Law Commons^™

Radical Administrative Law, Christopher S. Havasy Assistant Professor Of Law

Vanderbilt Law Review

The administrative state is under attack. Judges and scholars increasingly question why agencies should have such large powers to coerce citizens without adequate democratic accountability. Rather than refuting these critics, this Article accepts that in scrutinizing the massive powers that agencies hold over citizens, these critics have a point. However, their solution—to augment the powers of Congress or the President over agencies to instill indirect democratic accountability—is one step too quick. We should first examine whether direct democratic accountability of agencies by the citizenry is possible.

This Article excavates the nineteenth-century European intellectual history following the rise of the modern …

Barring Judicial Review, Laura E. Dolbow -- Sharswood Fellow

Vanderbilt Law Review

Whether judicial review is available is one of the most hotly contested issues in administrative law. Recently, laws that prohibit judicial review have sparked debate in the Medicare, immigration, and patent contexts. These debates are continuing in challenges to the recently created Medicare price negotiation program. Yet despite debates about the removal of judicial review, little is known about how often, and in what contexts, Congress has expressly precluded review. This Article provides new insights about express preclusion by conducting an empirical study of the U.S. Code. It creates an original dataset of laws that expressly preclude judicial review of …

Efficiency And Equity In Regulation, Caroline Cecot

Vanderbilt Law Review

The Biden Administration has signaled an interest in ensuring that regulations appropriately benefit vulnerable and disadvantaged communities. Prior presidential administrations since at least the Reagan Administration have focused on ensuring that regulations are efficient, maximizing the net benefits to society as a whole, without considering who benefits or who loses from these policies. Critics of this process of regulatory review have celebrated President Biden’s initiative, hoping that distributional analysis and the pursuit of equity will displace traditional tools and interests such as cost-benefit analysis and the pursuit of efficiency. Meanwhile, supporters of the current process are concerned that pursuing equity …

Chevron Is A Phoenix, Lisa Schultz Bressman, Kevin M. Stack

Vanderbilt Law Review

Judicial deference to agency interpretations of their own statutes is a foundational principle of the administrative state. It recognizes that Congress has the need and desire to delegate the details of regulatory policy to agencies rather than specify those details or default to judicial determinations. It also recognizes that interpretation under regulatory statutes is intertwined with implementation of those statutes. Prior to the famous decision in Chevron, the Supreme Court had long regarded judicial deference as a foundational principle of administrative law. It grew up with the administrative state alongside other foundational administrative law principles. In Chevron, the …

Fiduciary Duties And Corporate Climate Responsibility, Cynthia A. Williams

Vanderbilt Law Review

Corporate-law scholarship for decades has been occupied with agency costs and how to mitigate them. But when I teach the basic business organizations class, starting with agency law and looking at the fiduciary duties of care, loyalty, and full disclosure of any agent to her principal, we explore both costs and benefits of agency relationships. I do so by introducing Ronald Coase’s theory of the firm. Using an example close to most second-year law students’ experience, that of buying a suit for interviews, I contrast Brooks Brothers establishing its own factories (the “make” decision) with Brooks Brothers using supply chains, …

Agencies' Obligation To Interpret The Statute, Aaron Saiger

Vanderbilt Law Review

Conventionally, when a statute delegates authority to an agency, courts defer to agency interpretations of that statute. Most agencies and scholars view such deference as a grant of permission to the agency to adopt any reasonable interpretation. That is wrong, jurisprudentially and ethically. An agency that commands deference bears a duty to adopt what it believes to be the best interpretation of the relevant statute. Deference assigns to the agency, rather than to a court, power authoritatively to declare what the law is. That power carries with it a duty to give the statute the best reading the agency can. …

States, Agencies, And Legitimacy, Miriam Seifter

Vanderbilt Law Review

Scholarship on the administrative process has scarcely attended to the role that states play in federal regulation. This Article argues that it is time for that to change. An emerging, important new strand of federalism scholarship, known as "administrative federalism," now seeks to safeguard state interests in the administrative process and argues that federal agencies should consider state input when developing regulations. These ideas appear to be gaining traction in practice. States now possess privileged access to agency decisionmaking processes through a variety of formal and informal channels. And some courts have signaled support for the idea of a special …

Multiple-Agency Delegations & One-Agency Chevron, William Weaver

Vanderbilt Law Review

Congress frequently delegates to agencies, and a host of Supreme Court decisions have articulated tests for determining what level of deference courts should give to agency interpretations of their statutory directives. Courts have historically undertaken these analyses in the context of a single agency. Congressional authorization of joint rulemaking authority is more complicated, however, and the traditional frameworks for review are inadequate.

