Law Commons^™

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 …

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 …

Of Dialogue--And Democracy--In Administrative Law, Jim Rossi

Vanderbilt Law School Faculty Publications

Linda Cohen and Matthew Spitzer's study, "The Government Litigant Advantage," sheds important light on how the Solicitor General's litigation behavior may impact the Supreme Court's decision making agenda and outcomes for regulatory and administrative law cases. By emphasizing how the Solicitor General affects cases that the Supreme Court decides, Cohen and Spitzer's findings confirm that administrative law's emphasis on lower appellate court decisions is not misplaced. Some say that D.C. Circuit cases carry equal-if not more-precedential weight than Supreme Court decisions in resolving administrative law issues. Cohen and Spitzer use positive political theory to provide a novel explanation for some …

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 …

Reclaiming The Legal Fiction Of Congressional Delegation, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

The framework for judicial review of agency statutory interpretations is based on a legal fiction – namely, that Congress intends to delegate interpretive authority to agencies. Critics argue that the fiction is false because Congress is unlikely to think about the delegation of interpretive authority at all, or in the way that the Court imagines. They also contend that the fiction is fraudulent because the Court does actually care about whether Congress intends to delegate interpretive authority in any particular instance, but applies a presumption triggered by statutory ambiguity or a particularized analysis involving factors unrelated to congressional delegation. In …

Deference And Democracy, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

In "Chevron, U.S.A. v. Natural Resources Defense Council, Inc.", the Supreme Court famously held that judicial deference to agency interpretations of ambiguous statutes is appropriate largely because the executive branch is politically accountable for those policy choices. In recent cases, the Court has not displayed unwavering commitment to this decision or its principle of political accountability. This Article explores "Gonzales v. Oregon" as well as an earlier case, "FDA v. Brown & Williamson Tobacco Corp.", in which the administrations possessed strong claims of accountability yet the Court did not defer to the agency determinations. In both, the Court justified its …

The Statutory President, Kevin M. Stack

Vanderbilt Law School Faculty Publications

American public law has no answer to the question of how a court should evaluate the president's assertion of statutory authority. In this Article, I develop an answer by making two arguments. First, the same framework of judicial review should apply to claims of statutory authority made by the president and federal administrative agencies. This argument rejects the position that the president's constitutional powers should shape the question of statutory interpretation presented when the president claims that a statute authorizes his actions. Once statutory review is separated from consideration of the president's constitutional powers, the courts should insist, as they …

Judicial Review Of Agency Inaction: An Arbitrariness Approach, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

This Article contends that the current law governing judicial review of agency inaction, though consistent with the prevailing theory of agency legitimacy, is inconsistent with the founding principles of the administrative state. The Supreme Court's reluctance to allow judicial review of agency inaction reflects the popular view that agency decision-making should be subject foremost to the scrutiny of politically accountable officials. The difficulty is that even scholars who generally support this view of agency decision-making reject the Court's treatment of agency inaction. Yet these scholars have failed to appreciate the reason. The reason is that the founding principles of the …

Redeeming Judicial Review: The Hard Look Doctrine And Federal Regulatory Efforts To Restructure The Electric Utility Industry, Jim Rossi

Vanderbilt Law School Faculty Publications

Recent policy-effect studies denounce judicial review for its adverse effects on agency decisionmaking. In its strong version, the policy-effect thesis suggests that judicial review has paralized innovative agency decisionmaking. Professor Rossi reacts to policy-effect studies, particularly as they have been used to attack the hard look doctrine in administrative law. He revisits Professor Richard Pierce's policy-effect description of the effects of judicial review of the Federal Energy Regulatory Commission (FERC). Professor Rossi's survey of recent FERC decisionmaking provides some support for an attenuated version of the policy-effect thesis, but leads him to reject the strong version of the thesis. Much …

Administrative Law -- 1957 Tennessee Survey, James B. Earle

Vanderbilt Law Review

Only a few cases by the Tennessee Supreme Court decided during the survey year considered questions of general administrative law. These concerned the timing and extent of judicial review of administrative action and the conduct of hearings by agencies.

Prerequisites to Judicial Review: Whether available administrative remedies must be exhausted by a litigant before seeking a review or other relief by court action is a question not always capable of exact prediction.' The "long settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been …

Administrative Law -- 1956 Tennessee Survey, James B. Earle

Vanderbilt Law Review

Questions of the scope and timing of judicial review of administrative agency action were again before the courts during the period covered by this survey. Timing of Judicial Review: The problem of "timing" of judicial review of administrative action includes questions of the availability of administrative remedies and whether their exhaustion must be required before court action; ripeness for review, usually associated with the issuance of agency rules and regulations; and jurisdictional questions vis-a-vis the agency and the court.

Administrative Law -- 1955 Tennessee Survey, Paul H. Sanders

Vanderbilt Law Review

Judicial review of administrative agency action, with emphasis upon the limited nature of such review, has again been of major importance in Tennessee Administrative Law during the survey period, This is shown to be true not only in the number of decisions but also in the frequent utilization (and apparent broadening) of the doctrine of Hoover Motor Express Co. v. Railroad & Public Utilities Commission in according finality to administrative action. In addition to holdings on various aspects of judicial review, the Tennessee appellate courts contributed important decisions during the survey period dealing with delegation of legislative power and the …