Administrative Law Commons^™

Scientific Expertise In Policymaking: The Case For Open Review And Patent Reform, Beth Simone Noveck

ExpressO

The Energy Research Advisory Board, the group of external scientific advisors that provided impartial expert advice to the Secretary of Energy since 1978, was disbanded this May. The Administration, like its predecessors, regularly replaces experts on agency advisory panels with ideologues and political allies. We are at the nadir of a historical progression since World War II away from trust in and use of scientific expertise in policymaking. This shift however, has not been countered with greater public participation. Instead, administrative law and theory have developed a model of the managerial administrative authority. The "expertocratic" agency relies on internal expertise …

Auditing Executive Discretion, Mariano-Florentino Cuellar

ExpressO

Executive branch officials routinely make thousands of decisions affecting public security and welfare. While it is rare that such discretionary decisions are entirely immune from some kind of judicial review, courts’ role is often so circumscribed or deferential that in some domains the probability of uncovering problems through such review almost certainly falls close to zero. The resulting amount of executive discretion carries considerable risks along with rewards. Some discretionary decisions undoubtedly benefit from the speed and flexibility that results from limiting judicial review. Yet judicial review’s evisceration as a tool to restrain certain forms of discretion also makes it …

The People's Agent: Executive Branch Secrecy And Accountability In An Age Of Terrorism, Sidney A. Shapiro, Rena I. Steinzor

Faculty Scholarship

The increase in government secrecy is an important and troubling policy trend. Although the trend predates the 2000 presidential election, the movement towards government secrecy has accelerated dramatically in the Bush Administration. The case for open government is usually based on political principles embraced by the Framers of the U.S. Constitution. This article seeks to bolster these arguments by applying “agency theory” to the question of how much secrecy is too much. While agency theory is most often used to analyze private sector economic relationships, commentators have also applied it to the analysis of methods for holding legislators and Executive …

Resisting Regulation With Blue Ribbon Panels, Thomas O. Mcgarity

Fordham Urban Law Journal

The Article analyzes the use of blue ribbon panels to resolve complicated scientific issues that frequently arise during regulatory proceedings. In particular, it looks at the case of beryllium in order to illustrate how blue ribbon panels appointed and paid for by industry often lend scientific legitimacy to policy advocacy. It concludes that agencies should partially discount scientific evidence provided by industry appointed blue ribbon panels due to expected bias. However, it finds the agency will confront some difficulty convincing the public of the adequacy of regulations that are in conflict with a well-financed campaign by a regulated entity armed …

The Unbearable Lightness Of Regulatory Costs, Frank Ackerman

Fordham Urban Law Journal

The Article counters the presumption that increased environmental regulation necessarily decreases economic prosperity. It analyzes the European chemical regulatory structure and deduces that any costs imposed on the consumer are minimal, and more cost effective than watered-down American regulations covering the same subject matter with approximately the same cost imposed on the consumer-taxpayer. It argues the Office of Management and Budget and regulated industries have consistently overestimated the costs of environmental regulation and promoted the theory that environmental regulation causes factories and jobs to move offshore. It concludes that deregulation may not spur growth.

Statutory Interpretation In The Era Of Oira, Lisa Heinzerling

Fordham Urban Law Journal

The Article is a case study regarding a rule governing cooling water towers for power plants promulgated pursuant to the Clean Water Act ("CWA"). It analyzes the history of the Office of Information and Regulatory Affairs ("OIRA") within the Office of Management and Budget ("OMB"), and its influence in compelling the Environmental Protection Agency ("EPA") to conduct cost-benefit analysis of all regulations. It argues that the EPA should not receive Chevron deference since it has acted illegally by interpreting the CWA not as a technology-based environmental law, but instead as a cost-benefit law.

