Administrative Law Commons^™

Unearthing The Lost History Of Seminole Rock, Sanne H. Knudsen, Amy J. Wildermuth

Articles

This Article documents the untethering of Bowles v. Seminole Rock [325 U.S. 410 (1945)]. It shows how, in the 1960s and 1970s, alongside an expanding administrative state, the doctrine transformed into a more mechanical and highly deferential form of agency deference. It further shows that this transformation is marked by a consistent lack of scholarly or judicial reflection on its underpinnings.

In doing so, this Article provides new depth to the emerging critiques of Seminole Rock deference and lends critical support for reexamination of the doctrine.

Lessons From The Lost History Of Seminole Rock, Sanne H. Knudsen, Amy J. Wildermuth

Articles

This Article informs the current debate over Auer v. Robbins (519 U.S. 452 (1997)) deference by exploring the roots of the Bowles v. Seminole Rock decision (325 U.S. 410 (1945)) and its subsequent reinterpretation through a creative approach. To do so, this Article offers a series of hypothetical opinions applying the various historical interpretations of Seminole Rock to a single set of facts.

Part I places Seminole Rock in the constellation of deference doctrines in administrative law so that one can easily understand what the doctrine is and when it applies. Part II examines the transformation of Seminole Rock through …

Rulemaking As Legislating, Kathryn A. Watts

Articles

The central premise of the nondelegation doctrine prohibits Congress from delegating its Article I legislative powers. Yet Congress routinely delegates to agencies the power to promulgate legislative rules—rules that carry the force and effect of law just as statutes do. Given this tension between the nondelegation doctrine and the modern regulatory state, some scholars have attacked the nondelegation doctrine as fictional.

Little scholarly attention, however, has been given to considering how the central premise of the nondelegation doctrine coheres with—or fails to cohere with—administrative law as a whole. This Article takes up that task, exploring what might happen to administrative …

Enlightened Regulatory Capture, David Thaw

Washington Law Review

Regulatory capture generally evokes negative images of private interests exerting excessive influence on government action to advance their own agendas at the expense of the public interest. There are some cases, however, where this conventional wisdom is exactly backwards. This Article explores the first verifiable case, taken from healthcare cybersecurity, where regulatory capture enabled regulators to harness private expertise to advance exclusively public goals. Comparing this example to other attempts at harnessing industry expertise reveals a set of characteristics under which regulatory capture can be used in the public interest: (1) legislatively mandated adoption of recommendations by an advisory committee …

Enlightened Regulatory Capture, David Thaw

Washington Law Review

Regulatory capture generally evokes negative images of private interests exerting excessive influence on government action to advance their own agendas at the expense of the public interest. There are some cases, however, where this conventional wisdom is exactly backwards. This Article explores the first verifiable case, taken from healthcare cybersecurity, where regulatory capture enabled regulators to harness private expertise to advance exclusively public goals. Comparing this example to other attempts at harnessing industry expertise reveals a set of characteristics under which regulatory capture can be used in the public interest: (1) legislatively mandated adoption of recommendations by an advisory committee …

Code, Nudge, Or Notice?, Ryan Calo

Articles

Regulators are increasingly turning to means other than law to influence citizen behavior. This Essay compares three methods that have particularly captured the imagination of scholars and officials in recent years. Much has been written about each method in isolation. This Essay considers them together for the first time in order to generate a novel normative insight about the nature of regulatory choice.

The first alternative method, known colloquially as architecture or “code,” occurs when regulators change a physical or digital environment to make undesirable conduct difficult. Speed bumps provide a classic example. The second method, libertarian paternalism or “nudging,” …

Amicus Curiae Brief Of Law Professors On Issue Of Exhaustion In Support Of Petitioners. Epa V. Eme Homer City Generation, 134 S.Ct. 1584 (2014) (Nos. 12-1182, 12-1183), Amy J. Wildermuth, Sanne H. Knudsen

Court Briefs

Amici Curiae are law professors who research, teach, and write on federal environmental and administrative law. They are concerned in this case by the majority's conclusion below that issues related to the interpretation of ambiguous statutory language could be reached even though they were never raised during the rulemaking process. This conclusion is contrary to the clear language of the issue exhaustion requirement articulated in Section 307(d)(7)(B) of the Clean Air Act and contrary to the proper role of reviewing courts under Chevron. As a result, it could have far-reaching impacts for a wide array of administrative cases and …

Some Guidance About Federal Agencies And Guidance, Mary Whisner

Librarians' Articles

The federal administrative system is complex and contains ambiguities about what counts as an “agency,” and there is an amorphous border between regulations and guidance. The body of guidance documents (or nonlegislative rules) is growing, both in volume and in importance, and legal researchers should be aware of this important source of authority, as well as its unclear status.

