Law Commons^™

Short Circuiting The Administrative Judiciary: A Response To Linda Jellum, Marshall J. Breger

Scholarly Articles

Linda Jellum provides a powerful analysis of the status of the exhaustion process for the SEC administrative judiciary and more broadly of the entire administrative judiciary. Many of her arguments are telling and on point. I disagree with a number of her technical and statutory arguments, and even more so the consequences of her analysis for the administrative state as we know it.

Jellum's argument is that Congress did not intend to preclude district courts from hearing constitutional challenges to SEC adjudications because agency ALJs are not the right adjudicators to hear challenges to the constitutionality of their own operations.

The Appropriate Appropriations Inquiry, Chad Squitieri

Scholarly Articles

The Supreme Court is set to hear oral argument this fall concerning whether the Consumer Financial Protection Bureau (CFPB) is unconstitutionally self-funded. The question presented in the case asks whether the statute establishing the CFPB’s self-funding scheme, 12 U.S.C. § 5497, “violates the Appropriations Clause.” But that question is incomplete at best, because although the Appropriations Clause requires that “appropriations” be “made by law,” the Appropriations Clause does not itself vest Congress with any authority to make “law” in the first place. Instead, Congress’s authority to make appropriations laws is vested in part by the Necessary and Proper Clause. Thus, …

“Recommend . . . Measures”: A Textualist Reformulation Of The Major Questions Doctrine, Chad Squitieri

Scholarly Articles

Following Biden v. Nebraska, defenders of the major questions doctrine (which requires administrative agencies to identify “clear congressional authorization” to regulate “major” issues) can be categorized as falling within one of two camps. The first camp includes Justices Gorsuch and Alito, who view the major questions doctrine as a substantive canon. The second camp includes Justice Barrett, who explained in Nebraska that she is “wary” of adopting new substantive canons, and indicated that she considers the major questions doctrine to be a linguistic canon. Interestingly, both camps have relied on an influential scholar to advance their positions: then Professor …

Major Problems With Major Questions, Chad Squitieri

Scholarly Articles

This July in West Virginia v. EPA, the Supreme Court formally recognized the “major questions doctrine.” That doctrine, which can be traced to a 1986 law review article published by then-Judge Stephen Breyer, calls on courts to consider a legal question’s “political importance” when interpreting statutes.

The major questions doctrine is a product of legal pragmatism—a theory of statutory interpretation advanced by Justice Breyer which often elevates statutory purpose and consequences over text. The doctrine is inconsistent with textualism—an interpretive theory that emphasizes statutory text, structure, and history to understand a statute as the public originally understood it. The takeaway …

Who Determines Majorness?, Chad Squitieri

Scholarly Articles

The major questions doctrine is said to assist courts in identifying whether Congress has delegated authority to administrative agencies. A closer look at the doctrine, however, reveals that it has been used by courts to tell Congress how it can delegate authority. What is more, some textualists have proposed strengthening the major questions doctrine into a revived nondelegation doctrine, which speaks to whether Congress can delegate authority. This Article argues that the major questions doctrine, particularly in its strengthened form, runs afoul of key commitments of textualism.

Climate Change, Sustainability, And The Failure Of Modern Property Theory, Jill M. Fraley

Scholarly Articles

Property rights are, I argue, the single largest legal limitation on our ability to respond effectively to the climate change crisis. This is because our understanding of the scope of property rights shapes and limits legal concepts such as regulatory takings, land use law, common law tort and property claims, and statutory environmental regulation. Property sets our cultural norms about how much the government can or should control the uses of land. The goals of this Article are to (1) historically demonstrate the failures of sociallyoriented property theory as they are represented in the analytical framework of doctrines such as …

Tax Attorneys As Defenders Of Taxpayer Rights, Michelle Lyon Drumbl

Scholarly Articles

What is the modern role of a tax practitioner, in particular a tax attorney, in the United States? In an era in which the Internal Revenue Service (IRS) is underfunded, understaffed, and struggles to address its mission, tax attorneys play an important role as advocates for taxpayer rights.