When Congress delegates authority to multiple agencies, courts should review the agencies' rules with heightened deference. The traditional framework for judicial review of agency rules is ill equipped when rules are promulgated by multiple coordinated agencies. The prevalence …

Does Agency Funding Affect Decisionmaking?: An Empirical Assessment Of The Pto, Michael D. Frakes, Melissa F. Wasserman

Vanderbilt Law Review

This Article undertakes the first attempt to causally investigate the influence of funding on the United States Patent and Trademark Office's ("PTO") decisionmaking. More specifically, this Article studies the influence of the PTO's budgetary structure on the most important decision made by the Agency: whether or not to grant a patent. It begins by setting forth a theoretical model predicting that certain elements of the PTO's fee schedule, such as issuance and maintenance fees, which are only collected in the event that patents issue, create incentives for the PTO to grant additional patents. Using a rich database of previously unavailable …

Common Agency And The Public Corporation, Paul Rose

Vanderbilt Law Review

Under the standard agency theory applied to corporate governance, active monitoring of manager-agents by empowered shareholder-principals will reduce agency costs created by management shirking and expropriation of private benefits. But while shareholder power may result in reduced managerial expropriation, an analysis of how that power is often exercised in public corporation governance reveals that it can also produce significant costs: influential shareholders may extract private benefits from the corporation, incur and impose lobbying expenses, and pressure corporations to adopt inapt corporate governance structures. These costs strain the simple principal-agent model on which shareholder empowerment is based. This Article offers an …

The Future Of Agency Independence, Lisa S. Bressman, Robert B. Thompson

Vanderbilt Law Review

Independent agencies have long been viewed as different from executive-branch agencies because the President lacks authority to fire their leaders for political reasons, such as failure to follow administration policy. In this Article, we identify mechanisms that make independent agencies increasingly responsive to presidential preferences. We find these mechanisms in a context where independent agencies traditionally have dominated: financial policy. In legislative proposals for securing market stability, we point to statutorily mandated collaboration on policy between the Federal Reserve Board and the Secretary of the Treasury. In administration practices for improving securities regulation, we focus on White House coordination of, …

The Consequences Of Congress's Choice Of Delegate: Judicial And Agency Interpretations Of Title Vii, Margaret H. Lemos

Vanderbilt Law Review

Although Congress delegates lawmaking authority to both courts and agencies, we know remarkably little about the determinants-and even less about the consequences-of the choice between judicial and administrative process. The few scholars who have sought to understand the choice of delegate have used formal modeling to illuminate various aspects of the decision from the perspective of the enacting Congress. That approach yields useful insight into the likely preferences of rational legislators, but tells us nothing about how (or whether) those preferences play out in the behavior of courts and agencies. Without such knowledge, we have no way of testing the …

The Cautionary Tale Of The Failed 2002 Ftc/Doj Merger Clearance Accord, Lauren K. Peay

Vanderbilt Law Review

Antitrust law in the United States is the patchwork result of over two hundred years of evolving and often conflicting views of the government's proper role in regulating business. Depending upon the social and business climate of the era and the economic philosophies of Congress, the President, and the judiciary, federal antitrust jurisdiction has waxed and waned. The result is the current system wherein the Department of Justice Antitrust Division ("Antitrust Division") and the Federal Trade Commission ("FTC") share dual jurisdiction to enforce the federal antitrust laws. However, in the push and pull of the changing eras, the intersection of …

Judicial Deference And The Credibility Of Agency Commitments, Jonathan Masur

Vanderbilt Law Review

Consider the following situation: In late 2004, towards the end of President George W. Bush's first term, the National Highway Transportation Safety Administration ("NHTSA"), pursuant to its congressionally delegated authority, promulgates a rule that would relax inspection and testing regimes for automobile manufacturers- thereby saving those firms substantial amounts of money-if the manufacturers independently deployed cutting-edge vehicle safety technology. The research and development of this technology will require significant up-front expenditures, and automobile manufacturers must decide whether to invest the funds necessary to bring the technology to market. However, the cost-benefit analysis is not so straightforward. The predicament, as the …

How "Mead" Has Muddled Judicial Review Of Agency Action, Lisa S. Bressman

Vanderbilt Law Review

When the Supreme Court decided United States v. Mead Corp. four years ago, Justice Scalia predicted that judicial review of agency action would devolve into chaos. This Article puts that prediction to the test by examining the court of appeals decisions applying the decision. Justice Scalia actually understated the effect of Mead. This Article suggests a remedy for the mess.

