Agency Commons^™

Regulatory Settlement, Stare Decisis, And Loper Bright, Lisa Schultz Bressman, Kevin M. Stack

Vanderbilt Law School Faculty Publications

In Loper Bright v. Raimondo, the Supreme Court adopted and deployed a particular narrative about agency action in support of overruling Chevron: Agencies reverse their own statutory interpretations “as much as [they] like[],” creating pervasive instability in the law, thereby destroying private reliance interests. Based on a study of two decades of agency regulations affirmed by the D.C. Circuit under Chevron, we show how infrequently agencies reversed their interpretive positions. Our study suggests that the Court’s regulatory “whiplash” narrative is overstated and that there is an underappreciated institutional settlement for notice-and-comment rules under Chevron. Identifying this regulatory settlement …

The Ordinary Questions Doctrine, Lisa S. Bressman

Vanderbilt Law School Faculty Publications

In Loper Bright Enterprises v. Raimondo, the Supreme Court overruled Chevron as inconsistent with the Administrative Procedure Act ("APA"), which requires courts to decide "all relevant questions of law" and therefore prohibits them from deferring to agency interpretations because the relevant statutory language is ambiguous. A different approach now governs judicial review of the countless routine, often specialized questions of statutory interpretation that agencies answer in the normal course of implementing their statutes-the "ordinary" questions. But Loper Bright did not provide direction on how courts should determine which of these questions are questions of law. This issue arises because many, …

Radical Administrative Law, Christopher S. Havasy

Vanderbilt Law Review

The administrative state is under attack. Judges and scholars increasingly question why agencies should have such large powers to coerce citizens without adequate democratic accountability. Rather than refuting these critics, this Article accepts that in scrutinizing the massive powers that agencies hold over citizens, these critics have a point. However, their solution—to augment the powers of Congress or the President over agencies to instill indirect democratic accountability—is one step too quick. We should first examine whether direct democratic accountability of agencies by the citizenry is possible.

This Article excavates the nineteenth-century European intellectual history following the rise of the modern …

Barring Judicial Review, Laura E. Dolbow

Vanderbilt Law Review

Whether judicial review is available is one of the most hotly contested issues in administrative law. Recently, laws that prohibit judicial review have sparked debate in the Medicare, immigration, and patent contexts. These debates are continuing in challenges to the recently created Medicare price negotiation program. Yet despite debates about the removal of judicial review, little is known about how often, and in what contexts, Congress has expressly precluded review. This Article provides new insights about express preclusion by conducting an empirical study of the U.S. Code. It creates an original dataset of laws that expressly preclude judicial review of …

Lower Courts After Loper Bright, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

If Loper Bright Enterprises v. Raimondo overrules or ousts Chevron U.S.A., Inc. v. National Resources Defense Council, Inc., its “consequences will be enormous, and almost uniformly bad.” The decision will instantly destabilize federal law across all sectors of the national economy. It also will undo another longstanding precedent and reinforce the public’s negative perception of the Court. These effects are certain, and they are reason enough not to dislodge a bedrock principle. Less certain are Loper Bright’s precise effects on judicial deference and agency authority. Those effects depend on the new rule that emerges, as to which Court-watchers …

Thoughts On Corporate Law And The Problem Of Human Capital, Margaret Blair

Vanderbilt Law School Faculty Publications

The theme of this Symposium takes me back more than thirty years to work I did on corporations and human capital at the Brookings Institution in the 1990s. Although I have been on the faculty of law schools since 2000, I am not a lawyer, and in fact, never went to law school. I did my Ph.D. in economics, and I wrote my dissertation on merger waves-in particular, I developed a macroeconomic theory to explain the wave of corporate mergers and takeo- vers that happened in the 1980s. The most prominent and popular idea about takeovers at the time was …

Major Contradictions At The Roberts Court, Edward L. Rubin

Vanderbilt Law School Faculty Publications

The Roberts Court may well overturn the Chevron doctrine this Term, despite the affection for stare decisis that Chief Justice Roberts himself expressed in the related case of Kisor v. Wilkie. Against that backdrop, Professors Jodi Short and Jed Shugerman offer an analysis of why the Court’s major questions doctrine, a predecessor to interring Chevron, is inconsistent with another group of the Court’s opinions, which the authors describe as the Court’s presidentialism.

