Administrative Law Commons^™

Paul Verkuil's Projects For The Administrative Conference Of The U.S. 1974-1992, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

I am really happy to be part of this tribute to Paul Verkuil. It may surprise those in the audience to learn that I am bringing some needed diversity to today's proceedings - I am the only other Dutch American on the program! But perhaps my twenty years at the "Administrative Conference" also qualifies me to say a few words about how thrilled I am that we have it back - "ACUS 2.0" we can call it, complete with a website this time- and that Paul is at its helm. And I want to thank Paul for bringing me back …

Federalism And Federal Agency Reform, Gillian E. Metzger

Faculty Scholarship

This Article assesses three major preemption decisions from the 2008-2009 Term – Altria Group, Inc. v. Good, Wyeth v. Levine, and Cuomo v. Clearing House Ass'n – for their implications about the role of the states in national administrative governance. The Article argues the decisions are centrally concerned with using state law and preemption analysis to improve federal administration and police against federal agency failure. Federalism clearly factors into the decisions as well, but it does so more as a mechanism for enhancing federal agency performance than as a principle worth pursuing in its own right.

The decisions' …

The Adam Walsh Act And The Failed Promise Of Administrative Federalism, Wayne A. Logan

Scholarly Publications

For advocates of federalism, these are uncertain times. With hope of meaningful judicial federalism having largely receded, and Congress persisting in its penchant for intrusions on state authority, of late several scholars have championed the capacity of executive agencies to enforce and preserve federalism interests. This paper tests this position, providing the first empirically based critical analysis of administrative federalism, focusing on the recently enacted Adam Walsh Act, intended by Congress to redesign states’ sex offender registration and community notification laws. The paper casts significant doubt on the accepted empirical assumptions of administrative federalism, adding to the limited evidence amassed …

End The Failed Chevron Experiment Now: How Chevron Has Failed And Why It Can And Should Be Overruled, Jack M. Beermann

Faculty Scholarship

In Chevron U.S.A., Inc. v. NRDC, decided in 1984, the Supreme Court announced a startling new approach to judicial review of statutory interpretation by administrative agencies, which requires courts to defer to agency interpretations of ambiguous statutes. Although it was perhaps hoped that Chevron would simplify judicial review and increase deference to agency interpretation, the opposite has occurred. Chevron has complicated judicial review and at best it is uncertain whether it has resulted in increased deference to agency interpretation. In fact, for numerous reasons, Chevron has been a failure on any reasonable measure and should be overruled. Further, overruling Chevron …

Can The Law Track Scientific Risk And Technological Innovation?: The Problem Of Regulatory Definitions And Nanotechnology, David A. Dana

Faculty Working Papers

The functioning of a regulatory regime often turns on what is defined to be included in the scope of regulation and what is defined to be outside. In constructing the definitions of what is regulated, two key challenges are to align the defintions with the risks that motivated the establishment of the regulatory regime and to build in dynamism into the defintions so that they adapt to changes in scientific understanding and technology. This Chapter of a forthcoming book from Cambridge University Press (David Dana, ed., The Nanotechnology Challenge), explores these challnegs in the context of nanotechnology.

Fcc Regulation And Increased Ownership Concentration In The Radio Industry, Peter Dicola

Faculty Working Papers

In 1996, Congress increased the limits on how many radio stations one firm can own within a single "radio market." To enforce these limits, the FCC used an idiosyncratic method of defining radio markets, based on the complex geometry of the signal contour patterns of radio stations' broadcasts. Using a unique geographic data set, this paper provides the first calculations of the pre- and post-1996 limits on local radio ownership as actually implemented by the FCC. The limits are surprisingly permissive and vary considerably from city to city. While the limits were seldom binding on radio firms, I find a …

Public Wrongs And Private Bills: Indemnification And Government Accountability In The Early Republic, James E. Pfander, Jonathan L. Hunt

Faculty Working Papers

Students of the history of administrative law in the United States regard the antebellum era as one in which strict common law rules of official liability prevailed. Yet conventional accounts of the antebellum period often omit a key institutional feature. Under the system of private legislation in place at the time, federal government officers were free to petition Congress for the passage of a private bill appropriating money to reimburse the officer for personal liability imposed on the basis of actions taken in the line of duty. Captain Little, the officer involved in one oft-cited case, Little v. Barreme, pursued …

Leverhulme Lecture: The Global Financial Crisis And Systemic Risk, Steven L. Schwarcz

Faculty Scholarship

Lecture given November 9, 2010, is the first of three delivered by Prof. Schwarcz as Leverhulme Visiting Professor of Law, Oxford University. Prof. Schwarz examines the causes of the global financial crisis, showing it was triggered by market failures, not by financial institution failures, and arguing that any regulatory framework for managing systemic risk must address markets as well as institutions. The lecture also analyzes how regulation should be designed under that broader framework to mitigate systemic risk and its consequences. Finally, the lecture examines the potential systemic effects of sovereign debt crises, demonstrating how regulation can mitigate those effects.

