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 …

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

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 …

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 …

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 …

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 …

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 …

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 …

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 …

The Civil Investigative Demand: A Constitutional Analysis And Model Proposal, Anthony J. Mcfarland

Vanderbilt Law Review

This Note first traces the initial judicial reaction to administrative demands for information and administrative investigations and delineates the constitutional requirement set forth therein. The Note next examines the development of CIDs and analyzes decisions upholding their constitutionality. This Note contends that most courts either have incorrectly applied current administrative standards to the CID or have failed to apply such standards altogether. The analysis is broken down into six parts,each dealing with a separate constitutional basis for a CID challenge. Because most suits that contest CIDs are based on fourth amendment search and seizure issues, the bulk of this Note …

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 …

Recent Cases, Cornelia H. Boozman, R. Preston Bolt, Jr., Kenneth L. Stewart

Vanderbilt Law Review

Administrative Law--Ripeness--Agency Head's Informal Opinion Letters Held Unripe for Review When No Substantial Hardship Placed on Parties

Cornelia H. Boozman

The basic premise of the ripeness doctrine is that judicial machinery should operate only on concrete problems that are present or imminent, not on problems that are abstract, hypothetical,or remote... The Supreme Court articulated a more definitive standard for determining ripeness in "Abbott Laboratories v. Gardner." Espousing what it considered to be the basic rationale of the ripeness doctrine, avoidance of premature adjudication of discretionary administrative policies, the Court established a procedure for evaluating the ripeness issue in challenges to …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Topics Discussed in Recent Cases:

Administrative Law--Freedom of Information Act--Unclassified Documents Physically Connected with Classified Documents May Not Be Withheld Under the National Security and Foreign Affairs Secrets Exemption

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Antitrust--Treble Damage Class Actions--Privity with Defendant Required To Maintain Suit

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Constitutional Law--Equal Protection-State Probate Code Discriminating in Favor of Males Violates Equal Protection Clause

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Constitutional Law--Federal Preemption--Atomic Energy Act Requires Exclusive Federal Regulation of Radioactive Discharges from Nuclear Power Plants

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Corporations -Shareholder Suits -Shareholder May Inspect Corporate Records Only for Proper Purpose Ger-mane to his Economic Interest As Shareholder, Not Merely To Further his Own Social and …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Administrative Law--Judicial Review of SEC Decisions--No-Action Letter Under Commission's Proxy Rules Procedures Has Sufficient Finality and Formality to be Reviewable

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Creditors' Rights--Section 77 Railroad Reorganization--Federal Priority Under Section 191 Denied; Interline Balance Claims Granted Priority Under Equitable Six-Months Rule

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Criminal Procedure --Breach of the Peace--State Peace Bond Statute Establishes Criminal Proceedings and Must Satisfy Requirements of Due Process and Equal Protection Clauses

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Criminal Procedure--Presumption of Innocence--Cautionary Instruction to Jury that Presumption of Innocence is Not Intended To Aid the Guilty To Escape is Not Misleading or Erroneous

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Landlord and Tenant Law--Warranty of Habitability Implied by Law …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Accountants--Auditors--Compliance with General Accounting Principles Not a Complete Defense To Criminal Fraud

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Administrative Law--Standing to Challenge Administrative Actions--Anyone Arguably Protected by Statute May Sue

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Constitutional Law--Abortion--Standard Excepting Abortions Done as "Necessary for the Preservation of the Mother's Life or Health" Held Unconstitutionally Vague

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Constitutional Law--Civil Rights--Discrimination by a Third Party in Connection with the Rental of Property Entitles the Injured Party to a Private Right of Damages Under Section 1982

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Constitutional Law--Double Jeopardy--Benton v. Maryland Applies Retroactively to State Criminal Convictions

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Copyright--Unfair Competition--Unauthorized Reproduction of Another's Recording for Resale Violates State Unfair Competition Doctrine

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The Local Administrative Agencies, Maurice H. Merrill

Vanderbilt Law Review

We have become accustomed to the concept, once thoroughly horrendous to most lawyers, that the dispensation of justice may, be properly entrusted to those tribunals which, for want of a better term, we label administrative. In past years they were considered the illicit offspring of miscegenatious commingling of powers which,constitutionally, should have been kept in rigid segregation. In the last half century, this habit of thought has all but disappeared; our concern has been rather with the full acknowledgment and acceptance of these agencies into the family of makers and appliers of the law. We have undertaken to nurture and …

Report On Administrative Law To The Tennessee Law Revision Commission, Daniel J. Gifford

Vanderbilt Law Review

The following discussion of certain aspects of administrative law is a revised version of a report prepared during the 1963-64 academic year in response to a request by the Tennessee Law Revision Commission for an evaluation of issues to be considered in adopting an administrative procedure act for the State of Tennessee. Because one of the Model State Administrative Procedure Acts would probably be used as the basis for a Tennessee Act, the discussion is based upon a comparative analysis of the workings of the original Model Act, the Revised Model Act, and the federal Administrative Procedure Act.

