Law Commons^™

Radical Administrative Law, Christopher S. Havasy Assistant Professor Of Law

Vanderbilt Law Review

The administrative state is under attack. Judges and scholars increasingly question why agencies should have such large powers to coerce citizens without adequate democratic accountability. Rather than refuting these critics, this Article accepts that in scrutinizing the massive powers that agencies hold over citizens, these critics have a point. However, their solution—to augment the powers of Congress or the President over agencies to instill indirect democratic accountability—is one step too quick. We should first examine whether direct democratic accountability of agencies by the citizenry is possible.

This Article excavates the nineteenth-century European intellectual history following the rise of the modern …

Res Judicata And Multiple Disability Applications: Fulfilling The Praiseworthy Intentions Of The Fourth And Sixth Courts, Amber Mae Otto

Vanderbilt Law Review

In the United States, the application process to receive disability benefits through the Social Security Administration is often a tedious, multistep procedure. The process becomes even more complex if a claimant has filed multiple disability applications covering different time periods. In that circumstance, the question arises as to whether an administrative law judge hearing a claimant’s second application must make the same findings as the administrative law judge who heard the first application. In other words, how should res judicata function in the administrative law context when a claimant has filed for disability multiple times? Currently, circuits differ on this …

Barring Judicial Review, Laura E. Dolbow -- Sharswood Fellow

Vanderbilt Law Review

Whether judicial review is available is one of the most hotly contested issues in administrative law. Recently, laws that prohibit judicial review have sparked debate in the Medicare, immigration, and patent contexts. These debates are continuing in challenges to the recently created Medicare price negotiation program. Yet despite debates about the removal of judicial review, little is known about how often, and in what contexts, Congress has expressly precluded review. This Article provides new insights about express preclusion by conducting an empirical study of the U.S. Code. It creates an original dataset of laws that expressly preclude judicial review of …

Avoiding A "Nine-Headed Hydra": Intervention As A Matter Of Right By Legislators In Federal Lawsuits After Berger, Taylor Lawing -- J.D. Candidate

Vanderbilt Law Review

Heightened political polarization across the United States has resulted in the increased use of Rule 24(a) intervention as a matter of right by elected legislators in federal litigation concerning state law. Because states differ in their approaches to intervention, with only some states expressly granting intervention in state matters, lower federal courts have been tasked with evaluating motions to intervene by reconciling Rule 24(a)'s requirements with state statutes, which poses challenging questions concerning Rule 24. This Note aims to provide lower courts with a reimagined standard for evaluating motions to intervene from state legislators that considers the administrative, political, and …

Efficiency And Equity In Regulation, Caroline Cecot

Vanderbilt Law Review

The Biden Administration has signaled an interest in ensuring that regulations appropriately benefit vulnerable and disadvantaged communities. Prior presidential administrations since at least the Reagan Administration have focused on ensuring that regulations are efficient, maximizing the net benefits to society as a whole, without considering who benefits or who loses from these policies. Critics of this process of regulatory review have celebrated President Biden’s initiative, hoping that distributional analysis and the pursuit of equity will displace traditional tools and interests such as cost-benefit analysis and the pursuit of efficiency. Meanwhile, supporters of the current process are concerned that pursuing equity …

Executive Capture Of Agency Decisionmaking, Allison M. Whelan

Vanderbilt Law Review

The scientific credibility of the administrative state is under siege in the United States, risking distressful public health harms and even deaths. This Article addresses one component of this attack-—executive interference in agency scientific decisionmaking. It offers a new conceptual framework, “internalagency capture,” and policy prescription for addressing excessive overreach and interference by the executive branch in the scientific decisionmaking of federal agencies. The Article’s critiques and analysis toggle a timeline that reflects recent history and that urges forward-thinking approaches to respond to executive overreach in agency scientific decisionmaking. Taking the Trump Administration and other presidencies as test cases, it …