In Mead, the Court held that an agency is entitled to deference under Chevron, U.S.A., Inc. v. NRDC only if Congress has delegated to that agency the authority to issue interpretations that carry the force of law, and the agency …

Rejecting The Myth Of Popular Sovereignty And Applying An Agency Model To Direct Democracy, Glen Staszewski

Vanderbilt Law Review

The use of direct democracy is at its highest level in more than one hundred years.' The direct initiative, which is the primary focus of this Article, allows private citizens to bypass the traditional legislative process and make binding laws, often in highly contentious areas of public policy. The 2000 elections, for example, placed directly before voters the issues of school vouchers, physician-assisted suicide, same- sex marriage and other gay and lesbian rights, gun control, campaign finance reform, bilingual education, gambling, medical use of marijuana, and sentencing for drug offenders, as well as some of the perennial favorites-tax reform and …

Monitoring Governmental Disposition Of Assets: Fashioning Regulatory Substitutes For Market Controls, Harold J. Krent, Nicholas S. Zeppos

Vanderbilt Law Review

Each year, the government sells and leases public assets worth billions of dollars. FCC auctions to allocate rights to electromagnetic spectrum generated over twenty billion dollars within a three-year period, and proceeds from mineral leases, timber sales, and disposition of real estate from defaulting thrifts have surpassed several billion dollars annually.

From the taxpayer's perspective, however, government sales and leases have been deplorable. The government has donated valuable resources to preferred claimants, allocated scarce broadcast and oil rights resources by lottery, and sold both public land and mineral rights to private parties at a fraction of the market price. Although …

The Proper Scope Of Nonlawyer Representation In State Administrative Proceedings: A State Specific Balancing Approach, Gregory T. Stevens

Vanderbilt Law Review

Administrative adjudication has become an essential aspect of the American system of government as the need for dispute resolution outside the courtroom increases. To foster alternative dispute resolution, the authorization of nonlawyers to appear as representatives in administrative proceedings presents a viable response to increasing litigation costs and a burdened court system. Accordingly, the federal administrative system, through broad enabling statutes, allows individual agencies to prescribe the proper scope of nonlawyer representation of clients during agency proceedings.1 The individual states, however,have not adopted such a uniform approach. The inability of the individual states to establish an adequate regulatory system largely …

Nonacquiescence: Outlaw Agencies, Imperial Courts, And The Perils Of Pluralism, Deborah Maranville

Vanderbilt Law Review

American history has witnessed recurrent conflict between the judiciary and the executive or legislative branches of our government.' The conflict generates heated passions perhaps because it involves both significant struggles for power and fundamental views about the rule of law. New opportunities for conflict have arisen as the number of administrative agencies has grown. In the last decade, administrative agencies and the courts have engaged in a continuing controversy over whether agencies must follow lower court precedents. Although the controversy has touched a number of agencies at least peripherally, the National Labor Relations Board (NLRB or Board) and the Social …

Judicial Review Of Agency Deregulation: Alternatives And Problems For The Courts, James T. O'Reilly

Vanderbilt Law Review

This Article takes a preliminary look at how deregulation has fared in the courts and at the significance of the evolving federal appellate and United States Supreme Court case law for future agency rule making decisions.

Part II of this Article examines the various categories of regulation and the aspects of each category that may be subject to deregulation.

Part III defines deregulation and explores some of the reasons why an agency may wish to deregulate. Part IV examines the utility of judicial oversight of deregulation, and part V then discusses the mechanics of deregulation, focusing on the various means …

Agencies In Conflict: Overlapping Agencies And The Legitimacy Of The Administrative Process, Louis J. Sirico Jr.

Vanderbilt Law Review

This Article demonstrates how multi-agency decision making can enhance the legitimacy of the administrative system. After discussing the meaning of legitimacy in a highly stable society, it analyzes multi-agency decision making process from the perspective of the political scientist. I particularly emphasize "partisan mutual adjustment" analysis, which views the system as adjusting continually to the conduct of interacting participants. This theory comports not only with the pluralistic, pressure politics model of American government, but also with the methodology of classical economics, which celebrates the product of competing, conflicting interests.The Article concludes by demonstrating that the multi-agency process can increase legitimacy …

Agency -- 1964 Tennessee Survey, John S. Beasley

Vanderbilt Law Review

During the period covered by this Survey several cases have raised rather interesting points for consideration under the law of agency. On one occasion the Tennessee Supreme Court declined the opportunity of joining the ranks of the majority of states in moving toward a more modern rule on employer's liability with respect to an employee's child injured negligently by the employee. In this and other decisions, the courts have followed Tennessee precedent rather closely, with the result that there are few changes in the law of agency.