Regulatory Moratoria, Kathryn A. Watts

Articles

Despite significant scholarly attention given to tools that the political branches use to exert control over the administrative state, one emerging tool has gone largely unnoticed: regulatory moratoria. Regulatory moratoria, which stem from legislative or executive action, aim to freeze rulemaking activity for a period of time.

As this Article demonstrates, regulatory moratoria have worked their way into the political toolbox at both the federal and state levels. For example, at least fifteen federal bills proposing generalized regulatory moratoria were introduced in the first session of the 112th Congress, and from 2008 to 2011 alone, no fewer than nine states …

Constraining Certiorari Using Administrative Law Principles, Kathryn A. Watts

Articles

The U.S. Supreme Court—thanks to various statutes passed by Congress beginning in 1891 and culminating in 1988—currently enjoys nearly unfettered discretion to set its docket using the writ of certiorari. Over the past few decades, concerns have mounted that the Court has been taking the wrong mix of cases, hearing too few cases, and relying too heavily on law clerks in the certiorari process.

Scholars, in turn, have proposed fairly sweeping reforms, such as the creation of a certiorari division to handle certiorari petitions. This Article argues that before the Court’s discretion to set its own agenda is taken away, …

Concrete Private Interest In Regulatory Enforcement: Tradable Environmental Resource Rights As A Basis For Standing, Danieli Evans

Articles

This Note proposes a novel solution to standing problems faced by environmental plaintifs seeking to enforce, or to compel agencies to enforce, environmental regulation. It argues that environmental plaintifs should be able to obtain standing to bring an Administrative Procedure Act (APA) review action or a citizen suit based on ownership of private tradable environmental resource rights, created by increasingly popular environmental privatization programs. These rights should operate as a basis for standing even for plaintifs who would otherwise be unable to meet standing requirements of individual injury, causation, and redressability. Relying on tradable rights to environmental resources as a …

Shifting The Conversation: Disability, Disparities And Health Care Reform, Elizabeth Pendo

Articles

In keeping with the theme of this symposium, I would like to invite you to consider health care reform as a political shift in our thinking about the barriers and inequalities experienced by people with disabilities in our health care system. Traditionally, when these issues have been addressed, the predominant approach has been through a civil rights framework, specifically the Rehabilitation Act of 1973' and the American with Disabilities Act of 1990 (ADA).2 Now, the Patient Protection and Affordable Care Act of 2010 (PPACA) offers a new approach. This essay will outline the barriers to health and health care experienced …

Proving Natural Resource Damage Under Opa 90: Out With The Rebuttable Presumption, In With Apa-Style Judicial Review?, Craig H. Allen

Articles

In the aftermath of the Deepwater Honrzon oil spill of 2010, Prsident Obama uged Congess to amend the natural resource damage provisions of the Oil Pollution Act of 1990 to replace the rebuttable presumption of validity the law presently accords to damage assessments by the designated natural resource trustees that were conducted in accordance with regulations promulgated by the National Oceanic and Atmosphenc Administration with the standard of judicial review prescrbed by the Administrative Procedures Act (APA). Although the House of Representatives passed such an amendment in 2010, the Senate failed to act on the amendment before the 111th congressional …

Reducing Disparities Through Health Care Reform: Disability And Accessible Medical Equipment, Elizabeth Pendo

Articles

People with disabilities face multiple barriers to adequate health care and report poorer health status than people without disabilities. Although health care institutions, offices, and programs are required to be accessible, people with disabilities are still receiving unequal and in many cases inadequate care. The 2009 report by the National Council on Disability, The Current State of Health Care for People with Disabilities, reaffirmed some of these findings, concluding that people with disabilities experience significant health disparities and barriers to health care; encounter a lack of coverage for necessary services, medications, equipment, and technologies; and are not included in the …

From Chevron To Massachusetts: Justice Stevens's Approach To Securing The Public Interest, Kathryn A. Watts