Leverhulme Lecture: Regulating Complexity In Financial Markets, Steven L. Schwarcz

Faculty Scholarship

Lecture given November 9, 2010, the second of three delivered by Prof. Schwarcz as Leverhulme Visiting Professor of Law, Oxford University.

Complexity is the greatest challenge to 21st Century financial regulation, having the potential to impair markets and investments in several interrelated ways. Furthermore, complexity can cause failures that individual market participants cannot, or will not have incentive to, remedy. These failures are driven by information uncertainty, misalignment of interests and incentives among market participants, and nonlinear feedback and tight coupling that result in sudden unexpected market changes. These are the same types of failures that engineers have long faced …

Book Review, Matthew D. Adler

Faculty Scholarship

Reviewing, N. Scott Arnold, Imposing Values: An Essay on Liberalism and Regulation (2009)

Making Self-Regulation More Than Merely Symbolic: The Critical Role Of The Legal Environment, Jodi Short, Michael W. Toffel

Georgetown Law Faculty Publications and Other Works

Using data from a sample of U.S. industrial facilities subject to the federal Clean Air Act from 1993 to 2003, this article theorizes and tests the conditions under which organizations’ symbolic commitments to self-regulate are particularly likely to result in improved compliance practices and outcomes. We argue that the legal environment, particularly as it is constructed by the enforcement activities of regulators, significantly influences the likelihood that organizations will effectively implement the self-regulatory commitments they symbolically adopt. We investigate how different enforcement tools can foster or undermine organizations’ normative motivations to self-regulate. We find that organizations are more likely to …

Implementing Public Health Regulations In Developing Countries: Lessons From The Oecd Countries, Lawrence O. Gostin, Emily A. Mok, Monica Das Gupta, Max Levin

Georgetown Law Faculty Publications and Other Works

The enforcement of public health standards is a common problem in many developing countries. Public health agencies lack sufficient resources and, too often, enforcement mechanisms rely on slow and erratic judicial systems. These limitations can make traditional public health regulations difficult to implement. In this article, we examine innovative approaches to the implementation of public health regulations that have emerged in recent years within OECD countries. These approaches aim to improve compliance with health standards, while reducing dependence on both the legal system and the administrative resources of public health agencies.

This article begins by discussing some traditional forms of …

“To Remand, Or Not To Remand”: Ventura’S Ordinary Remand Rule And The Evolving Jurisprudence Of Futility, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

It is a foundational principle of administrative law that a reviewing court should not dispose of a petition for review or appeal on grounds not relied upon by the agency, and should not reach issues in the first instance not addressed administratively. In such circumstances, there is a strong presumption that the reviewing court should remand the case to the agency for further proceedings rather than reach out to decide the disputed issues. The United States Supreme Court explicitly extended operation of the “ordinary remand rule” to the immigration context in its 2002 decision in INS v. Ventura. Notwithstanding subsequent …

Maximum Feasible Participation Of The Poor: New Governance, New Accountability, And A 21st Century War On The Sources Of Poverty, Tara J. Melish

Journal Articles

In 1964, President Lyndon B. Johnson called for a Nationwide War on the Sources of Poverty to “strike away the barriers to full participation” in our society. Central to that war was an understanding that given poverty’s complex and multi-layered causes, identifying, implementing, and monitoring solutions to it would require the “maximum feasible participation” of affected communities. Equally central, however, was an understanding that such decentralized problem-solving could not be fully effective without national-level orchestration and support. As such, an Office of Economic Opportunity was established – situated in the Executive Office of the President itself – to support, through …

The U.S. Rulemaking Process: Has It Become Too Difficult?, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

The modem process for making administrative policy-the informal, notice-and-comment rulemaking process-was developed in the U.S. when the Administrative Procedure Act (APA) was enacted in 1946. The "notice-and-comment" label derives from the fact that the APA requires: publication of a notice of proposed rulemaking, opportunity for public participation in the rulemaking by submission of written comments, publication of a final rule and accompanying explanation.

