Administrative Law Commons^™

Chevron At The Roberts Court: Still Failing After All These Years, Jack M. Beermann

Faculty Scholarship

This article looks at how Chevron deference has fared at the Supreme Court since John G. Roberts became Chief Justice. The article looks at Chevron deference at the Roberts Court from three distinct angles. First, the voting records of individual Justices in cases citing Chevron are examined to shed light on the strength of each Justice’s commitment to deference to agency statutory construction. Second, a select sample of opinions citing Chevron are qualitatively examined to see whether the Roberts Court has been any more successful than its predecessor in constructing a coherent Chevron doctrine. Third, the article looks closely at …

Tentative Interpretations: The Abracadabra Of Administrative Rulemaking And The End Of 'Alaska Hunters', Matthew P. Downer

Vanderbilt Law Review

Agency flexibility is a battlefield. When circumstances change or a new regime takes power, federal agencies often adjust their settled regulations to reflect new realities. There is a persistent struggle, however, between preserving this flexibility and protecting those who relied upon the previous regulations.' When an agency changes course, regulated entities must comply, often with little warning and at great expense. In 1946, Congress passed the Administrative Procedure Act ("APA") to balance these interests by restricting when and how agencies can promulgate and change regulations.

Unsurprisingly, the APA did not achieve a lasting d6tente. Instead, it merely created new fronts …

The Puzzling Presumption Of Reviewability, Nicholas Bagley

Articles

The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors - appellate-style arbitrariness review - was not only unheard of prior to the twentieth century, but …

The Puzzling Presumption Of Reviewability, Nicholas Bagley

Articles

The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors - appellate-style arbitrariness review - was not only unheard of prior to the twentieth century, but …

The Past, Present And Future Of Auer Deference: Mead, Form And Function In Judicial Review Of Agency Interpretations Of Regulations, Michael P. Healy

Law Faculty Scholarly Articles

The law of judicial review of agency legal interpretations has undergone an important reshaping as a consequence of the Supreme Court decision in United States v. Mead Corp. That decision and the important follow-on decision in National Cable & Telecommunications Ass 'n v. Brand X Internet Services have changed the understanding of the Court's landmark 1984 decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. Chevron defined a new era of judicial deference to an agency's interpretation of an ambiguous statute, but the Chevron era has itself been transformed.

These legal developments had seemed to have little consequential …

Step Zero After City Of Arlington, Thomas W. Merrill

Faculty Scholarship

The thirty-year history of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. is a story of triumph in the courts and frustration on the part of administrative law scholars. Chevron's appeal for the courts rests in significant part on its ease of application as a decisional device. Questions about the validity of an agency's interpretation of a statute are reduced to two inquiries: whether the statute itself provides a clear answer and, if not, whether the agency's answer is a reasonable one. The framework can be applied to virtually any statutory interpretation question resolved by an agency, and …

Responding To Agency Avoidance Of Oira, Nina A. Mendelson, Jonathan B. Wiener

Articles

This Article proceeds as follows: Part I provides a background of the system of presidential oversight of regulation through OIRA review. Part II analyzes: (1) the incentives for agencies to cooperate with or avoid OIRA, (2) a broad array of agency avoidance tactics, and (3) corresponding response options (especially in a repeat-player relationship). Part III argues that response options to agency avoidance should not be unquestioningly pursued or rejected. Instead, they should be evaluated using many of the same principles OIRA employs in reviewing agency regulation, including a systematic consideration of the benefits and costs of particular response actions and …

A Framework For Judicial Review And Remand In Immigration Law, Collin D. Schueler

Law Faculty Scholarly Articles

This Article breaks new ground at the intersection of administrative law and immigration law. One of the more important questions in both fields is whether a reviewing court should resolve a legal issue in the first instance or remand that issue to the agency. This Article advances the novel claim that courts should use the modem framework for judicial review of agency statutory interpretations to inform their resolution of this remand question. Then, using this framework, the Article identifies when remand is and is not appropriate in immigration cases. This critical analysis, which urges a departure from conventional academic wisdom, …