Tax attorneys act as advocates who represent ordinary individual taxpayers in controversies with the IRS. These controversies include post-filing disputes, such as audits, as well as issues arising with the collection of assessed taxes. Many of these cases are resolved at the administrative level; those that cannot be resolved are litigated, most …

Justice Kavanaugh, Lorenzo V. Sec, And The Post-Kennedy Supreme Court, Matthew C. Turk, Karen E. Woody

Scholarly Articles

This Article analyzes a recent Supreme Court case, Lorenzo v. Securities and Exchange Commission, and explains why it provides a valuable window into the Court's future now that Justice Kennedy has retired and his seat filled by Justice Brett Kavanaugh. Lorenzo is an important case that raises fundamental interpretative questions about the reach of federal securities statutes. But most significant is its unique procedural posture: when the Supreme Court issues its decision on Lorenzo in 2019, Justice Kavanaugh will be recused while the other eight Justices rule on a lower court opinion from the D.C. Circuit in which he wrote …

Administrative Power And Religious Liberty At The Supreme Court, Mark L. Rienzi

Scholarly Articles

The Supreme Court has recently seen an increase in the number of religious exercise cases in which the conflict was caused by an act of administrative power, rather than an act of legislative power. There are probably several reasons for this increase, including the growth, size, and flexibility of the administrative state, political convenience, and the fact that administrators tend to be specialists who may be unaware of or undervalue competing interests like religious liberty.

While the sheer size, reach, flexibility, and specialization of the administrative state means we will likely continue to see more religious exercise conflicts caused by …

Leidos And The Roberts Court's Improvident Securities Law Docket, Matthew C. Turk, Karen E. Woody

Scholarly Articles

For its October 2017 term, the U.S. Supreme Court took up a noteworthy securities law case, Leidos, Inc. v. Indiana Public Retirement System. The legal question presented in Leidos was whether a failure to comply with a regulation issued by the Securities and Exchange Commission (SEC), Item 303 of Regulation S-K (Item 303), can be grounds for a securities fraud claim pursuant to Rule 10b-5 and the related Section 10(b) of the 1934 Securities Exchange Act. Leidos teed up a significant set of issues because Item 303 concerns one of the more controversial corporate disclosures mandated by the SEC—an …

Independent Agencies In The United States: The Responsibilities Of Public Lawyers, Marshall J. Breger, Gary Edles

Scholarly Articles

Independent federal agencies occupy a special constitutional position in the governmental structure. Their stock-in-trade is the expert, apolitical resolution of regulatory issues. They are supposedly “independent” of the political will of the executive branch. Because most are multi-member organizations, they are also perceived as accommodating diverse views and able to prevent extreme outcomes through the compromise inherent in the process of collegial decision-making. But such a view is not universally held. A well known examination of such agencies in the 1930s described them uncharitably as a “headless ‘fourth branch’ of government, a haphazard deposit of irresponsible agencies and uncoordinated powers.” …

The New Global Financial Regulatory Order: Can Macroprudential Regulation Prevent Another Global Financial Disaster?, Behzad Gohari, Karen E. Woody

Scholarly Articles

This Article posits that the success of macroprudential regulation will depend on four factors. First, the economic philosophy of the central banker in charge of the domestic institution with jurisdiction over macroprudential regulation will prove crucial in the implementation of adopted regulation. If, like Chairman Greenspan, the banker is averse to the exercise of the Central Bank's regulatory oversight authority, then no amount or volume of policy or regulation will prevent or mitigate systemic risks and the accompanying shocks. Second, a sufficiently deep level of international cooperation is required to mitigate regulatory arbitrage, without being so broad that the ensuing …

Grade Incomplete: Examining The Securities And Exchange Commission's Attempt To Implement Credit Rating And Certain Corporate Governance Reforms Of Dodd-Frank, Tod Perry, Randle B. Pollard

Scholarly Articles

Following the financial crisis of 2007-2009, Congress passed the Dodd-Frank Act with stated goals, among others, of creating a sound economic foundation and protecting consumers. The Dodd-Frank Act creates several new agencies and restructures the financial regulatory system, yet controversies remain on the promulgation of new rules and the overall effectiveness in accomplishing the stated goals of the Act.

