Administrative Law Commons^™

Accountability And Independence In Financial Regulation: Checks And Balances, Public Engagement, And Other Innovations, Michael S. Barr

Articles

Financial regulation attempts to balance two competing administrative goals. On the one hand, as with much of administrative law, accountability is a core goal. Accountability undergirds the democratic legitimacy of administrative agencies. On the other hand, unlike with much of administrative law, independence plays a critical role.' Independence helps to protect financial regulatory agencies from political interference and-with some important caveats-arguably helps to guard against some forms of industry capture. In addition, with respect to the Federal Reserve (the Fed), independence serves to improve the credibility of the Fed's price stability mandate by insulating its decisionmaking from politics and, in …

Unearthing The Lost History Of Seminole Rock, Sanne H. Knudsen, Amy J. Wildermuth

Articles

This Article documents the untethering of Bowles v. Seminole Rock [325 U.S. 410 (1945)]. It shows how, in the 1960s and 1970s, alongside an expanding administrative state, the doctrine transformed into a more mechanical and highly deferential form of agency deference. It further shows that this transformation is marked by a consistent lack of scholarly or judicial reflection on its underpinnings.

In doing so, this Article provides new depth to the emerging critiques of Seminole Rock deference and lends critical support for reexamination of the doctrine.

Lessons From The Lost History Of Seminole Rock, Sanne H. Knudsen, Amy J. Wildermuth

Articles

This Article informs the current debate over Auer v. Robbins (519 U.S. 452 (1997)) deference by exploring the roots of the Bowles v. Seminole Rock decision (325 U.S. 410 (1945)) and its subsequent reinterpretation through a creative approach. To do so, this Article offers a series of hypothetical opinions applying the various historical interpretations of Seminole Rock to a single set of facts.

Part I places Seminole Rock in the constellation of deference doctrines in administrative law so that one can easily understand what the doctrine is and when it applies. Part II examines the transformation of Seminole Rock through …

Rulemaking As Legislating, Kathryn A. Watts

Articles

The central premise of the nondelegation doctrine prohibits Congress from delegating its Article I legislative powers. Yet Congress routinely delegates to agencies the power to promulgate legislative rules—rules that carry the force and effect of law just as statutes do. Given this tension between the nondelegation doctrine and the modern regulatory state, some scholars have attacked the nondelegation doctrine as fictional.

Little scholarly attention, however, has been given to considering how the central premise of the nondelegation doctrine coheres with—or fails to cohere with—administrative law as a whole. This Article takes up that task, exploring what might happen to administrative …

Outsourcing, Data Insourcing, And The Irrelevant Constitution, Kimberly L. Wehle

All Faculty Scholarship

No abstract provided.

Equity In Substantial Evidence, Or Using Article 78 Judicial Review To Achieve Justice For Public Housing Occupants, Janelle Greene

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

The Volcker Rule: A Brief Political History, Kimberly D. Krawiec, Guangya Liu

Faculty Scholarship

Today, more than five years after Dodd-Frank was first signed into law, uncertainty surrounds many aspects of the Volcker Rule’s application and ultimate impact on financial markets and bank stability. Many more years will likely pass before that uncertainty is resolved. We demonstrate through a quantitative and qualitative analysis that these difficulties were presaged by the Volcker Rule’s political history. The Volcker Rule -- originally rejected by Congressional lawmakers and economists within the Obama administration as unworkable -- arose as a political concession designed to quiet critics who contended that Dodd-Frank did not do enough to control risky bank activity. …

Does The U.S. Patent And Trademark Office Grant Too Many Bad Patents?: Evidence From A Quasi-Experiment, Michael D. Frakes, Melissa F. Wasserman