Articles

During the past three decades, one Supreme Court justice— John Paul Stevens—has authored two of the most significant administrative law decisions that speak to the judiciary’s role in checking agency interpretations of the statutes that they administer. In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., Justice Stevens’s landmark 1984 decision unanimously upheld the EPA’s construction of a term found in the Clean Air Act. Subsequently, in Massachusetts v. EPA, Justice Stevens’s 2007 opinion for a five-justice majority handed a major win to global environmental security by ordering the EPA to reconsider its refusal to regulate greenhouse …

Depoliticizing Judicial Review Of Agency Rulemaking, Scott A. Keller

Washington Law Review

Administrative law doctrines for reviewing agency rulemaking, such as the Supreme Court’s dicta in Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Insurance Co. and the D.C. Circuit’s hard look doctrine, give judges significant discretion to invalidate agency rules. Many commentators recognize that this discretion politicizes judicial review of agency rulemaking, as judges appointed by a president of one political party are more likely to invalidate agency rules promulgated under the presidential administration of a different political party. Unelected judges, though, should not be able to use indeterminate administrative law doctrines to invalidate agency rules on the basis …

Proposing A Place For Politics In Arbitrary And Capricious Review, Kathryn A. Watts

Articles

Current conceptions of “arbitrary and capricious” review focus on whether agencies have adequately explained their decisions in statutory, factual, scientific, or otherwise technocratic terms. Courts, agencies, and scholars alike, accordingly, generally have accepted the notion that influences from political actors, including the President and Congress, cannot properly help to explain administrative action for purposes of arbitrary and capricious review. This means that agencies today tend to sweep political influences under the rug even when such influences offer the most rational explanation for the action.

This Article argues that this picture should change. Specifically, this Article argues for expanding current conceptions …

A New Deal For End Users? Lessons From A French Innovation In The Regulation Of Interoperability, Jane K. Winn, Nicolas Jondet

Articles

In 2007, France created the Regulatory Authority for Technical Measures (lAutoritj de Rdgulation des Mesures Techniques or ARMT), an independent regulatory agency charged with promoting the interoperability of digital media distributed with embedded "technical protection measures" (TPM), also known as "digital rights management" technologies (DRM). ARMT was established in part to rectify what French lawmakers perceived as an imbalance in the rights of copyright owners and end users created when the European Copyright Directive (EUCD) was transposed into French law as the "Loi sur le Droit d'Auteur et les Droits Voisins dans la Société de l'Information" (DADVSI).

ARMT is both …

Disability, Equipment Barriers And Women’S Health: Using The Ada To Provide Meaningful Access, Elizabeth Pendo

Articles

It is well-known that people with disabilities face multiple barriers to adequate health care, including lower average incomes, disproportionate poverty, and issues with insurance coverage. This article focuses on a more fundamental barrier-one that has not been discussed in the legal literature-inaccessible medical equipment and its effect on the delivery of women's health care to millions of women with disabilities .

A "New Approach" To Standards And Consumer Protection, Jane Winn, Nicolas Jondet

Articles

As consumer use of information and communication technology (ICT) products grows, the importance of ICT standards in consumer markets also grows. While standards for manufactured products were once developed at the national level in formal standards bodies, standards for ICT products today are more likely to be developed by informal standards bodies that target global markets, creating new challenges for national consumer protection laws.

As part of the process of creating a single market, the EU developed an innovative and successful form of “coregulation” known as the “New Approach” that coordinated the work of legislators and standards developers to reduce …

Adapting To Administrative Law's Erie Doctrine, Kathryn A. Watts

Articles

This Article looks to the federalism context and draws on the federal courts' experience adapting to the Court's landmark decision in Erie Railroad Company v. Tompkins. Much like Brand X, the Court's Erie decision, which commanded federal courts to apply state law in all cases not governed by positive federal law, significantly reduced the lawmaking power of the federal courts by putting the federal courts in the position of interpreting law that they cannot definitively construe. Although Erie seemed simple enough to adhere to when state law provided a clear answer, Erie posed a serious dilemma when federal courts …

An Iq Test For Federal Agencies? Judicial Review Of The Information Quality Act Under The Apa, Margaret Pak

Washington Law Review

The Information Quality Act (IQA) directs the Office of Management and Budget (OMB) to issue guidelines to federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information disseminated by the agencies. The IQA directs agencies to develop administrative mechanisms whereby a person affected by agency-disseminated information may request correction of information that the person believes does not comply with the OMB's guidelines. The IQA is silent on whether judicial review is available to challenge an agency's decision to deny a "request for correction" (RFC). Regulated parties, legislators, scholars, and other groups have framed judicial review of …

