Law Commons^™

The Law Professor As Faculty Athletics Representative: Some Random Thoughts After Two Years, David E. Shipley

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It is a pleasure to write an essay about something I really enjoy, and it is especially pleasing not to worry about footnotes. I have been a law professor since 1977, and in August 2012, I started my 35th year of teaching. It is still fun to be in the classroom; my students energize me, teaching remains a challenge and being a productive scholar is important. I am one of those professors who likes his law school, university and professional service commitments. I am fortunate to have the best job in higher education: being a tenured law professor. My service …

Resolving The Alj Quandary, Kent H. Barnett

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Three competing constitutional and practical concerns surround federal administrative law judges (“ALJs”), who preside over all formal adjudications within the executive branch. First, if ALJs are “inferior Officers” (not mere employees), as five current Supreme Court Justices have suggested, the current method of selecting many ALJs likely violates the Appointments Clause. Second, a recent U.S. Supreme Court decision reserved the question whether the statutory protections that prevent ALJs from being fired at will impermissibly impinge upon the President’s supervisory power under Article II. Third, these same protections from removal may, on the other hand, be too limited to satisfy impartiality …

Avoiding Independent Agency Armageddon, Kent H. Barnett

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In Free Enterprise Fund v. Public Company Accounting Oversight Board, the U.S. Supreme Court invalidated Congress’ use of two layers of tenure protection to shield Public Company Accounting Oversight Board (PCAOB) members from the President’s removal. The SEC could appoint and remove PCAOB members. An implied tenure-protection provision protected the SEC from the President’s at-will removal. And a statutory tenure-protection provision protected PCAOB members from the SEC’s at-will removal. The Court held that these “tiered” tenure protections unconstitutionally impinged upon the President’s removal power because they prevented the President from holding the SEC responsible for PCAOB’s actions in the same …

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

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The Georgia Supreme Court and Court of Appeals have long accepted the General Assembly’s authority to enact legislation that establishes administrative agencies and empowers those agencies to promulgate rules and regulations to implement their enabling statutes. In addition, the Georgia Constitution provides that the General Assembly may authorize agencies to exercise quasi-judicial powers. Administrative agencies with broad powers enjoy a secure position under Georgia law.

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 of general applicability, and in ruling on specific matters …

The Consumer Financial Protection Bureau's Appointment With Trouble, Kent H. Barnett

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This article considers whether the Consumer Financial Protection Bureau Director’s appointment of the Bureau’s Deputy Director comports with the Appointments Clause. The Dodd-Frank Wall Street Reform and Consumer Protection Act established the Bureau in July 2010, as well as the offices of the Bureau’s Director and Deputy Director, to coordinate the regulation and enforcement of federal consumer-financial-protection laws. Under that act, the Director appoints the Deputy Director. The Appointments Clause permits “Heads of Departments” to appoint inferior officers like the Deputy Director. But it is unclear if the Bureau is a “department” and thus if the Director is a department …

Narrative Preferences And Administrative Due Process, Jason A. Cade

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This Article illustrates, through sociolinguistic analysis, how an adjudicator’s biases against certain narrative styles can influence his or her assessments of credibility, treatment of parties, and decision-making in the administrative law setting. Poverty lawyers have long observed that many claimants in the administrative state continue to face procedural and discursive obstacles. Applying insights from a growing field of inter-disciplinary research, including conversation analysis, linguistics, and cognitive studies, this Article builds upon those observations by more precisely exploring through a case study of an unemployment insurance benefits hearing how structural and narrative biases can work to deny an applicant due process …

Substance, Procedure, And The Divided Patent Power, Joseph S. Miller

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The Patent Office has the power to issue rules that “shall govern the conduct of proceedings in the Office,” 35 U.S.C. § 2(b)(2), but not the power to issue substantive rules. It has been this way since 1870, when Congress first granted the Office this regulatory power, in nearly these same words. Just how broad is this grant? How should a reviewing court determine whether a challenged Patent Office rule is procedural (and thus valid) or substantive (and thus invalid)? It is remarkable that in 2010, 140 years after Congress gave the Patent Office this power, the proper sorting standard …

Wilderness, The Courts And The Effect Of Politics On Judicial Decisionmaking, Peter A. Appel

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Empirical analyses of cases from federal courts have attempted to determine the effect of judges’ political ideology on their decisions. This question holds interest for scholars from many disciplines. Investigating judicial review of the actions of administrative agencies should provide strong evidence on the question of political influence because applicable rules of judicial deference to administrative decisions ought to lead judges to reach politically neutral results. Yet several studies have found a strong correlation between results in these cases and proxies for political ideology. Cases involving the interpretation of environmental law have been of particular interest as a subset of …

