Law
Wendy Wagner, Katherine Barnes & Lisa Peters,
Rulemaking in the Shade: An Empirical Study of EPA’s Air Toxic Emission Standards, 63
Admin. L. Rev. 99 (2011), available at
SSRN.
Wendy Wagner, Katherine Barnes, and Lisa Peters provide a wealth of data and insights with respect to the rulemaking process in this well-researched and well-written article. They engaged in intensive empirical analysis of the ninety rulemakings in which EPA issued air toxic emission standards. For each of the rulemakings they studied three stages of the decision making process—pre-NPRM, notice and comment period, and period after issuance of a final rule.
I cannot do justice to the authors’ excellent discussion of their methodology and the implications of their findings. I will instead simply recite some of their most important findings in the hope that my summary of some of their findings will induce everyone to read this important article with care. Continue reading "What Actually Happens in a Rulemaking?"
Jul 11, 2011 Lisa BressmanAdministrative Law
Amnon Lehavi,
Judicial Review of Judicial Lawmaking, 96
Minn. L. Rev. (forthcoming 2011), available at
SSRN.
To what extent is a court just another lawmaker in our governmental structure? Professor Amnon Lehavi argues that the U.S Supreme Court has given a surprising answer in a surprising place: Stop the Beach Renourishment Inc. v. Florida Dept. of Envtl. Protection. The question in Stop the Beach was whether a decision of the Florida Supreme Court altering state property law deprived property owners of their rights in violation of the Fifth and Fourteenth Amendments. The U.S. Supreme Court held that it did not, but four justices expressly recognized that a judicial decision could constitute an unconstitutional taking. Lehavi contends that the case is significant beyond its ramifications for constitutional property law: four justices would treat state courts as lawmakers, indistinguishable from legislatures in this context. As Justice Scalia wrote: “It would be absurd to allow a State to do by judicial decree what the Takings Clause forbids it to do by legislative fiat . . . the particular state actor is irrelevent.”
Lehavi considers the implications of this view. For example, Lehavi asks, if state courts are lawmakers, are they entitled to the same sort of judicial deference as legislators and agencies? Specifically, should the U.S. Supreme Court engage in deferential review of their determinations rather than more aggressive de no review? If so, should the same doctrines apply or apply in the same manner? Lehavi observes many of those doctrines are adapted for legislatures or agencies, such as the regulatory taking doctrine. Consider Penn-Central’s three-prong test, which asks a reviewing court to consider: (1) the economic impact of the regulation on the claimant;” (2) “the extent to which the regulation has interfered with distinct investment-backed expectations;” and (3) the character of the governmental action.” Lehavi notes that the third prong is awkward. In some cases, the Court has examined whether the invasion is part of a broader governmental program adjusting benefits and burdens among citizens. But courts do not maintain such programs. Perhaps, then, substantive due process supplies the proper analysis, asking whether the invasion is effective at achieving some legislative public purpose. Courts have been understandably deferential to legislatures and judges on the means-ends connection. But, Lehavi inquires, should they maintain the same posture for state courts? Continue reading "The Judicial Playing Field: Courts as Lawmakers"
Jun 3, 2011 William FunkAdministrative Law
So-called nonlegislative rules, rules adopted as interpretative rules or statements of policy without notice and comment, have posed problems for courts and scholars for a number of years. In addition to myself, in recent years professors Robert Anthony, Peter Strauss, Elizabeth Magill, Nina Mendelson, Donald Elliott, Jacob Gersen, Ronald Levin, and John Manning have all attempted to bring coherence to the questions raised by nonlegislative rules.
Everyone agrees that agencies must be able to issue certain interpretations and policy statements, generically guidances, without having to follow the notice-and-comment process applicable to legislative rules. On the other hand, everyone also agrees that agencies can abuse the ability to avoid notice and comment rulemaking through invocation of the exceptions for “interpretative rules” and “general statements of policy.” How to police the line between those rules requiring notice and comment and those that do not is what has stymied courts and commentators. Now there are two more attempts in this regard, and while both are worthwhile additions to the field, Professor Seidenfeld seems to this author to come closest to hitting the mark. Continue reading "The Dilemma of Nonlegislative Rules"
May 2, 2011 Gillian MetzgerAdministrative Law
How do we structure an agency to be independent? Not surprisingly, the answer to that question depends on what we want the agency to be independent from. The traditional legal view, exemplified most recently by the Supreme Court’s decision in Free Enterprise Fund v. PCAOB, is that Congress intends independent agencies to be independent of the President and it achieves this goal primarily by imposing limiting the President’s power of removal. Not so fast, say Rachel Barkow, Lisa Bressman, and Robert Thompson. In two separate recent articles—one written before the Court handed down its decision and one after—these scholars argue that agency independence means both more and less than independence from the President.
