Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 20 of 20
Full-Text Articles in Law
Administrative Regulation Of Programmatic Policing: Why "Leaders Of A Beautiful Struggle" Is Both Right And Wrong, Christopher Slobogin
Administrative Regulation Of Programmatic Policing: Why "Leaders Of A Beautiful Struggle" Is Both Right And Wrong, Christopher Slobogin
Vanderbilt Law School Faculty Publications
In Leaders of a Beautiful Struggle v. Baltimore Police Department, the Fourth Circuit Court of Appeals held that Aerial Investigation Research (AIR), Baltimore's aerial surveillance program, violated the Fourth Amendment because it was not authorized by a warrant. AIR was constitutionaly problematic, but not for the reason given by the Fourth Circuit. AIR, like many other technologically-enhanced policing programs that rely on closed-circuit television (CCTV), automated license plate readers and the like, involves the collection and retention of information about huge numbers ofpeople. Because individualized suspicion does not exist with respect to any of these people's information, an individual-specific warrant …
Chevron Is A Phoenix, Lisa Bressman, Kevin Stack
Chevron Is A Phoenix, Lisa Bressman, Kevin Stack
Vanderbilt Law School Faculty Publications
Judicial deference to agency interpretations of their own statutes is a foundational principle of the administrative state. It recognizes that Congress has the need and desire to delegate the details of regulatory policy to agencies rather than specify those details or default to judicial determinations. It also recognizes that interpretation under regulatory statutes is intertwined with implementation of those statutes. Prior to the famous decision in Chevron, the Supreme Court had long regarded judicial deference as a foundational principle of administrative law. It grew up with the administrative state alongside other foundational administrative law principles. In Chevron, the Court gave …
Policing As Administration, Christopher Slobogin
Policing As Administration, Christopher Slobogin
Vanderbilt Law School Faculty Publications
Police agencies should be governed by the same administrative principles that govern other agencies. This simple precept would have significant implications for regulation of police work, in particular the type of suspicionless, group searches and seizures that have been the subject of the Supreme Court's special needs jurisprudence (practices that this Article calls "panvasive"). Under administrative law principles, when police agencies create statute-like policies that are aimed at largely innocent categories of actors-as they do when administering roadblocks, inspection regimes, drug testing programs, DNA sampling programs, and data collection-they should have to engage in notice-and-comment rulemaking or a similar democratically …
The Origins Of Legislation, Ganesh Sitaraman
The Origins Of Legislation, Ganesh Sitaraman
Vanderbilt Law School Faculty Publications
Although legislation is at the center of legal debates on statutory interpretation, administrative law, and delegation, little is known about how legislation is actually drafted. If scholars pay any attention to Congress at all, they tend to focus on what happens after legislation is introduced, ignoring how the draft came to exist in the first place. In other words, they focus on the legislative process, not the drafting process. The result is that our account of Congress, the legislative process, and the administrative state is impoverished, and debates in statutory interpretation and administrative law are incomplete. This Article seeks to …
An Administrative Jurisprudence: The Rule Of Law In The Administrative State, Kevin M. Stack
An Administrative Jurisprudence: The Rule Of Law In The Administrative State, Kevin M. Stack
Vanderbilt Law School Faculty Publications
This Essay offers a specification of the rule of law's demands of administrative law and government inspired by Professor Peter L. Strauss's scholarship. It identifies five principles'authorization, notice, justification, coherence, and procedural fairness which provide a framework for an account of the rule of law's demands of administrative governance. Together these principles have intriguing results for the evaluation of administrative law. On the one hand, they reveal rule-of-law foundations for some contested positions, such as a restrictive view of the President's power to direct subordinate officials and giving weight to an agency's determination of the scope of its own authority. …
Designing Administrative Law For Adaptive Management, J.B. Ruhl, Robin Craig
Designing Administrative Law For Adaptive Management, J.B. Ruhl, Robin Craig
Vanderbilt Law School Faculty Publications
Administrative law needs to adapt to adaptive management. Adaptive management is a structured decision-making method the core of which is a multi-step iterative process for adjusting management measures to changing circumstances or new information about the effectiveness of prior measures or the system being managed. It has been identified as a necessary or best practices component of regulation in a broad range of fields, including drug and medical device warnings, financial system regulation, social welfare programs, and natural resources management. Nevertheless, many of the agency decisions advancing these policies remain subject to the requirements of either the federal Administrative Procedure …
Of Dialogue--And Democracy--In Administrative Law, Jim Rossi
Of Dialogue--And Democracy--In Administrative Law, Jim Rossi
Vanderbilt Law School Faculty Publications
