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Domesticating Guidance, Peter L. Strauss Jan 2019

Domesticating Guidance, Peter L. Strauss

Faculty Scholarship

This essay, written for an occasion celebrating the scholarship of Prof. William Funk of Lewis & Clark Law School, builds in good part on his analyses of soft law documents – statements of general policy and interpretive rules – that today one generally finds discussed under the rubric “guidance.” These are agency texts of less formality than hard law regulations adopted under the procedures of 5 U.S.C. §553, that inform the public how an agency intends to administer its responsibilities, as a matter of policy or (what may seem just one instance of that) via the interpretation of its governing statutes. The APA is explicit that in adopting these texts, agencies are not required to use the notice-and-comment process ordinarily required for the adoption of regulations having the force of law; but it also signals that, like agency caselaw precedent, guidance may be relied upon to a private party’s disadvantage if it has been published or come to its actual notice. Guidance documents, revealing agency policy and perhaps showing the way to safe compliance, can structure the behavior of agency staff and be highly influential for the regulated; but they are not in themselves enforceable against actors in the outside world – hence, soft law. Typically, they are the product of agency staff, and do not ...


Separation Of Powers In Comparative Perspective: How Much Protection For The Rule Of Law?, Peter L. Strauss Jan 2018

Separation Of Powers In Comparative Perspective: How Much Protection For The Rule Of Law?, Peter L. Strauss

Faculty Scholarship

Writing about separation of powers with particular attention to the contrasting American and British views at the time of Trump and Brexit has been challenging and illuminating. The essay takes as its third framework the constrained parliamentarianism Prof. Bruce Ackerman celebrated in his essay, The New Separation of Powers, 113 Harv. L. Rev. 633 (2000), and briefly considers its relative success in Australia, France, and Germany, and failure in Hungary and Poland, in achieving “separation of powers” universally understood ends, the prevention of autocracy and preservation of human freedoms. That courts and judges would not be political actors, that governments ...


Eroding "Checks" On Presidential Authority – Norms, The Civil Service, And The Courts, Peter L. Strauss Jan 2018

Eroding "Checks" On Presidential Authority – Norms, The Civil Service, And The Courts, Peter L. Strauss

Faculty Scholarship

Shortly after the November elections returned control of the House of Representatives to Democrat control, twenty-one scholars of administrative law met at the Chicago-Kent College of Law to hear and discuss seven papers on the general subject of President Trump and administrative law. A number have already been posted to SSRN. This paper is a commentary on Susan Rose-Ackerman’s essay “Executive Rulemaking and Democratic Legitimacy: ‘Reform’ in the US and the UK’s Route to Brexit” which insightfully illuminates important differences between parliamentary and presidential systems of government in relation to executive bodies’ production of the large volume of ...


A Softer, Simpler View Of Chevron, Peter L. Strauss Jan 2018

A Softer, Simpler View Of Chevron, Peter L. Strauss

Faculty Scholarship

Justice Kennedy's concurrence in Pereira gives reason to hope that the Court may be finally catching on to the difficulties it created by Chevron's opening language, as distinct from its inherent reasoning. When courts quote language like "precise question" and "permissible" to limit themselves (as Justice Scalia and others unfortunately tended to reinforce by their quotations from the opinion), they stray not only from judicial function but also from the statute (APA) that instructs them how to review, and which strangely the opinion does not mention. But Chevron actually (a) independently found and defined a statutory gap within ...


Transparency's Ideological Drift, David E. Pozen Jan 2018

Transparency's Ideological Drift, David E. Pozen

Faculty Scholarship

In the formative periods of American "open government" law, the idea of transparency was linked with progressive politics. Advocates of transparency understood themselves to be promoting values such as bureaucratic rationality, social justice, and trust in public institutions. Transparency was meant to make government stronger and more egalitarian. In the twenty-first century, transparency is doing different work. Although a wide range of actors appeal to transparency in a wide range of contexts, the dominant strain in the policy discourse emphasizes its capacity to check administrative abuse, enhance private choice, and reduce other forms of regulation. Transparency is meant to make ...


