Agency Commons^™

Common Agency And The Public Corporation, Paul Rose

Vanderbilt Law Review

Under the standard agency theory applied to corporate governance, active monitoring of manager-agents by empowered shareholder-principals will reduce agency costs created by management shirking and expropriation of private benefits. But while shareholder power may result in reduced managerial expropriation, an analysis of how that power is often exercised in public corporation governance reveals that it can also produce significant costs: influential shareholders may extract private benefits from the corporation, incur and impose lobbying expenses, and pressure corporations to adopt inapt corporate governance structures. These costs strain the simple principal-agent model on which shareholder empowerment is based. This Article offers an …

Obama's Equivocal Defense Of Agency Independence, Kevin M. Stack

Vanderbilt Law School Faculty Publications

You can't judge a President by his view of Article II. At the very least, only looking to a President's construction of Article II gives a misleading portrait of the actual legal authority recent Presidents have asserted.

President Obama is no exception, as revealed by his defense of the constitutionality of an independent agency from challenge under Article II in Free Enterprise Fund v. Public Company Accounting Oversight Board' (PCAOB) in the Supreme Court this term. The PCAOB is an independent agency, located inside the Securities Exchange Commission (SEC), created to regulate accounting of public companies in the wake of …

The Future Of Agency Independence, Lisa S. Bressman, Robert B. Thompson

Vanderbilt Law Review

Independent agencies have long been viewed as different from executive-branch agencies because the President lacks authority to fire their leaders for political reasons, such as failure to follow administration policy. In this Article, we identify mechanisms that make independent agencies increasingly responsive to presidential preferences. We find these mechanisms in a context where independent agencies traditionally have dominated: financial policy. In legislative proposals for securing market stability, we point to statutorily mandated collaboration on policy between the Federal Reserve Board and the Secretary of the Treasury. In administration practices for improving securities regulation, we focus on White House coordination of, …

The Consequences Of Congress's Choice Of Delegate: Judicial And Agency Interpretations Of Title Vii, Margaret H. Lemos

Vanderbilt Law Review

Although Congress delegates lawmaking authority to both courts and agencies, we know remarkably little about the determinants-and even less about the consequences-of the choice between judicial and administrative process. The few scholars who have sought to understand the choice of delegate have used formal modeling to illuminate various aspects of the decision from the perspective of the enacting Congress. That approach yields useful insight into the likely preferences of rational legislators, but tells us nothing about how (or whether) those preferences play out in the behavior of courts and agencies. Without such knowledge, we have no way of testing the …

The Future Of Agency Independence, Lisa Schultz Bressman, Robert B. Thompson

Vanderbilt Law School Faculty Publications

Independent agencies have long been viewed as different from executive-branch agencies because the President lacks authority to fire their leaders for political reasons, such as failure to follow administration policy. In this Article, we identify mechanisms that make independent agencies increasingly responsive to presidential preferences. We find these mechanisms in a context where independent agencies traditionally have dominated: financial policy. In legislative proposals for securing market stability, we point to statutorily mandated collaboration on policy between the Federal Reserve Board and the Secretary of the Treasury. In administration practices for improving securities regulation, we focus on White House coordination of, …

The Ncaa Rules Adoption, Interpretation, Enforcement, And Infractions Processes: The Laws That Regulate Them And The Nature Of Court Review, Josephine (Jo) R. Potuto

Vanderbilt Journal of Entertainment & Technology Law

This article takes a comprehensive look at how the NCAA is organized, describes the NCAA committee structure, and explains how the NCAA in its multitude of roles does its work. The article focuses particularly on the NCAA by law interpretation process and the policies, procedures, and scope of authority of the enforcement, infractions, and student-athlete reinstatement processes. In its description of the division of responsibility among enforcement, infractions and student-athlete reinstatement, the article emphasizes the independence of each. The article then assesses the functions and structure of the NCAA in light of the preogatives of a private, multi-state association and …

Agency Statutory Interpretation And Policymaking Form, Kevin M. Stack

Vanderbilt Law School Faculty Publications

In this short symposium contribution, I take up this invitation to examine the relevance of the agency's policymaking form to its approach to statutory interpretation. The core point I wish to advance is a relatively basic one--namely, that an agency's approach to statutory interpretation is in part a function of the policymaking form through which it acts. My strategy is to examine two of the most important policymaking forms--notice-and-comment rulemaking and formal adjudication--and to argue that the considerations that distinguish agency and judicial interpretation have a markedly different place in these two agency policymaking forms. For purposes of exposition, I …

The Challenges And Risks Of Creating Independent Regulatory Agencies, Mariana M. Prado

Vanderbilt Journal of Transnational Law

Between 1996 and 2002, the Brazilian government established independent regulatory agencies (IRAs) for electricity, telecommunications, oil, gas, and other infrastructure sectors as part of a very ambitious privatization program. Following the formulas advocated internationally, Brazilian IRAs have institutional guarantees of independence, such as fixed and staggered terms of office for commissioners, congressional approval of presidential nominations, and alternative sources of funds to ensure their financial autonomy. This Article analyzes the design of IRAs in Brazil and asks whether their institutional guarantees of independence were effective in insulating them from the political sphere. The Author's general conclusion is that these guarantees--typical …