Linda Cohen and Matthew Spitzer's study, "The Government Litigant Advantage," sheds important light on how the Solicitor General's litigation behavior may impact the Supreme Court's decision making agenda and outcomes for regulatory and administrative law cases. By emphasizing how the Solicitor General affects cases that the Supreme Court decides, Cohen and Spitzer's findings confirm that administrative law's emphasis on lower appellate court decisions is not misplaced. Some say that D.C. Circuit cases carry equal-if not more-precedential weight than Supreme Court decisions in resolving administrative law issues. Cohen and Spitzer use positive political theory to provide a novel explanation for some …
Agency Coordination In Shared Regulatory Space, Jim Rossi, Jody Freeman
Agency Coordination In Shared Regulatory Space, Jim Rossi, Jody Freeman
Vanderbilt Law School Faculty Publications
This Article argues that inter-agency coordination is one of the great challenges of modern governance. It explains why lawmakers frequently assign overlapping and fragmented delegations that require agencies to "share regulatory space," why these delegations are so pervasive and stubborn, and why consolidating or eliminating agency functions will not solve the problems they create. The Article describes a variety of tools that Congress, the President and the agencies can use to manage coordination challenges effectively, including agency interaction requirements, formal inter-agency agreements, and joint policymaking. The Article assesses the relative costs and benefits of these coordination tools, using the normative …
State Executive Lawmaking In Crisis, Jim Rossi
State Executive Lawmaking In Crisis, Jim Rossi
Vanderbilt Law School Faculty Publications
Courts and scholars have largely overlooked the constitutional source and scope of a state executive's powers to avert and respond to crises. This Article addresses how actual and perceived legal barriers to executive authority under state constitutions can have major consequences beyond a state's borders during times of crisis. It proposes to empower state executives to address federal and regional goals without any previous authorization from the state legislature-a presumption of state executive lawmaking, subject to state legislative override, which would give a state or local executive expansive lawmaking authority within its system of government to address national and regional …
The Statutory President, Kevin M. Stack
The Statutory President, Kevin M. Stack
Vanderbilt Law School Faculty Publications
American public law has no answer to the question of how a court should evaluate the president's assertion of statutory authority. In this Article, I develop an answer by making two arguments. First, the same framework of judicial review should apply to claims of statutory authority made by the president and federal administrative agencies. This argument rejects the position that the president's constitutional powers should shape the question of statutory interpretation presented when the president claims that a statute authorizes his actions. Once statutory review is separated from consideration of the president's constitutional powers, the courts should insist, as they …
Dual Constitutions And Constitutional Duels: Separation Of Powers And State Implementation Of Federally Inspired Regulatory Programs And Standards, Jim Rossi
Vanderbilt Law School Faculty Publications
Frequently, state-wide executive agencies and localities attempt to implement federally-inspired programs. Two predominant examples are cooperative federalism programs and incorporation of federal standards in state-specific law. Federally-inspired programs can bump into state constitutional restrictions on the allocation of powers, especially in states whose constitutional systems embrace stronger prohibitions on legislative delegation than the weak restrictions at the federal level, where national goals and standards are made. This Article addresses this tension between dual federal/state normative accounts of the constitutional allocation of powers in state implementation of federally-inspired programs. To the extent the predominant ways of resolving the tension come from …
The Private Life Of Public Law, Michael P. Vandenbergh
The Private Life Of Public Law, Michael P. Vandenbergh
Vanderbilt Law School Faculty Publications
This Article proposes a new conception of the administrative regulatory state that accounts for the vast networks of private agreements that shadow public regulations. The traditional account of the administrative state assigns a limited role to private actors: private firms and interest groups seek to influence regulations, and after the regulations are finalized, regulated firms face a comply-or-defy decision. In recent years, scholars have noted that private actors play an increasing role in the traditional government standard setting, implementation and enforcement functions. This Article demonstrates that the private role in each of these regulatory functions is far greater than others …
Disciplining Delegation After "Whitman V. American Trucking Ass'ns", Lisa Schultz Bressman
Disciplining Delegation After "Whitman V. American Trucking Ass'ns", Lisa Schultz Bressman
Vanderbilt Law School Faculty Publications
The Supreme Court's recent reversal of the D.C. Circuit's decision in "Whitman v. American Trucking Ass'ns" brings to center stage the critical question for disciplining delegation of lawmaking authority to administrative agencies: Should courts use constitutional law or administrative law for requiring agencies to supply the standards that guide and limit their lawmaking discretion when Congress does not? Professor Bressman argues that "Ashwander v. TVA" provides a resolution. In Ashwander, Justice Brandeis directed courts to refrain from deciding constitutional questions unless absolutely necessary to decide a particular case. Following Justice Brandeis' now famous teaching, courts should refrain from using constitutional …
