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Administrative Law

Judicial review

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Tentative Interpretations: The Abracadabra Of Administrative Rulemaking And The End Of 'Alaska Hunters', Matthew P. Downer Apr 2014

Tentative Interpretations: The Abracadabra Of Administrative Rulemaking And The End Of 'Alaska Hunters', Matthew P. Downer

Vanderbilt Law Review

Agency flexibility is a battlefield. When circumstances change or a new regime takes power, federal agencies often adjust their settled regulations to reflect new realities. There is a persistent struggle, however, between preserving this flexibility and protecting those who relied upon the previous regulations.' When an agency changes course, regulated entities must comply, often with little warning and at great expense. In 1946, Congress passed the Administrative Procedure Act ("APA") to balance these interests by restricting when and how agencies can promulgate and change regulations.

Unsurprisingly, the APA did not achieve a lasting d6tente. Instead, it merely created new fronts ...


The Reviewability Of The President's Statutory Powers, Kevin M. Stack May 2009

The Reviewability Of The President's Statutory Powers, Kevin M. Stack

Vanderbilt Law Review

From the Supreme Court's earliest days, it has reviewed some, but not all, challenges to the President's claims that a statute authorized his action. Not surprisingly, the Court's decisions granting review of the President's assertions of statutory powers have garnered more attention than its denials of review. Beginning with Marbury v. Madison1 and Little v. Barreme,2 gaining momentum in the twentieth century with the extensive discussion of statutory authority in Youngstown Sheet & Tube Co. v. Sawyer3 and Dames & Moore v. Regan,4 and accelerating in recent years with Hamdi v. Rumsfeld,5 Hamdan v. Rumsfeld ...


Reclaiming The Legal Fiction Of Congressional Delegation, Lisa Schultz Bressman Jan 2009

Reclaiming The Legal Fiction Of Congressional Delegation, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

The framework for judicial review of agency statutory interpretations is based on a legal fiction – namely, that Congress intends to delegate interpretive authority to agencies. Critics argue that the fiction is false because Congress is unlikely to think about the delegation of interpretive authority at all, or in the way that the Court imagines. They also contend that the fiction is fraudulent because the Court does actually care about whether Congress intends to delegate interpretive authority in any particular instance, but applies a presumption triggered by statutory ambiguity or a particularized analysis involving factors unrelated to congressional delegation. In this ...


Deference And Democracy, Lisa Schultz Bressman Jan 2007

Deference And Democracy, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

In "Chevron, U.S.A. v. Natural Resources Defense Council, Inc.", the Supreme Court famously held that judicial deference to agency interpretations of ambiguous statutes is appropriate largely because the executive branch is politically accountable for those policy choices. In recent cases, the Court has not displayed unwavering commitment to this decision or its principle of political accountability. This Article explores "Gonzales v. Oregon" as well as an earlier case, "FDA v. Brown & Williamson Tobacco Corp.", in which the administrations possessed strong claims of accountability yet the Court did not defer to the agency determinations. In both, the Court justified ...


Judicial Review Of Agency Inaction: An Arbitrariness Approach, Lisa Schultz Bressman Jan 2004

Judicial Review Of Agency Inaction: An Arbitrariness Approach, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

This Article contends that the current law governing judicial review of agency inaction, though consistent with the prevailing theory of agency legitimacy, is inconsistent with the founding principles of the administrative state. The Supreme Court's reluctance to allow judicial review of agency inaction reflects the popular view that agency decision-making should be subject foremost to the scrutiny of politically accountable officials. The difficulty is that even scholars who generally support this view of agency decision-making reject the Court's treatment of agency inaction. Yet these scholars have failed to appreciate the reason. The reason is that the founding principles ...


Administrative Law -- 1957 Tennessee Survey, James B. Earle Aug 1957

Administrative Law -- 1957 Tennessee Survey, James B. Earle

Vanderbilt Law Review

Only a few cases by the Tennessee Supreme Court decided during the survey year considered questions of general administrative law. These concerned the timing and extent of judicial review of administrative action and the conduct of hearings by agencies.

Prerequisites to Judicial Review: Whether available administrative remedies must be exhausted by a litigant before seeking a review or other relief by court action is a question not always capable of exact prediction.' The "long settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been ...


Administrative Law -- 1956 Tennessee Survey, James B. Earle Aug 1956

Administrative Law -- 1956 Tennessee Survey, James B. Earle

Vanderbilt Law Review

Questions of the scope and timing of judicial review of administrative agency action were again before the courts during the period covered by this survey. Timing of Judicial Review: The problem of "timing" of judicial review of administrative action includes questions of the availability of administrative remedies and whether their exhaustion must be required before court action; ripeness for review, usually associated with the issuance of agency rules and regulations; and jurisdictional questions vis-a-vis the agency and the court.


Administrative Law -- 1955 Tennessee Survey, Paul H. Sanders Aug 1955

Administrative Law -- 1955 Tennessee Survey, Paul H. Sanders

Vanderbilt Law Review

Judicial review of administrative agency action, with emphasis upon the limited nature of such review, has again been of major importance in Tennessee Administrative Law during the survey period, This is shown to be true not only in the number of decisions but also in the frequent utilization (and apparent broadening) of the doctrine of Hoover Motor Express Co. v. Railroad & Public Utilities Commission in according finality to administrative action. In addition to holdings on various aspects of judicial review, the Tennessee appellate courts contributed important decisions during the survey period dealing with delegation of legislative power and the application ...