Principles Of Non-Arbitrariness: Lawlessness In The Administration Of Welfare, Christine N. Cimini

Articles

This article explores whether there exists a concept of non-arbitrariness that imposes limitations on the administration of welfare benefits without rules, regulations, policies or procedures. To address this question, the article examines the concept of non-arbitrariness within various jurisprudential doctrines and the potential applicability of the concept to limit arbitrary governmental action in the welfare context. In each of the areas where courts regulate arbitrary governmental action, underlying judicial concerns give rise to jurisprudential principles. Four principles stand out. First, at a minimum, there must be a rational relationship between the government’s ends and the means it chooses to reach …

Securities Supervision And Judicial Review [In China], Zhongle Zhan, Fengying Li, Inseon Paik

Washington International Law Journal

Since its founding in 1992, the China Securities Regulatory Commission ("CSRC") has, by the design of the central government of China, become the primary regulator of the Chinese securities market. The CSRC has, however, made some controversial decisions in enforcing its securities regulations. In particular, this article addresses the legal implications of the CSRC's failure to comply with controlling securities regulations in rejecting the Hainan Kaili Central Construction Company's listing application and the ramifications of such selective regulatory enforcement. The article provides an analysis of the current relationship between Chinese administrative and securities law.

Technology And The Washington State Administrative Process—Some Preliminary Notes, William R. Andersen

Washington Law Review

This brief report summarizes information obtained by a preliminary survey in the spring of 2003 of what some Washington state agencies are doing with technology. The agencies surveyed included the Utilities and Transportation Commission and the Departments of Ecology, Revenue, Social and Health Services, and Labor and Industries. To keep the subject within bounds—and within the central focus of the Access to Justice Technology Bill of Rights project—the survey inquired into the use of technology in those parts of the administrative process that are similar to legal process generally—i.e., those components of the administrative process through which binding general principles …

Government-To-Citizen Online Dispute Resolution: A Preliminary Inquiry, Anita Ramasastry

Washington Law Review

This Article first examines the use of ODR [online dispute resolution] as a tool for private sector dispute resolution. It explores some of the reasons for a slower rate of uptake in business-to-consumer e-commerce disputes. The Article then suggests that a new and innovative use for ODR may be for public sector dispute resolution—between governments and citizens. The use of technology for public dispute resolution may promote access to justice in the administrative context.

Against Chevron - A Modest Proposal, William R. Andersen

Articles

This Article proposes a short amendment to § 706 of the Administrative Procedure Act (APA), which is intended to effectively abolish the Chevron doctrine. The solution will not end all debate on these important issues. It will, however, put the decisions and discussions on a sounder basis, leading to improved decisions and more predictability. The proposal is based on three principles whose validity cannot seriously be questioned.

First, the Rule of Law requires that professionals attend seriously to doctrinal sets marked by bewildering inconsistency and its resulting unpredictability. Whatever components one includes in the concept of Rule of Law, surely …

The Washington Equal Access To Justice Act: A Substantial Proposal For Reform, D. Greg Blankinship

Washington Law Review

Under the Washington Administrative Procedures Act, a party can challenge an agency action in superior court. The Washington Legislature adopted the Equal Access to Justice Act, which provides fees to qualified parties that prevail in judicial reviews of agency actions, to encourage individuals and small businesses to oppose unjust agency actions. The effectiveness of this fee-shifting provision is significantly limited because awards are not authorized when a court decides that the agency action is substantially justified. The legislature should remove this limitation. Where the agency action involves factual determinations or the interpretation of statutes or regulations within the expertise of …

Administrative Decisions And Materials, Cheryl Rae Nyberg

Librarians' Chapters in Books

• Introduction
• Administrative Agencies' Functions and Procedures
• Multi-Agency Sources of Administrative Decisions
• Agency-Specific Sources
• Databases
• Administrative Agency Decisions at a Glance

Agency Rules With The Force Of Law: The Original Convention, Thomas W. Merrill, Kathryn Tongue Watts

Articles

The Supreme Court recently held in United States v. Mead Corp. that agency interpretations should receive Chevron deference only when Congress has delegated power to the agency to make rules with the force of law and the agency has rendered its interpretation in the exercise of that power.

The first step of this inquiry is difficult to apply to interpretations adopted through rulemaking, because often rulemaking grants authorize the agency to make "such rules and regulations as are necessary to carry out the provisions of this chapter" or words to that effect, without specifying whether "rules and regulations" encompasses …