Law Commons^™

Good Guidance, Good Grief!, Stephen M. Johnson

Articles

This article examines the problems created by the White House reforms and prior reforms proposed by Congress, ACUS and academics, and outlines the advantages and disadvantages of the alternative APA amendments outlined above. Part II of the article explores the basic differences between legislative rules, interpretive rules and policy statements and the reasons for the trend away from legislative rules. Part III introduces the long-standing concerns regarding interpretive rules and policy statements. Part IV examines the proposals and initiatives of ACUS, academics, and the various branches of the Federal government to address those concerns; and Part V identifies the weaknesses …

Adapting To Administrative Law's Erie Doctrine, Kathryn A. Watts

Articles

This Article looks to the federalism context and draws on the federal courts' experience adapting to the Court's landmark decision in Erie Railroad Company v. Tompkins. Much like Brand X, the Court's Erie decision, which commanded federal courts to apply state law in all cases not governed by positive federal law, significantly reduced the lawmaking power of the federal courts by putting the federal courts in the position of interpreting law that they cannot definitively construe. Although Erie seemed simple enough to adhere to when state law provided a clear answer, Erie posed a serious dilemma when federal courts …

Bringing Deference Back (But For How Long?), Stephen M. Johnson

Articles

For most of the past decade, the Supreme Court seemed to be gradually eroding the deference accorded to administrative agencies. In Christensen v. Harris County and United States v. Mead Corp. the Court refused to accord Chevron deference to agencies' interpretations of statutes when the agencies adopted those interpretations through informal procedures. The trend appeared to continue when the Court refused to accord Chevron deference to tobacco regulations adopted by the Food and Drug Administration in FDA v. Brown & Williamson Tobacco Corp. or to controlled substance regulations adopted by the Attorney General in Gonzales v. Oregon. In addition, …

Policy Formulation Versus Policy Implementation Under The Magnuson-Stevens Fishery Conservation And Management Act: Crab Rationalization, Richard Henry Seamon

Articles

The Magnuson-Stevens Fishery Conservation and Management Act (MSA) governs management of fisheries located three to 200 miles off the coast of the United States. The MSA is unique in administrative law in that it devolves policy formulation to eight Regional Fishery Management Councils rather than to a federal agency. That agency, the National Marine Fisheries Service (NMFS), is relegated primarily to developing regulations that implement the councils' policies. NMFS can review the councils' policies only to ensure that they are consistent with existing laws. NMFS has no authority to revise policy to suit its own preferences, or to write regulations …

Chevron's Demise: A Survey Of Chevron From Infancy To Senescence, Linda Jellum

Articles

No abstract provided.

Sending The Bureaucracy To War, Elena Baylis, David Zaring

Articles

Administrative law has been transformed after 9/11, much to its detriment. Since then, the government has mobilized almost every part of the civil bureaucracy to fight terrorism, including agencies that have no obvious expertise in that task. The vast majority of these bureaucratic initiatives suffer from predictable, persistent, and probably intractable problems - problems that contemporary legal scholars tend to ignore, even though they are central to the work of the writers who created and framed the discipline of administrative law.

We analyze these problems through a survey of four administrative initiatives that exemplify the project of sending bureaucrats to …

Nsf Fees, James J. White

Articles

Overdraft fees now make up more than half of banks' earnings on consumer checking accounts. In the past century, overdrafts have gone from the banker's scourge to the banker's profit center as bankers have learned that there is much to be made on these short term loans at breathtaking interest rates. I note that the federal agencies have been complicit in the growth of this form of lending. I propose that the banks and the agencies recognize the reality and attempt to mitigate these rates by encouraging the development of a competitive market.

Massachusetts V. Epa: Breaking New Ground On Issues Other Than Global Warming, Amy J. Wildermuth, Kathryn A. Watts

Articles

In this essay, we consider the long-term legal significance of the Supreme Court's decision in Massachusetts v. EPA, concluding that the case is likely to have a significant impact on two doctrinal areas of the law: (1) the standing of states; and (2) the standard of review applied to denials of petitions for rulemaking. First, although we have some questions about the Court's reasoning, we are encouraged to see the beginning of a framework for evaluating state standing based on the interest of the state in the litigation. Second, with respect to judicial review of agency inaction in the rulemaking …

Regulatory Beneficiaries And Informal Agency Policymaking, Nina A. Mendelson

Articles

Administrative agencies frequently use guidance documents to set policy broadly and prospectively in areas ranging from Department of Education Title IX enforcement to Food and Drug Administration regulation of direct-to-consumer pharmaceutical advertising. In form, these guidances often closely resemble the policies agencies issue in ordinary notice-and-comment rulemaking. However, guidances are generally developed with little public participation and are often immune from judicial review. Nonetheless, guidances can prompt significant changes in behavior from those the agencies regulate. A number of commentators have guardedly defended the current state of affairs. Though guidances lack some important procedural safeguards, they can help agencies supervise …