Rule of Law Commons^™

Representative Rulemaking, Jim Rossi, Kevin Stack

Vanderbilt Law School Faculty Publications

The dominant form of lawmaking in the United States today-—notice-and-comment rulemaking—-is not a representative process. Notice-and-comment simply invites public participation, leaving the overall balance of engagement with the proposed regulations to the choices of individuals, public interest groups, trade groups, and regulated businesses. The result is a predictable one: In most rulemakings, industry voices dominate, and in many rulemakings, there is no participation by citizens or public interest groups. This representation deficit must be taken seriously. The basic rationales for a notice-and-comment rulemaking process depend upon some level of representation for those affected. The goal of providing the agency with …

Re-Examining Judicial Review Of Delegated Legislation, Wei Yao, Kenny Chng

Research Collection Yong Pung How School Of Law

The usage of delegated legislation as a means of governance deserves significant attention, in view of the enormous impact that it is capable of having on the lives of citizens. While reforms to the process of parliamentary scrutiny are an important means of minimising the inappropriate usage of delegated legislation, this paper explores the possibility of drawing more fruitfully upon judicial review as an additional control mechanism. It undertakes a theoretical analysis of what makes delegated legislation distinct from primary legislation and other types of executive action for the purposes of judicial review, with a view towards identifying the proper …

Our Unruly Administrative State, Philip A. Hamburger

Faculty Scholarship

One of the perennial academic rituals of administrative “law” is to explain its compatibility with the rule of law. As surely as seasons pass, academics muster their formidable intellectual resources to reassure us, and themselves, that in pursuing administrative power, they have not abandoned the rule of law.

A more immediate justificatory project might be to explain the constitutionality of the administrative state. But notwithstanding valiant efforts, its constitutionality remains in doubt. So a fallback measure of its legitimacy seems valuable.

From this perspective, even if the administrative state is not quite constitutional, it can enjoy legitimacy under traditional common …

The Antiregulatory Arsenal, Antidemocratic Can(N)Ons, And The Waters Wars, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

The Clean Water Act has become a centerpiece in an enduring multifront battle against both environmental regulation and federal regulatory power in all of its settings. This Article focuses on the emergence, elements, and linked uses of an antiregulatory arsenal now central to battles over what are federally protected “waters of the United States.” This is the key jurisdictional hook for CWA jurisdiction, and hence, logically, has become the heart of CWA contestation. The multi-decade battle over Waters protections has both drawn on emergent antiregulatory moves and generated new weapons in this increasingly prevalent and powerful antiregulatory arsenal. This array …

A Global Comparison Of Judicial Discipline Mechanisms, Zhuozhen Duan

Judicature International

No abstract provided.

White Supremacy, Police Brutality, And Family Separation: Preventing Crimes Against Humanity Within The United States, Elena Baylis

Articles

Although the United States tends to treat crimes against humanity as a danger that exists only in authoritarian or war-torn states, in fact, there is a real risk of crimes against humanity occurring within the United States, as illustrated by events such as systemic police brutality against Black Americans, the federal government’s family separation policy that took thousands of immigrant children from their parents at the southern border, and the dramatic escalation of White supremacist and extremist violence culminating in the January 6, 2021 attack on the U.S. Capitol. In spite of this risk, the United States does not have …

Unrules, Cary Coglianese, Gabriel Scheffler, Daniel E. Walters

Faculty Scholarship

At the center of contemporary debates over public law lies administrative agencies’ discretion to impose rules. Yet for every one of these rules, there are also unrules nearby. Often overlooked and sometimes barely visible, unrules are the decisions that regulators make to lift or limit the scope of a regulatory obligation through, for instance, waivers, exemptions, or exceptions. In some cases, unrules enable regulators to reduce burdens on regulated entities or to conserve valuable government resources in ways that make law more efficient. However, too much discretion to create unrules can facilitate undue business influence over the law, weaken regulatory …

Unrules, Cary Coglianese, Gabriel Scheffler, Daniel Walters

All Faculty Scholarship

At the center of contemporary debates over public law lies administrative agencies’ discretion to impose rules. Yet, for every one of these rules, there are also unrules nearby. Often overlooked and sometimes barely visible, unrules are the decisions that regulators make to lift or limit the scope of a regulatory obligation, for instance through waivers, exemptions, and exceptions. In some cases, unrules enable regulators to reduce burdens on regulated entities or to conserve valuable government resources in ways that make law more efficient. However, too much discretion to create unrules can facilitate undue business influence over the law, weaken regulatory …

Due Process In Antitrust Enforcement: Normative And Comparative Perspectives, Christopher S. Yoo, Yong Huang, Thomas Fetzer, Shan Jiang

All Faculty Scholarship

Due process in antitrust enforcement has significant implications for better professional and accurate enforcement decisions. Not only can due process spur economic growth, raise government credibility, and limit the abuse of powers according to law, it also promotes competitive reforms in monopolized sectors and curbs corruption. Jurisdictions learn from the best practices in the investigation process, decisionmaking process, and the announcement and judicial review of antitrust enforcement decisions. By comparing the enforcement policies of China, the European Union, and the United States, this article calls for better disclosure of evidence, participation of legal counsel, and protection of the procedural and …