How Constitutional Norms Break Down, Josh Chafetz, David E. Pozen Jan 2018

How Constitutional Norms Break Down, Josh Chafetz, David E. Pozen

Faculty Scholarship

From the moment Donald Trump was elected President, critics have anguished over a breakdown in constitutional norms. History demonstrates, however, that constitutional norms are perpetually in flux. The principal source of instability is not that these unwritten rules can be destroyed by politicians who deny their legitimacy, their validity, or their value. Rather, the principal source of instability is that constitutional norms can be decomposed – dynamically interpreted and applied in ways that are held out as compliant but end up limiting their capacity to constrain the conduct of government officials.

This Article calls attention to that latent instability and, in ...


Internal Administrative Law, Gillian E. Metzger, Kevin M. Stack Jan 2017

Internal Administrative Law, Gillian E. Metzger, Kevin M. Stack

Faculty Scholarship

For years, administrative law has been identified as the external review of agency action, primarily by courts. Following in the footsteps of pioneering administrative law scholars, a growing body of recent scholarship has begun to attend to the role of internal norms and structures in controlling agency action. This Article offers a conceptual and historical account of these internal forces as internal administrative law. Internal administrative law consists of the internal directives, guidance, and organizational forms through which agencies structure the discretion of their employees and presidents control the workings of the executive branch. It is the critical means for ...


Our Regionalism, Jessica Bulman-Pozen Jan 2017

Our Regionalism, Jessica Bulman-Pozen

Faculty Scholarship

This article provides an account of Our Regionalism to supplement the many accounts of Our Federalism. After describing the legal forms regions assume in the United States — through interstate cooperation, organization of federal administrative agencies, and hybrid state-federal efforts — it explores how regions have shaped American governance across the twentieth and early twenty-first centuries. In the years leading up to the New Deal, commentators invoked regions to resist centralization, arguing that state coordination could forestall expansion of the federal government. But regions were soon deployed to a different end, as the federal government relied on regional administration to develop its ...


The Management Side Of Due Process In The Service-Based Welfare State, Charles F. Sabel, William H. Simon Jan 2017

The Management Side Of Due Process In The Service-Based Welfare State, Charles F. Sabel, William H. Simon

Faculty Scholarship

The American welfare state is evolving away from the model initiated during the New Deal and elaborated during the civil rights era. It increasingly aims at capacitation rather than income maintenance, and its interventions more frequently take the form of services as opposed to monetary grants. These changes entail modes of organization and legal accountability different from those associated with New Deal-civil rights era model. This paper, written for a volume honoring Jerry Mashaw, considers Mashaw’s seminal analysis of legal accountability in the welfare state in the light of the key trends of recent decades. The tension or trade-off ...


Politics And Agencies In The Administrative State: The U.S. Case, Peter L. Strauss Jan 2016

Politics And Agencies In The Administrative State: The U.S. Case, Peter L. Strauss

Faculty Scholarship

The pending American presidential election, culminating a period of extreme political partisanship in our national government generally, gives point to an essay on politics and agencies in the American regulatory state. In our two-party system, it has often been the case in recent times, including the last six years, that the President comes from one of our two major political parties and one or both houses of Congress are controlled by the other. All American agencies (including, in the American case, the so-called independent regulatory bodies) are associated with the President in the executive branch, yet dependent on the Senate ...


Legal Pathways To Reducing Greenhouse Gas Emissions Under Section 115 Of The Clean Air Act, Michael Burger, Ann E. Carlson, Michael Gerrard, Jayni Hein, Jason A. Schwartz, Keith J. Benes Jan 2016

Legal Pathways To Reducing Greenhouse Gas Emissions Under Section 115 Of The Clean Air Act, Michael Burger, Ann E. Carlson, Michael Gerrard, Jayni Hein, Jason A. Schwartz, Keith J. Benes

Faculty Scholarship

Under President Barack Obama the U.S. Environmental Protection Agency has promulgated a series of greenhouse gas emissions regulations, initiating the necessary national response to climate change. However, the United States will need to find other ways to reduce GHG emissions if it is to live up to its international emissions reduction pledges, and to ultimately lead the way to a zero-carbon energy future. This paper argues that the success of the recent climate negotiations in Paris provides a strong basis for invoking a powerful tool available to help achieve the country’s climate change goals: Section 115 of the ...


