Law Commons^™

The Problem Of Extravagant Inferences, Cass Sunstein

Georgia Law Review

Judges and lawyers sometimes act as if a constitutional or statutory term must, as a matter of semantics, be understood to have a particular meaning, when it could easily be understood to have another meaning, or several other meanings. When judges and lawyers act as if a legal term has a unique semantic meaning, even though it does not, they should be seen to be drawing extravagant inferences. Some constitutional provisions are treated this way; consider the idea that the vesting of executive power in a President of the United States necessarily includes the power to remove, at will, a …

Rethinking Countercyclical Financial Regulation, Jeremy C. Kress, Matthew C. Turk

Georgia Law Review

The 2008 financial crisis exposed a longstanding problem in financial regulation: traditional regulatory strategies tend to be procyclical. That is, regulatory tools—most notably, bank capital requirements—incentivize excessive credit growth during economic expansions and insufficient lending during contractions. The procyclicality of U.S. financial regulation was a key driver of the housing bubble in the mid-2000s and the massive credit crunch that followed. To combat this phenomenon, Congress and the federal banking agencies attempted to mitigate procyclical boom-and-bust cycles by implementing regulatory approaches that were explicitly countercyclical. The Dodd-Frank Act and related post-crisis reforms included several countercyclical features that were designed to …

No [Concrete] Harm, No Foul? Article Iii Standing In The Context Of Consumer Financial Protection, Annefloor J. De Groot

Georgia Law Review

In the U.S. Supreme Court’s 2016 decision in Spokeo, Inc. v. Robins, the Court held that a bare procedural violation of a federal consumer protection statute is not enough to satisfy Article III’s standing requirement because the alleged injury is not sufficiently concrete. This decision resulted in a sizeable circuit split regarding standing under the Fair Debt Collection Practices Act, with some circuit courts interpreting the holding as narrowing the scope of standing for consumer protection claims, and others maintaining a broader interpretation, allowing plaintiffs to obtain redress for violations of consumer financial protections laws.

In its 2021 ruling in …

The Lost History Of Delegation At The Founding, Christine Chabot

Georgia Law Review

The new Supreme Court is poised to bring the administrative state to a grinding halt. Five Justices have endorsed Justice Gorsuch’s dissent in Gundy v. United States—an opinion that threatens to invalidate countless regulatory statutes in which Congress has delegated significant policymaking authority to the Executive Branch. Justice Gorsuch claimed that the “text and history” of the Constitution required the Court to replace a longstanding constitutional doctrine that permits broad delegations with a more restrictive one. But the supposedly originalist arguments advanced by Justice Gorsuch and like-minded scholars run counter to the understandings of delegation that prevailed in the Founding …

Agents Of Bioshield: The Fda, Emergency Use Authorizations, And Public Trust, Kirstiana Perryman

Georgia Law Review

The SARS-CoV-2 pandemic spurred the U.S. Food & Drug Administration (FDA) to utilize the Emergency Use Authorization (EUA) procedure more than ever before. The pandemic pushed the relatively obscure procedure into public consciousness, making it a frequent topic of discussion and debate. The EUA procedure permits the FDA Commissioner to authorize the introduction of drugs, devices, or biological products into interstate commerce for use in an actual or potential emergency. To issue an authorization, the FDA Commissioner must determine that it is “reasonable to believe,” based on the “totality of the evidence,” that the product “may be effective.” This standard …

Judicial Review In Expedited Removal Proceedings: Applying Sims V. Apfel To Assess The Role Of Issue Exhaustion, Emily C. Snow

Georgia Law Review

For noncitizens in expedited removal proceedings, obtaining
judicial review of removal orders is an uphill battle. Some
barriers to judicial review are statutory: noncitizens must first
exhaust their administrative remedies, and they may seek
review only in a federal circuit court of appeals. Other barriers
are judicial—i.e., imposed by courts, not statutes.
A circuit split has emerged over one of these judicially
imposed barriers to judicial review. Some courts have held that
expedited removal proceedings do not accommodate legal
challenges to removal. In those circuits, noncitizens preserve the
opportunity for judicial review even when they do not raise a
legal …

The Expressiveness Of Regulatory Trade-Offs, Benjamin M. Chen

Georgia Law Review

Trade-offs between a sacred value—like human life—
against a secular one—like money—are considered taboo.
People are supposed to be offended by such trade-offs and to
punish those who contemplate them. Yet the last decades in the
United States have witnessed the rise of the cost-benefit state.
Most major rules promulgated today undergo a regulatory
impact analysis, and agencies monetize risks as grave as those
to human life and values as abstract as human dignity.
Prominent academics and lawmakers advocate the weighing of
costs and benefits as an element of rational regulation. The
cost-benefit revolution is a technocratic coup, however, if …

