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Articles 1 - 30 of 80
Full-Text Articles in Law
Administrative Regulation Of Programmatic Policing: Why "Leaders Of A Beautiful Struggle" Is Both Right And Wrong, Christopher Slobogin
Administrative Regulation Of Programmatic Policing: Why "Leaders Of A Beautiful Struggle" Is Both Right And Wrong, Christopher Slobogin
Vanderbilt Law School Faculty Publications
In Leaders of a Beautiful Struggle v. Baltimore Police Department, the Fourth Circuit Court of Appeals held that Aerial Investigation Research (AIR), Baltimore's aerial surveillance program, violated the Fourth Amendment because it was not authorized by a warrant. AIR was constitutionaly problematic, but not for the reason given by the Fourth Circuit. AIR, like many other technologically-enhanced policing programs that rely on closed-circuit television (CCTV), automated license plate readers and the like, involves the collection and retention of information about huge numbers ofpeople. Because individualized suspicion does not exist with respect to any of these people's information, an individual-specific warrant …
Executive Capture Of Agency Decisionmaking, Allison M. Whelan
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 …
The Politics Of Deference, Gregory A. Elinson, Jonathan S. Gould
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
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 …
Chevron Is A Phoenix, Lisa Bressman, Kevin Stack
Chevron Is A Phoenix, Lisa Bressman, Kevin Stack
Vanderbilt Law School Faculty Publications
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 Court gave …
Policing As Administration, Christopher Slobogin
Policing As Administration, Christopher Slobogin
Vanderbilt Law School Faculty Publications
Police agencies should be governed by the same administrative principles that govern other agencies. This simple precept would have significant implications for regulation of police work, in particular the type of suspicionless, group searches and seizures that have been the subject of the Supreme Court's special needs jurisprudence (practices that this Article calls "panvasive"). Under administrative law principles, when police agencies create statute-like policies that are aimed at largely innocent categories of actors-as they do when administering roadblocks, inspection regimes, drug testing programs, DNA sampling programs, and data collection-they should have to engage in notice-and-comment rulemaking or a similar democratically …
Nuclear Power, Risk, And Retroactivity, Emily Hammond
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 …
Lessons From The Turn Of The Twentieth Century For First-Year Courses On Legislation And Regulation, Kevin M. Stack
Lessons From The Turn Of The Twentieth Century For First-Year Courses On Legislation And Regulation, Kevin M. Stack
Vanderbilt Law School Faculty Publications
This essay — part of a special journal issue on Legislation and Regulation and Regulatory State courses as core elements of the law school curriculum — approaches the debate over adopting these courses by looking back to the controversy stirred by teaching administrative law in law schools at the beginning of the twentieth century. This essay argues that sources of resistance to administrative law at that time not only help to explain the slow pace of adoption of “Leg-Reg” and “Reg-State” courses today, but also inform what material these new courses should cover. At the turn of the century, both …
The Origins Of Legislation, Ganesh Sitaraman
The Origins Of Legislation, Ganesh Sitaraman
Vanderbilt Law School Faculty Publications
Although legislation is at the center of legal debates on statutory interpretation, administrative law, and delegation, little is known about how legislation is actually drafted. If scholars pay any attention to Congress at all, they tend to focus on what happens after legislation is introduced, ignoring how the draft came to exist in the first place. In other words, they focus on the legislative process, not the drafting process. The result is that our account of Congress, the legislative process, and the administrative state is impoverished, and debates in statutory interpretation and administrative law are incomplete. This Article seeks to …
An Administrative Jurisprudence: The Rule Of Law In The Administrative State, Kevin M. Stack
An Administrative Jurisprudence: The Rule Of Law In The Administrative State, Kevin M. Stack
Vanderbilt Law School Faculty Publications
This Essay offers a specification of the rule of law's demands of administrative law and government inspired by Professor Peter L. Strauss's scholarship. It identifies five principles'authorization, notice, justification, coherence, and procedural fairness which provide a framework for an account of the rule of law's demands of administrative governance. Together these principles have intriguing results for the evaluation of administrative law. On the one hand, they reveal rule-of-law foundations for some contested positions, such as a restrictive view of the President's power to direct subordinate officials and giving weight to an agency's determination of the scope of its own authority. …
States, Agencies, And Legitimacy, Miriam Seifter
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 …
Designing Administrative Law For Adaptive Management, J.B. Ruhl, Robin Craig
Designing Administrative Law For Adaptive Management, J.B. Ruhl, Robin Craig
Vanderbilt Law School Faculty Publications
Administrative law needs to adapt to adaptive management. Adaptive management is a structured decision-making method the core of which is a multi-step iterative process for adjusting management measures to changing circumstances or new information about the effectiveness of prior measures or the system being managed. It has been identified as a necessary or best practices component of regulation in a broad range of fields, including drug and medical device warnings, financial system regulation, social welfare programs, and natural resources management. Nevertheless, many of the agency decisions advancing these policies remain subject to the requirements of either the federal Administrative Procedure …