Their analysis is incisive. While addressed to a Court that has a rather cavalier attitude toward doctrinal coherence, the article’s convincing empirical evidence may encourage the Justices to …

Representative Rulemaking, Jim Rossi, Kevin Stack

Vanderbilt Law School Faculty Publications

The dominant form of lawmaking in the United States today-—notice-and-comment rulemaking—-is not a representative process. Notice-and-comment simply invites public participation, leaving the overall balance of engagement with the proposed regulations to the choices of individuals, public interest groups, trade groups, and regulated businesses. The result is a predictable one: In most rulemakings, industry voices dominate, and in many rulemakings, there is no participation by citizens or public interest groups. This representation deficit must be taken seriously. The basic rationales for a notice-and-comment rulemaking process depend upon some level of representation for those affected. The goal of providing the agency with …

Efficiency And Equity In Regulation, Caroline Cecot

Vanderbilt Law Review

The Biden Administration has signaled an interest in ensuring that regulations appropriately benefit vulnerable and disadvantaged communities. Prior presidential administrations since at least the Reagan Administration have focused on ensuring that regulations are efficient, maximizing the net benefits to society as a whole, without considering who benefits or who loses from these policies. Critics of this process of regulatory review have celebrated President Biden’s initiative, hoping that distributional analysis and the pursuit of equity will displace traditional tools and interests such as cost-benefit analysis and the pursuit of efficiency. Meanwhile, supporters of the current process are concerned that pursuing equity …

Fiduciary Duties And Corporate Climate Responsibility, Cynthia A. Williams

Vanderbilt Law Review

Corporate-law scholarship for decades has been occupied with agency costs and how to mitigate them. But when I teach the basic business organizations class, starting with agency law and looking at the fiduciary duties of care, loyalty, and full disclosure of any agent to her principal, we explore both costs and benefits of agency relationships. I do so by introducing Ronald Coase’s theory of the firm. Using an example close to most second-year law students’ experience, that of buying a suit for interviews, I contrast Brooks Brothers establishing its own factories (the “make” decision) with Brooks Brothers using supply chains, …

Chevron Is A Phoenix, Lisa Schultz Bressman, Kevin M. Stack

Vanderbilt Law Review

Judicial deference to agency interpretations of their own statutes is a foundational principle of the administrative state. It recognizes that Congress has the need and desire to delegate the details of regulatory policy to agencies rather than specify those details or default to judicial determinations. It also recognizes that interpretation under regulatory statutes is intertwined with implementation of those statutes. Prior to the famous decision in Chevron, the Supreme Court had long regarded judicial deference as a foundational principle of administrative law. It grew up with the administrative state alongside other foundational administrative law principles. In Chevron, the …

Chevron Is A Phoenix, Lisa Bressman, Kevin Stack

Vanderbilt Law School Faculty Publications

Judicial deference to agency interpretations of their own statutes is a foundational principle of the administrative state. It recognizes that Congress has the need and desire to delegate the details of regulatory policy to agencies rather than specify those details or default to judicial determinations. It also recognizes that interpretation under regulatory statutes is intertwined with implementation of those statutes. Prior to the famous decision in Chevron, the Supreme Court had long regarded judicial deference as a foundational principle of administrative law. It grew up with the administrative state alongside other foundational administrative law principles. In Chevron, the Court gave …

“Computer Says No!”: The Impact Of Automation On The Discretionary Power Of Public Officers, Doa A. Elyounes

Vanderbilt Journal of Entertainment & Technology Law

The goal of this Article is to unpack the “human in the loop” requirement in the process of automation. It will analyze the impact of automation on street-level bureaucrats and lay out the steps policy makers need to take into account to ensure that meaningful human discretion is maintained. This issue is examined by comparing two algorithms related to the use of automation to detect and investigate fraud in welfare benefits. The first algorithm is used by Michigan’s Unemployment Insurance Agency for detecting and investigating unemployment fraud. This is a draconian algorithm with the ability to automatically decide to cut …

Cutting Class Action Agency Costs: Lessons From The Public Company, Amanda M. Rose

Vanderbilt Law School Faculty Publications

The agency relationship between class counsel and class members in Rule 23(b)(3) class actions is similar to that between executives and shareholders in U.S. public companies. This similarity has often been noted in class action literature, but until this Article no attempt has been made to systematically compare the approaches taken in these two settings to reduce agency costs. Class action scholars have downplayed the importance of the public company analogy because public companies are subject to market discipline and class actions are not. But this is precisely why the analogy is useful: because public companies are subject to market …

The Law And Practice Of Shareholder Inspection Rights: A Comparative Analysis Of China And The United States, Randall S. Thomas, Robin Hui Huang

Vanderbilt Law School Faculty Publications

Shareholder inspection rights allow a shareholder to access the relevant documents of the company in which they hold an interest, so as to address the problem of information asymmetry and reduce the agency costs inherent in the corporate structure. While Chinese corporate governance and American corporate governance face different sets of agency cost problems, this Article shows that shareholder inspection rights play an important role in both China and the United States. On the books, while shareholder inspection rights in both countries are broadly similar, there are some important differences on issues such as the proper purpose requirement. The empirical …