Faculty Scholarship

Many believe the root cause of the patent system’s dysfunction is that the U.S. Patent and Trademark Office (PTO or Agency) is issuing too many invalid patents that unnecessarily drain consumer welfare. Concerns regarding the Agency’s overgranting tendencies have recently spurred the Supreme Court to take a renewed interest in substantive patent law and have driven Congress to enact the first major patent reform act in over sixty years. Policymakers, however, have been modifying the system in an effort to increase patent quality in the dark. As there exists little to no compelling empirical evidence the PTO is actually overgranting …

Quitting In Protest: A Theory Of Presidential Policy Making And Agency Response, Charles M. Cameron, John M. De Figueiredo, David E. Lewis

Faculty Scholarship

This paper examines the effects of centralized presidential policy-making, implemented through unilateral executive action, on the willingness of bureaucrats to exert effort and stay in the government. Extending models in organizational economics, we show that policy initiative by the president is a substitute for initiative by civil servants. Yet, total effort is enhanced when both work. Presidential centralization of policy often impels policy-oriented bureaucrats ("zealots") to quit rather than implement presidential policies they dislike. Those most likely to quit are a range of moderate bureaucrats. More extreme bureaucrats may be willing to wait out an opposition president in the hope …

The President And The Constitution, Peter L. Strauss

Faculty Scholarship

That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as legal adviser to a President in time of transition and public anxiety.... The purpose of the Constitution was not only to grant power, but to keep it from getting out of hand.... With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.

A Comment On Metzger And Zaring: The Quicksilver Problem, Thomas W. Merrill

Faculty Scholarship

It is a pleasure to comment on the fine institutional studies in this issue by Gillian Metzger and David Zaring. Professor Metzger explores the many ways in which financial regulation, as reflected in the regulatory functions of the Federal Reserve (the Fed), differs from mainstream administrative law, as represented by the Environmental Protection Agency (EPA). She describes the historical roots of the divergence, explains how it has persisted over time, and offers some intriguing thoughts about the possibilities for convergence in the future. Professor Zaring paints a fascinating portrait of the Federal Open Market Committee (FOMC), the entity within the …

The New Financial Order: An Essay For Alan Bromberg - Tributes To Professor Alan R. Bromberg, Joel Seligman

Scholarship@WashULaw

In the aftermath of the 2008-2009 financial crisis, I characterized its causes broadly:

First, there was an ongoing economic emergency, initially rooted in the housing and credit markets, which has been succeeded by the collapse of several leading investment and commercial banks and insurance companies, dramatic deterioration of stock market indices, and a rapidly deepening recession.

Second, there were serious breakdowns in the enforcement and fraud deterrence missions of federal financial regulation, notably as illustrated by matters involving Bear Stearns and the other four then independent investment banks subject to the SEC's former Consolidated Supervised Entities program, the government creation …

Delegation, Accommodation, And The Permeability Of Constitutional And Ordinary Law, Gillian E. Metzger

Faculty Scholarship

To some, the very idea of the constitutional law of the administrative state is an oxymoron. On this view, core features of the national administrative state — broad delegations and the combination of legislative, executive, and judicial power within administrative agencies, particularly agencies that are headed by unelected executive officials only removable on narrow grounds — are fundamentally at odds with both constitutional separation of powers principles and due process. To others, no such conflict between contemporary administrative governance and the Constitution exists, and assertions of the administrative state’s unconstitutionality rest on basic misunderstandings of what separation of powers and …

Introduction: The Place Of Agencies In Polarized Government, Cynthia R. Farina, Gillian E. Metzger

Faculty Scholarship

Peter Strauss's The Place of Agencies in Government: Separation of Powers. and the Fourth Branch reshaped contemporary thinking about the constitutionality of federal administrative government. When the article appeared in 1984, the Reagan Revolution was in full swing. Reagan's overtly antiregulatory policy stance and his Administration's advocacy of a highly formalist and originalist style of constitutional interpretation fundamentally challenged the post-New Deal administrative state. Aggressive interpretation of Article II led to controversial strategies of White House control: centralized rulemaking review, appointment of agency heads loyal to the President's (anti)regulatory agenda, and attacks on institutions of administrative independence such as the …