This Article briefly discusses the status of rulemaking by newly created agencies and the restructured financial regulatory system mandated by the Dodd- Frank Act three years after its passage. Next, we focus on certain aspects of the SEC and its charge …

Re-Negotiating A Theory Of Social Contract For Universal Health Care In America Or, Securing The Regulatory State?, George P. Smith Ii

Scholarly Articles

Political ideologies and evolving notions of social justice have shaped public health policies throughout American history in a quest to find a point of balance between the collective good and economic realities. In pursuit of this balance, Congress enacted the Affordable Care Act in 2010. This Article first examines the new law through the lens of the social contract as envisioned by Rousseau and adopted by the Framers of the Constitution. Using economic data, public opinion, and information from the medical community, Smith and Gallena proceed to offer a frank appraisal of the state of health care in America and …

Health Courts And Malpractice Claims Adjudication Through Medicare: Some Questions, Timothy Stoltzfus Jost

Scholarly Articles

No abstract provided.

Health Law And Administrative Law: A Marriage Most Convenient, Timothy Stoltzfus Jost

Scholarly Articles

This symposium explores the complex relationship between health law and administrative law. It is based on the observation that these two fields of law are peculiarly intertwined. It attempts to understand why this is so, as well as whether it is necessary and whether it is desirable. Would we as a society, that is, be better off if health law were less permeated by administrative law? Even if we would be better off, is it indeed possible to extricate health law from administrative law? This essay begins by defining health law and administrative law. It then proceeds to describe the …

Due Process, Black Lung, And The Shaping Of Administrative Justice, Brian C. Murchison

Scholarly Articles

None available.

Established By Practice: The Theory And Operation Of Independent Federal Agencies, Marshall J. Breger, Gary J. Edles

Scholarly Articles

Over the years numerous articles have surveyed the indicia of independence and the place of independent agencies within a separation of powers framework. In this article, we review the structure and internal operations of independent agencies, note several similarities and differences among them, and address various recurring issues affecting them. We further consider the future of this regulatory form as we enter the new millennium. We focus on agencies-whether multi-member or not-where at least one individual is appointed by the President to a full-time, fixed-term position with the advice and consent of the Senate and has protection against summary removal …

Regulating Risk Not Function, Heidi Mandanis Schooner

Scholarly Articles

This Article examines our current scheme of bank regulation through an analysis of banks' securities activities -- how such activities are currently regulated and how they might be regulated in the future.

Part I summarizes the major restrictions on banks' securities activities, emphasizing recent regulatory initiatives aimed toward expanding banks' participation in the securities business.

Part II examines the application of the federal securities laws to banks' securities activities. (While banks enjoy some exemptions from the federal securities laws, they are subject to many of the most important provisions.) In addition, Part II sets forth the division of responsibility for …

Government Accountability In The Twenty-First Century, Marshall J. Breger

Scholarly Articles

In this short paper I hope to point out two aspects of twenty-first century political life that relate to the challenge of ensuring government accountability. The first point relates to how advances in computer and media technology increase the potential of government accountability and how these technological developments will increase implementation of the principle of subsidiarity, or, in the American context, devolution of political power to state and local governments. Second, I will address the impact of these developments on administrative law in the next century.