Willful Blindness: Federal Agencies' Failure To Comply With The Regulatory Flexibility Act's Periodic Review Requirement-And Current Proposals To Invigorate The Act, Michael R. See

Fordham Urban Law Journal

The Article first explains the basic requirements of the Regulatory Flexibility Act, and in particular focuses on the periodic review requirement contained in Section 610. It traces the history of Presidential efforts through the promulgation of executive orders to delay the implementation of regulations and require agencies to consult with regulated industries. Reviewing agency action from 1997-2005 following Section 610 review, it found agencies are confused as to when review is necessary, and, though Section 610 is meant to decrease the regulatory burden on small business, agencies often increase the regulatory burden on small business. It concludes the key problem …

Cost-Benefit Analysis: Where Should We Go From Here?, Sally Katzen

Fordham Urban Law Journal

The Article addresses the criticism of cost benefit analysis (CBA). Although it accepts the monetization of costs will generally oppose regulation, it finds CBA is at least close to an objective standard. It argues the results of CBA are informative, but are not dispositive, and often the procedures used in CBA are imperfect. It concludes financial resources should be devoted to retrospective analyses and/or organization studies in order to achieve rational regulatory decision making.

Self-Regulation For Safety And Security: Final Minutes Or Finest Hour?, Douglas C. Michael

Law Faculty Scholarly Articles

The terrorist attacks of September 11, 2001, and the accounting and auditing crisis later caused by the Enron and Worldcom scandals of that same year, created a great sense of insecurity in many Americans. In this Article, I analyze the federal government's response to crisis. I first define what a crisis is: a sudden, existential threat to which the entity has insufficient resources to respond. I then explain how regulation for safety and security is unique in two aspects: perceptions matter, and the assistance of the regulated entities is essential. I proceed by describing and analyzing the regulatory history and …

The Regulatory Flexibility Act At 25: Is The Law Achieving Its Goal?, Keith W. Holman

Fordham Urban Law Journal

The Article traces the issue of lack of representation given small business during rule-making, and the inability of the original Regulatory Flexibility Act (RFA) to adequately address this issue. It argues that the amendment of the RFA by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) has significantly increased small business awareness of and involvement in the regulatory process. It concludes there are several remaining weaknesses to the RFA, and recommends Congress take action to compel all agencies to follow specific procedures for assessing the economic impacts of their regulatory actions on small business.

The Role Of The Office Of Information And Regulatory Affairs In Federal Rulemaking, Curtis W. Copeland

Fordham Urban Law Journal

The Article describes the role of the Office of Information and Regulatory Affairs (OIRA), an office within the Office of Management and Budget (OMB), in reviewing agencies' draft rules. It emphasizes the dramatic effect each Presidential administration has had on the OIRA's review process, and indirectly on all agency action. It finds OIRA has become a "gatekeeper" with regard to agency action, but mentions that scholarly debate continues as to whether OIRA represents the President's interests exclusively or both the often conflicting interests of Congress and the President.

Skepticism And Expertise: The Supreme Court And The Eeoc, Melissa Hart

Publications

The Supreme Court regularly denies deference to the Equal Employment Opportunity Commission's interpretations of the federal antidiscrimination laws which that agency is charged with enforcing and interpreting. The Court's lack of deference for EEOC interpretation is in part a function of the analytical framework that the Court has created for assessing the deference due to different types of administrative interpretation. But this essay argues that the Court's lack of deference cannot be entirely explained with reference to these neutral analytical criteria. The Court's attitude toward the EEOC may also be explained as a consequence both of judicial reluctance to view …

A Digital Age Communications Act Paradigm For Federal-State Relations, Kyle D. Dixon, Philip J. Weiser

Publications

This article captures the effort of the Digital Age Communications Act (DACA) to craft a new framework for the federal-state relationship in implementing a next generation telecommunications regulatory regime. In particular, it sets forth a DACA model that would implement a "rule of law" regulatory paradigm for an era of technological dynamism. This era requires, as the article explains, a coherent federal framework that circumscribes the role of state and local authorities so as to advance sound competition policy goals. The sole exception to this policy is the recognition that a basic local service rate retains both political and practical …

When Criminal And Tort Law Incentives Run Into Tight Budgets And Regulatory Discretion, William G. Childs

