Administrative Law Commons^™

Notice-And-Comment Sentencing, Richard A. Bierschbach, Stephanos Bibas

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The article argues that criminal sentencing, often perceived as a singular, justice-focused moment, is in reality a complex, fragmented process heavily influenced by prosecutorial discretion and plea bargaining. It contends that public participation, inspired by principles of administrative law, could enhance the fairness, transparency, and legitimacy of sentencing and related processes, such as charging and plea bargaining. By integrating public input and structured decision-making, the criminal justice system could better align with democratic values and address systemic disparities.

Notice-And-Comment Sentencing, Richard A. Bierschbach, Stephanos Bibas

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No abstract provided.

Rulemaking As Politics, Thirty Years On, Michael Herz

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No abstract provided.

The Impact Of The Rise And Fall Of Chevron On The Executive's Power To Make And Interpret Law, Linda Jellum

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The Supreme Court's willingness to defer to agency interpretations of ambiguous statutes has vacillated over the past seventy years. The Court's vacillation has dramatically impacted the executive 's power to make and interpret law. This Article examines how the Court augmented then constricted executive lawmaking power and ceded then reclaimed executive interpretive power with a single case and its legal progeny. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. and its aftermath dramatically altered the executive's power to make and interpret law. Prior to Chevron, Congress had the primary responsibility for lawmaking, while agencies made policy choices primarily when …

Regulatory Moratoria, Kathryn A. Watts

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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 …

In Defense Of The Short Cut, Stephen M. Johnson

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Congress frequently gives administrative agencies a choice of several different tools—including legislative rulemaking, nonlegislative rulemaking, and adjudication—to interpret and apply the statutes that they administer. When Congress gives agencies a choice, courts rarely second-guess the agencies’ choice of policymaking tool. Rarely, that is, unless the agency chooses to interpret a statute through nonlegislative rulemaking. ...

Part II of this Article explores the variety of policymaking tools that are available to agencies, the deference generally accorded an agency’s choice of tool, and the reluctance of courts to defer when agencies choose to make policy through nonlegislative rulemaking. Part III explores Franklin’s …

Should Mass Comments Count?, Nina A. Mendelson

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I am grateful to the Michigan Journal of Environmental & Administrative Law for the opportunity to reply to “Rulemaking vs. Democracy: Judging and Nudging Public Participation That Counts,” a terrific article by Professor Cynthia Farina, Mary Newhart, and Josiah Heidt of the Cornell eRulemaking Institute (“CeRI”). Farina, Newhart, and Heidt’s continuing commitment to structuring public engagement in e-rulemaking, both through scholarship and CeRI’s Regulation Room project, is one of the most hopeful signs for the future of that process. In their Article, the authors are concerned with agency treatment of large volumes of public comments in rulemaking, an increasingly common …

Enforcement Without Foundation? Insider Trading And China's Administrative Law Crisis, Nicholas C. Howson

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China's securities regulator enforces insider trading prohibitions pursuant to non-legal and non-regulatory internal "guidance." Reported agency decisions indicate that enforcement against insider trading is often possible only pursuant to this guidance, as the behavior identified is far outside of the scope of insider trading liability provided for in statute or regulation. I argue that the agency guidance is itself unlawful and unenforceable, because: (i) the guidance is not the regulatory norm required by the statutory delegation of power; and (ii) the guidance is ultra vires because (a) it addresses something substantively different from what is authorized under the statutory delegation, …

Constraining Certiorari Using Administrative Law Principles, Kathryn A. Watts

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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

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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 …

The Appellate Review Model Of Agency Adjudications, Linda Jellum

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No abstract provided.

Zoning Finality: Reconceptualizing Res Judicata Doctrine In Land Use Cases, Stewart E. Sterk, Kimberly J. Brunelle

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Zoning disputes provide many Americans with their only firsthand exposure to the workings of democratic government. Land use issues trigger participation because neighbors perceive the wrong kind of development as posing a double-barreled threat to the stability of the community in which they have chosen to live and to the economic value of their homes.

The United States Court Of Appeals For Veterans Claims: Has It Mastered Chevron's Step Zero?, Linda Jellum

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No abstract provided.

Heads I Win, Tails You Lose: Reconciling Brown V. Gardner's Presumption That Interpretive Doubt Be Resolved In Veterans' Favor With Chevron, Linda Jellum

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In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., the United States Supreme Court held that agencies should determine the meaning of ambiguous statutes. But in the veterans law case Brown v. Gardner, the Supreme Court directed lower courts to resolve interpretive doubt in ambiguous statutes in favor of veterans. Which interpretation controls when a statute is ambiguous-the agency's reasonable interpretation or the veteran's interpretation? To date, none of the courts faced with this conflict have resolved this question clearly or definitively; indeed, the United States Court of Appeals for Veterans Claims recently asked the Supreme Court …

Disclosing The President’S Role In Rulemaking: A Critique Of The Reform Proposals, Stephen M. Johnson

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Whether for want of time, expertise, or political will, Congress frequently drafts laws that leave important questions unanswered. Ever since the New Deal era, administrative agencies have resolved these questions pursuant to broad delegations of authority from Congress. For decades, academics have debated the appropriate role for the President in the process of settling such questions. In practice, the President and the President's staff often exert strong influence over agencies in their resolution of the unanswered questions. Frequently, though, the President's hand is invisible in the records created by the agencies to justify their decisions. Rather than documenting political influences, …

