Administrative Law Commons^™

The Notion And Practice Of Reputation And Professional Identity In Social Networking: From K-12 Through Law School, Roberta Bobbie Studwell

Faculty Scholarship

No abstract provided.

The Duty Of Responsible Administration And The Problem Of Police Accountability, Charles F. Sabel, William H. Simon

Faculty Scholarship

Many contemporary civil rights claims arise from institutional activity that, while troubling, is neither malicious nor egregiously reckless. When law-makers find themselves unable to produce substantive rules for such activity, they often turn to regulating the actors’ exercise of discretion. The consequence is an emerging duty of responsible administration that requires managers to actively assess the effects of their conduct on civil rights values and to make reasonable efforts to mitigate harm to protected groups. This doctrinal evolution partially but imperfectly converges with an increasing emphasis in public administration on the need to reassess routines in the light of changing …

Legal Pathways To Reducing Greenhouse Gas Emissions Under Section 115 Of The Clean Air Act, Michael Burger, Ann E. Carlson, Michael B. Gerrard, Jayni Foley Hein, Jason A. Schwartz, Keith J. Benes

Faculty Scholarship

Under President Barack Obama the U.S. Environmental Protection Agency has promulgated a series of greenhouse gas emissions regulations, initiating the necessary national response to climate change. However, the United States will need to find other ways to reduce GHG emissions if it is to live up to its international emissions reduction pledges, and to ultimately lead the way to a zero-carbon energy future. This paper argues that the success of the recent climate negotiations in Paris provides a strong basis for invoking a powerful tool available to help achieve the country’s climate change goals: Section 115 of the Clean Air …

Reflections On Seminole Rock: The Past, Present, And Future Of Deference To Agency Regulatory Interpretations, Gillian E. Metzger, Aaron Nielson, Sanne H. Knudsen, Amy J. Wildermuth, Aditya Bamzai, Richard J. Pierce, Cynthia Barmore, William Yeatman, Christopher J. Walker, Kevin M. Stack, Andy Grewal, Steve R. Johnson, F. Andrew Hessick, Jonathan H. Adler, Catherine M. Sharkey, David Feder, Cass R. Sunstein, Adrian Vermeule, Ronald M. Levin, Kevin O. Leske, James Cleith Phillips, Daniel Ortner, William Funk, Kristen E. Hickman, Jeffrey A. Pojanowski, Adam White, Conor Clarke

Faculty Scholarship

Seminole Rock (or Auer) deference has captured the attention of scholars, policymakers, and the judiciary. That is why Notice & Comment, the blog of the Yale Journal on Regulation and the American Bar Association’s Section of Administrative Law & Regulatory Practice, hosted an online symposium from September 12 to September 23, 2016 on the subject. This symposium contains over 20 contributions addressing different aspects of Seminole Rock deference.

Topics include:

• History of Seminole Rock
• Empirical Examinations of Seminole Rock
• Understanding Seminole Rock Within Agencies
• Understanding Seminole Rock as Applied to Tax, Environmental Law, and Criminal Sentencing
• Why Seminole Rock Matters …

Auer As Administrative Common Law, Gillian E. Metzger

Faculty Scholarship

To some, Auer deference stands apart from the rest of administrative law. On the one hand, Auer is distinguished from other forms of deference as uniquely constitutionally problematic, because it grants agencies deference for their own interpretations of their own regulations. This, according to Justice Scalia (accepting an argument raised by his former law clerk, John Manning), violates “fundamental principles of separation of powers” by “permit[ing] the person who promulgates a law to interpret it as well.” On the other, Auer deference is also seen as uniquely at odds with the Administrative Procedure Act. Thus, Scalia criticized Auer not simply …

Resetting The Baseline Of Ownership: Takings And Investor Expectations After The Bailouts, Nestor M. Davidson