The Law And Practice Of Shareholder Inspection Rights: A Comparative Analysis Of China And The United States, Robin H. Huang, Randall S. Thomas

Vanderbilt Journal of Transnational Law

Shareholder inspection rights allow a shareholder to access the relevant documents of the company in which they hold an interest, so as to address the problem of information asymmetry and reduce the agency costs inherent in the corporate structure. While Chinese corporate governance and American corporate governance face different sets of agency cost problems, this Article shows that shareholder inspection rights play an important role in both China and the United States. On the books, while shareholder inspection rights in both countries are broadly similar, there are some important differences on issues such as the proper purpose requirement. The empirical …

Agencies Running From Agency Discretion, J.B. Ruhl, Kyle Robisch

Vanderbilt Law School Faculty Publications

Discretion is the root source of administrative agency power and influence, but exercising discretion often requires agencies to undergo costly and time-consuming pre-decision assessment programs, such as under the Endangered Species Act (ESA) and National Environmental Policy Act (NEPA). Many federal agencies thus have argued strenuously, and counter-intuitively, that they do not have discretion over particular actions so as to avoid such pre-decision requirements. Interest group litigation challenging such agency moves has led to a new wave of jurisprudence exploring the dimensions of agency discretion. The emerging body of case law provides one of the most robust, focused judicial examinations …

Agencies' Obligation To Interpret The Statute, Aaron Saiger

Vanderbilt Law Review

Conventionally, when a statute delegates authority to an agency, courts defer to agency interpretations of that statute. Most agencies and scholars view such deference as a grant of permission to the agency to adopt any reasonable interpretation. That is wrong, jurisprudentially and ethically. An agency that commands deference bears a duty to adopt what it believes to be the best interpretation of the relevant statute. Deference assigns to the agency, rather than to a court, power authoritatively to declare what the law is. That power carries with it a duty to give the statute the best reading the agency can. …

Purposivism In The Executive Branch: How Agencies Interpret Statutes, Kevin M. Stack

Vanderbilt Law School Faculty Publications

After decades of debate, the lines of distinction between textualism and purposivism have been carefully drawn with respect to the judicial task of statutory interpretation. Far less attention has been devoted to the question of how executive branch officials approach statutory interpretation. While scholars have contrasted agencies interpretive practices from those of courts, they have not yet developed a theory of agency statutory interpretation. This Article develops a purposivist theory of agency statutory interpretation on the ground that regulatory statutes oblige agencies to implement the statutes they administer in that manner. Regulatory statutes not only grant powers but also impose …

Judicial Review Of Agency Benefit-Cost Analysis, W. Kip Viscusi, Caroline Cecot

Vanderbilt Law School Faculty Publications

This Article evaluates judicial review of agency benefit-cost analysis ("BCA") by examining a substantial sample of thirty-eight judicial decisions on agency actions that implicate BCA. Essentially, the Administrative Procedure Act tasks federal courts with ensuring that federal agency action is reasonable. As more agencies use BCA to justify their rulemakings, the court's duty often requires judges to evaluate the reasonableness of agency BCAs. In this Article, we discuss the challenges that trigger judicial review of agency BCAs and the standards that govern the review. We then present specific examples of how courts analyze BCAs. Overall, we find many examples of …

The Interpretive Dimension Of Seminole Rock, Kevin M. Stack

Vanderbilt Law School Faculty Publications

A lively debate has emerged over the deferential standard of review courts apply when reviewing an agency's interpretation of its own regulations. That standard, traditionally associated with Bowles v. Seminole Rock & Sand Co. and now more frequently attributed to Auer v. Robbins, states that a court must accept an agency's interpretation of its own regulations unless the interpretation is "plainly erroneous or inconsistent with the regulation." This Article argues that a court's choice of method for interpreting regulations” including how it determines which agency interpretations are inconsistent with the regulation ” may be just as important, if not more …

Agreement In Principle: A Compromise For Activist Shareholders From The Uk Stewardship Code, David W. Roberts

Vanderbilt Journal of Transnational Law

Equity ownership in the United States and Europe is now highly concentrated in the hands of institutional investors, which gives rise to new problems of agency and corporate governance. These large investment intermediaries, such as mutual funds, specialize in maximizing beneficial owner value based on short-term performance benchmarks but lack the expertise and incentive to actively engage corporate boards on business strategy and governance matters. Instead, institutional investors are "rationally reticent," meaning that they are willing to respond to governance proposals but not to propose them. Activist shareholders may offer an endogenous solution to address "latent activism" in institutional intermediaries …