This applies to the substantive rulemaking of every agency of the federal government and provides the procedural minimum for most significant rulemakings. More elaborate public procedures such as oral hearings may be used voluntarily by agencies in …

A Survey Of Federal Agency Rulemakers’ Attitudes About E-Rulemaking, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

Drawing on a survey of U.S. civil servants engaged in developing regulations across a wide variety of agencies, this chapter analyzes how bureaucrats in key positions view the impact on their work of “electronic rulemaking” – that is, the creation of online opportunities for members of the public to comment on proposed administrative regulations. There is strong evidence that rulemakers appreciate the value of new technologies for public participation purposes and for internal administration and coordination functions, but less evidence that they see the utility of e-rulemaking for improving the quality of administrative rules.

The Ncaa Rules Adoption, Interpretation, Enforcement, And Infractions Processes: The Laws That Regulate Them And The Nature Of Court Review, Josephine (Jo) R. Potuto

Vanderbilt Journal of Entertainment & Technology Law

This article takes a comprehensive look at how the NCAA is organized, describes the NCAA committee structure, and explains how the NCAA in its multitude of roles does its work. The article focuses particularly on the NCAA by law interpretation process and the policies, procedures, and scope of authority of the enforcement, infractions, and student-athlete reinstatement processes. In its description of the division of responsibility among enforcement, infractions and student-athlete reinstatement, the article emphasizes the independence of each. The article then assesses the functions and structure of the NCAA in light of the preogatives of a private, multi-state association and …

Ordinary Administrative Law As Constitutional Common Law, Gillian E. Metzger

Faculty Scholarship

Henry Monaghan famously argued that much of constitutional interpretation takes the form of what he termed constitutional common law, a body of doctrines and rules that are constitutionally inspired but not constitutionally required and that can be altered or reversed by Congress. This Essay argues that a fair amount of ordinary administrative law qualifies as constitutional common law: Constitutional concerns permeate core administrative law doctrines and requirements, yet Congress enjoys broad power to alter ordinary administrative law notwithstanding its constitutional aspect. Unfortunately, the constitutional common law character of much of ordinary administrative law is rarely acknowledged by courts. A striking …

Delegation And Judicial Review, Thomas W. Merrill

Faculty Scholarship

One of the subthemes in the delegation debate concerns the importance of judicial review. The Supreme Court has often upheld broad delegations to administrative actors and in so doing has pointed out that judicial review is available to safeguard citizens from the abuse of unconstrained government power. Broad delegations of power to executive actors are constitutionally permissible, the Court has suggested, in significant part because courts stand ready to assure citizens that the executive will discharge its discretion in a manner consistent with Congress's mandate and in a fashion that otherwise satisfies the requirements of reasoned decision making.

Administrative law …

Public Choice And Environmental Policy: A Review Of The Literature, Christopher H. Schroeder

Faculty Scholarship

This paper is a draft of a chapter for a forthcoming book, Research Handbook in Public Law and Public Choice, edited by Daniel Farber and Anne Joseph O'Connell, to be published by Elgar. It reviews the public choice literature on environmental policy making, first generally and then with respect to four fundamental environmental policy questions: (1) whether or not government action is warranted; (2) if it is, the scope and stringency of the government action, including the manner in which a bureaucracy will implement and enforce any statutory standards; (3) the level of government that assumes responsibility; and (4) the …

Leverhulme Lecture: The Future Of Securitization, Steven L. Schwarcz

Faculty Scholarship

Lecture given November 11, 2010, the third of three delivered by Prof. Schwarcz as Leverhulme Visiting Professor of Law, Oxford University.

The securitization of subprime mortgage loans is widely viewed as a root cause of the financial crisis. This lecture balances the costs and benefits of securitization, focusing on what went wrong and on what needs to be fixed to curtail securitization’s abuses and make it viable again as an important financing tool. Finally, the lecture examines alternatives to securitization, focusing on covered bonds and comparing and contrasting covered bonds and securitization.

The Supreme Court's Assault On Litigation: Why (And How) It Could Be Good For Health Law, Abigail Moncrieff

Faculty Scholarship

In recent years, the Supreme Court has narrowed or eliminated private rights of action in many legal regimes, much to the chagrin of the legal academy. That trend has had a significant impact on health law; the Court’s decisions have eliminated the private enforcement mechanism for at least four important healthcare regimes: Medicaid, employer-sponsored insurance, and medical devices. In a similar trend outside the courts, state legislatures have capped noneconomic and punitive damages for medical malpractice litigation, weakening the tort system’s deterrent capacity in those states. This Article points out that the trend of eliminating private rights of action in …

Valuing Foreign Lives And Civilizations In Cost-Benefit Analysis: The Case Of The United States And Climate Change Policy, David A. Dana

