Law Commons^™

The Importance Of Looking Under The 'Administrative Hood': A Case Study Of The National Waters Protection Rule, Nicholas S. Bryner, Victor Byers Flatt

Journal Articles

In an era of legislative gridlock, policy by administrative action has expanded, with major swings occurring when the political party of the presidency changes. These policy disputes have spilled into the third branch with a concomitant increase in legal challenges seeking judicial review of such actions. At the same time, both Republican and Democratic Administrations have made cost-benefit analysis the currency of federal rulemaking in the executive branch.

The combination of the expansion of cost-benefit analysis and the increased litigation over rulemaking has increased the importance of economic and scientific justifications in both the promulgation and revision of administrative actions. …

Statutory Interpretation And Chevron Deference In The Appellate Courts: An Empirical Analysis, Amy Semet

Journal Articles

What statutory methods does an appellate court use in reviewing decisions of an administrative agency? Further, in doing this review, are appellate judges more likely to use certain statutory methods when they expressly cite the Chevron two-step framework than if they do not? This Article explores the answers to these questions using an original database of over 200 statutory interpretation cases culled from more than 2,500 cases decided in appellate courts reviewing National Labor Relations Board (NLRB or the Board) adjudications from 1994 through 2020. In particular, the study examined the use of text, language canons, substantive canons, legislative history, …

The Undemocratic Roots Of Agency Rulemaking, Emily S. Bremer

Journal Articles

Americans often credit—or blame—Congress for the laws and policies that govern their lives. But Congress enacts broad statutes that give federal administrative agencies the primary responsibility for making and enforcing the regulations that control American society. These administrative agencies lack the political accountability of those in public office. To address this democratic deficit, an agency seeking to adopt a new regulation must publish a notice of proposed rulemaking and provide an opportunity for the public to comment on the proposal. Heralded as “one of the greatest inventions of modern government,” the Administrative Procedure Act’s (APA) notice-and-comment rulemaking procedure is understood …

Introduction To The Bremer-Kovacs Collection: Historic Documents Related To The Administrative Procedure Act Of 1946 (Heinonline 2021), Emily S. Bremer, Kathryn E. Kovacs

Journal Articles

Few statutes have a legislative history as rich, varied, and sprawling as the Administrative Procedure Act of 1946 (APA). In recent years, courts and scholars have shown increased interest in understanding this history. This is no mean feat. The APA’s history spans nearly two decades, and it includes numerous failed bills, a presidential veto, and a full panoply of congressional documents. In addition, much of the most crucial documentation underlying the APA was produced outside of Congress—by the executive branch—and even outside of government—by the American Bar Association. Identifying and locating all the relevant documents is difficult. Understanding each piece …

Decoding Nondelegation After Gundy: What The Experience In State Courts Tells Us About What To Expect When We're Expecting, Daniel Walters

Journal Articles

The nondelegation doctrine theoretically limits Congress’s ability to delegate legislative powers to the executive agencies that make up the modern administrative state. Yet, in practice, the U.S. Supreme Court has, since the New Deal, shied away from enforcing any limits on congressional delegation. That may change in the near future. In Gundy v. United States, the Court narrowly upheld a delegation, and a dissent signaled deep doubts about the Court’s longstanding “intelligible principle” standard and offered a new framework to replace it. Subsequent events strongly suggest that the Court is poised to move in the direction contemplated by the …

Marketing Authorization At The Fda: Paradigms And Alternatives, Adam I. Muchmore

Journal Articles

In many critical industries, the Food and Drug Administration’s (FDA’s) marketing authorization decisions determine the range of products available in the United States. Because of the broad scope of the FDA’s marketing authorization responsibilities, the existing scholarship focuses on individual product categories, or small groups of product categories, regulated by the agency. This Article identifies how the existing literature has overlooked important connections between the FDA’s different marketing authorization programs. These connections suggest both explanations for existing programs and strategies for potential reforms.

The Article sets forth a two-level framework for analyzing the FDA’s marketing authorization role. At the first …

Retheorizing Precedent, Randy J. Kozel

Journal Articles

Does the doctrine of stare decisis support judicial attempts to retheorize dubious precedents by putting them on firmer footing? If it does, can retheorization provide a means for Chevron to endure as a staple of administrative law notwithstanding serious challenges to its established rationale?

Reckoning With Adjudication's Exceptionalism Norm, Emily S. Bremer

Journal Articles

Unlike rulemaking and judicial review, administrative adjudication is governed by a norm of exceptionalism. Agencies rarely adjudicate according to the Administrative Procedure Act’s formal adjudication provisions, and the statute has little role in defining informal adjudication or specifying its minimum procedural requirements. Due process has almost nothing to say about the matter.

