Administrative Law Commons^™

Restoring Congress's Role In The Modern Administrative State, Christopher J. Walker

Michigan Law Review

A review of Josh Chafetzm Congress's Constitution: Legislative Authority and Separation of Powers.

The Limits Of Copyright Office Expertise, Aaron K. Perzanowski

Faculty Publications

The mismatch between the expanding administrative and regulatory obligations of the United States Copyright Office and its limited institutional expertise is an emerging problem for the copyright system. The Office’s chief responsibility—registration and recordation of copyright claims—has taken a back seat in recent years to a more ambitious set of substantive rulemakings and policy recommendations. As the triennial rulemaking under the Digital Millennium Copyright Act highlights, the Office is frequently called upon to answer technological questions far beyond its plausible claims of subject matter expertise. This Article traces the Office’s history, identifies its substantial but discrete areas of expertise, and …

Fail To Comment At Your Own Risk: Does Issue Exhaustion Have A Place In Judicial Review Of Rules, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

Lubbers discusses whether issue exhaustion have a place in judicial review of rules.

Making Bureaucracies Think Distributively: Reforming The Administrative State With Action-Forcing Distributional Review, Kenta Tsuda

Michigan Journal of Environmental & Administrative Law

This Article proposes that agencies analyze the distributional impacts of major regulatory actions, subject to notice-and-comment procedures and judicial review. The proposal responds to the legitimacy crisis that the administrative state currently faces in a period of widening economic inequality. Other progressive reform proposals emphasize the need for democratization of agencies. But these reforms fail to address the two fundamental pitfalls of bureaucratic governance: the “knowledge problem”—epistemic limitations on centrally coordinated decision making—and the “incentives problem”—the challenge of aligning the incentives of administrative agents and their political principals.

A successful administrative reform must address both problems. Looking to the environmental …

Energy-Water Nexus, The Clean Power Plan, And Integration Of Water Resource Concerns Into Energy Decision-Making, Sarah Ladin

Michigan Journal of Environmental & Administrative Law

Energy regulation in the United States is now at a crossroads. The EPA has begun the process to officially repeal the Clean Power Plan and currently has no plan to replace it with new rulemaking to regulate carbon emissions from the U.S. energy sector. Even though the Clean Power Plan is more or less at its end, its regulatory structure stands as a model of the way decision-makers in the United States regulate the energy sector and the environment. Since the beginning of the modern environmental legal system, decision-makers have chosen to silo the system. Statutes and agencies focus on …

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

Maine Law Review

Although Article I of the Constitution vests legislative power in the Congress, the lawmaking process in this country has evolved to involve all three branches. Congress enacts regulatory programs, but delegates to the executive branch the task of formulating and legislating the details of implementation through regulations. Once the executive branch agencies have acted, Article III courts routinely step in to review the consistency of these regulations with congressional mandates. In many cases, especially in the case of controversial regulations, the lawmaking process is not complete until judicial review. Entities burdened by such regulations-so-called "regulatory objects"-enjoy presumed standing to challenge …

Chevron In The Circuit Courts, Kent Barnett, Christopher J. Walker

Michigan Law Review

This Article presents findings from the most comprehensive empirical study to date on how the federal courts of appeals have applied Chevrondeference— the doctrine under which courts defer to a federal agency’s reasonable interpretation of an ambiguous statute that it administers. Based on 1,558 agency interpretations the circuit courts reviewed from 2003 through 2013 (where they cited Chevron), we found that the circuit courts overall upheld 71% of interpretations and applied Chevrondeference 77% of the time. But there was nearly a twenty-five-percentage-point difference in agency-win rates when the circuit courts applied Chevrondeference than when they did …

Making Treaty Implementation More Like Statutory Implementation, Jean Galbraith

Michigan Law Review

Both statutes and treaties are the “supreme law of the land,” and yet quite different practices have developed with respect to their implementation. For statutes, all three branches have embraced the development of administrative law, which allows the executive branch to translate broad statutory directives into enforceable obligations. But for treaties, there is a far more cumbersome process. Unless a treaty provision contains language that courts interpret to be directly enforceable, they will deem it to require implementing legislation from Congress. This Article explores and challenges the perplexing disparity between the administration of statutes and treaties. It shows that the …

Looking More Closely At The Platypus Of Formal Rulemaking, Kent H. Barnett

Popular Media

Professor Kent Barnett argues that the oft-criticized formal rulemaking process has virtues in proper settings.

