Law Commons^™

Progressive Textualism In Administrative Law, Kathryn E. Kovacs

Michigan Law Review Online

Nicholas Bagley’s article The Procedure Fetish is destined to be a classic. In it, Bagley systematically dismantles administrative law’s obsession with procedure. He decimates the arguments that procedure is necessary to legit-imize the administrative state and avoid agency capture. He nullifies the con-tention that administrative law is neutral by showing how proceduralism inhibits regulation and “favors a libertarian agenda over a progressive one.” Bagley urges progressives to abandon “gauzy claims about legitimacy and accountability” and approach procedure with skepticism.

The Procedure Fetish addresses the normative question of what adminis-trative law ought to require. Bagley writes about how progressives should solve …

The Procedure Fetish, Nicholas Bagley

Michigan Law Review

The strict procedural rules that characterize modern administrative law are said to be necessary to sustain the fragile legitimacy of a powerful and constitutionally suspect administrative state. We are likewise told that they are essential to public accountability because they prevent factional interests from capturing agencies. Yet the legitimacy-and-accountability narrative at the heart of administrative law is both overdrawn and harmful. Procedural rules have a role to play in preserving legitimacy and discouraging capture, but they advance those goals more obliquely than is commonly assumed and may exacerbate the very problems they aim to fix. This Article aims to draw …

Mdl As Public Administration, David L. Noll

Michigan Law Review

From the Deepwater Horizon disaster to the opioid crisis, multidistrict litigation—or simply MDL—has become the preeminent forum for devising solutions to the most difficult problems in the federal courts. MDL works by refusing to follow a regular procedural playbook. Its solutions are case specific, evolving, and ad hoc. This very flexibility, however, provokes charges that MDL violates basic requirements of the rule of law.

At the heart of these charges is the assumption that MDL is simply a larger version of the litigation that takes place every day in federal district courts. But MDL is not just different in scale …

Internal Administrative Law, Gillian E. Metzger, Kevin M. Stack

Michigan Law Review

For years, administrative law has been identified as the external review of agency action, primarily by courts. Following in the footsteps of pioneering administrative law scholars, a growing body of recent scholarship has begun to attend to the role of internal norms and structures in controlling agency action. This Article offers a conceptual and historical account of these internal forces as internal administrative law. Internal administrative law consists of the internal directives, guidance, and organizational forms through which agencies structure the discretion of their employees and presidents control the workings of the executive branch. It is the critical means for …

Admit Or Deny: A Call For Reform Of The Sec's "Neither-Admit-Nor-Deny" Policy, Priyah Kaul

University of Michigan Journal of Law Reform

For four decades, the SEC’s often-invoked policy of settling cases without requiring admissions of wrongdoing, referred to as the “neither-admit-nor-deny” policy, went unchallenged by the courts, the legislature, and the public. Then in 2011, a harshly critical opinion from Judge Jed Rakoff in SEC v. Citigroup incited demands for reform of this policy. In response to Judge Rakoff’s opinion, the SEC announced a modified approach to settlements. Under the modified approach, the Commission may require an admission of wrongdoing if a defendant’s misconduct was egregious or if the public markets would benefit from an admission. Many supporters of the neither-admit-nor-deny …

Undoing Undue Favors: Providing Competitors With Standing To Challenge Favorable Irs Actions, Sunil Shenoi

University of Michigan Journal of Law Reform

The Internal Revenue Service occasionally creates rules, notices, or regulations that allow taxpayers to pay less than they would under a strict reading of the law. Sometimes, however, these IRS actions are directly contrary to federal law and have significant economic impact. Challenging favorable IRS actions through litigation will likely be unsuccessful because no plaintiff can satisfy the requirements for standing. To address this situation, this Note proposes a statutory reform to provide competitors with standing to challenge favorable IRS actions in court.

The Myth Of Accountability And The Anti-Administrative Impulse, Edward Rubin

Michigan Law Review

The idea of accountability is very much in fashion in legal and political thought these days. To be sure, the term is used in a variety of different ways, but that is the nature of fashion. Colored cloth ponchos may be in fashion this season, for example, but they can be shaped and colored in a variety of different ways. It is differences of this sort that sustain a fashion trend. If the only poncho available were red and square, the fashion trend would display an impressive unity, but it wouldn't last very long. In order to make sales, clothing …