Resolving The Alj Quandary, Kent Barnett
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 …
Of Dialogue--And Democracy--In Administrative Law, Jim Rossi
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 …
Agency Coordination In Shared Regulatory Space, Jim Rossi, Jody Freeman
Agency Coordination In Shared Regulatory Space, Jim Rossi, Jody Freeman
Vanderbilt Law School Faculty Publications
This Article argues that inter-agency coordination is one of the great challenges of modern governance. It explains why lawmakers frequently assign overlapping and fragmented delegations that require agencies to "share regulatory space," why these delegations are so pervasive and stubborn, and why consolidating or eliminating agency functions will not solve the problems they create. The Article describes a variety of tools that Congress, the President and the agencies can use to manage coordination challenges effectively, including agency interaction requirements, formal inter-agency agreements, and joint policymaking. The Article assesses the relative costs and benefits of these coordination tools, using the normative …
The Ncaa Rules Adoption, Interpretation, Enforcement, And Infractions Processes: The Laws That Regulate Them And The Nature Of Court Review, Josephine (Jo) R. Potuto
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 …
Administering Marriage: Marriage-Based Entitlements, Bureaucracy, And The Legal Construction Of The Family, Kristin A. Collins
Administering Marriage: Marriage-Based Entitlements, Bureaucracy, And The Legal Construction Of The Family, Kristin A. Collins
Vanderbilt Law Review
In 1985, Gertrude Thomas sought Social Security survivors' benefits as Joseph Thomas's widow. Gertrude had been married to Joseph-or thought herself to have been-for forty-seven years. She bore and raised ten children over the course of their marriage. Gertrude knew Joseph had been married briefly before they wed, but she thought that his first marriage had ended in divorce. When the Department of Health and Human Services asked Gertrude for proof of her marriage to Joseph, she could not produce a marriage certificate or any other record of her marriage. She did have a statement signed by Joseph acknowledging their …
Beyond Economics: The U.S. Recognition Of International Financial Reporting Standards As An International Subdelegation Of The Sec's Rulemaking Authority, Jacob L. Barney
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
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 …
State Executive Lawmaking In Crisis, Jim Rossi
State Executive Lawmaking In Crisis, Jim Rossi
Vanderbilt Law School Faculty Publications
Courts and scholars have largely overlooked the constitutional source and scope of a state executive's powers to avert and respond to crises. This Article addresses how actual and perceived legal barriers to executive authority under state constitutions can have major consequences beyond a state's borders during times of crisis. It proposes to empower state executives to address federal and regional goals without any previous authorization from the state legislature-a presumption of state executive lawmaking, subject to state legislative override, which would give a state or local executive expansive lawmaking authority within its system of government to address national and regional …
The Statutory President, Kevin M. Stack
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 …
Dual Constitutions And Constitutional Duels: Separation Of Powers And State Implementation Of Federally Inspired Regulatory Programs And Standards, Jim Rossi
Vanderbilt Law School Faculty Publications
Frequently, state-wide executive agencies and localities attempt to implement federally-inspired programs. Two predominant examples are cooperative federalism programs and incorporation of federal standards in state-specific law. Federally-inspired programs can bump into state constitutional restrictions on the allocation of powers, especially in states whose constitutional systems embrace stronger prohibitions on legislative delegation than the weak restrictions at the federal level, where national goals and standards are made. This Article addresses this tension between dual federal/state normative accounts of the constitutional allocation of powers in state implementation of federally-inspired programs. To the extent the predominant ways of resolving the tension come from …
The Private Life Of Public Law, Michael P. Vandenbergh
The Private Life Of Public Law, Michael P. Vandenbergh
Vanderbilt Law School Faculty Publications
This Article proposes a new conception of the administrative regulatory state that accounts for the vast networks of private agreements that shadow public regulations. The traditional account of the administrative state assigns a limited role to private actors: private firms and interest groups seek to influence regulations, and after the regulations are finalized, regulated firms face a comply-or-defy decision. In recent years, scholars have noted that private actors play an increasing role in the traditional government standard setting, implementation and enforcement functions. This Article demonstrates that the private role in each of these regulatory functions is far greater than others …
Lowering The Filed Tariff Shield: Judicial Enforcement For A Deregulatory Era, Jim Rossi
Lowering The Filed Tariff Shield: Judicial Enforcement For A Deregulatory Era, Jim Rossi
Vanderbilt Law Review
The filed tariff doctrine, fashioned by courts to protect consumers from rate discrimination, has strayed from its origins. Instead of protecting consumers, the doctrine has evolved into a shield for regulated firms against common law and antitrust claims that reinforce market norms. In the ideal world, Congress would expand the jurisdiction of regulatory agencies to allow them to penalize private misconduct. However, since that has not always happened, the filed tariff doctrine has encouraged private firms to expend resources in using the regulator as a strategy to immunize conduct from antitrust and common law antitrust claims.