Barkow begins her article by arguing that what often has motivated creation of independent agencies is not presidential insulation but fear of agency capture, which she defines as the desire to protect an agency from one-sided political pressure from the well-financed industry interests that the agency regulates. Barkow then assesses how well traditional indicia of independence—such as removal, multimember heads, bipartisan requirements, and exemption from OIRA regulatory review—help to limit capture. She concludes that these features provide important insulation but are often not sufficient to create an adequate buffer against one-sided interest group pressure. Instead, Barkow emphasizes the value of other structural mechanisms that have received less attention in discussions of agency independence: guaranteed agency funding, substantive expertise requirements and revolving door limits, relationships with other agencies and the states, and an agency’s ability to independently gather and disseminate information, provide congressional testimony, and represent itself in court. According to Barkow, these insulating features may be particularly helpful in equalizing the pressure that interest groups can otherwise bring to bear. Continue reading "Designing Agency Independence"
Apr 4, 2011 Peter ShaneAdministrative Law
Having taught some version of “separation of powers law” since 1982, I think I can say with some certainty that few problems of democratic accountability are more vexing than the general subject of “intelligence oversight.” For half a century, scandal after scandal has exposed an intelligence apparatus that is too often unreliable and susceptible to gross abuse.
Against this background, one might be forgiven a certain amount of pessimism for the future of reform. But it is not as if we are lacking for ideas. Samuel Rascoff’s article, Domesticating Intelligence, 83 S. Cal. L. Rev. 575 (2010), takes an especially thoughtful and creative approach with regard to domestic intelligence gathering, basically urging the application of familiar administrative law principles to achieve both “full compliance with the law, but also intelligence that is accurate, efficient, and useful to policymakers.” Professor Rascoff’s core argument is that “an expansive approach to cost-benefit analysis that [he refers] to as rationality review, judicial review, and public participation made possible by increased transparency ought to play significant roles in reconfiguring the governance of domestic intelligence.” Taking administrative law into this unaccustomed domain is an important scholarly contribution. Continue reading "Strengthening Intelligence Through Administrative Law"
Feb 3, 2011 Richard PierceAdministrative Law
David Zaring first makes two contributions to the growing empirical literature on judicial review of agency actions and then suggests a dramatic change in doctrine in light of his findings. Based on a study of 226 cases, Zaring found that courts uphold about 70% of agency actions when they apply either the substantial evidence test or the arbitrary and capricious test to agency findings of fact. He then combined his study with over a dozen other empirical studies of judicial review of agency actions to create a meta study of 5081 cases.
In his meta study, Zaring found that courts at all levels uphold about 70% of agency actions no matter what doctrine a court applies. Since choice of review doctrine has no apparent effect on the outcome of a case in which a court reviews an agency action, Zaring argued that courts should simplify review doctrine by replacing the six tests courts now apply with a single simple test—a court should uphold any reasonable agency action. Continue reading "Should Review Doctrine Be Simplified or Restated?"
Dec 17, 2010 Richard MurphyAdministrative Law
H. Miles Foy III,
On Judicial Discretion in Statutory Interpretation, 62
Admin. L. Rev. 291 (2010),
available at SSRN.
There is something silly about Supreme Court decisions in which five justices explain that the conventional tools of statutory interpretation—e.g., legislative intent, objective textual meaning, and judicial rules for discerning and applying them—plainly indicate that a statute means A but the other four justices deploy the same tools to explain that the statute plainly means B. After all, if the relevant meaning were all that clear, wouldn’t all nine of the extraordinarily capable legal minds on the Court come to quick agreement? And isn’t their disagreement strong evidence that the statutory question has no pre-existing, determinate legal answer? One might expect that under such circumstances, the rules of reasoned legal discourse would require justices to make remarks like, “Wow. My dissenting colleagues’ arguments are really very good—they almost persuaded me—and I’m no pushover. But, on balance, I still think it is a better idea to choose interpretation A instead of B.” Instead, the more usual practice is for both sides to insist that the other is just plain wrong.