Coequal Federalism And Federal-State Agencies, Dave Owen, Hannah J. Wiseman

Georgia Law Review

Dividing authority between the federal government and the
states is central to the theory and practice of federalism.
Division is the defining feature of dual federalism, which
dominates the U.S. Supreme Court’s federalism
jurisprudence. Recent academic theories of federalism
emphasize overlap and interaction but still assume that
federal and state actors will work within separate institutions.
Each approach can be problematic, yet assumptions of
separation remain the bedrock of federalism. This Article
discusses a different form of federalism: coequal federalism.
Under coequal federalism, federal- and state-appointed
officials collaborate within a single agency that makes
decisions binding on the federal government …

The Other Hobbs Act: An Old Leviathan In The Modern Administrative State, Jason N. Sigalos

Georgia Law Review

The Hobbs Administrative Orders Review Act is a
little-known statute, one that is often mistaken for a
federal criminal statute with a similar name.
The lesser-known Hobbs Act requires aggrieved parties
to challenge certain agency orders in a federal court of
appeals within sixty days of the order’s promulgation.
However, if no party does so, are later parties bound by
a potentially unlawful agency order in subsequent
enforcement actions? The U.S. Supreme Court recently
dodged this question in PDR Network, LLC v. Carlton
& Harris Chiropractic, Inc. That case concerned a suit
between two private parties under the Telephone
Consumer …

Hiding The Ball: The Proposed Regulatory Accountability Act & Restricting Agency ‘Propaganda’, Benjamin A. Torres

Georgia Law Review

The Senate’s Regulatory Accountability Act (RAA)
seeks to substantially amend the Administrative
Procedure Act, the law governing federal agency
processes. The bill’s sponsors argue, in part, that the
RAA would improve administrative transparency and
accountability. One of the least-discussed provisions,
§ 3(c)(6), “Prohibition on Certain Communications,”
would prohibit agencies from advocating for or against
a proposed regulation during the comment period, an
indispensable component of notice-and-comment
rulemaking that affords the public a voice in the
rulemaking process. This Note recommends that
agencies should be able to exhibit their preferences at all
stages of rulemaking, because, as policymakers, agencies
should inform …

The Operational And Administrative Militaries, Mark P. Nevitt

Georgia Law Review

Admiral James Stavridis collapsed in his chair, exhausted. The four-star Navy admiral had just finished a six-month whirlwind tour of over thirty nations, flying on a state-of-the-art military aircraft surrounded by an enormous staff. He met with leaders from every member of the North Atlantic Treaty Organization (NATO), the heads of Russia and Israel, and several prospective U.S. and NATO allies. Not surprisingly, he met with each nation’s senior military leaders and ministers of defense in an effort to strengthen military-to-military relations and reinforce the bonds of the Atlantic Alliance that date back to General Eisenhower and the end of …

Non-Alj Adjudicators In Federal Agencies: Status, Selection, Oversight, And Removal, Kent H. Barnett, Russell Wheeler

Georgia Law Review

This article republishes—in substantively similar form—our 2018 report to the Administrative Conference of the United States (ACUS) concerning federal agencies’ adjudicators who are not administrative law judges (ALJs). (We refer to these adjudicators as “non-ALJ Adjudicators” or “non-ALJs.”) As our data indicate, non-ALJs significantly outnumber ALJs. Yet non-ALJs are often overlooked and difficult to discuss as a class because of their disparate titles and characteristics. To obtain more information on non-ALJs, we surveyed agencies on non-ALJs’ hearings and, among other things, the characteristics concerning non-ALJs’ salaries, selection, oversight, and removal. We first present our reported data on these matters, which …

If Established By Law, Then An Administrative Judge Is An Officer, Jennifer L. Cotton

Georgia Law Review

Administrative Judges (AJs) are a large and often overlooked group of federal agency adjudicators. While courts have examined Article II Appointments Clause challenges to Administrative Law Judges (ALJs), courts have yet to encounter a legal challenge to the constitutionality of AJs’ appointment procedures. The constitutionality of any federal government actor’s appointment is dependent upon whether that actor is an “officer” or an “employee” under the Article II Appointments clause. It is apparent that the current “significant authority” test that the Supreme Court has espoused to distinguish between officers and employees is unworkable. This Note endeavors to set forth a bright-line …

The Motor City Needs Oil (On Canvas): An Argument In Support Of Detroit's "Grand Bargain", Jonathan A. Weeks

Georgia Law Review

Now the largest municipality in the history of the United States to go bankrupt, Detroit very nearly lost its famous art collection to its creditors. To protect its collection, Detroit proposed what is now often referred to as the "grand bargain," which involved creating a corporation that paid $816 million for the entire art collection provided that the amount paid was earmarked for pension holders in Detroit. The deal resulted in realizing two goals: keeping the art collection in Detroit and protecting pensioners who faced a huge loss in the wake of the bankruptcy. Critics of the grand bargain claim …