Annual Survey Of Tennessee Law, John S. Beasley, Ii

Vanderbilt Law Review

The Union Carbide and Ferguson cases were suits to recover Tennessee sales taxes and use taxes paid under protest for 1956 and 1958. Carbide and Ferguson urged that since they were under contract to the Atomic Energy Commission, the legal incidence of the tax was on the United States directly and therefore invalid. Carbide had been secured in 1943 to manage and operate certain plants involved in work on the atomic bomb, and Ferguson had subsequently been engaged to build additional facilities for this purpose. Both contended that their relationship with the United States and the Atomic Energy Commission was …

Agency -- 1962 Tennessee Survey, Edwin R. Render

Vanderbilt Law Review

Two cases decided during the survey period dealt with the existence or nonexistence of the agency relationship. While the agency relationship frequently arises out of contract, a contract is not necessary to the creation of authority in the agent. Consent of the principal is the basis of the agent's authority. Generally, the existence or non-existence of the agency relationship is a question of fact for the jury; but in the two cases to be discussed, Tennessee appellate courts reversed jury verdicts on the ground that there was no competent evidence in the record to support their findings... The other two …

Agency -- 1961 Tennessee Survey (Ii), W. Harold Bigham

Vanderbilt Law Review

I. Employee and Independent Contractor Distinguished

During the abbreviated survey period there were no significant or momentous decisions by Tennessee courts--state or federal--involving agency principles. Indeed the only state appellate case properly to be considered here involved the rather pedestrian question of whether a petitioner for workmen's compensation benefits was, vis-a-vis the defendant prime contractor, an employee or an independent contractor.

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II. Misrepresentations of Agent

Butts v. Colonial Refrigerated Transportation, Inc. is merely another example of the Sixth Circuit's unfortunate proclivity for writing per curiam affirmances. It is well-nigh impossible to determine whether the liability of the defendant which …

Agency -- 1961 Tennessee Survey, Elvin E. Overton

Vanderbilt Law Review

The topic "agency" includes the areas of "master and servant" as well as those of "principal and agent." There were few cases in these areas decided by the Tennessee courts during the period under survey. Generally, basic principles were applied to routine cases.In certain instances the reliance upon a prior fact determination avoided the necessity of an elaborate treatment of the facts. In one or two cases the court reached a result that may not be deemed desirable though supported by much authority. Significant points received less attention than they deserved in certain cases. In one case the basic question …

Business Associations -- 1961 Tennessee Survey, Kenneth L. Roberts

Vanderbilt Law Review

I. CASES

A. Disregard of Corporate Entity

B. Action in Corporate Name After Revocation of Charter

C. Effect of Merger

1. Privilege Tax

2. Statute of Limitations

D. Judicial Intervention in Internal Corporate Affairs

E. Disregard of Fictitious Corporate Records

F. Criminal Liability of Corporation for Acts of Agents

G. Corporate Venue Under Federal Anti-Trust Laws

II. STATUTES

A. Unincorporated Associations Treated as Corporations

B. Amendments to Securities Law

C. Massachusetts Trust Act

D. Industrial Development Corporation "Projects"

E. Amendments Relating to General Welfare Corporations

F. Miscellany

Agency -- 1960 Tennessee Survey, Warren A. Seavey

Vanderbilt Law Review

In Richardson v. Snipes' both parties to an exchange of land employed the plaintiff, the contract providing that the defendant would pay no commission unless the transfer was completed. The other party satisfied the conditions imposed by the defendant, who, however, refused to go through with the exchange. The court properly reversed judgment for the defendant; but the result should not have turned upon the finding of bad faith of the defendant, as the court held. The plaintiff had performed his undertaking which was to provide one who would exchange titles and who would have gone through with the transaction …

Agency--1959 Tennessee Survey, Kenneth L. Roberts

Vanderbilt Law Review

Several decisions of the Tennessee and sixth federal circuit appellate courts during the survey period dealt with the nature and scope of duties owing by master to servant. A prefatory review of applicable common law principles should aid understanding of these cases.

Broadly categorized, the master's common law obligations to his servant are fivefold. (1) To afford a reasonably safe place to work. The servant must be protected from dangers known to the master or those which might have been discovered by the exercise of reasonable diligence. If the danger is known or patently obvious and appreciated by the servant, …

Liability Of An Insurance Agent Or Broker In Procuring Or Maintaining Insurance For An Owner, Jack D. Mcneil

Vanderbilt Law Review

The insurance agent or broker is vulnerable to legal attack on several grounds and may incur liability on a variety of theories ranging from breach of implied warranty to fraudulent misrepresentation. The basic fact situation here discussed arises when one desires insurance and the agent sought for the purpose of procuring that insurance fails to do so through a lack of reasonable care. The nature and origin of the duty owed by such an agent or broker, the various instances in which liability arises, the measure and amount of damages collectible, and the defenses available to the agent are discussed.