The Uncertain Future Of Administrative Law, Jeremy K. Kessler, Charles F. Sabel

Faculty Scholarship

A volatile series of presidential transitions has only intensified the century-long conflict between progressive defenders and conservative critics of the administrative state. Yet neither side has adequately confronted the fact that the growth of uncertainty and the corresponding spread of guidance – a kind of provisional “rule” that invites its own revision – mark a break in the development of the administrative state as significant as the rise of notice-and-comment rulemaking in the 1960s and 1970s. Whereas rulemaking corrected social shortsightedness by enlisting science in the service of lawful administration, guidance acknowledges that both science and law are in need …

Re-Reading Chevron, Thomas W. Merrill

Faculty Scholarship

Though increasingly disfavored by the Supreme Court, Chevron remains central to administrative law doctrine. This Article suggests a way for the Court to reformulate the Chevron doctrine without overruling the Chevron decision. Through careful attention to the language of Chevron itself, the Court can honor the decision’s underlying value of harnessing comparative institutional advantage in judicial review, while setting aside a highly selective reading that unduly narrows judicial review. This re-reading would put the Chevron doctrine – and with it, an entire branch of administrative law – on firmer footing.

Illuminating Regulatory Guidance, Cary Coglianese

All Faculty Scholarship

Administrative agencies issue many guidance documents each year in an effort to provide clarity and direction to the public about important programs, policies, and rules. But these guidance documents are only helpful to the public if they can be readily found by those who they will benefit. Unfortunately, too many agency guidance documents are inaccessible, reaching the point where some observers even worry that guidance has become a form of regulatory “dark matter.” This article identifies a series of measures for agencies to take to bring their guidance documents better into the light. It begins by explaining why, unlike the …

Against Executive-Controlled Administrative Law Judges, Stephanie N. Higginson

Harvey M. Applebaum ’59 Award

No abstract provided.

Procedural Fairness In Antitrust Enforcement: The U.S. Perspective, Christopher S. Yoo, Hendrik M. Wendland

All Faculty Scholarship

Due process and fairness in enforcement procedures represent a critical aspect of the rule of law. Allowing greater participation by the parties and making enforcement procedures more transparent serve several functions, including better decisionmaking, greater respect for government, stronger economic growth, promotion of investment, limits corruption and politically motivated actions, regulation of bureaucratic ambition, and greater control of agency staff whose vision do not align with agency leadership or who are using an enforcement matter to advance their careers. That is why such distinguished actors as the International Competition Network (ICN), the Organization for Economic Cooperation and Development (OECD), the …

The Self-Delegation False Alarm: Analyzing Auer Deference's Effect On Agency Rules, Daniel E. Walters

All Faculty Scholarship

Auer deference holds that reviewing courts should defer to agencies when the latter interpret their own preexisting regulations. This doctrine relieves pressure on agencies to undergo costly notice-and-comment rulemaking each time interpretation of existing regulations is necessary. But according to some leading scholars and jurists, the doctrine actually encourages agencies to promulgate vague rules in the first instance, augmenting agency power and violating core separation of powers norms in the process. The claim that Auer perversely encourages agencies to “self-delegate”—that is, to create vague rules that can later be informally interpreted by agencies with latitude due to judicial deference—has helped …

Remedies In Canadian Administrative Law: A Roadmap To A Parallel Legal Universe, Cristie Ford

All Faculty Publications

Administrative law in Canada, as in many other common law countries, centres around judicial review doctrine. Sometimes, one may even get the sense that administrative law and administrative law remedies begin at the point at which a party to an administrative action seeks judicial review of that action through the courts. Yet an overly tight focus on court action misses the hugely important first step in real-life administrative action: the varied and sometimes creative, purpose-built remedies that a tribunal itself may impose.

This chapter, which has been revised and updated for the third edition of this leading text on Canadian …

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, …

Supervising Outsourcing: The Need For Better Design Of Blended Governance, Nina A. Mendelson

Book Chapters

We are long past the “vending machine”-style privatization of government functions – where the government contracts to buy a discrete product or service at a set price, whether aircraft components or landscaping. Government is increasingly enlisting, or collaborating with, private entities for functions long perceived as distinctly public. Private entities may make policy explicitly (through standards that agencies later adopt) or implicitly (through the third party verification of compliance with regulatory objectives). For example, the Department of Health and Human Services relies on the recommendations of an American Medical Association committee of specialist physicians to establish Medicare physician payments, while …

The Emptiness Of Decisional Limits: Reconceiving Presidential Control Of The Administrative State, Cary Coglianese

All Faculty Scholarship

The heads of administrative agencies exercise authority delegated directly to them through legislation. To what extent, then, may presidents lawfully direct these agency heads to carry out presidential priorities? A prevailing view in administrative law holds that, although presidents may seek to shape and oversee the work of agency officials, they cannot make decisions for those officials. Yet this approach of imposing a decisional limit on presidential control of the administrative state in reality fails to provide any meaningful constraint on presidential power and actually risks exacerbating the politicization of constitutional law. A decisional limit presents these problems because the …

The Promise Of The Rule Of (Environmental) Law: A Reply To Pardy's Unbearable Licence, Jocelyn Stacey

All Faculty Publications

This short reply clarifies and defends the argument presented in "The Environmental Emergency and the Legality of Discretion in Environmental Law." It responds to the arguments that were made, and that could have been made, in Pardy's critique "An Unbearable Licence".