Towards Achieving Lasting Healthcare Reform: Rethinking The American Social Contract, Fazal Khan

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The famous preamble to the United States Declaration of Independence reflects a concise and eloquent understanding of the Lockean social contract theory that underpinned the foundation of the original American government: that free people will naturally find it in their self-interest to leave the state of nature (and the tyranny of foreign rule) and join a society where a legitimate sovereign power and the rule of law protect the citizens' fundamental rights. As of the writing of this essay, a new decade approaches and both the U.S. Senate and House have passed historic healthcare reform bills. The two legislative bodies, …

Due Process Rights Before Eu Agencies: The Rights Of Defense, David E. Shipley

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This Article discusses the procedural safeguards that have been recognized in the EU and the parallels between procedural due process in the United States and the rights of defense in the EU. It compares these respective rights and safeguards and explains how U.S. and EU procedures for agency adjudications are converging. Part II sets out the fundamental principles of American due process and EU right to be heard jurisprudence. Part III provides a detailed analysis of the rights of defense in the EU and highlights how this bundle of rights parallels the rights to notice and opportunity to be heard …

Law And Governance In The 21st Century Regulatory State, Jason M. Solomon

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Legal scholarship and pedagogy on the regulatory state are at parallel, important junctures, and two new books stand at the cutting edge. The first, Law and New Governance in the EU and the US, edited by Gráinne de Búrca and Joanne Scott, is a collection of works by some of the leading scholars in the "new governance" field. New governance scholars have both described and laid the theoretical foundation for what they see as promising and innovative efforts to address public problems. These efforts attempt to be less hierarchical, more transparent, and more democratic than traditional top-down forms of …

Federalism And Accountability: State Attorneys General, Regulatory Litigation, And The New Federalism, Timothy L. Meyer

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This Comment will examine how one particular state institution, state attorneys general (SAGs), has operated within a unique set of institutional and political constraints to create state-based regulation with nationwide impact in policy areas including consumer protection, antitrust, environmental regulation, and securities regulation. This state-based regulation casts doubt on one of the principle rationales advanced in the Supreme Court's anticommandeering line of cases for limiting federal power; namely, that such a move enhances electoral accountability, a concept central to our democracy. If in the absence of federal regulation a series of narrowly accountable state-based actors can create nationwide regulation in …

The Status Of Administrative Agencies Under The Georgia Constitution, David E. Shipley

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This Article discusses the place of administrative agencies under the Georgia Constitution. The rules of the Georgia Supreme Court on these issues, like the comparable rulings from the U.S. Supreme Court, make excellent reading for anyone interested in Georgia law, government, politics, and history. Most of the decisions surveyed in this Article are correct, but not necessarily for the reasons given by the Georgia Supreme Court. Some of the opinions offer comprehensive treatises on sections of the Georgia Constitution and aspects of administrative law, while others reach conclusions without much explanation. Some results are at odds with prior decisions that …

Arbitration And The Administrative State, Rebecca H. White

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Two important doctrinal developments of the 1980s--judicial deference to agency interpretations of statutes and the enforceability of predispute agreements to arbitrate statutory claims--individually have received considerable attention from courts and commentators. However, the interplay between these two doctrinal strands has gone largely unnoticed. This Article recognizes that both strands have something important in common--each upholds statutory interpretation by entities which the Chevron doctrine, in which the Court held that statutory silence or ambiguity may serve as an implied delegation of interpretative authority to administrative agencies, applies in the context of arbitration of statutory claims. It considers whether an understanding of …

Harmonizing Civil And Criminial Enforcement Of Federal Regulatory Statutes: The Case Of The Securities Exchange Act Of 1934, Margaret V. Sachs

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Many federal regulatory statutes (including those governing antitrust, securities, and the environment) are hybrid statutes: their prohibitions are enforceable in criminal actions as well as in private or governmental civil actions (or both). Courts have long divided over whether prohibitions in hybrid statutes can be construed differently in different enforcement contexts. Resolution of this uncertainty has become urgent now that criminal enforcement of federal regulatory statutes is relatively frequent.

In this article, Professor Sachs argues that prohibitions in hybrid statutes should be limited to a single interpretation. How to apply this principle (referred to in this article as “the core …

Mend It Or End It? What To Do With The Independent Counsel Statute, Julian A. Cook

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The tenure of Independent Counsel Kenneth Starr has generated much debate among scholars, politicians, and the media in recent years regarding the efficacy of the independent counsel statute, which is scheduled to expire in June 1999. Enacted in response to the Watergate saga, and particularly the infamous “Saturday Night Massacre,” the independent counsel statute was designed to remove politics from the prosecution of executive branch officials and to foster public confidence in the prosecutorial process. Advocates claim that the statute, though flawed, is the best system available to address alleged criminal wrongdoing by high-ranking executive branch officials, as well as …

The Stare Decisis "Exception" To The Chevron Deference Rule, Rebecca White

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In this article, the author discusses how Chevron intersects with one important competing norm - stare decisis. Stare decisis counsels the Court to adhere to its own decisions, particularly statutory ones, absent substantial justification for departure. To what extent should stare decisis apply when an agency's interpretation of a statute, otherwise deserving of deference under Chevron, conflicts with a prior interpretation of the statute by the Supreme Court?