Respecting Deference: Conceptualizing Skidmore Within The Architecture Of Chevron, Jim Rossi
Respecting Deference: Conceptualizing Skidmore Within The Architecture Of Chevron, Jim Rossi
Vanderbilt Law School Faculty Publications
This Article addresses critically the implications of the U.S. Supreme Court's recent decision in Christensen v. Harris County, 120 S.Ct. 1655 (2000), for standards of judicial review of agency interpretations of law. Christensen is a notable case in the administrative law area because it purports to clarify application of the deference doctrine first articulated in Skidmore v. Swift & Co., 323 U.S. 134 (1944). By reviving this doctrine, the case narrows application of the predominant approach to deference articulated in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), thus reducing the level of deference in …
Institutional Design And The Lingering Legacy Of Antifederalist Separation Of Powers Ideals In The States, Jim Rossi
Vanderbilt Law School Faculty Publications
This Article applies comparative institutional analysis to separation of powers under state constitutions, with a particular focus on the nondelegation doctrine and states' acceptance of Chadha-like restrictions on legislative oversight. The Article begins by contrasting state and federal doctrine and enforcement levels in each of these separation of powers contexts. Most state courts, unlike their federal counterparts, adhere to a strong nondelegation doctrine. In addition, many states accept (de facto if not de jure) even more explicit and sweeping legislative vetoes than the federal system. The Article highlights the contrast of federal and state approaches by identifying their similarity with …
Alj Final Orders On Appeal: Balancing Independence With Accountability, Jim Rossi
Alj Final Orders On Appeal: Balancing Independence With Accountability, Jim Rossi
Vanderbilt Law School Faculty Publications
This essay addresses how ALJ final order authority in many state systems of administrative governance (among them Florida, Louisiana, Missouri, and South Carolina) poses a tension between independence and accountability. It is argued that political accountability is sacrificed where reviewing courts defer to ALJ final orders on issues of law and policy. Standards of review provide state courts with a way of restoring the balance between independence and accountability, but reviewing courts should heighten the deference they give to the agency's legal and policy positions -- giving little or no deference to the ALJ on these issues -- even where …
Who Needs Congress? An Agenda For Administrative Reform Of The Endangered Species Act, J.B. Ruhl
Who Needs Congress? An Agenda For Administrative Reform Of The Endangered Species Act, J.B. Ruhl
Vanderbilt Law School Faculty Publications
This article comprehensively examines the history and content of the numerous administrative reforms of the Endangered Species Act program carried out under the tenure of Department of the Interior Secretary Bruce Babbitt. The assessment is that these reforms provide a tremendous impetus for innovation of species conservation.
Public Choice Theory And The Fragmented Web Of The Contemporary Administrative State, Jim Rossi
Public Choice Theory And The Fragmented Web Of The Contemporary Administrative State, Jim Rossi
Vanderbilt Law School Faculty Publications
In the recent book, Greed, Chaos and Governance: Using Public Choice to Improve Public Law (Yale U. Press 1997), Jerry Mashaw addresses the convergence between public choice and administrative law. This review essay summarizes Mashaw's arguments and explores his use of public choice tools. The review suggests that, absent some unifying theoretical perspective for understanding administrative governance outside of public choice method, little more than rampant pessimism or fragmented lessons about the administrative state can be taken.
The 1996 Revised Florida Administrative Procedure Act: A Survey Of Major Provisions Affecting Florida Agencies, Jim Rossi
Vanderbilt Law School Faculty Publications
In the spring of 1996, the Florida Legislature adopted a revised Administrative Procedure Act (APA),' the first massive overhaul of Florida's APA since its initial adoption over twenty years ago, in 1974. This Article examines the recent history of APA reform in Florida and surveys several provisions of the 1996 revised Florida APA that are likely to have a major effect on agency governance. Part II of this Article briefly reviews the recent history of regulatory reform in the state of Florida. Part III discusses an interesting innovation in Florida's 1996 APA revisions that governs agency waiver of rules and …
Redeeming Judicial Review: The Hard Look Doctrine And Federal Regulatory Efforts To Restructure The Electric Utility Industry, Jim Rossi
Vanderbilt Law School Faculty Publications
Recent policy-effect studies denounce judicial review for its adverse effects on agency decisionmaking. In its strong version, the policy-effect thesis suggests that judicial review has paralized innovative agency decisionmaking. Professor Rossi reacts to policy-effect studies, particularly as they have been used to attack the hard look doctrine in administrative law. He revisits Professor Richard Pierce's policy-effect description of the effects of judicial review of the Federal Energy Regulatory Commission (FERC). Professor Rossi's survey of recent FERC decisionmaking provides some support for an attenuated version of the policy-effect thesis, but leads him to reject the strong version of the thesis. Much …