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 …

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 …

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 …

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 …

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

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 …

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 …

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 …

Alj Final Orders On Appeal: Balancing Independence With Accountability, Jim Rossi

Vanderbilt Law School Faculty Publications

This essay addresses how ALJ final order authority in many state systems of administrative governance (among them Florida, Louisiana, Missouri, and South Carolina) poses a tension between independence and accountability. It is argued that political accountability is sacrificed where reviewing courts defer to ALJ final orders on issues of law and policy. Standards of review provide state courts with a way of restoring the balance between independence and accountability, but reviewing courts should heighten the deference they give to the agency's legal and policy positions -- giving little or no deference to the ALJ on these issues -- even where …

The 1996 Revised Florida Administrative Procedure Act: A Survey Of Major Provisions Affecting Florida Agencies, Jim Rossi

Vanderbilt Law School Faculty Publications

In the spring of 1996, the Florida Legislature adopted a revised Administrative Procedure Act (APA),' the first massive overhaul of Florida's APA since its initial adoption over twenty years ago, in 1974. This Article examines the recent history of APA reform in Florida and surveys several provisions of the 1996 revised Florida APA that are likely to have a major effect on agency governance. Part II of this Article briefly reviews the recent history of regulatory reform in the state of Florida. Part III discusses an interesting innovation in Florida's 1996 APA revisions that governs agency waiver of rules and …

Agencies In Conflict: Overlapping Agencies And The Legitimacy Of The Administrative Process, Louis J. Sirico Jr.

Vanderbilt Law Review

This Article demonstrates how multi-agency decision making can enhance the legitimacy of the administrative system. After discussing the meaning of legitimacy in a highly stable society, it analyzes multi-agency decision making process from the perspective of the political scientist. I particularly emphasize "partisan mutual adjustment" analysis, which views the system as adjusting continually to the conduct of interacting participants. This theory comports not only with the pluralistic, pressure politics model of American government, but also with the methodology of classical economics, which celebrates the product of competing, conflicting interests.The Article concludes by demonstrating that the multi-agency process can increase legitimacy …

Agency -- 1957 Tennessee Survey, F. Hodge O'Neal

Vanderbilt Law Review

Several interesting and significant decisions in the fields of agency and master and servant were handed down during the survey period. This article discusses the decisions in groups, each group being placed under a topic heading which is designed to give the reader an idea of the particular phase of agency law involved in that group of cases.

Establishing that Tort feasor is a Servant of Defendant: It is elementary law of course that a master is liable for the torts of his servant acting within the scope of his employment. A question often arises, however, as to whether a …

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.

Annual Survey Of Tennessee Law Administrative Law -- 1954 Tennessee Survey, Paul H. Sanders

Vanderbilt Law Review

Administrative Law consists of those legal principles, whether of constitutional, statutory or common law derivation, which are generally concerned with the organization, relationships, powers and procedures of administrative agencies.' These are the agencies of government, other than the regular courts and legislatures, which can determine private rights through adjudication or affect these rights through the making of rules having the status of law. It will be noted that the definition excludes the substantive rules of law applied and developed through such agencies. Procedural in nature, it is an area of law in which the institution of judicial review of administrative …

Tennessee Judicial Highlights, Journal Staff

Vanderbilt Law Review

CASES OF CURRENT INTEREST AND IMPORTANCE PREVIOUSLY NOTED

Baker v. State, 184 Tenn. 503 (1947), 1 Vand. L. Rev. 127 (1947). Accessory after the fact--when is felony complete?

Black v. Black, 202 S. W. 2d 659 (Tenn. 1947), 20 Tenn. L. Rev. 201 (1948).' Effect of reciting an oral contract to sell land in an undelivered deed.

Churn v. State, 184 Tenn. 646 (1947), 20 Tenn. L. Rev. 195 (1948). Testimony of arresting officers.

Davis v. Beeler, 207 S. W. 2d 343 (Tenn. 1947), 1 Vand. L. Rev. 451 (1948). Prohibition of practice of naturopathy in Tennessee.

Elliott v. Fuqua, …