Administrative Law Commons^™

Procedural Justice, Lawrence B. Solum

ExpressO

The real work of procedure is to guide conduct. It is sometimes said that the regulation of primary conduct is the work of the general and abstract norms of substantive law—clauses of the constitution, statutes, regulations, and common law rules of tort, property, and contract. But substance cannot effectively guide primary conduct without the aid of procedure. This is true because of three problems: (1) the problem of imperfect knowledge of law and fact, (2) the problem of incomplete specification of legal norms, and (3) the problem of partiality. The solution to these problems is particularization by a system of …

Mixed Signals: Reconsidering The Political Economy Of Judicial Deference To Administrative Agencies, Matthew C. Stephenson

ExpressO

This paper investigates rational choice explanations for patterns of Supreme Court decision-making with respect to the appropriate level of judicial deference to administrative agency decisions. In particular, I assess empirically the thesis that the Supreme Court expands deference when the Supreme Court is ideologically closer to the executive than to the circuit courts, and contracts deference when the opposite is true. I find little to no evidence supporting this "rational choice" theory of judicial deference. Given this surprising null finding, I offer alternative explanations for the data and suggest directions for future research.

Chevron Deference And Agency Self-Interest, Timothy K. Armstrong

Faculty Articles and Other Publications

Judicial review of a federal administrative agency's statutory or regulatory interpretation ordinarily proceeds under the highly deferential framework announced in the landmark case of Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). Withholding an independent judicial interpretation of a statute or regulation in deference to an agency's views, however, poses unique problems when the agency has a self-interested stake in its interpretation - as, for example, when the agency's interpretation affects its regulatory jurisdiction or yields a financial benefit to the agency. A review of several cases in which courts have deferred, or refused to defer, …

Settling The Wilderness, Sarah Krakoff

Publications

No abstract provided.

Administrative Law, James R. Kibler Jr.

University of Richmond Law Review

No abstract provided.

The Administration Of Medicare: A Neglected Issue, Thomas H. Stanton

Washington and Lee Law Review

No abstract provided.

Mozart And The Red Queen: The Problem Of Regulatory Accretion In The Administrative State, J.B. Ruhl, James Salzman

Vanderbilt Law School Faculty Publications

Part I of this Article describes the phenomenon of regulatory accretion from several perspectives. We start by using the hypothetical professor-turned- monarch to isolate regulatory accretion as an independent variable in the operation of regulatory systems, separate from the three conventional topics of administrative law scholarship--efficiency, clarity, and institutional accountability. To describe regulatory accretion, we then define a range of metrics, showing that over the last fifty years, regulatory growth has been the rule rather than the exception using virtually any measure. We also show why regulatory law theory suggests that we should expect accretion to be the dominant dynamic …

Globalization, Democracy, And The Need For A New Administrative Law, Alfred C. Aman

Indiana Journal of Global Legal Studies

Globalization and Governance: The Prospects for Democracy, Symposium

Spurious Interpretation Redux: Mead And The Shrinking Domain Of Statutory Ambiguity, Michael P. Healy

Law Faculty Scholarly Articles

In skewering the Supreme Court's recent decision in United States v. Mead Corp., Justice Scalia's rhetoric is exceptional. He derides the decision as "one of the most significant opinions ever rendered by the Court dealing with the judicial review of administrative action. Its consequences will be enormous, and almost uniformly bad." Although Justice Scalia objects to Mead's new and uncertain limits on the applicability of the Chevron doctrine, this Article will focus instead on how Mead employs a method of interpretation imputing a clear intent to Congress, and authorizes courts to discern statutory meaning without strong deference to …

After "Hiding The Ball" Is Over: How The Nlrb Must Change Its Approach To Decision-Making, Michael Hayes

All Faculty Scholarship

Is the National Labor Relations Board (the NLRB or the Board), the agency that oversees federal labor law, still relevant? When this question is considered, as it frequently is by scholars, lawyers and officials of the NLRB itself, the focus typically is on whether changes in the workplace, the economy and society are diminishing the relevance of the Board. But there is a new and more immediate threat to the relevance of the Board that so far has been mostly ignored - that the Board is in danger of being rendered a superfluous legal institution in the scheme of American …

Are You Willing To Make The Commitment In Writing? The Apa, Aljs, And Ssa, Jeffrey Scott Wolfe

Oklahoma Law Review

No abstract provided.

Administrative Adjudication In Kentucky: Ethics And Unauthorized Practice Considerations, Richard H. Underwood

Law Faculty Scholarly Articles

This article is an extended version of a presentation I made at a training course for hearing officers sponsored by the Office of the Attorney General, Division of Administrative Hearings. In my original presentation, I was asked to focus on the ethics of the administrative adjudicator. I was asked to answer some specific questions, which I will include here for the reader's benefit. In this more complete treatment, I would also like to discuss the ethics of lawyers and other representatives appearing before administrative agencies.