Visualizing Change In Administrative Law, Aaron L. Nielson

Georgia Law Review

Although few realize it, the structure of administrative law has not changed much in two decades. Unlike past eras of upheaval, the key statutes, institutions, and judicial doctrines that defined administrative law in the early 1990s remain remarkably intact today. Administrative law's complexity, however, makes it difficult to see the big picture. This Article addresses that complexity by introducing a new visual framework. This framework has two principal benefits. First, it illustrates how administrative law's many parts fit together and shows that the field has been in a holding pattern for a long time. Second, it also allows scholars to …

Flexing Agency Muscle?, Richard J. Lazarus

Georgia Law Review

"Muscular" is not an adjective that commentators typically associate with federal agencies. The Office of the President of the United States prides itself in its muscularity, and ever since the days of President Theodore Roosevelt, the President is frequently said to enjoy the rhetorical advantages presented by that Office's "bully pulpit."' Congress routinely is characterized as flexing its legislative muscle in the statutory commands and prohibitions included in its enactments, and in the harsh critiques it launches in highly publicized oversight hearings. And the courts are regularly accused by everyone, of every possible ideological stripe, of being excessively muscular every …

Agency As Principal, Brigham Daniels

Georgia Law Review

A presumption of a principal-agentrelationship between the elected branches and the bureaucracy permeates administrative law and scholarship. This typical framework consistently casts agencies as agents, never principals. This Article challenges that assumption and explores the ways in which agencies can act as principals to the elected branches. Agencies, in fact, commonly manipulate the elected branches. The challenge posed by the Article to the typical understandingof the relationship between agencies and the elected branches not only provides a more nuanced understanding of the modern administrative state but also raises serious questions about administrative law, which regularly employs this same faulty assumption.

Soft Whistleblowing, Amanda C. Leiter

Georgia Law Review

This Article explores the underappreciated role that agency insiders play in directing outside oversight of their employer agencies and, in turn, manipulating agency policy development. Specifically, the Article defines, documents, and evaluates the phenomenon of "soft whistleblowing"-an agency employee's deliberate, unsanctioned,substantive, and instrumental disclosure of nonpublic information about issues of policy. This phenomenon is ubiquitous but has received no systematic attention in the academic literature. As the Article demonstrates, agency employees regularly engage in soft whistleblowing to congressional staff, journalists, and agency watchdog groups, in an effort to bring outside pressure to bear on their employer agencies to shift policymaking …

Defeating A Wolf Clad As A Wolf: Formalism And Functionalism In Separation-Of-Powers Suits Against The Consumer Financial Protection Bureau, Lee A. Deneen

Georgia Law Review

In 2010, the Court decided Free Enterprise Fund, engaging in a substantially formalist analysis of the President's removal power. That same year, Congress authorized creation of the Consumer Financial Protection Bureau, a federal agency with significant regulatory and enforcement power over the consumer finance industry. Within three years of that legislation, two lawsuits have challenged the CFPB's structure. This Note evaluates the arguments of the CFPB's opponents against the backdrop of Free Enterprise Fund and the Roberts Court's other formalist decisions. Although one might expect complaints against the CFPB to be lodged solely in formalist terms, the CFPB's opponents have …

The Chevron Two-Step In Georgia's Administrative Law, David E. Shipley

Georgia Law Review

Like federal and state administrative agencies
throughout the nation, Georgia's many boards,
commissions and authorities make policy when they apply
their governing statutes in promulgating regulations and
in ruling on specific matters like granting or denying an
application for a permit or determining the residency of a
candidate for public office. Sometimes governing statutes
are clear, but sometimes there is ambiguity. When there is
ambiguity in the governing statute, an agency must
interpret that legislation when it promulgates regulations
or decides a particular contested matter. This Article asks
and answers the fundamental question of what deference,
if any, must a …

When Delegation Begets Domination: Due Process Of Administrative Lawmaking, Evan J. Criddle

Georgia Law Review

In federal administrative law, the nondelegation
doctrine purports to forbid Congress from entrusting its
essential legislative powers to administrative agencies.
The Supreme Court developed this doctrine during the
nineteenth century to safeguard republican values
embedded in the Constitution. Over time, however, the
Court has loosened the doctrine's grip, permitting federal
agencies to wield broad lawmaking powers subject to
minimalist "intelligible principles" established by
Congress. The Court has defended this approach on
pragmatic grounds, arguing that Congress cannot perform
its essential legislative function without entrusting
lawmaking authority to administrative agencies. What
the Court has never adequately addressed, however, is the
extent …