In Search Of Skidmore, Peter L. Strauss

Faculty Scholarship

Ever since 1827, the U.S. Supreme Court has repeatedly observed that when a court is interpreting a statute that falls within the authority of an administrative agency, the court in reaching its own judgment about the statute's meaning should give substantial weight to the agency's view. Repeated again and again over the years in varying formulations, this proposition found its apotheosis in Skidmore v. Swift & Co., a unanimous opinion authored by Justice Jackson in 1944. His opinion took the proposition to be so obvious that no citation was required. Justice Jackson's typically incisive and memorable formulation stuck. It …

Court Of Appeals Review Of Administrative Law Judges' Findings And Opinions , Patricia M. Wald

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Judicial Deference To Administrative Interpretations Of Law, Antonin Scalia

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

State Court Invalidation Of A Federal Regulation: Thomas V. North Carolina Department Of Human Resources, Gary L. Cole

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Report To The Judicial Council On The Administrative Law Judge Statute, James F. Flanagan

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Judicial Review Of Administrative Action, Malcolm R. Wilkey

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Judicial Suspensions And Due Process Under Venezuela's New Democratic Model , Brenda Brown Perez

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Georgia Office Of State Administrative Hearings, Mark A. Dickerson

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Judicial Independence In Administrative, Adjudication: Past, Present, And Future , Ann Marshall Young

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Administrative Hearing Officer And The National Appeals Division Of The United States Department Of Agriculture: A Brief History, A Contemporary Perspective, And Some Thoughts For The Future, Christopher B. Mcneil

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Unreviewability In State Administrative Law, Charles H. Koch Jr.

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Is The Rule Of Necessity Really Necessary In State Administrative Law: The Central Panel Solution, Arnold Rochvarg

Journal of the National Association of Administrative Law Judiciary

The rule of necessity is a judicial doctrine that permits a judge or agency decision maker to decide a case even if he or she would ordinarily be disqualified due to bias or prejudice . The rationale of the doctrine is that if there is no other person who can make the decision, let the biased person decide the case rather than have no decision made at all. The rule of necessity has been used in state administrative proceedings liberally despite the fact that it is widely recognized as unfair. This article analyzes current approaches to the doctrine, and after …

The Ghost Of Crowell V. Benson And The Residual Role Of Judges And Agencies Under Federal Law, Linda R. Hirshman

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

A Specialized Court For Social Security? A Critique Of Recent Proposals, Robert E. Rains

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

When Dicta Attacks: Elliott V. Commodity Futures Trading Commission, Joanna E. Barnes

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Oregon Supreme Court Determination Concerning Appellate Court Jurisdiction For Judicial Review Of Nonfinal Orders Arising Out Of Contested Cases. Oregon Health Care Association V. Health Division And Jill D. Laney, Hearing Officer, Monique Shamun

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Administrative Law Judges, Judicial Independence, And Judicial Review: Qui Custodiet Ipsos Custodes?, W. Michael Gillette

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Role Of Demeanor Evidence In Determining Credibility Of Witnesses In Fact Finding: The Views Of Aljs, Gregory L. Ogden

Journal of the National Association of Administrative Law Judiciary

Prof. Ogden presents the views of administrative law judge’s on the role of demeanor evidence in determining the credibility of witnesses’ testimony in fact finding. The opinions of administrative law judges add an important new perspective on the issue of whether demeanor evidence increases the accuracy of credibility determinations. The views of administrative law judges were determined through the techniques of survey research, utilizing a questionnaire. After defining demeanor evidence for purposes of the study, Ogden explains the administrative law principle of judicial review that gives weight or deference to credibility determinations based on demeanor evidence. A statistical analysis of …

The Texas State Office Of Administrative Hearings: Establishing Independent Adjudicators In Contested Case Proceedings While Preserving The Power Of Institutional Decision-Making, Ron Beal

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Fernandez-Vargas V. Gonzales: An Examination Of Retroactivity And The Effect Of The Illegal Immigration Reform And Immigrant Responsibility Act, Brooke Hardin

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Creeping Judicialization In Special Education Hearings?: An Exploratory Study, Perry A. Zirkel, Zorka Karanxha, Anastasia D'Angelo

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Role Of Deference In Judicial Review Of Agency Action: A Comparison Of Federal Law, Uniform State Acts, And The Iowa Apa, Anuradha Vaitheswaran, Thomas A. Mayes

Journal of the National Association of Administrative Law Judiciary

No abstract provided.