Reflections On Seminole Rock: The Past, Present, And Future Of Deference To Agency Regulatory Interpretations, Gillian E. Metzger, Aaron Nielson, Sanne H. Knudsen, Amy J. Wildermuth, Aditya Bamzai, Richard J. Pierce, Cynthia Barmore, William Yeatman, Christopher J. Walker, Kevin M. Stack, Andy Grewal, Steve R. Johnson, F. Andrew Hessick, Jonathan H. Adler, Catherine M. Sharkey, David Feder, Cass R. Sunstein, Adrian Vermeule, Ronald M. Levin, Kevin O. Leske, James Cleith Phillips, Daniel Ortner, William Funk, Kristen E. Hickman, Jeffrey A. Pojanowski, Adam White, Conor Clarke Jan 2016

Reflections On Seminole Rock: The Past, Present, And Future Of Deference To Agency Regulatory Interpretations, Gillian E. Metzger, Aaron Nielson, Sanne H. Knudsen, Amy J. Wildermuth, Aditya Bamzai, Richard J. Pierce, Cynthia Barmore, William Yeatman, Christopher J. Walker, Kevin M. Stack, Andy Grewal, Steve R. Johnson, F. Andrew Hessick, Jonathan H. Adler, Catherine M. Sharkey, David Feder, Cass R. Sunstein, Adrian Vermeule, Ronald M. Levin, Kevin O. Leske, James Cleith Phillips, Daniel Ortner, William Funk, Kristen E. Hickman, Jeffrey A. Pojanowski, Adam White, Conor Clarke

Faculty Scholarship

Seminole Rock (or Auer) deference has captured the attention of scholars, policymakers, and the judiciary. That is why Notice & Comment, the blog of the Yale Journal on Regulation and the American Bar Association’s Section of Administrative Law & Regulatory Practice, hosted an online symposium from September 12 to September 23, 2016 on the subject. This symposium contains over 20 contributions addressing different aspects of Seminole Rock deference.

Topics include:

  • History of Seminole Rock
  • Empirical Examinations of Seminole Rock
  • Understanding Seminole Rock Within Agencies
  • Understanding Seminole Rock as Applied to Tax, Environmental Law, and Criminal Sentencing
  • Why Seminole Rock Matters
  • Should ...


Executive Federalism Comes To America, Jessica Bulman-Pozen Jan 2015

Executive Federalism Comes To America, Jessica Bulman-Pozen

Faculty Scholarship

From healthcare to marijuana to climate change, negotiations among federal and state executive branch actors increasingly set national policy in the United States. This executive federalism fits uneasily into existing understandings: it departs from expectations that Congress formulates national policy and mediates state-federal relationships; it poses a challenge to popular suggestions that the president is engaged in unilateral action; and it comes as a surprise to those who have studied executive federalism but insist it is the peculiar province of parliamentary federations. In an age of partisan polarization, congressional gridlock, and state initiative, executive federalism has come to America. After ...


Introduction: The Place Of Agencies In Polarized Government, Cynthia R. Farina, Gillian E. Metzger Jan 2015

Introduction: The Place Of Agencies In Polarized Government, Cynthia R. Farina, Gillian E. Metzger

Faculty Scholarship

This is one of two complementary essays for a symposium honoring the work of Peter L. Strauss. Also included is the joint introduction. (The second essay is Gillian Metzger, Agencies, Polarization, and the States.) These essays engage one of Strauss’s most germinal writings, “The Place of Agencies in Government: Separation of Powers and the Fourth Branch” to consider whether contemporary polarized politics spells the end of the intricate system of multi-branch control and accountability which, Strauss argued, legitimates administrative agencies. Political polarization has become a major focus in contemporary discussions on congressional activity and governance. The tone of these ...


