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Full-Text Articles in Law
The Interpretive Dimension Of Seminole Rock, Kevin M. Stack
The Interpretive Dimension Of Seminole Rock, Kevin M. Stack
Vanderbilt Law School Faculty Publications
A lively debate has emerged over the deferential standard of review courts apply when reviewing an agency's interpretation of its own regulations. That standard, traditionally associated with Bowles v. Seminole Rock & Sand Co. and now more frequently attributed to Auer v. Robbins, states that a court must accept an agency's interpretation of its own regulations unless the interpretation is "plainly erroneous or inconsistent with the regulation." This Article argues that a court's choice of method for interpreting regulations” including how it determines which agency interpretations are inconsistent with the regulation ” may be just as important, if not more …
Reclaiming The Legal Fiction Of Congressional Delegation, Lisa Schultz Bressman
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 …
Judicial Review Of Agency Inaction: An Arbitrariness Approach, Lisa Schultz Bressman
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 of the …