Formalism And Deference In Administration Law, Kristen E. Hickman, Jide O. Nzelibe, Thomas W. Merrill, Philip A. Hamburger, Jennifer Walker Elrod

Faculty Scholarship

The topic for discussion is formalism and deference in administrative law. As we know, the landmark case of Chevron v. Natural Resources Defense Council has changed the face of modern administrative law. The panel will address the rightness and limitations of Chevron deference, especially in the context of agency decisions on the scope of the agencies’ jurisdictional mandates. Should the federal courts defer, or should they not defer in this context? We need guidance. Justices Scalia and Thomas recently differed from Chief Justice Roberts and Justices Kennedy and Alito on these issues. Who is right, and why? Does the answer …

The Struggle For Administrative Legitimacy, Jeremy K. Kessler

Faculty Scholarship

Nearly forty years ago, Professor James 0. Freedman described the American administrative state as haunted by a "recurrent sense of crisis." "Each generation has tended to define the crisis in its own terms," and "each generation has fashioned solutions responsive to the problems it has perceived." Yet "a strong and persisting challenge to the basic legitimacy of the administrative process" always returns, in a new guise, to trouble the next generation. On this account, the American people remain perennially unconvinced that administrative decisionmaking is "appropriate, proper, and just," entitled to respect and obedience "by virtue of who made the decision" …

Interpretation, Jamal Greene

Faculty Scholarship

Interpretation is the means by which the Constitution and its clauses are brought to bear on actual cases and controversies. Although much of the Constitution appears self-explanatory, as with its requirement that the president be at least thirty-five years old, much is subject to reasonable disagreement. The approaches to interpretation that form this chapter’s subject are the main tools scholars and judges have developed to resolve that disagreement. Those tools encompass five domains of argumentation, broadly conceived: text, history, structure, precedent, and consequences. As a general matter, interpretation that draws on resources wholly outside these five domains — via an …

Recent Developments In Administrative Law: The Tremors Of Two March 9, 2015 Supreme Court Decisions, Part I: Perez, Peter L. Strauss

Faculty Scholarship

Two decisions of the United States Supreme Court announced March 9, unanimous in reversing what had been surprising and potentially disruptive administrative law decisions by the United States Court of Appeals for the D.C. Circuit, could themselves portend rather striking changes in American administrative law. This essay considers Perez v. American Mortgage Bankers, which both overstates Vermont Yankee Nuclear Power Corp, Inc. v. Natural Resources Defense Council, Inc. and invites reconsideration of so-called Auer deference. (See p. 12 below for analysis of Department of Transportation v. Association of American Railroads.)

Recent Developments In Administrative Law: The Tremors Of Two March 9, 2015 Supreme Court Decisions, Part Ii: Association Of American Railroads, Peter L. Strauss

Faculty Scholarship

Two decisions of the United States Supreme Court announced March 9, unanimous in reversing what had been surprising and potentially disruptive administrative law decisions by the United States Court of Appeals for the D.C. Circuit, could themselves portend rather striking changes in American administrative law. This essay considers Department of Transportation v. Association of American Railroads, which opens for decision on remand important constitutional questions about the structures Congress employs for hybrid public private bodies like AMTRAK, the United States Postal Service, and the Federal Open Market Committee. (See p. 4 above for analysis of Perez, Secretary of Labor …

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 …

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 …

Administrative Law, Public Administration, And The Administrative Conference Of The United States, Gillian E. Metzger

Faculty Scholarship

From its birth, administrative law has claimed a close connection to governmental practice. Yet as administrative law has grown and matured it has moved further away from how agencies actually function. The causes of administrative law’s disconnect from actual administration are complex and the divide is now longstanding, but it is also a source of concern given the increasing importance of internal administration for ensuring accountable government. This Article analyzes the contemporary manifestations and historical origins of administrative law’s divide from public administration, as well as the growing costs of this disconnect. It also describes the Administrative Conference of the …