The result is that there are few uniform, cross-cutting procedural requirements in adjudication, and most hearings are conducted using procedures tailored for individual agencies or programs. This Article explores the benefits and costs of adjudication’s exceptionalism norm, an analysis that implicates the familiar tension between uniformity and specialization …

The Case Against Chevron Deference In Immigration Adjudication, Shoba Wadhia, Christopher Walker

Journal Articles

The Duke Law Journal’s fifty-first annual administrative law symposium examines the future of Chevron deference—the command that a reviewing court defer to an agency’s reasonable interpretation of an ambiguous statute the agency administers. In the lead article, Professors Kristin Hickman and Aaron Nielson argue that the Supreme Court should narrow Chevron’s domain to exclude interpretations made via administrative adjudication. Building on their framing, this Article presents an in-depth case study of immigration adjudication and argues that this case against Chevron has perhaps its greatest force when it comes to immigration. That is because much of Chevron’s theory for congressional delegation …

Neoclassical Administrative Law, Jeffrey Pojanowski

Journal Articles

This Article introduces an approach to administrative law that reconciles a more formalist, classical understanding of law and its supremacy with the contemporary administrative state. Courts adopting this approach, which I call “neoclassical administrative law,” are skeptical of judicial deference on questions of law, tend to give more leeway to agencies on questions of policy, and attend more closely to statutes governing administrative procedure than contemporary doctrine does. As a result, neoclassical administrative law finds a place for both legislative supremacy and the rule of law within the administrative state, without subordinating either of those central values to the other. …

Porous Bureaucracy: Legitimating The Administrative State In Taiwan, Anya Bernstein

Journal Articles

Scholars and politicians have sometimes presented bureaucracy as inherently conflicting with democracy. Notably, bureaucrats themselves are rarely consulted about that relationship. In contrast, I draw on interviews and participant observation to illuminate how government administrators understand their own place in democratic government in Taiwan, one of the few successful third-wave democracies. The administrators I work with root their own legitimacy not in separated powers or autonomous expertise, but in their ongoing collaboration with legislators and publics. They define their own accountability not just as executive legislative mandates but as producing them in the first place, and figure bureaucracy as a …

An Empirical Examination Of Agency Statutory Interpretation, Amy Semet

Journal Articles

How do administrative agencies interpret statutes? Despite the theoretical treatment scholars offer on how agencies construe statutes, far less is known empirically about administrative statutory interpretation even though agencies play a critical role in interpreting statutes. This Article looks behind the black box of agency statutory interpretation to review how administrative agencies use canons and other tools of statutory interpretation to decide cases. Surveying over 7,000 cases heard by the National Labor Relations Board (“NLRB”) from 1993-2016, I analyze the statutory methodologies the Board uses in its decisions in order to uncover patterns of how the Board interprets statutes over …

Statutory Interpretation, Administrative Deference, And The Law Of Stare Decisis, Randy J. Kozel

Journal Articles

This Article examines three facets of the relationship between statutory interpretation and the law of stare decisis: judicial interpretation, administrative interpretation, and interpretive methodology. In analyzing these issues, I emphasize the role of stare decisis in pursuing balance between past and present. That role admits of no distinction between statutory and constitutional decisions, calling into question the practice of giving superstrong deference to judicial interpretations of statutes. The pursuit of balance also suggests that one Supreme Court cannot bind future Justices to a wide-ranging interpretive methodology. As for rules requiring deference to administrative interpretations of statutes and regulations, they are …

Interpenetration Of Powers: Channels And Obstacles For Populist Impulses, Anya Bernstein

Journal Articles

Discussions of populism often focus on the most visible points of executive power: individual leaders. Yet individual leaders only accomplish things through administrative apparatuses that enable and support their power. Rejecting a political theology that imagines sovereignty as inhering in a single decision-maker, this article turns to political pragmatics focused on the people who populate the government. I draw on interviews with administrators in the government of two successful but quite different democracies. The first is the United States, an old, flagship democratic state. The second is Taiwan, which transitioned from a four-decade military dictatorship to a vibrant democracy in …