This article suggests the following answer: If the Court's prior opinion upheld the agency's interpretation as one reasonable reading of the statute, but not the only one possible, and the agency thereafter …

The Constitutional Case Against Intracircuit Nonacquiescence, Dan T. Coenen

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A cornerstone of the United States Constitution is its separation of powers among the legislative, executive, and judicial branches of the national government. The Framers of the Constitution reasoned that separated powers would guard against tyranny by blocking the undue concentration of authority in any single governmental department. In crafting the Constitution, however, the Framers could not anticipate every dispute their scheme of separated powers might engender. One modern separation-of-powers conflict not specifically anticipated by the constitutional text involves so-called "intracircuit nonacquiescence.”

Intracircuit nonacquiescence occurs when executive-branch decision makers refuse to follow a circuit court's precedents even when acting subject …

Administrative Procedure And The Internal Revenue Service: Delimiting The Substantial Understatement Penalty, Peter A. Appel

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In the early 1980's, Congress faced the mounting problems of tax shelters and other forms of tax avoidance. It responded by passing a series of laws.1 One of these provisions, section 6661 of the Internal Revenue Code, penalizes "substantial understatement" of tax liability.2 While section 6661 may appear to be a typical, innocuous tax code provision, close examination reveals that the substantial understatement penalty threatens to expand quietly the power of the Internal Revenue Service (IRS) over taxpayers, violating the spirit of the Administrative Procedure Act (APA) in the process.

Section I of this Note explores the background of section …

Warrantless Administrative Inspections After Marshall V. Barlow's, Inc., David Shipley

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Administrative inspections are indispensable: without them there is no practical way to determine whether there is compliance with the plethora of health, sanitary, safety, and building regulations that ensure that living and working conditions remain tolerable. The need for administrative agencies to have this power does not, however, immunize inspections from the requirements of the fourth amendment. Administrative inspections "are subject to the governing principle that a search of private property, in the absence of consent, is 'unreasonable' unless authorized by a valid search warrant. This article discusses the continuing vitality of the Colonnade-Bisiwell exception to the warrant requirement after …

Reasoning By Riddle: The Power To Prohibit In Georgia Local Government Law, R. Perry Sentell Jr.

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One of the most significant and potentially objectionable powers exercised by any level of government is the power to regulate or prohibit the trades and occupations of its citizens. Of course, the only avenue for contesting the validity of such regulations is through the courts, at which time the basic tension of the individual’s right to earn a living vs. the government’s power to control his business comes quickly to the forefront. In his Article, Professor Sentell, dealing strictly with the power of Georgia local governments, points out that the Georgia courts have confounded the area by inconsistent consideration of …

Whither The Nixon Board?, J. Ralph Beaird, Mack A. Player

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The Nixon administration has now appointed a majority of members to the National Labor Relations Board. With this change in Board composition have come significant shifts in labor policy. The authors of this Article examine these shifts in policy in light of the approaches of past Boards.

Comparative Broadcast Licensing Procedures And The Rule Of Law: A Fuller Investigation, Michael Botein

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Professor Botein examines the validity of Professor Fuller's widely read but seldom criticized theory that traditional administrative adjudication is unsuited to resolve certain kinds of social tasks, which Fuller had labeled "polycentric problems." Professor Botein focuses upon Professor Fuller's example of the FCC's comparative licensing procedure as a problem unsuited to adjudication. Taking as his starting point Professor Fuller's criticism of the FCC -- a criticism Fuller never tested against the Commission's actual operations -- Professor Botein examines Fuller's theory of polycentricity by analyzing its contents, applying it to concrete situations, and exploring whether there exists any alternatives better than …

Racial Discrimination In Employment: Rights And Remedies, J. Ralph Beaird

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Professor Beaird believes that the current multiplicity of forums available to an employee who alleges discrimination against him should be merged into one. Ideally he would like to see an administrative agency given primary jurisdiction with authority similar to that possessed by the NLRB. Until an agency is given such power, Professor Beaird suggests that the forums themselves apply collateral estoppel principles to alleviate the inequities inherent in repetitious litigation.