Faculty Scholarship

During the economic crisis that began in 2008, the federal government nationalized several of the nation’s most significant private companies as part of a broad effort to forestall a global depression. Shareholders in those companies later filed suit, alleging that the federal government in so doing—and in subsequent actions while in control of the firms—took their property without compensation in violation of the Fifth Amendment. To date, those claims have not succeeded. If these cases continue on their current trajectory, with courts rejecting arguments that the rescue of systematically important firms on the brink of collapse requires compensation for shareholders, …

Uncertainty, Complexity, And Regulatory Design, Adam I. Muchmore

Faculty Scholarship

This Article develops an analytic framework for understanding the role of uncertainty in regulatory design. It begins by differentiating between three types of uncertainty: legal uncertainty, factual uncertainty, and uncertainty about the application of law to fact. This framework highlights the pervasiveness of factual uncertainty and law-fact uncertainty in daily affairs. Viewed through this framework, legal uncertainty is less problematic than it is typically thought to be.

The Article then focuses on legal uncertainty, examining it from two perspectives: the relationship between rules and standards, and the relationship between simplicity and complexity. It suggests that there are fundamental limits on …

Agenda-Setting In The Regulatory State: Theory And Evidence, Cary Coglianese, Daniel E. Walters

Faculty Scholarship

Government officials who run administrative agencies must make countless decisions every day about what issues and work to prioritize. These agenda-setting decisions hold enormous implications for the shape of law and public policy, but they have received remarkably little attention by either administrative law scholars or social scientists who study the bureaucracy. Existing research offers few insights about the institutions, norms, and inputs that shape and constrain agency discretion over their agendas or about the strategies that officials employ in choosing to elevate certain issues while putting others on the back burner. In this article, we advance the study of …

Minimally Democratic Administrative Law, Jud Mathews

Faculty Scholarship

A persistent challenge for the American administrative state is reconciling the vast powers of unelected agencies with our commitment to government by the people. Many features of contemporary administrative law — from the right to participate in agency processes, to the reason-giving requirements on agencies, to the presidential review of rulemaking — have been justified, at least in part, as means to square the realities of agency power with our democratic commitments. At the root of any such effort there lies a theory of democracy, whether fully articulated or only implicit: some conception of what democracy is about, and what …

Strategic Decision Making In Dual Ptab And District Court Proceedings, Saurabh Vishnubhakat, Arti K. Rai, Jay P. Kesan

Faculty Scholarship

The post-grant review proceedings set up at the U.S. Patent and Trademark Office’s Patent and Trial Appeal Board by the America Invents Act of 2011 have transformed the relationship between Article III patent litigation and the administrative state. Not surprisingly, such dramatic change has itself yielded additional litigation possibilities: Cuozzo Speed Technologies v. Lee, a case addressing divergence between the manner in which the PTAB and Article III courts construe patent claims, will soon be argued at the U.S. Supreme Court.

Of the three major new PTAB proceedings, two have proven to be popular as well as controversial: inter partes …

Patent Institutions: Shifting Interactions Between Legal Actors, Arti K. Rai

Faculty Scholarship

This contribution to the Research Handbook on Economics of Intellectual Property Rights (Vol. 1 Theory) addresses interactions between the principal legal institutions of the U.S. patent system. It considers legal, strategic, and normative perspectives on these interactions as they have evolved over the last 35 years. Early centralization of power by the U.S. Court of Appeals for the Federal Circuit, newly created in 1982, established a regime dominated by the appellate court's bright-line rules. More recently, aggressive Supreme Court and Congressional intervention have respectively reinvigorated patent law standards and led to significant devolution of power to inferior tribunals, including newly …

Vermeule Unbound, Philip A. Hamburger

Faculty Scholarship

My book asks Is Administrative Law Unlawful? Adrian Vermeule answers “No.” In support of his position, he claims that my book does not really make arguments from the U.S. Constitution, that it foolishly denounces administrative power for lacking legislative authorization, that it grossly misunderstands this power and the underlying judicial doctrines, and ultimately that I argue “like a child.”

