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Lowering The Filed Tariff Shield: Judicial Enforcement For A Deregulatory Era, Jim Rossi
Lowering The Filed Tariff Shield: Judicial Enforcement For A Deregulatory Era, Jim Rossi
Vanderbilt Law School Faculty Publications
The filed tariff doctrine, fashioned by courts to protect consumers from rate discrimination, has strayed from its origins. Instead of protecting consumers, the doctrine has evolved into a shield for regulated firms against common law and antitrust claims that reinforce market norms. In the ideal world, Congress would expand the jurisdiction of regulatory agencies to allow them to penalize private misconduct. However, since that has not always happened, the filed tariff doctrine has encouraged private firms to expend resources in using the regulator as a strategy to immunize conduct from antitrust and common law antitrust claims. This Article assesses how …
Beyond Accountability, Lisa Schultz Bressman
Beyond Accountability, Lisa Schultz Bressman
Vanderbilt Law School Faculty Publications
This Article argues that efforts to square the administrative state with the constitutional structure have become too fixated on the concern for political accountability. As a result, those efforts have overlooked an important obstacle to agency legitimacy: the concern for administrative arbitrariness. Such thinking is evident in the prevailing model of the administrative state, which seeks to legitimate agencies by placing their policy decisions firmly under the control of the one elected official responsive to the entire nation-the President. This Article contends that the "presidential control" model cannot legitimate agencies because the model rests on a mistaken assumption about the …