Regulatory Flexibility And The Administrative State, Marshall J. Breger

Scholarly Articles

This essay attempts to examine some evolving notions of regulatory flexibility and show how, if at all, they fit in with the existing framework of the administrative state. It is a preliminary effort to suggest the kinds of flexibility that should be encouraged and discouraged. It will highlight as well, the effect of increased administrative flexibility on the structure of administrative law and the APA thereby raising the question whether the APA - a document written to structure both adjudication and rulemaking - is, in fact, well suited to regulate cooperation between industry and government.

Indeterminacy And Craft In Judicial Review Of Administrative Law: A Comment On Shapiro And Levy, Marshall J. Breger

Scholarly Articles

This Essay begins by examining whether more precise codification of statutory scope of review language will actually bring about a greater degree of determinacy in judicial decisions, and explains the reasons why indeterminacy currently exists. The proposed Shapiro and Levy standard is discussed next, as is their reliance on public choice theory to explain judicial behavior. Finally, this Essay concludes that while Shapiro and Levy raise interesting points, their quest for judicial determinacy is misguided.

Administrative Law And Labor Law: The Supreme Court’S 1991-92 Docket, Marshall J. Breger

Scholarly Articles

No abstract provided.

Defending Defenders: Remarks On Nichol And Pierce, Marshall J. Breger

Scholarly Articles

No abstract provided.

The Concept Of Independence In Public Law, Brian C. Murchison

Scholarly Articles

None available.

The Department Of Labor’S Glass Ceiling Initiative: A New Approach To An Old Problem, Marshall J. Breger

Scholarly Articles

The concept of a "glass ceiling" is not a new one. At the turn of the century, Marie Curie almost singlehandedly created the field of nuclear chemistry and forever changed the course of science and society. But even the ultimate scientific creativity award did not help her to crack the barrier of the science establishment. She received the Nobel Prize but was denied membership in the French Academie des Sciences because of her gender. It was only after her second Nobel Prize that the ali male Academie reluctantly admitted her to the club. The problem that I have with this …

The Supreme Court’S Administrative Law Docket: Proceedings From The Administrative Conference Of The United States, Marshall J. Breger

Scholarly Articles

No abstract provided.

Recent Developments In Osha Litigation, Marshall J. Breger

Scholarly Articles

After almost a year serving as the Solicitor of Labor, I can attest to the difficult challenges the Department of Labor will face and must overcome in the years ahead if it is to continue to be a dynamic and positive force in setting our Nation's labor policy. Indeed, I believe that current rulemaking and enforcement litigation on behalf of the Occupational Safety and Health Administration foreshadows significant issues the Department must resolve in the near future. This article focuses on two such OSH Act issues of current prominence: one, litigation challenges to OSHA rulemaking; and two, the use of …

Defining Tucker Act Jurisdiction After Bowen V. Massachusetts, Michael F. Noone Jr., Urban A. Lester

Scholarly Articles

Part I of this Article summarizes the relevant provisions of the Tucker Act, and examines courts' interpretations of whether a district court had jurisdiction over a claim when a potential judgment exceeded $10,000. This Article suggests that, over time, traditional Tucker Act jurisdiction has been distorted by the appearance of a new kind of plaintiff' seeking "structural reform" rather than the kinds of compensation envisioned by the Act. This Article also suggests that Tucker Act jurisdiction has been distorted by two congressional actions: the creation of the judgment fund; and amendments to the Administrative Procedure Act. These congressional actions could …

Realizing The Potential Of Arbitration In Federal Agency Dispute Resolution, Marshall J. Breger

Scholarly Articles

The Administrative Dispute Resolution Act of 1990 has given direct authorization to all federal government agencies to voluntarily agree to use alternative dispute resolution (specifically arbitration) in any type of dispute—whether disputes between the government and private parties, interagency matters or labor-management disputes within one agency. This law will be overseen by the Administrative Conference, which coordinates and advises agencies on the act's implementation. The Administrative Conference is a permanent federal agency established in 1964. Its purpose is to "improve the procedures of federal agencies so that they may fairly and expeditiously carry out their responsibilities."