My book actually presents a new conception of administrative power, its history, and its unconstitutionality; as Vermeule has noted elsewhere, it offers a new paradigm. Readers therefore should take seriously the arguments against the book. They also, however, should recognize that …

Constitutional Amendment, Madhav Khosla

Faculty Scholarship

This chapter examines the formal method for constitutional amendment provided for in Article 368 of the Indian Constitution. It first reviews the early cases that gave rise to the Basic Structure doctrine, which placed substantive restrictions upon the power of amendment, before exploring subsequent developments and the application of the doctrine. It considers how Indian courts have addressed the idea of an unconstitutional constitutional amendment, with particular emphasis on the architectural framework that the courts have envisioned the Constitution to have. It explains how the Basic Structure doctrine has been used to understand the principles on which constitutionalism must depend.

The Constitutionalization Of Indian Private Law, Shyamkrishna Balganesh

Faculty Scholarship

This chapter examines the relationship between private law and constitutional law in India, with particular emphasis on tort law. It considers the Indian Supreme Court’s expansion of its fundamental rights jurisprudence over the past thirty years, as well as its effort to transcend the public law/private law divide. It also explains how the Court’s fusion of constitutional law and tort law has affected the independent efficacy, normativity, and analytical basis of equivalent private law claims in India. It argues that the Court’s efforts have only undermined the overall legitimacy of private law mechanisms in the country, and that this phenomenon …

The Oira Transparency Problem, Peter L. Strauss

Faculty Scholarship

This article critiques the opacity of the Office of Information and Regulatory Affairs (OIRA), arguing that its centralized review process allows former officials to exploit loopholes in post-employment ethics statutes and asserts that this dynamic undermines regulatory integrity and democratic accountability by allowing privileged access to influence high-stakes federal rulemakings.

Foreword, Nancy J. Moore

Faculty Scholarship

In common parlance, the “regulatory state” refers to governance through specialized administrative agencies, such as the federal agencies that arose during the progressive era in the United States.1 Lawyering in the regulatory state takes a number of different forms, including the private representation of clients who are either litigating before agencies or facing compliance issues, as well as the public employment of lawyers within the agencies themselves. Both types of regulatory lawyering raise a wide range of unique ethical issues for lawyers and are the subject of the articles in this Fordham colloquium entitled Lawyering in the Regulatory State. These …

Unbent Science, Peter L. Strauss

Faculty Scholarship

A fraught area in recent times has been the unwillingness of the political executive to accept scientific findings generated in the civil service or in the academy in the face of controversy over regulatory matters on which they bear. Issues about “bending science” became particularly acute during the second Bush presidency, when political refusals to accept scientific findings and political controls over the manner in which some scientific issues were addressed disheartened the civil service, produced strident objections from the science community, and made restoring the integrity of governmental science both a campaign issue for candidate Obama and a pursuit …

Early Prerogative And Administrative Power: A Response To Paul Craig, Philip A. Hamburger

Faculty Scholarship

What does English experience imply about American constitutional law? My book, Is Administrative Law Unlawful?, argues that federal administrative power generally is unconstitutional. In supporting this conclusion, the book observes that eighteenth-century Americans adopted their constitutions not only with their eyes on the future, but also looking over their shoulder at the past – especially the English past. This much should not be controversial. There remain, however, all sorts of questions about how to understand the English history and its relevance for early Americans.

In opposition to my claims about American law, Paul Craig lobs three critiques from across the …

Chevron Bias, Philip A. Hamburger

Faculty Scholarship

This Article takes a fresh approach to Chevron deference. Chevron requires judges to defer to agency interpretations of statutes and justifies this on a theory of statutory authorization for agencies. This Article, however, points to a pair of constitutional questions about the role of judges – questions that have not yet been adequately asked, let alone answered.