Barriers To Participatory Erulemaking Platform Adoption: Lessons Learned From Regulationroom, Mary J. Newhart, Joshua D. Brooks

Cornell e-Rulemaking Initiative Publications

Rulemaking, the process through which United States (U.S.) federal government agencies develop major health, safety and economic regulations, was an early target of electronic government (e-government) efforts. Because it was an established decision-making process that had substantial formal requirements of transparency, public participation and responsiveness it seemed a perfect target for technology-supported participatory policymaking. It was believed that new technologies could transform rulemaking, increasing its democratic legitimacy and improving its policy outcomes by broadening the range of participating individuals and groups (Brandon and Carlitz, 2003; Coglianese, 2004; Noveck, 2004). Despite the promise of a more deliberative and democratic process, rulemaking …

Remedial Restraint In Administrative Law, Nicholas Bagley

Articles

When a court determines that an agency action violates the Administrative Procedure Act, the conventional remedy is to invalidate the action and remand to the agency. Only rarely do the courts entertain the possibility of holding agency errors harmless. The courts’ strict approach to error holds some appeal: Better a hard rule that encourages procedural fastidiousness than a remedial standard that might tempt agencies to cut corners. But the benefits of this rule-bound approach are more elusive, and the costs much larger, than is commonly assumed. Across a wide range of cases, the reflexive invalidation of agency action appears wildly …

The Human Side Of Public-Private Partnerships: From New Deal Regulation To Administrative Law Management, Alfred C. Aman, Joseph C. Dugan

Articles by Maurer Faculty

During the New Deal era, Congress created a then-unprecedented program of economic and regulatory reforms, establishing independent agencies, and empowering them to shape and enforce pragmatic industrial policies. Twenty-first century regulation looks strikingly different from the New Deal vision. While New Deal agencies continue to perform some regulatory functions, market approaches have replaced many traditional command-and-control formulations, with private entities stepping in to perform tasks historically reserved to government.

Though government-by-contract is becoming the new normal, neither the Administrative Procedure Act ("APA") nor many of its state equivalents provide adequate guidance to ensure that individual rights are protected and democratic …

Administrative Dissents, Sharon B. Jacobs

Publications

Commissioners, like judges, dissent. They do so at length, with vigor, and with persistence. Yet while separate judicial decisions are the subject of a rich literature, their administrative counterparts have long languished in obscurity. A closer look is warranted, however, because studying administrative dissent can enhance our understanding of internal agency operations as well as the relationships between agencies and other actors. This Article presents the results of an original review of separate statements at the Federal Energy Regulatory Commission and the Nuclear Regulatory Commission dating back four decades. It uses these findings to move beyond two common generalizations about …

Dictation And Delegation In Securities Regulation, Usha Rodrigues

Scholarly Works

When Congress undertakes major financial reform, either it dictates the precise contours of the law itself or it delegates the bulk of the rulemaking to an administrative agency. This choice has critical consequences. Making the law self-executing in federal legislation is swift, not subject to administrative tinkering, and less vulnerable than rulemaking to judicial second-guessing. Agency action is, in contrast, deliberate, subject to ongoing bureaucratic fiddling and more vulnerable than statutes to judicial challenge.

This Article offers the first empirical analysis of the extent of congressional delegation in securities law from 1970 to the present day, examining nine pieces of …

How The Supreme Court Derailed Formal Rulemaking, Kent H. Barnett

Scholarly Works

Based on archival research, this Essay explores the untold story of how the Supreme Court in the 1970s largely ended “formal” trial-like rulemaking by federal agencies in two railway cases. In the first, nearly forgotten decision, United States v. Allegheny-Ludlum Steel Corp., the Court held sua sponte that an agency was not required to use formal rulemaking, despite its significant historical provenance. That unpersuasive decision all but decided the second, better-known decision, United States v. Florida East Coast Railway, the following term. In response to both decisions, agencies abandoned formal rulemaking—one of only four broad categories of agency action—and policymakers …

Strategic Rulemaking Disclosure, Jennifer Nou, Edward H. Stiglitz

Cornell Law Faculty Publications

Congressional enactments and executive orders instruct agencies to publish their anticipated rules in what is known as the Unified Agenda. The Agenda’s stated purpose is to ensure that political actors can monitor regulatory development. Agencies have come under fire in recent years, however, for conspicuous omissions and irregularities. Critics allege that agencies hide their regulations from the public strategically, that is, to thwart potential political opposition. Others contend that such behavior is benign, perhaps the inevitable result of changing internal priorities or unforeseen events.