Stress Testing Governance, Rory Van Loo

Vanderbilt Law Review

In their efforts to guard against the world's greatest threats, administrative agencies and businesses have in recent years increasingly used stress tests. Stress tests simulate doomsday scenarios to ensure that the organization is prepared to respond. For example, agencies role-played a deadly pandemic spreading from China to the United States the year before COVID- 19, acted out responses to a hypothetical hurricane striking New Orleans months before Hurricane Katrina devastated the city, and required banks to model their ability to withstand a recession prior to the economic downturn of 2020. But too often these exercises have failed to significantly improve …

The Politics Of Deference, Gregory A. Elinson, Jonathan S. Gould

Vanderbilt Law Review

Like so much else in our politics, the administrative state is fiercely contested. Conservatives decry its legitimacy and seek to limit its power; liberals defend its necessity and legality. Debates have increasingly centered on the doctrine of Chevron deference, under which courts defer to agencies’ reasonable interpretations of ambiguous statutory language. Given both sides’ increasingly entrenched positions, it is easy to think that conservatives have always warned of the dangers of deference, while liberals have always defended its virtues. Not so. This Article tells the political history of deference for the first time, using previously untapped primary sources including presidential …

Chevron Is A Phoenix, Lisa Schultz Bressman, Kevin M. Stack

Vanderbilt Law Review

Judicial deference to agency interpretations of their own statutes is a foundational principle of the administrative state. It recognizes that Congress has the need and desire to delegate the details of regulatory policy to agencies rather than specify those details or default to judicial determinations. It also recognizes that interpretation under regulatory statutes is intertwined with implementation of those statutes. Prior to the famous decision in Chevron, the Supreme Court had long regarded judicial deference as a foundational principle of administrative law. It grew up with the administrative state alongside other foundational administrative law principles. In Chevron, the …

Judicial Deference To Administrative Interpretation Of Statutes From A Comparative Perspective, Vincent Martenet

Vanderbilt Journal of Transnational Law

This Article examines, from a comparative perspective, how judicial deference to administrative interpretation of statutes takes place and whether it is constitutionally admissible. Since constitutions and statutes rarely deal expressly with this issue, courts may have to determine whether or not such deference is permitted, and, if so, whether generally or in certain cases only. The constitutional, legal, and judicial context prevailing in each country is particularly important in this regard. Nevertheless, it may provide courts with little, if any, guidance on the specific issue of deference to administrative statutory interpretation. In this respect, a nuanced approach along all or …

Can And Should Universal Injunctions Be Saved?, Szymon S. Barnas

Vanderbilt Law Review

The practice of a federal district court judge halting the government's enforcement of an executive action against not only the parties before the court but against anyone, anywhere, may be coming to an end. Multiple Supreme Court Justices have expressed their skepticism in the propriety of universal injunctions. The growing scholarly consensus is that there should be a brightline rule against them. If the universal injunction's demise is impending and the class action's demise continues unabated, obtaining systemwide relief may be difficult when such relief may be most needed.

This Note considers whether universal injunctions can and should be saved. …

Private Enforcement In Administrative Courts, Michael Sant'ambrogio

Vanderbilt Law Review

Scholars debating the relative merits of public and private enforcement have long trained their attention on the federal courts. For some, laws giving private litigants rights to vindicate important policies generate unaccountable private attorneys general" who interfere with public enforcement goals. For others, private lawsuits save cash-strapped government lawyers money, time, and resources by encouraging private parties to police misconduct on their own. Yet largely overlooked in the debate is enforcement inside agency adjudication, which often is depicted as just another form of public enforcement, only in a friendlier forum.