Through The Looking Glass To A Shared Reflection: The Evolving Relationship Between Administrative Law And Financial Regulation, Gillian E. Metzger Jan 2015

Through The Looking Glass To A Shared Reflection: The Evolving Relationship Between Administrative Law And Financial Regulation, Gillian E. Metzger

Faculty Scholarship

Administrative law and financial regulation might be thought closely connected, sharing a focus on federal regulation and intertwined at key historical junctures such as the birth of the New Deal administrative state. Yet, oddly, in many ways these two fields stand today poles apart, divided not simply by their separation in law school curricula and faculty, but even more by opposite precepts and framing principles. Modern U.S. administrative law takes notice-and-comment rulemaking as the paradigmatic example of administrative action, with the goal of such regulation often being to compensate for market deficiencies. Accountability, particularly political accountability through presidential and ...


The Federal Reserve: A Study In Soft Constraints, Kathryn Judge Jan 2014

The Federal Reserve: A Study In Soft Constraints, Kathryn Judge

Faculty Scholarship

This article uses case studies from the history of the Federal Reserve to illustrate the capacity of “soft constraints” to impose meaningful limits on an agency’s effective independence. This analysis suggests that the Federal Reserve is not nearly as unconstrained as it may appear if one looks only at the formal mechanisms limiting its independence. Two types of soft constraints illustrate their power. The first set, principled norms, are principles that are generally accepted by experts and policymakers and that dictate how the Fed ought to act in a given set of circumstances, provide. Using the real bills doctrine ...


Administrative Law, Public Administration, And The Administrative Conference Of The United States, Gillian E. Metzger Jan 2014

Administrative Law, Public Administration, And The Administrative Conference Of The United States, Gillian E. Metzger

Faculty Scholarship

From its birth administrative law has claimed a close connection to governmental practice. Yet as administrative law has grown and matured it has moved further away from how agencies actually function. In particular, as many have noted, administrative law ignores key administrative dimensions, such as planning, assessment, oversight mechanisms and managerial methods, budgeting, personnel practices, reliance on private contractors, and the like. The causes of administrative law’s disconnect from public administration are complex and the divide is now longstanding, going back to the birth of each as distinct fields. But it is also a growing source of concern, and ...


From Sovereignty And Process To Administration And Politics: The Afterlife Of American Federalism, Jessica Bulman-Pozen Jan 2014

From Sovereignty And Process To Administration And Politics: The Afterlife Of American Federalism, Jessica Bulman-Pozen

Faculty Scholarship

Announcing the death of dual federalism, Edward Corwin asked whether the states could be “saved as the vital cells that they have been heretofore of democratic sentiment, impulse, and action.” The federalism literature has largely answered in the affirmative. Unwilling to abandon dual federalism’s commitment to state autonomy and distinctive interests, scholars have proposed new channels for protecting these forms of state-federal separation. Yet today state and federal governance are more integrated than separate. States act as co-administrators and co-legislatures in federal statutory schemes; they carry out federal law alongside the executive branch and draft the law together with ...


The Administrative Conference And The Political Thumb, Peter L. Strauss Jan 2014

The Administrative Conference And The Political Thumb, Peter L. Strauss

Faculty Scholarship

Two recent drafts posted on SSRN identify very different yet canonical lines of cases, both prominent in the teaching of administrative law, as the source of ills stemming from the pre-notice period of contemporary rulemaking. That period has assumed a determinative importance in seeming conflict with the assumptions of flexibility inherent in the Administrative Procedure Act’s provisions for public comment on notices once published. In "The Administrative Conference and Empirical Research," Richard Pierce celebrates the catalyzing effect the Administrative Conference of the United States has had on hands-on empirical research about administrative law. He finds in two recent studies ...