Whether a …

Annual Survey Of Tennessee Law, E. Blythe Stason

Vanderbilt Law Review

In preparing the Survey of Administrative Law for 1964, we find only eleven cases upon which to comment. Seven of them arise from a single field of administrative action, i.e., the work of County Beer Boards. One is a zoning variation case, another involves a realtor's license revocation, and the other two are lower federal court cases decided in Tennessee, one relating to social security, and the other to an interpretation of the abandonment provisions of the Interstate Commerce Act. Compared with many other states this is a modest showing. Indeed, when one takes account of the number of boards …

Legislation, Law Review Staff

Vanderbilt Law Review

Administrative Law--The Scope of Official Notice

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Associations--Definition of Cooperative

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Full Faith and Credit--Procedures for Enforcement of Foreign Money Judgments

Administrative Law -- 1962 Tennessee Survey, Val Sanford

Vanderbilt Law Review

The writing of this article is an experience in frustration and despair, for in Tennessee there is little recognition of the existence of any such body of principle, of legal concepts and techniques, of procedures and practice, as "administrative law." There is one law, substantive and procedural, for beer boards, another for the Public Service Commission, another for the rate-making decisions of the insurance commissioner, another for employment insurance benefits,another for licensing well-diggers, and so on ad infinitum--a separate law, both substantive and procedural, not only for each agency, but often for each function within an agency. All of these …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Administrative Law--Due Process--Expulsion From Public University Requires Notice and Hearing

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Antitrust Law--Investigatory Powers--Federal Trade Commission Has Right To Obtain Private Copies Of Privileged Census Information

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Constitutional Law--Due Process-Escheat By One State of a Fund Claimed By Other States Held To Violate Due Process

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Sales--Warranty--Advertisement That Cigarettes Are Harmless Held An Express Warranty

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Taxation--Income Tax-Deferral Of Prepaid Income Disallowed

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Taxation--Inheritance, Estate and Gift Taxes--Blockage Rule Rejected in Evaluating Stock For Ohio Succession Tax

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Taxation--Use Tax--Commerce and Equal Protection Clauses--Discrimination Against Multi-State Business

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Torts--Negligence--Vendor of Alcoholic Beverages Held Liable for Injuries to Intoxicated Vendee Despite …

Annual Survey Of Tennessee Law, Val Sanford

Vanderbilt Law Review

The principal conclusion to be derived from a survey of the decisions reported and the statutes adopted during the past year in the field of administrative procedure is that sound policy necessitates the enactment of a general, uniform and effective administrative procedure act in this state.The standards by which any procedural system should be measured can readily be stated. The basic purpose of any procedural system should be to attempt to assure that all matters within its scope are resolved on their true merits, and not on some failure to follow exactly the prescribed path. To accomplish this end, there …

The Function Of Legal Philosophy, Roscoe Pound

Vanderbilt Law Review

For twenty-four hundred years--from the Greek thinkers of the fifth century B.C. who asked whether right was right by nature or only by enactment and convention, to the social philosophers of today, who seek the ends, the ethical basis and the enduring principles of social control--the philosophy of law has taken a leading role in all study of human institutions. The perennial struggle of American administrative law with nineteenth-century constitutional formulations of Aristotle's threefold classification of governmental power, the stone wall of natural rights against which attempts to put an end to private war in industrial disputes for a long …

Disqualification Of Administrative Officials For Bias, Robert N. Covington

Vanderbilt Law Review

For centuries English and American writers on jurisprudence have been concerned with the problem of the impartial tribunal. With the rise in importance of the administrative agency, which often may function as investigator, prosecutor, and judge in the same proceeding, this concern has found a new focal point.' This note is designed to explore one question arising from the problem of administrative prejudice: When should an administrative official be disqualified from acting because of his bias? In investigating this problem, we shall examine the various formulas developed by the courts before whom disqualification has been urged; call attention briefly to …

Constitutional Law--1959 Tennessee Survey, Elvin E. Overton

Vanderbilt Law Review

A smaller number of cases have been selected for inclusion in this year's survey. Seven cases are included, including one federal court decision dealing with a municipal ordinance. In addition, two specific acts of the General Assembly are noted although there has as yet been no opportunity for the courts to rule upon them.

Annual Survey Of Tennessee Law, Harold Seligman

Vanderbilt Law Review

The subject of administrative law in Tennessee remained generally static in the year in review. The supreme court held consistently to its line of decisions concerning review of administrative actions in the limited number of decided cases concerning the subject. The 1959 General Assembly of Tennessee made some sweeping revisions in the organization of several departments of government and various agencies and boards but these changes were solely for purposes of administrative efficiency and economy with no practical jurisdictional, regulatory or substantive effect.