This Article challenges the prevailing conception of administrative enforcement. Based …

Administrative Law's Political Dynamics, Kent Barnett, Christina L. Boyd, Christopher J. Walker

Vanderbilt Law Review

Over thirty years ago, the Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. commanded courts to uphold federal agency interpretations of ambiguous statutes as long as those interpretations are reasonable. This Chevron deference doctrine was based in part on the Court's desire to temper administrative law's political dynamics by vesting federal agencies, not courts, with primary authority to make policy judgments about ambiguous laws Congresscharged the agencies to administer. Despite this express objective, scholars such as Frank Cross, Emerson Tiller, and Cass Sunstein have empirically documented how politics influence circuit court review of agency statutory interpretations …

Interpreting An Unamendable Text, Thomas W. Merrill

Vanderbilt Law Review

Many of the most important legal texts in the United States are highly unamendable. This applies not only to the Constitution, which has not been amended in over forty years, but also to many framework statutes, like the Administrative Procedure Act and the Sherman Antitrust Act. The problem is becoming increasingly severe, as political polarization makes amendment of these texts even more unlikely. This Article considers how interpreters should respond to highly unamendable texts. Unamendable texts have a number of pathologies, such as excluding the people and their representatives from any direct participation in legal change. They also pose an …

Cartel Criminalization In Europe: Addressing Deterrence And Institutional Challenges, Francesco Ducci

Vanderbilt Journal of Transnational Law

This Article analyzes cartel criminalization in Europe from a deterrence and institutional perspective. First, it investigates the idea of criminalization by putting it in perspective with the more general question of what types of sanctions a jurisdiction might adopt against collusive behavior. Second, it analyzes the institutional element of criminalization by (1) discussing the compatibility of administrative enforcement with the potential de facto criminal nature of administrative fines under European law and (2) evaluating the trade-offs between an administrative and a criminal model of enforcement. Although a "panoply" of sanctions against both corporations and individuals may be necessary under a …

Executive Agreements Relying On Implied Statutory Authority: A Response To Bodansky And Spiro, David A. Wirth

Vanderbilt Journal of Transnational Law

Until recently, the law surrounding executive agreements has been a subject of attention from a relatively small number of academics concerned with foreign relations law, along with State Department lawyers who have a need to deploy the underlying concepts in concrete determinations. Then, with little advance warning, the Paris Agreement thrust legal doctrines surrounding executive agreements to center stage in public policy debates and in the popular press. President Donald Trump's campaign promise to "cancel" the Paris Agreement has drawn even more attention to the issue. Unfortunately, the result has been a great deal of confusion, often needlessly contributing to …

Regulation Of Emerging Risks, Matthew T. Wansley

Vanderbilt Law Review

Why has the EPA not regulated fracking? Why has the FDA not regulated e-cigarettes? Why has NHTSA not regulated autonomous vehicles? This Article argues that administrative agencies predictably fail to regulate emerging risks when the political environment for regulation is favorable. The cause is a combination of administrative law and interest group politics. Agencies must satisfy high initial informational thresholds to regulate, so they postpone rulemaking in the face of uncertainty about the effects of new technologies. But while regulators passively acquire more information, fledgling industries consolidate and become politically entrenched. By the time agencies can justify regulation, the newly …

An Executive-Power Non-Delegation Doctrine For The Private Administration Of Federal Law, Dina Mishra

Vanderbilt Law Review

Private entities often administer federal law. The early-twentieth-century Supreme Court derived constitutional limits to delegations of administrative power to private entities, grounding them in Article I of the Constitution where legislative power is delegated and in the Due Process Clause where the delegee's bias is apparent. But limits to the delegation of executive power to private administrators of law might exist in Article II. Those limits- in particular, their scope and the interplay among them-have been left underdeveloped by existing scholarship.