Through The Looking Glass To A Shared Reflection: The Evolving Relationship Between Administrative Law And Financial Regulation, Gillian E. Metzger

Faculty Scholarship

Administrative law and financial regulation have an uneasy relationship today. It was not always so. Indeed, the two were closely intertwined at the nation's birth. The Treasury Department was a major hub of early federal administration, with Alexander Hamilton crafting the first iterations of federal administrative law in his oversight of revenue generation and customs collection. One hundred and fifty years later, administrative law and financial regulation were conjoined in the New Deal's creation of the modern administrative state. This time it was James Landis, Chair of the newly formed Securities and Exchange Commission (SEC) and author of the leading …

Appointments, Innovation, And The Judicial-Political Divide, Gillian E. Metzger

Faculty Scholarship

The federal appointments process is having its proverbial day in the sun. The appointment and removal of federal officers figured centrally in the Supreme Court's two major recent separation-of-powers decisions, Free Enterprise Fund v. Public Company Accounting Oversight Board and National Labor Relations Board v. Noel Canning. The appointments process has featured even more prominently in the political sphere, figuring in a number of congressional-presidential confrontations. Such simultaneous top billing in the judicial and political spheres is hardly coincidental. After all, it was President Obama's use of the Recess Appointments Clause in response to pro forma sessions that triggered …

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 Legitimacy Of Administrative Law, Jed Handelsman Shugerman

Faculty Scholarship

"How does an alien imposition attain legitimacy?" asks Nicholas Parrillo in Against the Profit Motive: The Salary Revolution in American Government, 1780-1940.' Parrillo and three other historians address this question in a group of outstanding new books on the rise of American administrative law. Each book reflects the various ways in which American administrative law has been an alien imposition: filling a "hole" in the text of the Constitution that did not address administrative powers;2 changing the traditional separation of powers of legislative rule-making and judicial adjudication with individualized due process; imposing centralized bureaucracy over local self-rule; imposing the …

The Return Of The King: The Unsavory Origins Of Administrative Law, Gary S. Lawson

Faculty Scholarship

Philip Hamburger’s Is Administrative Law Unlawful? is a truly brilliant and important book. In a prodigious feat of scholarship, Professor Hamburger uncovers the British and civil law antecedents of modern American administrative law, showing that contemporary administrative law “is really just the most recent manifestation of a recurring problem.” That problem is the problem of power: its temptations, its dangers, and its tendency to corrupt. Administrative law, far from being a distinctive product of modernity, is thus the “contemporary expression of the old tendency toward absolute power – toward consolidated power outside and above the law.” It represents precisely the …

Schooling The Supreme Court, Christine Chabot

Faculty Publications & Other Works

Supreme Court Justices' uniform professional backgrounds have drawn increasing criticism. Yet it is unclear how diverse professional training would affect the Court's decisions. This Article offers the first empirical analysis of how Justices with diverse professional training vote: It examines a unique period when Justices with formal legal education sat with Justices who entered the profession by reading the law alone.

The study finds that Justices' levels of agreement and politically independent voting vary significantly according to their professional training. In cases which divided the Court, Justices who shared the benefit of formal legal education (1) voted together more often …

Summary Of Stockmeier V. Green, 130 Nev. Adv. Op. 99, Tom Stewart

Nevada Supreme Court Summaries

The court determined that Nevada’s Chief Medical Officer’s examination of inmate diets and her resulting report to the Board fell well short of what was required by NRS 209.382(1)(b) in that included no analysis of the diets of general population inmates, addressed diets at only one of Nevada's correctional facilities, and generally lacked any indication as to how the required examination was conducted.

4th And 205: How A Rush Of Global Comments Blocked The Sec’S First Attempted Punt Of Attorney-Client Privilege Under Sarbanes-Oxley, John Paul Lucci

Touro Law Review

No abstract provided.