The Kentucky Courts had begun to "judicialize" the administrative hearing process in the early 1970's, …

Disciplining Delegation After "Whitman V. American Trucking Ass'ns", Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

The Supreme Court's recent reversal of the D.C. Circuit's decision in "Whitman v. American Trucking Ass'ns" brings to center stage the critical question for disciplining delegation of lawmaking authority to administrative agencies: Should courts use constitutional law or administrative law for requiring agencies to supply the standards that guide and limit their lawmaking discretion when Congress does not? Professor Bressman argues that "Ashwander v. TVA" provides a resolution. In Ashwander, Justice Brandeis directed courts to refrain from deciding constitutional questions unless absolutely necessary to decide a particular case. Following Justice Brandeis' now famous teaching, courts should refrain from using constitutional …

Judging Ethics For Administrative Law Judges: Adoption Of A Uniform Code Of Judicial Conduct For The Administrative Judiciary, Patricia E. Salkin

Scholarly Works

No abstract provided.

Textualism’S Limits On The Administrative State: Of Isolated Waters, Barking Dogs, And Chevron, Michael P. Healy

Law Faculty Scholarly Articles

In Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, the U.S. Supreme Court recently held that the U.S. Army Corps of Engineers (the Corps) does not have authority under the Clean Water Act (the Act or the CWA) to regulate the filling of “other waters.” This decision demonstrates a major shift in the Court's approach to statutory interpretation, particularly in the context of reviewing an agency’s understanding of a statute. The significance of the case is best gauged by contrasting it with United States v. Riverside Bayview Homes, Inc. There, the Court, acting …

The Limits Of Globalization And The Future Of Administrative Law: From Government To Governance, Alfred C. Aman

Indiana Journal of Global Legal Studies

No abstract provided.

Respecting Deference: Conceptualizing Skidmore Within The Architecture Of Chevron, Jim Rossi

Vanderbilt Law School Faculty Publications

This Article addresses critically the implications of the U.S. Supreme Court's recent decision in Christensen v. Harris County, 120 S.Ct. 1655 (2000), for standards of judicial review of agency interpretations of law. Christensen is a notable case in the administrative law area because it purports to clarify application of the deference doctrine first articulated in Skidmore v. Swift & Co., 323 U.S. 134 (1944). By reviving this doctrine, the case narrows application of the predominant approach to deference articulated in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), thus reducing the level of deference in …

Application Of Administrative Law To Health Care Reform: The Real Politik Of Crossing The Quality Chasm , Thomas R. Mclean

Journal of Law and Health

Real Politik, a term in vogue at the height of the Cold War, contemplates that in practice, governmental bodies attempt to expand their spheres of influence and control by the application of economic leverage. The federal government is clearly interested in expanding its influence into health care because of its cost. Americans spend over one trillion dollars - forty-four percent of which is paid for by the federal government - on health care each year. To control the cost of health care, governmental reformers proposed the Health Securities Act of 1993 as a frontal assault on the American health care …

Enlarging The Administrative Polity: Administrative Law And The Changing Definition Of Pluralism, 1945-1970, Reuel E. Schiller

Vanderbilt Law Review

"The availability of judicial review," wrote Louis Jaffe in 1965, "is the necessary condition, psychologically, if not logically, of a system of administrative power which purports to be legitimate, or legally valid." In so writing, Jaffe suggested that the abstract beliefs that Americans have about the way government is supposed to work define the relationship between courts and the administrative state. It does not follow, logically, from the existence of administrative agencies that their actions must be policed by courts. In- stead, our beliefs about how public policy ought to be made and about which institutions are best at protecting …

Standing In Environmental Citizen Suits: Laidlaw’S Clarification Of The Injury-In-Fact And Redressability Requirements, Michael P. Healy

Law Faculty Scholarly Articles

In its first week of business during the new millennium, the U.S. Supreme Court decided Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., and provided important clarifications about the law of standing in environmental citizen suits. Specifically, the Court rejected the narrow view of environmental injury-in-fact advocated by Justice Scalia and instead adhered to the broader view of injury-in-fact established in a nonenvironmental context by the Court's decision in Federal Elections Commission v. Akins. As importantly, the Court also addressed the redressability requirement of Article III standing in Laidlaw. Here too, the Court did …

Using Cases As Case Studies For Teaching Administrative Law, John S. Applegate

Articles by Maurer Faculty

No abstract provided.