This Article explores the possibility of an Article II executive-power non-delegation doctrine for the private administration of federal law, …

Regulatory Exit, J. B. Ruhl, James Salzman

Vanderbilt Law Review

Exit is a ubiquitous feature of life, whether breaking up in a marriage, dropping a college course, or pulling out of a venture capital investment. In fact, our exit options often determine whether and how we enter in the first place. While legal scholarship is replete with studies of exit strategies for businesses and individuals, administrative law scholarship has barely touched the topic of exit. Yet exit plays just as central a role in the regulatory state as elsewhere- -welfare support ends, government steps out of rate-setting. In this Article, we argue that exit is a fundamental feature of regulatory …

Nuclear Power, Risk, And Retroactivity, Emily Hammond

Vanderbilt Journal of Transnational Law

The 2011 Fukushima nuclear disaster presented a familiar scenario from a risk perception standpoint. It combined a classic" dread risk" (radioactivity), a punctuating event (the disaster itself), and resultant stigmatization (involving world wide repercussions for nuclear power). Some nuclear nations curtailed nuclear power generation, and decades-old opposition to nuclear power found a renaissance. In these circumstances, risk theory predicts a regulatory knee-jerk response, potentially resulting in inefficient overregulation. But it also suggests procedural palliatives that conveniently overlap with administrative law values, making room for the engagement of the full spectrum of stakeholders. This Article sketches the U.S. regulatory response to …

Tentative Interpretations: The Abracadabra Of Administrative Rulemaking And The End Of 'Alaska Hunters', Matthew P. Downer

Vanderbilt Law Review

Agency flexibility is a battlefield. When circumstances change or a new regime takes power, federal agencies often adjust their settled regulations to reflect new realities. There is a persistent struggle, however, between preserving this flexibility and protecting those who relied upon the previous regulations.' When an agency changes course, regulated entities must comply, often with little warning and at great expense. In 1946, Congress passed the Administrative Procedure Act ("APA") to balance these interests by restricting when and how agencies can promulgate and change regulations.

Unsurprisingly, the APA did not achieve a lasting d6tente. Instead, it merely created new fronts …

States, Agencies, And Legitimacy, Miriam Seifter

Vanderbilt Law Review

Scholarship on the administrative process has scarcely attended to the role that states play in federal regulation. This Article argues that it is time for that to change. An emerging, important new strand of federalism scholarship, known as "administrative federalism," now seeks to safeguard state interests in the administrative process and argues that federal agencies should consider state input when developing regulations. These ideas appear to be gaining traction in practice. States now possess privileged access to agency decisionmaking processes through a variety of formal and informal channels. And some courts have signaled support for the idea of a special …

Resolving The Alj Quandary, Kent Barnett

Vanderbilt Law Review

Federal administrative law judges ("ALJs") understand Euripides's irony all too well. They, along with Article I judges, are the demigods of federal adjudication. As both courts and ALJs have noted, the function of ALJs closely parallels that of Article III judges. ALJs hear evidence, decide factual issues, and apply legal principles in all formal administrative adjudications under the Administrative Procedure Act ("APA"). Indeed, they outnumber Article III judges and decide more than two hundred and fifty thousand cases each year. But they lack the defining characteristics of Article III deities.

Article III judges are installed under the Appointments Clause, enjoy …

Delegating Supremacy?, David S. Rubenstein

Vanderbilt Law Review

The Supreme Court has long held that federal agencies may preempt state law in much the same way as Congress: either by issuing binding administrative rules that conflict with state law or by asserting exclusive federal control over a regulatory domain. Under this sweeping conception of the Supremacy Clause, agencies wield an extraordinary power in our federalist system. Specifically, agencies may displace the laws of all fifty states without the political and procedural safeguards inhering in the legislative process. The administrative-preemption power rests on the undertheorized doctrinal assumption that Congress may, in effect, "delegate supremacy" to agencies.