Faculty Working Papers

This Article explores the case for including losses of foreign (non-U.S.) lives and settlements in the estimated cost to the United States of unmitigated climate change in the future. The inclusion of losses of such foreign lives and settlements in cost benefit analysis (CBA) could have large implications not only for U.S. climate change policy but also for policies adopted by other nations and the practice of CBA generally. One difficult problem is how to assess U.S. residents' willingness to pay to prevent the losses of foreign lives and settlements. This Article discusses internet-based surveys that are a first step …

"Streamlining" The Rule Of Law: How The Department Of Justice Is Undermining Judicial Review Of Agency Action, Shruti Rana

Faculty Scholarship

Judicial review of administrative decision making is an essential institutional check on agency power. Recently, however, the Department of Justice dramatically revised its regulations in an attempt to insulate its decision making from public and federal court scrutiny. These “streamlining” rules, carried out in the name of national security and immigration reform, have led to a breakdown in the rule of law in our judicial system. While much attention has been focused on the Department of Justice’s recent attempts to shield executive power from the reach of Congress, its efforts to undermine judicial review have so far escaped such scrutiny. …

The Contextual Rationality Of The Precautionary Principle, David A. Dana

Faculty Working Papers

This article defines the precautionary principle (PP) primarily based on what it is not: it is not quantitative cost-benefit analysis (CBA) or cost-cost analysis of the sort we associate with the Office of Management and Budget in the United States and U.S. policymaking and policy discourse generally. In this definition, the PP is a form of analysis in which the costs of a possible environmental or health risk are not quantified, or if they are, any quantification is likely to be inadequate to capture the full extent of the costs of not taking regulatory measures to mitigate or avoid the …

Ideological Plaintiffs, Administrative Lawmaking, Standing And The Petition Clause, Karl S. Coplan

Elisabeth Haub School of Law Faculty Publications

In the 1992 Lujan v. Defenders of Wildlife decision, Justice Scalia declared that business interests subject to regulation had automatic standing to challenge regulations in court, but that where “the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish.” This article explores the impact this differential standard for court access has on ideologically-motivated public interest plaintiffs, and suggest heightened scrutiny of standing rules under the Petition Clause of the First Amendment based on the viewpoint differential effect of current standing doctrine. This …

"Prejudgment" Rejudgment: The True Story Of Antoniu V. Sec, Douglas C. Michael

Law Faculty Scholarly Articles

In Antoniu v. SEC, the Eighth Circuit found that Charles C. Cox, then a member of the Securities and Exchange Commission (SEC or Commission), had "impermissibly tainted" an SEC administrative proceeding against Antoniu by a speech Cox gave while the proceeding was pending. In this way, Commissioner Cox is now joined with former Federal Trade Commission (FTC) Chairman Paul Rand Dixon of Texaco, Inc. v. FTC and Cinderella Career & Finishing Schools, Inc. v. FTC fame as an administrative law casebook poster child for "prejudgment" by an administrative agency.

After a brief discussion of the factual background of the …

Asylum In A Different Voice: Judging Immigration Claims And Gender, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

An extensive statistical study of disparities in asylum adjudication throughout the United States reveals gross disparities in rates of asylum grants by region of country, experience of adjudicators, prior employment, and other factors. One of the most robust findings was one of gender disparities in adjudication rates. If the adjudicator of claims for asylum was female there was a 44% greater likelihood that asylum would be granted. This chapter in the book reporting these findings reflects on this significant finding of gender differences in judging and discusses, in light of the author's prior work on gender differences in lawyering, whether …

Deconstructing The Bill Of Rights In Administrative Adjudication--Enfranchising Constitutional Principles In The Process, Shiv Narayan Persaud

Journal Publications

With the increased tendency toward governmental oversight in modern society, Congress deemed it fit to delegate some of its lawmaking authority to the other branches of government. While this action has effectuated the promulgation of regulations and resolution of disputes through adjudicatory proceedings, the area of administrative law continues to be challenging, especially where it poses concerns regarding an individual’s basic rights. This Article will focus discussion on some fundamental issues relating to the administrative process and explore the ramifications on the individual.

Beyond Economics: The U.S. Recognition Of International Financial Reporting Standards As An International Subdelegation Of The Sec's Rulemaking Authority, Jacob L. Barney

Vanderbilt Journal of Transnational Law

A final rule promulgated by the Securities and Exchange Commission (SEC) in 2008 allowing foreign private securities issuers to prepare SEC-required financial disclosures under international financial reporting standards (IFRS) as promulgated by the International Accounting Standards Board (LASB) is a highly significant event for U.S. and global capital markets. However, surprisingly few questions have been asked regarding the SEC's legal authority to take such an unprecedented step.

This Note assesses the recent SEC action with regard to IASB from two perspectives--traditional administrative law, with particular emphasis on delegations by government entities to private parties, and international law, with particular emphasis …