This Article assesses how …
Disciplining Delegation After "Whitman V. American Trucking Ass'ns", Lisa Schultz Bressman
Disciplining Delegation After "Whitman V. American Trucking Ass'ns", Lisa Schultz Bressman
Vanderbilt Law School Faculty Publications
The Supreme Court's recent reversal of the D.C. Circuit's decision in "Whitman v. American Trucking Ass'ns" brings to center stage the critical question for disciplining delegation of lawmaking authority to administrative agencies: Should courts use constitutional law or administrative law for requiring agencies to supply the standards that guide and limit their lawmaking discretion when Congress does not? Professor Bressman argues that "Ashwander v. TVA" provides a resolution. In Ashwander, Justice Brandeis directed courts to refrain from deciding constitutional questions unless absolutely necessary to decide a particular case. Following Justice Brandeis' now famous teaching, courts should refrain from using constitutional …
The Restatement Of Torts And The Courts, Jack B. Weinstein
The Restatement Of Torts And The Courts, Jack B. Weinstein
Vanderbilt Law Review
Primarily through tort law the courts compensate those injured by others. Secondary aspects of our work such as deterrence or forcing tortfeasors to pay the full social costs of their activities are minor and collateral. For jurors focusing on compensation, tort law has only two operative elements: damage and cause. It is the law professor and the judge, through decisions on motions and instructions, who are the main Restatement consumers. Emphasizing mass torts, I will make three points relevant to those considering the health of tort law.
First: Tort law in its least inhibitory principle is useful be- cause of …
Respecting Deference: Conceptualizing Skidmore Within The Architecture Of Chevron, Jim Rossi
Respecting Deference: Conceptualizing Skidmore Within The Architecture Of Chevron, Jim Rossi
Vanderbilt Law School Faculty Publications
This Article addresses critically the implications of the U.S. Supreme Court's recent decision in Christensen v. Harris County, 120 S.Ct. 1655 (2000), for standards of judicial review of agency interpretations of law. Christensen is a notable case in the administrative law area because it purports to clarify application of the deference doctrine first articulated in Skidmore v. Swift & Co., 323 U.S. 134 (1944). By reviving this doctrine, the case narrows application of the predominant approach to deference articulated in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), thus reducing the level of deference in …
Enlarging The Administrative Polity: Administrative Law And The Changing Definition Of Pluralism, 1945-1970, Reuel E. Schiller
Enlarging The Administrative Polity: Administrative Law And The Changing Definition Of Pluralism, 1945-1970, Reuel E. Schiller
Vanderbilt Law Review
"The availability of judicial review," wrote Louis Jaffe in 1965, "is the necessary condition, psychologically, if not logically, of a system of administrative power which purports to be legitimate, or legally valid." In so writing, Jaffe suggested that the abstract beliefs that Americans have about the way government is supposed to work define the relationship between courts and the administrative state. It does not follow, logically, from the existence of administrative agencies that their actions must be policed by courts. In- stead, our beliefs about how public policy ought to be made and about which institutions are best at protecting …
United We Stand: The Anti-Competitive Implications Of Media Ownership Of Athletic Teams In Great Britain, Jonathan E. Bush
United We Stand: The Anti-Competitive Implications Of Media Ownership Of Athletic Teams In Great Britain, Jonathan E. Bush
Vanderbilt Journal of Transnational Law
This Note analyzes the increasing integration of the sports and broadcasting industries and the British framework for evaluating the permissibility of transactions furthering such integration. In the context of the recent attempted takeover of British football club Manchester United by Rupert Murdoch's British Sky Broadcasting, the Note examines how the Monopolies and Mergers Commission (MMC) was uniquely poised to fully consider the ramifications of this developing nexus of sports and media and evaluates the significance of the MMC's decision on the future of both industries.
A diverse array of domestic, international, political, and economic issues and implications face any court …
Institutional Design And The Lingering Legacy Of Antifederalist Separation Of Powers Ideals In The States, Jim Rossi
Vanderbilt Law School Faculty Publications
This Article applies comparative institutional analysis to separation of powers under state constitutions, with a particular focus on the nondelegation doctrine and states' acceptance of Chadha-like restrictions on legislative oversight. The Article begins by contrasting state and federal doctrine and enforcement levels in each of these separation of powers contexts. Most state courts, unlike their federal counterparts, adhere to a strong nondelegation doctrine. In addition, many states accept (de facto if not de jure) even more explicit and sweeping legislative vetoes than the federal system. The Article highlights the contrast of federal and state approaches by identifying their similarity with …