The Duty Of Responsible Administration And The Problem Of Police Accountability, Charles F. Sabel, William H. Simon Jan 2014

The Duty Of Responsible Administration And The Problem Of Police Accountability, Charles F. Sabel, William H. Simon

Faculty Scholarship

Many contemporary civil rights claims arise from institutional activity that, while troubling, is neither malicious nor egregiously reckless. When law-makers find themselves unable to produce substantive rules for such activity, they often turn to regulating the actors’ exercise of discretion. The consequence is an emerging duty of responsible administration that requires managers to actively assess the effects of their conduct on civil rights values and to make reasonable efforts to mitigate harm to protected groups. This doctrinal evolution partially but imperfectly converges with an increasing emphasis in public administration on the need to reassess routines in the light of changing ...


The Shale Oil And Gas Revolution, Hydraulic Fracturing, And Water Contamination: A Regulatory Strategy, Thomas W. Merrill, David M. Schizer Jan 2013

The Shale Oil And Gas Revolution, Hydraulic Fracturing, And Water Contamination: A Regulatory Strategy, Thomas W. Merrill, David M. Schizer

Faculty Scholarship

The United States is expected to become the world’s largest oil producer by 2020, overtaking Saudi Arabia, and the world’s top natural gas producer by 2015, surpassing Russia. In the past decade, energy companies have learned to tap previously inaccessible oil and gas in shale with “hydraulic fracturing” (“fracturing” or “fracking”), pumping fluid at high pressure to crack the shale and release gas and oil trapped inside. This “shale revolution” has created millions of jobs, enhanced our energy independence, and reduced U.S. greenhouse gas emissions by substituting natural gas for coal.

Even so, fracturing is controversial. It ...


The Republic Of Choosing: A Behaviorist Goes To Washington, William H. Simon Jan 2013

The Republic Of Choosing: A Behaviorist Goes To Washington, William H. Simon

Faculty Scholarship

Cass Sunstein’s book Simpler recounts the author’s efforts during his tenure in the first Obama administration to apply the policy tools he helped derive from behavioral economics. In this review, I suggest that, while Sunstein reports some notable achievements, he exaggerates the utility of the behaviorist toolkit. Behaviorist-inspired interventions are marginal to most of the largest policy problems, and they played little role in the Obama administration’s most important initiatives. The book also reflects a misguided political strategy.


Administrative Constitutionalism, Gillian E. Metzger Jan 2013

Administrative Constitutionalism, Gillian E. Metzger

Faculty Scholarship

Administrative constitutionalism is increasingly becoming a central subject of study. Administrative constitutionalism includes not just the application of established constitutional requirements by administrative agencies, but in addition the elaboration of new constitutional understandings by administrative actors and the construction of the administrative state. This attention to administrative constitutionalism is overdue, as it represents a main mechanism by which constitutional meaning is elaborated and implemented today. But recently offered examples of administrative constitutionalism are notably divergent, suggesting a need for some exegesis of administrative constitutionalism’s different dimensions.

Identifying administrative constitutionalism’s various forms highlights the challenges confronting it as a ...


In Search Of Skidmore, Peter L. Strauss Jan 2013

In Search Of Skidmore, Peter L. Strauss

Faculty Scholarship

In a coup en banc, Justice Scalia appears to have converted his lonely and furious dissent from United States v. Mead Corp. into the eight to one majority holding in City of Arlington v. FCC. Much will doubtless be said about this opinion, as about all Chevron matters generally, but to note here is that 186 years of precedent for the proposition that judges interpreting statutes involving agency authority should give substantial weight to agency views have simply disappeared. Whether agencies have authority to act, a legal question, is either all Chevron (the majority) or no deference at all (Chief ...