To examine these competing hypotheses, this Article uses a new dataset spanning over thirty years of …

Public Laws And Private Lawmakers, Kimberly L. Wehle

All Faculty Scholarship

The Obama Administration's "Clean Power Plan" for addressing industrial carbon emissions is controversial as a matter of environmental policy. It also has important constitutional implications. The rule was initially crafted not by officers or employees of the Environmental Protection Agency, but by two private lawyers and a scientist with industry ties. Private parties operate extra-constitutionally, and no existing legal doctrine tethers constitutional scrutiny to the nature of the power delegated to them. The nondelegation doctrine applies to delegations by Congress-not to agencies' subdelegations of legislative power to private parties. The other doctrinal lens for reviewing rulemaking by entities other than …

Inside Regulatory Interpretation: A Research Note, Christopher J. Walker

Michigan Law Review First Impressions

We now live in a regulatory world, where the bulk of federal lawmaking takes place at the bureaucratic level. Gone are the days when statutes and common law predominated. Instead, federal agencies—through rulemaking, adjudication, and other regulatory action—have arguably become the primary lawmakers, with Congress delegating to its bureaucratic agents vast swaths of lawmaking power, the President attempting to exercise some control over this massive regulatory apparatus, and courts struggling to constrain agency lawmaking within statutory and constitutional bounds. This story is not new. Over two decades ago, for instance, Professor Lawson lamented the rise of the administrative state and …

Delegating Tax, James R. Hines Jr., Kyle D. Logue

Michigan Law Review

Congress delegates extensive and growing lawmaking authority to federal administrative agencies in areas other than taxation, but tightly limits the scope of Internal Revenue Service (IRS) and Treasury regulatory discretion in the tax area, specifically not permitting these agencies to select or adjust tax rates. This Article questions why tax policy does and should differ from other policy areas in this respect, noting some of the potential policy benefits of delegation. Greater delegation of tax lawmaking authority would allow administrative agencies to apply their expertise to fiscal policy and afford timely adjustment to changing economic circumstances. Furthermore, delegation of the …

The Problem With Words: Plain Language And Public Participation In Rulemaking, Cynthia R. Farina, Mary J. Newhart, Cheryl Blake

Cornell Law Faculty Publications

This Article, part of the special issue commemorating the fiftieth anniversary of the Administrative Conference of the United States (“ACUS”), situates ACUS’s recommendations for improving public rulemaking participation in the context of the federal “plain language” movement. The connection between broader, better public participation and more comprehensible rulemaking materials seems obvious, and ACUS recommendations have recognized this connection for almost half a century. Remarkably, though, the series of presidential and statutory plain-language directives on this topic have not even mentioned the relationship of comprehensibility to participation until very recently. In 2012, the Office of Information and Regulatory Affairs (“OIRA”) issued …

Unpacking Eme Homer: Cost, Proportionality, And Emissions Reductions, Daniel A. Farber

Michigan Journal of Environmental & Administrative Law

Interstate air pollution can prevent even the most diligent downwind state from attaining the air quality levels required by federal law. Allocating responsibility for emissions cuts when multiple upwind states contribute to downwind air quality violations presents a particularly difficult problem. Justice Ginsburg’s opinion for the Court in EPA v. EME Homer City Generator, L.P., gives EPA broad discretion to craft regulatory solutions for this problem. Although the specific statutory provision at issue was deceptively simple, the underlying problem was especially complex because of the large number of states involved. Indeed, neither the majority opinion nor the dissent seems to …

Patent Punting: How Fda And Antitrust Courts Undermine The Hatch-Waxman Act To Avoid Dealing With Patents, Rebecca S. Eisenberg, Daniel A. Crane

Michigan Telecommunications & Technology Law Review

Under the Hatch-Waxman Act, patent law and FDA regulation work together to determine the timing of generic entry in the market for drugs. But FDA has sought to avoid any responsibility for reading patents, insisting that its role in administering the patent provisions of the Hatch-Waxman Act is purely ministerial. This gap in regulatory oversight has allowed innovators to use irrelevant patents to defer generic competition. Meanwhile, patent litigation has set the stage for anticompetitive settlements rather than adjudication of the patent issues in the courts. As these settlements have provoked antitrust litigation, antitrust courts have proven no more willing …