In his elegant essay, Professor Foy suggests courts dispense with such nonsense and instead tell the truth. Suppose, for instance, a judge determines that conventional tools of statutory interpretation do not compel a choice between readings A and B. The judge happens to think that the world would be a better place were she to choose B. Under the current rules of the game, the judge should write an opinion that tries to justify choosing B based solely on conventionally acceptable tools—which might include, say, old dictionaries. This sort of exercise can generate judicial explanations that are strained, arbitrary, or untruthful. According to Professor Foy, the judge should: (a) instead concede that interpretations A and B both seem pretty darn reasonable as a matter of conventional legal analysis, and then (b) truthfully explain whatever reasons of policy, equity, or justice moved the judge to choose one interpretation over the other. In short, judges should admit that they must exercise discretion when choosing among reasonable interpretations of ambiguous statutes and then exercise that discretion as prudently and transparently as they can. Continue reading "The Truth Might Set Your Statutory Interpretation Free"
Nov 19, 2010 Linda JellumAdministrative Law
Jack M. Beermann,
End the Failed Chevron
Experiment Now: How Chevron
Has Failed and Why It Can and Should Be Overruled, 42
Conn. L. Rev. 779 (2010), available at
SSRN.
As one academic, among many, who has made my scholarly reputation based in part on the landmark case of Chevron U.S.A., Inc. v. Nat. Resources Defense Council, 467 U.S. 837 (1984), I noted with some concern Professor Jack Beermann’s latest work entitled: End the Failed Chevron Experiment Now: How Chevron Has Failed and Why it Can and Should be Overruled. Overrule Chevron? End the experiment? Say it ain’t so! Hadn’t Chevron offered “a wonderful new world … full of promise for administrative-law professors in need of tenure articles….?” National Cable & Telecommuns. Ass’n v. Brand X Internet Serv., 545 U.S. 967, 1019 (2005) (Scalia, J., dissenting).
I approached his article with some trepidation but also with great interest. Why would anyone want to overrule Chevron? Professor Beermann succinctly answers this question in his abstract: “Chevron has complicated judicial review and, at best, it is uncertain whether it has resulted in increased deference to agency interpretation. In fact, for numerous reasons, Chevron has been a failure on any reasonable measure and should be overruled.” Intrigued, I forged ahead. Continue reading "Jettisoning Chevron"
Oct 29, 2010 Anne Joseph O'ConnellAdministrative Law
There is considerable overlap between administrative law and constitutional law. The appointment of particular agency leaders without Senate confirmation, ex parte communication between an agency and interested persons in a rulemaking process, and the type and timing of a hearing used in terminating a government benefit, for example, can raise constitutional issues. These topics generally receive some attention, at least in the academic literature and at times in the courts.
Sophia Lee’s exceptional article, Race, Sex, and Rulemaking: Administrative Constitutionalism and the Workplace, 1960 to the Present, turns our attention from these more conventional explorations of the overlap to “regulatory agencies’ interpretation and implementation of constitutional law,” what Lee terms “administrative constitutionalism.” The article compares the contrasting responses of the Federal Communications Commission and the Federal Power Commission to pressure to use the state action doctrine to enact and enforce employment policies aimed at furthering equal employment by race, sex, and ethnicity, mainly in the 1960s and 1970s. The FCC did implement equal employment rules, largely independent of direct presidential or congressional influence, while the FPC did not. Continue reading "Regulating Constitutional Law"
Oct 15, 2010 Jack BeermannAdministrative Law
One of the secrets to scholarly success is picking interesting topics. It also helps if your analysis makes an interesting topic even more interesting. That’s exactly what Matthew Stephenson and Howell Jackson have done in their essay Lobbyists as Imperfect Agents: Implications for Public Policy in a Pluralist System, 47 Harv. J. Legis. 1 (2010). In this well-written and engaging essay, Stephenson and Jackson describe how principal-agent problems manifest themselves in the lobbying context and hypothesize on how these manifestations might affect public policy outcomes.
Wherever there are principals and agents, there are principal-agent problems, but the lobbying context is not one that readily comes to mind as infected by a serious problem. Lamenting that principal-agent problems in the lobbying context have not received the attention they deserve, Stephenson and Jackson demonstrate that lobbyists are far from perfect agents and that the principal-agent slack in the relationship has serious consequences for lobbying’s public policy outcomes. Continue reading "Imperfect Principals and Lobbyist Agency Costs"