States, Agencies, And Legitimacy, Miriam Seifter

Vanderbilt Law Review

Scholarship on the administrative process has scarcely attended to the role that states play in federal regulation. This Article argues that it is time for that to change. An emerging, important new strand of federalism scholarship, known as "administrative federalism," now seeks to safeguard state interests in the administrative process and argues that federal agencies should consider state input when developing regulations. These ideas appear to be gaining traction in practice. States now possess privileged access to agency decisionmaking processes through a variety of formal and informal channels. And some courts have signaled support for the idea of a special …

Multiple-Agency Delegations & One-Agency Chevron, William Weaver

Vanderbilt Law Review

Congress frequently delegates to agencies, and a host of Supreme Court decisions have articulated tests for determining what level of deference courts should give to agency interpretations of their statutory directives. Courts have historically undertaken these analyses in the context of a single agency. Congressional authorization of joint rulemaking authority is more complicated, however, and the traditional frameworks for review are inadequate.

When Congress delegates authority to multiple agencies, courts should review the agencies' rules with heightened deference. The traditional framework for judicial review of agency rules is ill equipped when rules are promulgated by multiple coordinated agencies. The prevalence …

Does Agency Funding Affect Decisionmaking?: An Empirical Assessment Of The Pto, Michael D. Frakes, Melissa F. Wasserman

Vanderbilt Law Review

This Article undertakes the first attempt to causally investigate the influence of funding on the United States Patent and Trademark Office's ("PTO") decisionmaking. More specifically, this Article studies the influence of the PTO's budgetary structure on the most important decision made by the Agency: whether or not to grant a patent. It begins by setting forth a theoretical model predicting that certain elements of the PTO's fee schedule, such as issuance and maintenance fees, which are only collected in the event that patents issue, create incentives for the PTO to grant additional patents. Using a rich database of previously unavailable …

Free Agents: Should Crowdsourcing Lead To Agency Liability For Firms?, Erin R. Frankrone

Vanderbilt Journal of Entertainment & Technology Law

Crowdsourcing has emerged as a new production paradigm through which firms outsource traditional employee tasks to an undefined and generally large network of people, the "crowd," in the form of an open call. The relationships between the crowd and the firm vary across different crowdsourcing models and do not represent, either in fact or in theory, the employment or contractor relationships with which the law is familiar. Therefore, the law and the courts are ill-equipped to answer the questions of whether and how liability should attach to firms for the crowd's harmful conduct toward third parties. Agency law is the …

A Theory Of Representative Shareholder Suits And Its Application To Multijurisdictional Litigation, Randall Thomas, Robert B. Thompson

Vanderbilt Law School Faculty Publications

We develop a theory to explain the uses and abuses of representative shareholder litigation based on its two most important underlying characteristics: the multiple sources of the legal rights being redressed (creating dynamic opportunities for arbitrage) and the ability of multiple shareholders to seek to represent the collective group in such litigation (creating increased risk of litigation agency costs by those representatives and their attorneys). Placed against the backdrop of controlling managerial agency costs, our theory predicts that: (1) the relative strength of the different forms of shareholder litigation will shift over time; (2) these shifts can result in new …

Agency Coordination In Shared Regulatory Space, Jim Rossi, Jody Freeman

Vanderbilt Law School Faculty Publications

This Article argues that inter-agency coordination is one of the great challenges of modern governance. It explains why lawmakers frequently assign overlapping and fragmented delegations that require agencies to "share regulatory space," why these delegations are so pervasive and stubborn, and why consolidating or eliminating agency functions will not solve the problems they create. The Article describes a variety of tools that Congress, the President and the agencies can use to manage coordination challenges effectively, including agency interaction requirements, formal inter-agency agreements, and joint policymaking. The Article assesses the relative costs and benefits of these coordination tools, using the normative …

Reclaiming The Legal Fiction Of Congressional Delegation, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

The framework for judicial review of agency statutory interpretations is based on a legal fiction – namely, that Congress intends to delegate interpretive authority to agencies. Critics argue that the fiction is false because Congress is unlikely to think about the delegation of interpretive authority at all, or in the way that the Court imagines. They also contend that the fiction is fraudulent because the Court does actually care about whether Congress intends to delegate interpretive authority in any particular instance, but applies a presumption triggered by statutory ambiguity or a particularized analysis involving factors unrelated to congressional delegation. In …

Agency Independence After Pcaob, Kevin M. Stack

Vanderbilt Law School Faculty Publications

Separation of powers has a new endeavor. The PCAOB decision makes the validity of good-cause removal protections depend on the separation of adjudicative from policymaking and enforcement functions within the agency. At a minimum, within independent agencies, it preserves the second layer of removal protection only for dedicated adjudicators. But its logic extends further. In PCAOB, the demand for political supervision over rulemaking and enforcement trumped Congress's choice to preserve the independence of officials who perform those roles and also adjudicate. In that way, PCAOB reversed the consistent constitutional validation of good-cause removal protections for those who engage in adjudication. …