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. …

The Environmental Emergency And The Legality Of Discretion In Environmental Law, Jocelyn Stacey

All Faculty Publications

This article argues that environmental issues confront us as an ongoing emergency. The epistemic features of serious environmental issues – the fact that we cannot reliably distinguish ex ante between benign policy choices and choices that may lead to environmental catastrophe – are the same features of an emergency. This means that, like emergencies, environmental issues pose a fundamental challenge for the rule of law: they reveal the necessity of unconstrained executive discretion. Discretion is widely lamented as a fundamental flaw in Canadian environmental law, which undermines both environmental protection and the rule of law itself. Through the conceptual framework …

China: The Quest For Procedural Justice, Stanley B. Lubman

Hong Yen Chang Center for Chinese Legal Studies

This essay is contributed in recognition of Don Wallace’s dedication to furthering procedural justice in the U.S. and abroad. Don’s interests are wider than anyone else’s I can think of. Even though China and Chinese law are not represented in his published scholarship, in the course of our long friendship he has expressed thoughtful interest in many ways, including his constructive participation in the first delegation of the American Bar Association to visit China, which I escorted in 1978, and his later visits to China. Under Don’s leadership as Director of the International Law Institute at the Georgetown Law School, …

The Rule-Of-Law Underpinnings Of Endangered Species Protection: Minister Of Fisheries And Oceans V. David Suzuki Foundation, 2012 Fca 40, Jocelyn Stacey

All Faculty Publications

Environmental organizations have experienced a string of recent courtroom successes enforcing the federal Species At Risk Act. This case comment examines one of these cases, Minister of Fisheries and Oceans v. David Suzuki Foundation (“Killer Whales”), to expose the rule-of-law underpinnings of the Federal Court of Appeal’s decision. It argues that, while the decision is on its face an ostensible victory for endangered species protection, the conception of the rule of law on which the court relies is incapable of providing meaningful legal constraints for much environmental decision-making.

Governments In Miniature: The Rule Of Law In The Administrative State, Mary Liston

All Faculty Publications

This chapter discusses several of the key attributes of the rule of law and explores their relevance for Canadian administrative law: the rule of law as an unwritten constitutional principle; the rule of law as a political ideal which structures institutional relations and competencies; and, the rule of law as a distinctive political morality which, in Canada, is understood as a dialogue among the three branches of government. The chapter assesses the Canadian articulation of the rule of law in the jurisprudence of the Supreme Court of Canada, then turns to the contemporary judicial review of administrative action. Recent case …

Dogs And Tails: Remedies In Administrative Law, Cristie Ford

All Faculty Publications

Administrative law in Canada, as in many other Commonwealth countries, centers around judicial review doctrine. Sometimes, one may even get the sense that administrative law and administrative law remedies begin at the point at which a party to an administrative action seeks judicial review of that action through the courts. Yet an overly tight focus on court action misses the hugely important first step in real-life administrative action: the varied and sometimes creative, purpose-built remedies that a tribunal itself may impose. This chapter seeks to provide a broader overview of administrative law remedies as a whole, including not only judicial …

The Supreme Court’S Regulation Of Civil Procedure: Lessons From Administrative Law, Lumen N. Mulligan, Glen Staszewski

Faculty Works

In this Article, we argue that the Supreme Court should route most Federal Rules of Civil Procedure issues through the notice-and-comment rulemaking process of the Civil Rules Advisory Committee instead of issuing judgments in adjudications, unless the case can be resolved solely through the deployment of traditional tools of statutory construction. While we are not the first to express a preference for rulemaking on civil procedure issues, we advance the position in four significant ways. First, we argue that the Supreme Court in the civil procedure arena is vested with powers analogous to most administrative agencies. Second, building upon this …

Transparency In The Administration Of Laws: The Relationship Between Differing Justifications For Transparency And Differing Views Of Administrative Law, Robert Vaughn

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Witnessing Arbitrariness: Roncarelli V. Duplessis Fifty Years On, Mary Liston

All Faculty Publications

In Canadian public law, the foundational case of Roncarelli v. Duplessis stands for the proposition that arbitrariness and the rule of law are conceptually antithetical values. This article examines multiple forms of arbitrariness in Roncarelli, going beyond the usual focus on discretionary power arbitrarily exercised by the executive branch of government. A close reading of the case not only brings to the surface other forms of arbitrariness, notably under-acknowledged forms of judicial arbitrariness, but also illuminates how legal actors attempt to constrain arbitrariness within the activity of judging. Furthermore, repositioning the case in its larger social and political context provides …

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 …