The Administrative Conference And The Political Thumb, Peter L. Strauss

Faculty Scholarship

In his valuable contribution to this special issue, Richard Pierce underscores the role the Administrative Conference of the United States (“ACUS”) has played over the years in encouraging on the ground fact-finding by its consultants, who have usually been academics consulted at the beginning of careers that ever after would be marked by this encounter with the realities of the administrative process. As the mentee of Walter Gellhorn, who directed the remarkable empirical studies of federal agency procedures that underlay the eventual Administrative Procedure Act (“APA”) and who was a member of the ACUS Council from its initiation in 1964 …

Taking Public Access To The Law Seriously: The Problem Of Private Control Over The Availability Of Federal Standards, Nina A. Mendelson

Articles

In the 1930s, Harvard professor Erwin Griswold famously complained about the enormous numbers of New Deal regulations that were obscurely published on individual sheets or in “separate paper pamphlets.” Finding these binding federal rules was difficult, leading to “chaos” and an “intolerable” situation. Congress responded, requiring that agencies publish all rules in the Federal Register and in the Code of Federal Regulations (CFR). Currently, recent federal public laws, the entire U.S. Code, the Federal Register, and the CFR are all freely available online as well as in governmental depository libraries. But with respect to thousands of federal regulations, the clock …

The Uncertain Effects Of Senate Confirmation Delays In The Agencies, Nina A. Mendelson

Articles

As Professor Anne O’Connell has effectively documented, the delay in Senate confirmations has resulted in many vacant offices in the most senior levels of agencies, with potentially harmful consequences to agency implementation of statutory programs. This symposium contribution considers some of those consequences, as well as whether confirmation delays could conceivably have benefits for agencies. I note that confirmation delays are focused in the middle layer of political appointments—at the assistant secretary level, rather than at the cabinet head—so that formal functions and political oversight are unlikely to be halted altogether. Further, regulatory policy making and even agenda setting can …

Enhancing The Use Of Negotiated Rulemaking By The U.S. Department Of Education, Jeffrey Lubbers

Research Reports & White Papers

White paper for the American Council on Education, published as Appendix IV, Recalibrating Regulation of Colleges and Universities, Report of the Task Force on Federal Regulation of Higher Education, 90-125 (2015), available at http://www.help.senate.gov/imo/media/Regulations_Task_Force_Report_2015_FINAL.pdf

Far From Fair, Farther From Efficient: The Ftc And The Hyper-Formalization Of Informal Rulemaking, Cooper J. Spinelli

Legislation and Policy Brief

Partially concerned with the proliferation of the “New Deal” agencies, Congress saw theAPAas a “compromise measure.” That is, Congress designed it to afford “uniformity and fairness in administrative procedures without at the same time unduly interfering with the efficient and economical operation of government.” Scholars and jurists from across the political spectrum have recognized that the notice-and-comment process allows for relative flexibility that can help “foster better government” by setting policy prospectively and expeditiously, thereby striking a reasonable balance between fairness and efficiency. In contrast to adjudicative measures, informal rulemaking can offer holistic treatment to market disorders—with considerable public input—without …

Rulemaking Vs. Democracy: Judging And Nudging Public Participation That Counts, Cynthia R. Farina, Mary J. Newhart, Josiah Heidt

Cornell e-Rulemaking Initiative Publications

An underlying assumption of many open government enthusiasts is that more public participation will necessarily lead to better government policymaking: If we use technology to give people easier opportunities to participate in public policymaking, they will use these opportunities to participate effectively. Yet, experience thus far with technology-enabled rulemaking (e-rulemaking) has not confirmed this “if-then” causal link. This Article considers how this flawed causal reasoning around technology has permeated efforts to increase public participation in rulemaking.

City Of Arlington V. Fcc: Jurisdictional Or Nonjurisdictional, Where To Draw The Line?, Whitney Ruijuan Hao

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Harnessing Private Regulation, Lesley K. Mcallister

Michigan Journal of Environmental & Administrative Law

In private regulation, private actors make, implement, and enforce rules that serve traditional public goals. While private safety standards have a long history, private social and environmental regulation in the forms of self-regulation, sup-ply chain contracting, and voluntary certification and labeling programs have proliferated in the past couple decades. This expansion of private regulation raises the question of how it might be harnessed by public actors to build better regula-tory regimes. This Article tackles this question first by identifying three forms of strong harnessing: public incorporation of private standards, public endorsement of self-regulation, and third-party verification. It then analyzes eight …