Law Commons^™

Vacatur, Nationwide Injunctions, And The Evolving Apa, Ronald M. Levin

Scholarship@WashULaw

The courts’ growing use of universal or nationwide injunctions to invalidate agency rules that they find to be unlawful has given rise to concern that such injunctions circumvent dialogue among the circuits, promote forum-shopping, and leave too much power in the hands of individual judges. Some scholars, joined by the Department of Justice, have argued that such judicial decisions should be limited through restrictive interpretations of the Administrative Procedure Act (APA).

This article takes issue with these authorities. It argues that the courts’ use of the APA to vacate a rule as a whole—as opposed to merely enjoining application of …

The Evolving Apa And The Originalist Challenge, Ronald M. Levin

Scholarship@WashULaw

This article, written for a symposium marking the seventy-fifth anniversary of the Administrative Procedure Act (APA), discusses the manifold ways in which courts have creatively interpreted the APA’s provisions on rulemaking, adjudication, and judicial review. Many of these interpretations seem to be barely, if at all, consistent with the intentions of the Act’s drafters and with standard principles of statutory construction. They can, however, be defended as pragmatic judicial efforts to keep up with the evolving needs of the regulatory state, especially in light of Congress’s persistent failure to take charge of updating the Act on its own. At this …

Law & Leviathan: The Best Defense?, Ronald Levin

Scholarship@WashULaw

In their recent book Law & Leviathan, Cass Sunstein and Adrian Vermeule unveil a novel and provocative approach to legitimating the modern administrative state. Their starting point is a set of procedural principles that the legal philosopher Lon Fuller described as fundamental premises of the law’s “internal morality.”

The D.C. Circuit Undermines Direct Final Rulemaking, Ronald Levin

Scholarship@WashULaw

Twenty-five years ago, the Administrative Conference of the United States (ACUS) brought the technique of “direct final rulemaking” to the attention of the administrative law community. Since that time, agencies have used the technique thousands of times to adopt noncontroversial regulations on an expedited basis. But its legality depends on a creative reading of the Administrative Procedure Act (APA). A recent D.C. Circuit case, applying the APA in a manner that overlooked the distinctive features of this device, has exposed this vulnerability and may well have seriously undermined the viability of the practice.

This column criticizes a case that came …