Faculty Scholarship

Eight-year-old Greyson Yoe was electrocuted while waiting to get on the "Scooters" bumper car ride at the Lake County Fair in northeastern Ohio. The failure to ground the ride structure and damage to a light fixture on the ride caused his death. The day before the electrocution, two inspectors from the Ohio Department of Agriculture (ODA) inspected the ride and passed it as "safe to operate." That inspection was superficial and grossly inadequate, and the completed inspection form had serious misrepresentations. Indeed, the inspectors later admitted that they never reviewed the key electrical items that they checked off on the …

The Private Life Of Public Law, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

This Article proposes a new conception of the administrative regulatory state that accounts for the vast networks of private agreements that shadow public regulations. The traditional account of the administrative state assigns a limited role to private actors: private firms and interest groups seek to influence regulations, and after the regulations are finalized, regulated firms face a comply-or-defy decision. In recent years, scholars have noted that private actors play an increasing role in the traditional government standard setting, implementation and enforcement functions. This Article demonstrates that the private role in each of these regulatory functions is far greater than others …

Why Judicial Review Fails: Organizations, Politics, And The Problem Of Auditing Executive Discretion, Mariano-Florentino Cuellar

ExpressO

Every day executive branch officials make thousands of decisions affecting our security and welfare. Homeland security officials screen tens of thousands of people at the border. They decide whose name gets on government “no fly lists.” Agencies freeze suspected terrorist assets, choose what companies to inspect for environmental violations, and decide whom to prosecute. This article describes how judicial review predictably and systematically fails to prevent abuse and promote organizational learning when government officials make many such choices using their discretion to target individuals or groups. It then proposes the use of quasi-judicial audits of executive discretion as a remedy. …

Book Review, Kal Raustiala

Journal of Legal Education

No abstract provided.

Prolegomenon To An Intellectual History Of Administrative Law In The Twentieth Century: The Case Of John Willis And Canadian Administrative Law, Michael Taggart

Osgoode Hall Law Journal

The intellectual legal history-the history of ideas--of modern administrative law has yet to be written. The first part of this article suggests that one way to approach this necessary task is to posit the writings of leading administrative law thinkers in the context of cases, controversies, doctrines, events, and movements throughout the twentieth century. The work of pioneer administrative lawyer John Willis is used to exemplify this type of contextualized intellectual legal history. The second part of this article seeks to gauge Willis's influence on the development of Canadian administrative law.

The Birth Of A "Logical System": Thurman Arnold And The Making Of Modern Administrative Law, Mark Fenster

UF Law Faculty Publications

The practice, teaching, and study of modern administrative law have developed in the midst of academic debates over how to resolve conflicts between a dominant set of legal doctrines and external political demands. Periodic administrative legitimacy crises have spawned an academic literature consisting of authoritative, influential articles and books that attempt to clarify nascent doctrines and theories. The now-familiar rhythm of such outbursts began with modern administrative law's widespread emergence in the 1930s, when federal regulatory agencies became sufficiently prevalent to warrant extensive attention from legal academics. Administrative law histories have established this fairly well-known story: academics sympathetic to the …

Prolegomenon To Any Future Administrative Law Course: Separation Of Powers And The Transcendental Deduction, Gary S. Lawson

Faculty Scholarship

Federal constitutional law has a way of worming itself into just about every crevice of the law school curriculum. Civil Procedure students grapple with the Due Process Clauses, Property students ponder the Takings Clause, and Torts students must reckon with issues of federal preemption and legislative power. But few courses outside the mainstream Constitutional Law curriculum require as much sustained attention to constitutional issues as does Administrative Law.' Administrative Law courses typically involve an extensive study of procedural due process.2 They also engage, at least peripherally, in some of the most fundamental and long-lived constitutional controversies in the law of …

The Opacity Of Transparency, Mark Fenster

ExpressO

The normative concept of transparency, along with the open government laws that purport to create a transparent public system of governance promise the world—a democratic and accountable state above all, and a peaceful, prosperous, and efficient one as well. But transparency, in its role as the theoretical justification for a set of legal commands, frustrates all parties affected by its ambiguities and abstractions. The public’s engagement with transparency in practice yields denials of reasonable requests for essential government information, as well as government meetings that occur behind closed doors. Meanwhile, state officials bemoan the significantly impaired decision-making processes that result …