Democracy Within Federalism: An Attempt To Reestablish Middle Ground, Alexander Hanebeck

San Diego Law Review

the conflict between the two levels of government, state and federal, is a very old one. The main battleground of this debate, however, has been over states' rights and the protection of individual rights by federal courts. As John Hart Ely observed, this is not where federalism hangs in the balance. He correctly points out what is becoming obvious in recent Supreme Court decisions. For the existence of states as independent entities, it is more important where legislative competence lies. 3 This Article is concerned with the groundwork for a debate over the distribution of legislative competence, because it attempts …

A Comparison Of The Administrative Law Of The Catholic Church And The United States, John J. Coughlin

Journal Articles

Some years ago, an international symposium of jurists described administrative law as encompassing "the entire range of action by government with respect to the citizen or by the citizen with respect to the government, except for those matters dealt with by the criminal law, and those left to private civil litigation where the government's only participation is in furnishing an impartial tribunal with the power of enforcement."

The broad parameters of the concept of administrative law attest to its importance in any legal system. Indeed, for at least the past fifty years, comparative legal scholars have focused on diverse national …

Alj Final Orders On Appeal: Balancing Independence With Accountability, Jim Rossi

Vanderbilt Law School Faculty Publications

This essay addresses how ALJ final order authority in many state systems of administrative governance (among them Florida, Louisiana, Missouri, and South Carolina) poses a tension between independence and accountability. It is argued that political accountability is sacrificed where reviewing courts defer to ALJ final orders on issues of law and policy. Standards of review provide state courts with a way of restoring the balance between independence and accountability, but reviewing courts should heighten the deference they give to the agency's legal and policy positions -- giving little or no deference to the ALJ on these issues -- even where …

Institutional Design And The Lingering Legacy Of Antifederalist Separation Of Powers Ideals In The States, Jim A. Rossi

Vanderbilt Law School Faculty Publications

This Article applies comparative institutional analysis to separation of powers under state constitutions, with a particular focus on the nondelegation doctrine and states' acceptance of Chadha-like restrictions on legislative oversight. The Article begins by contrasting state and federal doctrine and enforcement levels in each of these separation of powers contexts. Most state courts, unlike their federal counterparts, adhere to a strong nondelegation doctrine. In addition, many states accept (de facto if not de jure) even more explicit and sweeping legislative vetoes than the federal system. The Article highlights the contrast of federal and state approaches by identifying their similarity with …

Chevron, Cooperative Federalism, And Telecommunications Reform, Philip J. Weiser

Publications

No abstract provided.

Democratization And Administrative Law, Paul H. Brietzke

Oklahoma Law Review

No abstract provided.

United We Stand: The Anti-Competitive Implications Of Media Ownership Of Athletic Teams In Great Britain, Jonathan E. Bush

Vanderbilt Journal of Transnational Law

This Note analyzes the increasing integration of the sports and broadcasting industries and the British framework for evaluating the permissibility of transactions furthering such integration. In the context of the recent attempted takeover of British football club Manchester United by Rupert Murdoch's British Sky Broadcasting, the Note examines how the Monopolies and Mergers Commission (MMC) was uniquely poised to fully consider the ramifications of this developing nexus of sports and media and evaluates the significance of the MMC's decision on the future of both industries.

A diverse array of domestic, international, political, and economic issues and implications face any court …

"Statutory Nondelegation": Learning From Florida's Recent Experience In Administrative Procedure Reform, Jim Rossi

Vanderbilt Law School Faculty Publications

In this Article, I assess one of the more notable reforms Florida made to its APA in 1996 with the intention of enhancing the accountability of agency rulemaking, and I discuss the lessons other state reformers can learn from Florida's experience. Part Il of this Article discusses rulemaking authority under the Federal AP A and the more restrictive approach many states take to ensure that agencies are accountable to the legislature in proposing rules. Some states, including Pennsylvania, have endorsed what I will term 11 statutory nondelegation 11: This is a judicially-adopted or APA-imposed clear statement requirement, suggesting that courts …

Interpreting Indian Country In State Of Alaska V. Native Village Of Venetie, Kristen A. Carpenter

Publications

According to federal Indian law's canons of construction, statutes enacted for the benefit of American Indians and Alaska Natives must be liberally interpreted in their favor. But a doctrine of statutory interpretation presently challenges certain applications of the Indian canons. Announced by the Supreme Court in Chevron, U.S.A. v. Natural Resources Defense Council, Inc., the doctrine requires that courts defer to administrative agency interpretations of ambiguous language in statutes they are authorized to administer. In instances where agencies construe statutes against Indian interests, Chevron deference and the Indian canons dictate opposite results for a reviewing court. This conflict muddles Indian …