Another Word On The President's Statutory Authority Over Agency Action, Nina A. Mendelson

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In this short symposium contribution, I attempt first to add some further evidence on the interpretive question. That evidence weighs strongly, in my view, in favor of Kagan's conclusion that the terminology does not communicate any particular congressional intent regarding presidential directive authority. Assessed in context, the "whole code" textual analysis presented by Stack does not justify the conclusion that Congress, by delegating to an executive branch official, meant to limit presidential control. Independent agencies excluded, interpreting the terms of simple and presidential delegations to speak to directive authority fails, in general, to make sense of the various statutes. Absent …

Foreword: Rulemaking, Democracy, And Torrents Of E-Mail, Nina A. Mendelson

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This Foreword is meant as an initial foray into the question of what agencies should do with mass public comments, particularly on broad questions of policy. Part I discusses the extent to which congressional control, presidential control, and agency procedures themselves can ensure that agency decisions are democratically responsive. In view of shortcomings in both congressional and presidential control, I underscore the need to focus closely on rulemaking procedures as a source of democratic responsiveness. The possibility that agencies may be systematically discounting certain public submissions raises difficulties, and I present some examples. Part II makes a preliminary case that …

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

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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 …

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

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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 …

Jettisoning Chevron, Linda Jellum

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No abstract provided.

Two Masters, Carl E. Schneider

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American government rests on the principle of distrust of government. Not only is power within the federal government checked and balanced. Power is divided between the federal government and the state governments. So what if a state law conflicts with a federal law? The Constitution says that the "Constitution, and the Laws of the United States ... shall be the supreme Law of the Land; ... any Thing in the ... Laws of any State to the Contrary notwithstanding." Sometimes the conflict between federal and state law is obvious and the Supremacy Clause is easily applied. But sometimes ...

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

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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 …

Reflections On Section 5 Of The Ftc Act And The Ftc's Case Against Intel, Daniel A. Crane

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The Federal Trade Commission’s (“FTC’s”) unprecedented enforcement action against Intel raises profound issues concerning the scope of the FTC’s powers to give a construction to Section 5 of the FTC Act that goes beyond the substantive reach of the Sherman Act. While I have urged the FTC to assert such independence from the Sherman Act, this is the wrong case to make a break. Indeed, if anything, Intel poses a risk of seriously setting back the development of an independent Section 5 power by provoking a hostile appellate court to rebuke the FTC’s effort and cabin the FTC’s powers in …

Agency Hygiene, Nicholas Bagley

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Prof. Bagley notes that reshaping captured agencies using the structural reforms suggested by Prof. Barkow may be politically infeasible and offers an alternative solution for eliminating interest-group capture. First, he suggests establishing a body within the Executive Branch that proactively investigates and documents capture dynamics. Second, he suggests creating legislative mechanisms that will encourage Congressional action on the body’s recommendations, and perhaps, more provocatively, requiring the Executive Branch to enact any such recommendations in the absence of Congress’s formal objection.

Disclosing 'Political' Oversight Of Agency Decision Making, Nina A. Mendelson

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Scholars and courts have divided views on whether presidential supervision enhances the legitimacy of the administrative state. For some, that the President can supervise administrative agencies is key to seeing agency action as legitimate, because of the President's accountability to the electorate. Others, however, have argued that such supervision may simply taint, rather than legitimate, an agency action. The reality is that presidential supervision of agency rulemaking, at least, appears to be both significant and opaque. This Article presents evidence from multiple presidential administrations suggesting that regulatory review conducted by the White House's Office of Management and Budget is associated …

Coordinating Sanctions In Torts, Kyle D. Logue

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This Article begins with the standard Law and Economics account of tort law as a regulatory tool or system of deterrence, that is, as a means of giving regulated parties the optimal ex ante incentives to minimize the costs of accidents. Building on this fairly standard (albeit not universally accepted) picture of tort law, the Article asks the question how tort law should adjust, if at all, to coordinate with already existing non-tort systems of regulation. Thus, if a particular activity is already subject to extensive agency-based regulation (whether in the form of command-and-control requirements or in the form of …

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

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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 …

Rethinking Regulations: Local Laboratories Inventing A Sustainable Idaho, Jerrold A. Long

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No abstract provided.

Competition: The Next Generation Of Environmental Regulation?, Stephen M. Johnson

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Risk. In the environmental arena, when determining whether to regulate or how to regulate activities or products, policymakers must begin by assessing the level of risk presented by the activity or product. Although essential information about the level of risk is often in the hands of the actors or producers, they may be reluctant to provide this information to policymakers, unless they are compelled to do so, because the disclosure of information about the risk presented by their activity or product could reduce demand for their activity or product, increase potential liability for harm caused by their activity or product, …

Securities Law And The New Deal Justices, Adam C. Pritchard, Robert B. Thompson

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In this Article, we explore the role of the New Deal Justices in enacting, defending, and interpreting the federal securities laws. Although we canvass most of the Court's securities law decisions from 1935 to 1955, we focus in particular on PUHCA, an act now lost to history for securities practitioners and scholars. At the time of the New Deal, PUHCA was the key point of engagement for defining the judicial view toward New Deal securities legislation. Taming the power of Wall Street required not just the concurrence of the legislative branch, but also the Supreme Court, a body that the …