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 …

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 …

On Bankruptcy’S Promethean Gap: Building Enslaving Capacity Into The Antebellum Administrative State, Rafael I. Pardo

Scholarship@WashULaw

As the United States contends with the economic crisis triggered by the COVID-19 pandemic, federal bankruptcy law is one tool that can be used to resolve the financial distress suffered by individuals and businesses. When implementing this remedy, the question arises whether the law’s application should be viewed as limited to addressing private debt matters, without regard for the public interest. This Article answers the question by looking to modern U.S. bankruptcy law’s first forebear, the 1841 Bankruptcy Act, which Congress enacted in response to the depressed economic conditions following the Panic of 1837. That legislation created a judicially administered …

The Structural Exceptionalism Of Bankruptcy Administration, Rafael I. Pardo, Kathryn A. Watts

Scholarship@WashULaw

The current system of administration of the Bankruptcy Code is highly anomalous. It stands as one of the few major federal civil statutory regimes administered almost exclusively through adjudication in the courts, not through a federal regulatory agency. This means that rather than fitting bankruptcy into a regulatory model, Congress has chosen to give the courts primary interpretive authority in the field of bankruptcy, delegating to courts the power to engage in residual policymaking. Although scholars have noted some narrow aspects of the structural exceptionalism of bankruptcy administration, Congress’s decision to locate responsibility for bankruptcy policymaking almost exclusively with the …

Race, Sex, And Rulemaking: Administrative Constitutionalism And The Workplace, 1960 To The Present, Sophia Z. Lee

All Faculty Scholarship

This Article uses the history of equal employment rulemaking at the Federal Communications Commission (FCC) and the Federal Power Commission (FPC) to document and analyze, for the first time, how administrative agencies interpret the Constitution. Although it is widely recognized that administrators must implement policy with an eye on the Constitution, neither constitutional nor administrative law scholarship has examined how administrators approach constitutional interpretation. Indeed, there is limited understanding of agencies’ core task of interpreting statutes, let alone of their constitutional practice. During the 1960s and 1970s, officials at the FCC relied on a strikingly broad and affirmative interpretation of …

Ways To Think About The Unitary Executive: A Comment On Approaches To Government Structure, Michael A. Fitts

All Faculty Scholarship

No abstract provided.

Can Ignorance Be Bliss? Imperfect Information As A Positive Influence In Political Insitutions, Michael A. Fitts

All Faculty Scholarship

No abstract provided.

Retaining The Rule Of Law In A Chevron World, Michael A. Fitts

All Faculty Scholarship

No abstract provided.

Judicial Review Of Federal Administrative Action: Quest For The Optimum Forum, David P. Currie, Frank I. Goodman

All Faculty Scholarship

Professors Currie and Goodman present a comprehensive analysis of the variables that must be isolated and weighed in determining the optimum forum for judicial review of administrative action. While the backdrop for this study is the caseload crisis presently confronting the federal courts of appeals, their discussion illuminates the requsites for optimum judicial review generally.

Failing to perceive any compelling reason to single out administrative cases for review (in separate courts, the authors argue against the creation of special administrative appeals courts. Even if such courts were to enjoy broad subject matter jurisdiction over the most demanding aspects of the …