Reconstructing An Administrative Republic, Jeffrey A. Pojanowski

Journal Articles

The book Constitutional Coup, by Professor Jon D. Michaels, offers a learned, lucid, and important argument about the relationship between privatization, constitutional structure, and public values in administrative governance. In particular, Michaels argues that the press toward privatization in this domain poses a serious threat to the United States' separation of powers and the public interest. This review essay introduces readers to Michaels' argument and then raises two questions: First, it asks whether Michaels’ method of constitutional interpretation and doctrinal analysis accelerate the trend toward privatization and consolidation of power in agency heads, the very evils he seeks to avoid. …

Revisiting Seminole Rock, Jeffrey A. Pojanowski

Journal Articles

The rule that reviewing courts must defer to agencies’ interpretations of their own regulations has come under scrutiny in recent years. Critics contend that this doctrine, often associated with the 1997 Supreme Court decision Auer v. Robbins, violates the separation of powers, gives agencies perverse regulatory incentives, and undermines the judiciary’s duty to say what the law is.

This essay offers a different argument as to why Auer is literally and prosaically bad law. Auer deference appears to be grounded on a misunderstanding of its originating case, the 1945 decision Bowles v. Seminole Rock. A closer look at Seminole Rock …

Administrative Lawmaking In The Twenty-First Century, Jeffrey Pojanowski

Journal Articles

It is always hard to map a river while sailing midstream, but the current state of administrative law is particularly resistant to neat tracing. Until the past few years, administrative law and scholarship was marked by pragmatic compromise: judicial deference on questions of law (but not too much and not all the time) and freedom for agencies on questions of politics and policy (but not to an unseemly degree). There was disagreement around the edges-and some voices in the wilderness calling for radical change-but they operated within a shared framework of admittedly unstated, and perhaps conflicting, assumptions about the administrative …

Designing The Decider, Emily S. Bremer

Journal Articles

The Administrative Procedure Act (APA) contains several provisions designed to ensure that presiding officials in so-called formal adjudications are able to make fair, well-informed, independent decisions. But these provisions do not apply to the vast majority of federal adjudicatory hearings. In this world of adjudication outside the APA, agencies enjoy broad procedural discretion, including substantial freedom to “design the decider.” This Article defines the scope of this discretion and explores how various agencies have exercised it. The discussion is enriched by examples drawn from an expansive new database of federal adjudicatory procedures. The Article argues that, although agency discretion to …

Municipal Responses To Vacant Properties In The United States, James J. Kelly Jr.

Journal Articles

The administrative law specialized magazine No. 24 which explores the foundation of administrative law theory. This issue contains 5 articles that focus on the vacant house issue.

Vacant house measures in American municipalities

The Yates Memo: Looking For "Individual Accountability" In All The Wrong Places, Katrice Bridges Copeland

Journal Articles

The Department of Justice has received a great deal of criticism for its failure to prosecute both corporations and individuals involved in corporate fraud. In an effort to quiet some of that criticism, on September 9, 2015, then Deputy Attorney General Sally Q. Yates issued a policy entitled, "Individual Accountability for Corporate Wrongdoing," or the "Yates Memo," as it has been called. The main thrust of the Yates Memo is that in order for a corporation to receive any credit for cooperating with the government and obtain leniency in the form of a deferred prosecution agreement, the corporation must not …

Neoclassical Administrative Common Law, Jeffrey A. Pojanowski

Journal Articles

This essay reviews John Dickinson’s neglected classic, Administrative Justice and the Supremacy of Law in the United States. Writing on the cusp of the New Deal, Dickinson helped establish a mainstream, moderate stance about the shape and legitimacy of the administrative state. A closer reading of this work, which is rich in jurisprudential reflection and historical learning, offers a better idea about the structure, promise, and limits of the doctrinal world he helped create.

Who’S Exercising What Power: Toward A Judicially-Manageable Nondelegation Doctrine, Martin Edwards

Journal Articles

This Article argues that the traditional, "intelligible principle" nondelegation analysis is incomplete and that an examination of the delegate, rather than just the delegation, more effectively animates the doctrine. This is true not only as a practical matter; early Supreme Court cases, as well as later ones, have taken a keen interest in the recipient of the alleged delegation. In other words, a realistic and judicially enforceable nondelegation doctrine must include more than a mere tip of the juridical cap.