This Article challenges …

Gaming The Past: The Theory And Practice Of Historic Baselines In The Administrative State, J.B. Ruhl, James Salzman

Vanderbilt Law Review

In 1988, candidate George H. W. Bush was in a tight race for the presidency, behind in the polls to the Democratic challenger, Michael Dukakis. Stung by the D+ grade given by the League of Conservation Voters, Bush was searching for a way to claw back some of the environmental vote.' He saw an opening in wetlands. Perceived as worthless swamps and wasted development opportunities for most of our nation's history, conversion of wetlands for agricultural and urban land uses has resulted in a staggering loss of resources. Beginning in the 1970s, however, views started to change, with growing recognition …

The Future Of Agency Independence, Lisa S. Bressman, Robert B. Thompson

Vanderbilt Law Review

Independent agencies have long been viewed as different from executive-branch agencies because the President lacks authority to fire their leaders for political reasons, such as failure to follow administration policy. In this Article, we identify mechanisms that make independent agencies increasingly responsive to presidential preferences. We find these mechanisms in a context where independent agencies traditionally have dominated: financial policy. In legislative proposals for securing market stability, we point to statutorily mandated collaboration on policy between the Federal Reserve Board and the Secretary of the Treasury. In administration practices for improving securities regulation, we focus on White House coordination of, …

The Ncaa Rules Adoption, Interpretation, Enforcement, And Infractions Processes: The Laws That Regulate Them And The Nature Of Court Review, Josephine (Jo) R. Potuto

Vanderbilt Journal of Entertainment & Technology Law

This article takes a comprehensive look at how the NCAA is organized, describes the NCAA committee structure, and explains how the NCAA in its multitude of roles does its work. The article focuses particularly on the NCAA by law interpretation process and the policies, procedures, and scope of authority of the enforcement, infractions, and student-athlete reinstatement processes. In its description of the division of responsibility among enforcement, infractions and student-athlete reinstatement, the article emphasizes the independence of each. The article then assesses the functions and structure of the NCAA in light of the preogatives of a private, multi-state association and …

The Reviewability Of The President's Statutory Powers, Kevin M. Stack

Vanderbilt Law Review

From the Supreme Court's earliest days, it has reviewed some, but not all, challenges to the President's claims that a statute authorized his action. Not surprisingly, the Court's decisions granting review of the President's assertions of statutory powers have garnered more attention than its denials of review. Beginning with Marbury v. Madison1 and Little v. Barreme,2 gaining momentum in the twentieth century with the extensive discussion of statutory authority in Youngstown Sheet & Tube Co. v. Sawyer3 and Dames & Moore v. Regan,4 and accelerating in recent years with Hamdi v. Rumsfeld,5 Hamdan v. Rumsfeld,6 and Medellin v. Texas,7 the …

Beyond Economics: The U.S. Recognition Of International Financial Reporting Standards As An International Subdelegation Of The Sec's Rulemaking Authority, Jacob L. Barney

Vanderbilt Journal of Transnational Law

A final rule promulgated by the Securities and Exchange Commission (SEC) in 2008 allowing foreign private securities issuers to prepare SEC-required financial disclosures under international financial reporting standards (IFRS) as promulgated by the International Accounting Standards Board (LASB) is a highly significant event for U.S. and global capital markets. However, surprisingly few questions have been asked regarding the SEC's legal authority to take such an unprecedented step.

This Note assesses the recent SEC action with regard to IASB from two perspectives--traditional administrative law, with particular emphasis on delegations by government entities to private parties, and international law, with particular emphasis …

Judicial Deference And The Credibility Of Agency Commitments, Jonathan Masur

Vanderbilt Law Review

Consider the following situation: In late 2004, towards the end of President George W. Bush's first term, the National Highway Transportation Safety Administration ("NHTSA"), pursuant to its congressionally delegated authority, promulgates a rule that would relax inspection and testing regimes for automobile manufacturers- thereby saving those firms substantial amounts of money-if the manufacturers independently deployed cutting-edge vehicle safety technology. The research and development of this technology will require significant up-front expenditures, and automobile manufacturers must decide whether to invest the funds necessary to bring the technology to market. However, the cost-benefit analysis is not so straightforward. The predicament, as the …