The Organizational Premises Of Administrative Law, William H. Simon Jan 2013

The Organizational Premises Of Administrative Law, William H. Simon

Faculty Scholarship

Administrative law is out of touch with forms of public administration developed since the Progressive and New Deal eras. It is strongly influenced by bureaucratic conceptions of administration that see (1) legitimacy in terms of prior authorization; (2) organization as a balance of stable rules and unaccountable discretion, and (3) error detection as a reactive, complaint-driven process. Yet, many public programs developed since the 1970s strive to establish post-bureaucratic or performance-based forms of administration that view (1) legitimacy in terms of exposure to public oversight; (2) administration as a matter of comprehensive but flexible planning, and (3) error detection as ...


Federalism As A Safeguard Of The Separation Of Powers, Jessica Bulman-Pozen Jan 2012

Federalism As A Safeguard Of The Separation Of Powers, Jessica Bulman-Pozen

Faculty Scholarship

States frequently administer federal law, yet scholars have largely overlooked how the practice of cooperative federalism affects the balance of power across the branches of the federal government. This article explains how states check the federal executive in an era of expansive executive power and how they do so as champions of Congress, both relying on congressionally conferred authority and casting themselves as Congress’s faithful agents. By inviting the states to carry out federal law, Congress, whether purposefully or incidentally, counteracts the tendency of statutory ambiguity and broad delegations of authority to enhance federal executive power. When states disagree ...


Foreword: Embracing Administrative Common Law, Gillian E. Metzger Jan 2012

Foreword: Embracing Administrative Common Law, Gillian E. Metzger

Faculty Scholarship

This article begins with the descriptive claim that much of administrative law is really administrative common law: doctrines and requirements that are largely judicially created, as opposed to those specified by Congress, the President, or individual agencies. To be sure, governing statutes exert some constraining force on judicial creativity, but the primary basis of these judge-fashioned doctrines lies in judicial conceptions of appropriate institutional roles, along with pragmatic and normative concerns, that are frequently constitutionally infused and developed incrementally through precedent. Yet the judicially created character of administrative law is rarely acknowledged by courts – and to the extent courts do ...


Implications Of The Internet For Quasi-Legislative Instruments Of Regulation, Peter L. Strauss Jan 2011

Implications Of The Internet For Quasi-Legislative Instruments Of Regulation, Peter L. Strauss

Faculty Scholarship

It is a quarter century since I began telling my Administrative Law students that they had better be watching the Internet and how agencies of interest to them were using it, as they entered an Information Age career. The changes since then have been remarkable. Rulemaking, where the pace has perhaps been slowest, is now accelerating into the Internet, driven by a President committed to openness and consultation. This paper seeks little more than to point the reader toward the places where she can find the changes and watch them for herself.


"Deference" Is Too Confusing – Let's Call Them Chevron Space And Skidmore Weight, Peter L. Strauss Jan 2011

"Deference" Is Too Confusing – Let's Call Them Chevron Space And Skidmore Weight, Peter L. Strauss

Faculty Scholarship

Administrative law scholars have leveled a forest of trees exploring the mysteries of the Chevron approach contemporary judges take to reviewing law-related aspects of administrative action. Without wishing to deny for a moment that judicial practice has been inconstant – influenced by the importance of the matter, by the accessibility of the issues to non-expert judges, by politics, and by the earned reputations of differing agencies – this short comment suggests an underappreciated, appropriate, and conceptually coherent structure to the Chevron relationship of courts to agencies, a structure whose basic impulse may be captured by the concept of “allocation.” Steering clear of ...


Minimalism And Experimentalism In The Administrative State, Charles F. Sabel, William H. Simon Jan 2010

Minimalism And Experimentalism In The Administrative State, Charles F. Sabel, William H. Simon

Faculty Scholarship

Minimalism is our name for the dominant liberal perspective on public policy implementation in contemporary legal scholarship. Minimalism emphasizes public interventions that incorporate market concepts and practices and that centralize and minimize administrative discretion. This essay appraises Minimalism in relation to a competing liberal view of the administrative state. Experimentalism emphasizes interventions in which central government affords broad discretion to local administrative units but measures and assesses their performance in ways designed to induce continuous learning and revision of standards. We fault Minimalist scholarship for ignoring an important reorientation in public policy along Experimentalist lines in the U.S. and ...