Law Commons^™

Minimally Democratic Administrative Law, Jud Mathews

Jud Mathews

A persistent challenge for the American administrative state is reconciling the vast powers of unelected agencies with our commitment to government by the people. Many features of contemporary administrative law — from the right to participate in agency processes, to the reason-giving requirements on agencies, to the presidential review of rulemaking — have been justified, at least in part, as means to square the realities of agency power with our democratic commitments. At the root of any such effort there lies a theory of democracy, whether fully articulated or only implicit: some conception of what democracy is about, and what …

Proportionality Review In Administrative Law, Jud Mathews

Jud Mathews

At the most basic level, the principle of proportionality captures the common-sensical proposition that, when the government acts, the means it chooses should be well-adapted to achieve the ends it is pursuing. The proportionality principle is an admonition, as German administrative law scholar Fritz Fleiner famously wrote many decades ago, that “the police should not shoot at sparrows with cannons”. The use of proportionality review in constitutional and international law has received ample attention from scholars in recent years, but less has been said about proportionality’s role within administrative law. This piece suggest that we can understand the differences in …

Presidential Administration In The Obama Era, Jud Mathews

Jud Mathews

Deference Lotteries, Jud Mathews

Jud Mathews

When should courts defer to agency interpretations of statutes, and what measure of deference should agencies receive? Administrative law recognizes two main deference doctrines — the generous Chevron standard and the stingier Skidmore standard — but Supreme Court case law has not offered a bright-line rule for when each standard applies.Many observers have concluded that courts’ deference practice is an unpredictable muddle. This Article argues that it is really a lottery, in the sense the term is used in expected utility theory. Agencies cannot predict which deference standard a court will apply or with what effect, but they have a …

Reconciling With The Past: John Willis And The Question Of Judicial Review In Interwar And Postwar England, Peter L. Lindseth

Peter L. Lindseth

This contribution was prepared for a conference at the University of Toronto Faculty of Law in honor of John Willis, the late Anglo-Canadian administrative law theorist who died in 1997. It will appear in a forthcoming issue of the University of Toronto Law Journal. Throughout his career, John Willis puzzled over the way in which both popular and elite opinion in England (not to mention throughout the Commonwealth and in the United States) persistently, and in his view uncritically, equated the "Rule of Law" in important respects with judicial review in the administrative state. Willis believed this attachment to judicial …

Searching For Proportionality In U.S. Administrative Law, Jud Mathews

Jud Mathews

Constituencies And Contemporaneousness In Reason-Giving: Thoughts And Direction After T-Mobile, Donald J. Kochan

Donald J. Kochan

Toward Adequacy, Sarah L. Brinton

Sarah L Brinton

Each year, hundreds of people, companies, organizations, and associations sue the federal government for injuries they have suffered at the hands of federal agencies. Such suits are often brought under the judicial review provisions of the Administrative Procedure Act (“APA”), which Congress enacted expressly to allow broad access to courts in an age of increasing administrative agency action. By the terms of the APA itself, all final agency action for which there is no other adequate remedy in a court is reviewable under the APA.

But the very language meant to welcome such suits into court also acts as a …

Chevron Without The Courts? The Supreme Court's Recent Chevron Jurisprudence Through An Immigration Lens, Shruti Rana

Shruti Rana

The limits of administrative law are undergoing a seismic shift in the immigration arena. Chevron divides interpretive and decision-making authority between the federal courts and agencies in each of two steps. The Supreme Court may now be transforming this division in largely unrecognized ways. These shifts, currently playing out in the immigration context, may threaten to reshape deference jurisprudence by handing more power to the immigration agency just when the agency may be least able to handle that power effectively. An unprecedented surge in immigration cases—now approximately 90% of the federal administrative docket—has arrived just as the Court is whittling …