Law Commons^™

A Better Defense Of Big Waiver: From James Landis To Louis Jaffe, Yair Sagy

Marquette Law Review

This Article is a rejoinder to Professors David J. Barron and Todd D. Rakoff’s article, In Defense of Big Waiver, recently published in the Columbia Law Review. “Big Waiver” provisions, which figure prominently in the “No Child Left Behind” and the “Obamacare” legislation, authorize administrative agencies to displace the regulatory baseline established by Congress. Propounding a defense of big waiver statutory provisions, Barron and Rakoff ground their argument in James Landis’s seminal work, The Administrative Process. This Article shows, however, that Barron and Rakoff’s defense is misguided because it ignores Landis’s work’s focal point, the concept of administrative expertise, which …