Review Of Agency Interpretations: The Difference Discovers Itself, Marla E. Mansfield

ExpressO

The Supreme Court regularly reviews agency interpretations of statutes. For many years, the official dogma of the Court was one of deference to reasonable agency interpretations of ambiguous statutes – the so-called “Chevron doctrine.” After Mead and Christensen, the Court was open to other levels of respect for agency interpretations. Recently, cases have so emphasized the particular statutory construction methods of the individual justices that the agency interpretation of a statute is now on the level of legislative history or other aids to interpretation, such as canons, which may or may not be used at a justice’s option. The array …

Dual Constitutions And Constitutional Duels: Separation Of Powers And State Implementation Of Federally Inspired Regulatory Programs And Standards, Jim A. Rossi

Vanderbilt Law School Faculty Publications

Frequently, state-wide executive agencies and localities attempt to implement federally-inspired programs. Two predominant examples are cooperative federalism programs and incorporation of federal standards in state-specific law. Federally-inspired programs can bump into state constitutional restrictions on the allocation of powers, especially in states whose constitutional systems embrace stronger prohibitions on legislative delegation than the weak restrictions at the federal level, where national goals and standards are made. This Article addresses this tension between dual federal/state normative accounts of the constitutional allocation of powers in state implementation of federally-inspired programs. To the extent the predominant ways of resolving the tension come from …

Regulating Section 527 Organizations, Guy-Uriel Charles, Gregg D. Polsky

Faculty Scholarship

No abstract provided.

Executive Power And The Public Lands, Harold H. Bruff

Publications

No abstract provided.

Policing The Spectrum Commons, Philip J. Weiser, Dale N. Hatfield

Publications

One of the most contested questions in spectrum policy is whether bands of spectrum left as unlicensed will fall victim to the tragedy of the commons. Advocates of increased unlicensed spectrum often downplay what enforcement measures are necessary to minimize interference and to prevent the tragedy of the commons problem. Even imposing spectrum etiquette requirements in addition to the FCC's equipment certification program will fail to address this concern effectively, as the development of such measures - e.g., the requirement that devices listen before they talk - does not ensure that they will be followed. Indeed, if there are incentives …

Squaring The Circle? Reconciling Sovereignty And Global Governance Through Global Government Networks (Review Of Anne-Marie Slaughter, A New World Order), Kenneth Anderson

Book Reviews

This book review summarizes and critiques A New World Order, offering both an internal critique of the argument's consistency as well as an outside critique of the argument from the standpoint of the value of democratic sovereignty. The review locates Slaughter's argument within the debate over international relations realism and idealism, and further locates it within a continuum of seven idealized positions in the debate between global governance and sovereignty, with pure sovereignty at one extreme and world government at the other, with the most relevant positions of democratic sovereignty and liberal internationalism located in the middle. The article concludes …

The Statutory President, Kevin M. Stack

Vanderbilt Law School Faculty Publications

American public law has no answer to the question of how a court should evaluate the president's assertion of statutory authority. In this Article, I develop an answer by making two arguments. First, the same framework of judicial review should apply to claims of statutory authority made by the president and federal administrative agencies. This argument rejects the position that the president's constitutional powers should shape the question of statutory interpretation presented when the president claims that a statute authorizes his actions. Once statutory review is separated from consideration of the president's constitutional powers, the courts should insist, as they …

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 …

Looking For Law In China Ii: China’S Legal Reforms After Mao: Accomplishments And Future Prospects, Stanley B. Lubman

Hong Yen Chang Center for Chinese Legal Studies

In this talk I intend to summarize major accomplishments of Chinese law reform since 1978; and speculate on the future of Chinese law reform

• In the course of this talk, I will note where China began when legal reform was first undertaken in 1979, and the enormous size and scope of the task that was undertaken.
• I hope to give an indication both of the progress China has made, and of major obstacles to future reforms;
• I have chosen one area to emphasize because it may light the way for further meaningful reforms: administrative law
• I have also noted influences …