One question concerns independent judgment. Judges have a constitutional office or duty of independent judgment, under which they must exercise their own independent judgment about what the law is. Accordingly, when they defer to agency interpretations of the law, it must be asked …

Foreword, Philip C. Bobbitt

Faculty Scholarship

In every state of which the international system is composed, the constitution is necessarily involved in the making and exe­cution of the state’s strategy. The nature of that involvement is one dimension by which we determine the character of a par­ticular state. The subordination of the professional military to elected representatives of the state; the making of legal regula­tions governing land and naval forces by the lawmaking body; the fashioning of rules of engagement by an elected executive; and above all, the parliamentary control of the decision to go to war that characterize states of consent — which in the …

Politics And Agencies In The Administrative State: The U.S. Case, Peter L. Strauss

Faculty Scholarship

The pending American presidential election, culminating a period of extreme political partisanship in our national government generally, gives point to an essay on politics and agencies in the American regulatory state. In our two-party system, it has often been the case in recent times, including the last six years, that the President comes from one of our two major political parties and one or both houses of Congress are controlled by the other. All American agencies (including, in the American case, the so-called independent regulatory bodies) are associated with the President in the executive branch, yet dependent on the Senate …

Litigation: Time To Revisit Chevron Deference?, Jack M. Beerman, Charles J. Cooper, Thomas W. Merrill, Amy J. Wildermuth, Don R. Willett

Faculty Scholarship

This panel discussion took place on Thursday, November 13, 2014 at the Mayflower Hotel in Washington, D.C., prior to the passing of Justice Antonin Scalia. Justice Scalia's impact on the development of administrative law in the United States is unparalleled.

Differentiating Deference, Anya Bernstein

Faculty Scholarship

There is now some consensus that the context of a statutory term plays a crucial part in its meaning.1 The argument continues, however, over what "kinds of context ... matter."2 Building on scholarship that addresses the wide range of contexts that contribute to legal meaning,3 this Article illuminates two factors crucial to interpreting legal language: the social nature of meaning-making and the practical nature of interpretive competence. I locate my inquiry in the judicial review of agency statutory interpretation, a particularly fruitful arena for analyzing statutory interpretation more generally.

To fill the gap, Part I of this Article first illuminates …

Presidential Control Across Policymaking Tools, Catherine Y. Kim

Faculty Scholarship

No abstract provided.

From Fedspeak To Forward Guidance: Regulatory Dimensions Of Central Bank Communications, Robert B. Ahdieh

Faculty Scholarship

In the face of the financial crisis that engulfed the globe beginning in 2007, the U.S. Federal Reserve quickly found itself without the key lever of monetary policy on which it had traditionally relied: short-term interest rate adjustments designed to move long-term rates, and thereby expected levels of lending, investment, and capital retention. By late 2008, short-term rates were already close to zero, yet unemployment remained strikingly high – with no sign of any likely renewal of bank lending or commercial investment.

Famously, the Fed embraced so-called quantitative easing – the purchase of massive volumes of public and private debt …

The Nlrb As An Uberagency For The Evolving Workplace, Michael Z. Green

Faculty Scholarship

In addressing legal issues regarding the relationships between employers and employees, one must navigate a complex maze of rights and remedies that govern the workplace. This Essay details several recent and important workplace disputes addressed by the National Labor Relations Board (NLRB) pursuant to Section 7 of the National Labor Relations Act (NLRA). Section 7 protects a worker's right to pursue an activity for mutual aid or protection regarding wages, hours, and other terms and conditions of employment. The NLRB, a unique agency with its ultimate decisions determined by five members who primarily establish rules through adjudication rather than rule …

Disaggregated Classes, Benjamin P. Edwards

Faculty Scholarship

No abstract provided.

Cleaning Up Jurisdiction: Divining Congressional Intent Of Clean Air Act Section 307(B), Kevin O. Leske

Faculty Scholarship

No abstract provided.

Immigration Policy And The Rhetoric Of Reform: “Deport Felons, Not Families,” Moncrieffe V. Holder, Children At The Border, And Idle Promises, Terri R. Day, Leticia M. Diaz

Faculty Scholarship

No abstract provided.

A Primer: Air And Water Environmental Quality Standards In The United State, Jason J. Czarnezki, Siu Tip Lam, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.