Minimally Democratic Administrative Law, Jud Mathews

Journal Articles

A persistent challenge for the American administrative state is reconciling the vast powers of unelected agencies with our commitment to government by the people. Many features of contemporary administrative law — from the right to participate in agency processes, to the reason-giving requirements on agencies, to the presidential review of rulemaking — have been justified, at least in part, as means to square the realities of agency power with our democratic commitments. At the root of any such effort there lies a theory of democracy, whether fully articulated or only implicit: some conception of what democracy is about, and what …

Without Deference, Jeffrey Pojanowski

Journal Articles

This essay explores what judicial review of agency interpretations of law would look like if the Supreme Court abandoned Chevron deference in favor de novo review. It concludes that such an alternative regime has appealing features, but may not bring as much immediate, practical change as many critiques or defenses of Chevron presume. The largest change would come from how we think about law and policy in the administrative state. The theoretical scaffolding that would uphold a regime of non-deferential review is far more classical in cast than the moderate legal realism underwriting Chevron. The more traditional character of this …

Faithful Execution And Enforcement Discretion, Patricia L. Bellia

Journal Articles

In November 2014, President Obama announced a significant turn in U.S. immigration policy: that immigration officials would decline to pursue deportation of unlawful immigrants who were parents of U.S. citizens or lawful permanent residents and who met certain other criteria. Although the proposed program, known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), never took effect, it provides a fascinating lens for exploring what limits, if any, the Constitution imposes on the executive branch’s decision not to enforce the law — on its exercise of administrative “enforcement discretion.”

Article II of Constitution obligates the President to …

Uncertainty, Complexity, And Regulatory Design, Adam I. Muchmore

Journal Articles

This Article develops an analytic framework for understanding the role of uncertainty in regulatory design. It begins by differentiating between three types of uncertainty: legal uncertainty, factual uncertainty, and uncertainty about the application of law to fact. This framework highlights the pervasiveness of factual uncertainty and law-fact uncertainty in daily affairs. Viewed through this framework, legal uncertainty is less problematic than it is typically thought to be.

The Article then focuses on legal uncertainty, examining it from two perspectives: the relationship between rules and standards, and the relationship between simplicity and complexity. It suggests that there are fundamental limits on …

Throwing Dirt On Doctor Frankenstein’S Grave: Access To Experimental Treatments At The End Of Life, Michael J. Malinowski

Journal Articles

All U.S. federal research funding triggers regulations to protect human subjects known as the Common Rule, a collaborative government effort that spans seventeen federal agencies. The Department of Health and Human Services has been in the process of re-evaluating the Common Rule comprehensively after decades of application and in response to the jolting advancement of biopharmaceutical science. The Common Rule designates specific groups as “vulnerable populations”—pregnant women, fetuses, children, prisoners, and those with serious mental comprehension challenges—and imposes heightened protections of them. This article addresses a question at the cornerstone of regulations to protect human subjects as biopharmaceutical research and …

A Reflection On Erisa Claims Administration And The Exhaustion Requirement, James A. Wooten

Journal Articles

This essay, prepared in connection with the Drexel Law Review Symposium, ERISA at 40: What Were They Thinking?, examines ERISA’s regime for administering benefit claims and, in particular, the requirement that participants exhaust their plan’s review procedures before filing suit to recover benefits. Like other key elements of ERISA’s claims regime, the exhaustion requirement is a judicial creation that is not articulated in ERISA’s text. Interestingly, former congressional staffers who attended the Symposium said they assumed participants would be required to exhaust plan review procedures but failed to include such a requirement in the legislation. After reviewing the development of …

Strategic Delegation, Discretion, And Deference: Explaining The Comparative Law Of Administrative Review, Jud Mathews, Nuno M. Garoupa

Journal Articles

This paper offers a theory to explain cross-national variation in administrative law doctrines and practices. Administrative law regimes vary along three primary dimensions: the scope of delegation to agencies, agencies’ exercise of discretion, and judicial practices of deference to agencies. Working with a principal-agent framework, we show how cross-national differences in institutions’ capacities and the environments they face encourage the adoption of divergent strategies that lead to a variety of distinct, stable, equilibrium outcomes. We apply our model to explain patterns of administrative law in the United States, Germany, France, and Commonwealth jurisdictions.

The Immigration Prosecutor And The Judge: Examining The Role Of The Judiciary In Prosecutorial Discretion Decisions, Shoba S. Wadhia

Journal Articles

Legal scholars and judges have long examined the role of judicial review in immigration matters, and also criticized the impacts of the “plenary power” doctrine and statutory deletions of judicial review for certain immigration cases. Absent from this scholarship is a serious examination of the judiciary’s role in immigration decisions involving prosecutorial discretion. I attribute this absence to both a silent concession that prosecutorial discretion decisions are automatically barred from judicial review because of the plain language of the Immigration and Nationality Act (INA); the judicial review “exceptions” in the Administrative Procedures Act (APA), and the cases that analyze these …