Procedures As Politics In Administrative Law, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

Legal scholars view administrative law as alternately shaped by concerns for procedural integrity and issues of political control, and therefore as consisting of largely conflicting rules. But they have overlooked that the Court may be elaborating administrative law, and more particularly, administrative procedures, for a political purpose - to ensure that agency action roughly tracks legislative preferences. Thus, rather than vacillating between procedures and politics, the Court may be striving to negotiate two sorts of politics: congressional control, exercised through administrative procedures, and presidential control, vindicated by presumptive judicial deference. Positive political theorists, meanwhile, have appreciated that administrative procedures can …

Judicial Deference And The Credibility Of Agency Commitments, Jonathan Masur

Vanderbilt Law Review

Consider the following situation: In late 2004, towards the end of President George W. Bush's first term, the National Highway Transportation Safety Administration ("NHTSA"), pursuant to its congressionally delegated authority, promulgates a rule that would relax inspection and testing regimes for automobile manufacturers- thereby saving those firms substantial amounts of money-if the manufacturers independently deployed cutting-edge vehicle safety technology. The research and development of this technology will require significant up-front expenditures, and automobile manufacturers must decide whether to invest the funds necessary to bring the technology to market. However, the cost-benefit analysis is not so straightforward. The predicament, as the …

Legitimacy, Selectivity, And The Disunitary Executive: A Reply To Sally Katzen, Lisa Schultz Bressman, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

Professors Bressman and Vandenbergh respond to the comments of Sally Katzen on their article presenting and analyzing results from an empirical study of the top political appointees at the Enviromental Protection Agency (EPA) during the William Clinton and George H.W. Bush administrations. In their previous article, Professors Bressman and Vandenbergh examined White House involvement in EPA rulemaking during the relevant periods, concluding that it may be a more complex and less positive phenomenon than previous studies have acknowledged. In this reply, the authors reinforce why the EPA is an important agency to study for information about White House involvement in …

The Cautionary Tale Of The Failed 2002 Ftc/Doj Merger Clearance Accord, Lauren K. Peay

Vanderbilt Law Review

Antitrust law in the United States is the patchwork result of over two hundred years of evolving and often conflicting views of the government's proper role in regulating business. Depending upon the social and business climate of the era and the economic philosophies of Congress, the President, and the judiciary, federal antitrust jurisdiction has waxed and waned. The result is the current system wherein the Department of Justice Antitrust Division ("Antitrust Division") and the Federal Trade Commission ("FTC") share dual jurisdiction to enforce the federal antitrust laws. However, in the push and pull of the changing eras, the intersection of …

The Constitutional Foundations Of Chenery, Kevin M. Stack

Vanderbilt Law School Faculty Publications

The Supreme Court regularly upholds federal legislation on grounds other than those stated by Congress. Likewise, an appellate court may affirm a lower court judgment even if the lower court's opinion expressed the wrong reasons for it. Not so in the case of judicial review of administrative agencies. The established rule, formulated in SEC v. Chenery Corp., is that a reviewing court may uphold an agency's action only on the grounds upon which the agency relied when it acted. This Article argues that something more than distrust of agency lawyers is at work in Chenery. By making the validity of …

Inside The Administrative State: A Critical Look At The Practice Of Presidential Control, Lisa Schultz Bressman, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

From the inception of the administrative state, scholars have proposed various models of agency decision-making to render such decision-making accountable and effective, only to see those models falter when confronted by actual practice. Until now, the presidential control model has been largely impervious to this pattern. That model, which brings agency decision-making under the direction of the President, has strengthened over time, winning broad scholarly endorsement and bipartisan political support. But it, like prior models, relies on abstractions - for example, that the President represents public preferences and resists parochial pressures - that do not hold up as a factual …

The Allocation Problem In Multiple-Claimant Representations, Paul H. Edelman, Richard A. Nagareda, Charles Silver

Vanderbilt Law School Faculty Publications

Multiple-claimant representations-classa ctions and other group lawsuits-pose two principal-agent problems: Shirking (failure to maximize the aggregate recovery) and misallocation (distribution of the aggregate recovery other than according to the relative value of claims). Clients have dealt with these problems separately, using contingent percentage fees to motivate lawyers to maximize the aggregate recovery and monitoring devices (disclosure requirements, client control rights, and third-party review) to encourage appropriate allocations. The scholarly literature has proceeded on the premise that monitoring devices are needed to police misallocations, because the fee calculus cannot do the entire job. This paper shows that this premise is mistaken …

How "Mead" Has Muddled Judicial Review Of Agency Action, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

In "United States v. Mead Corp.", the Supreme Court held that an agency is entitled to Chevron deference for interpretations of ambiguous statutory provisions only if Congress delegates, and the agency exercises, authority to issue such interpretations with "the force of law." The Court did not define "force of law," and thus did not determine what type of agency procedures fit within Mead. Four years have passed since the Court decided Mead, and despite numerous Court of Appeals decisions, we still do not know when an agency is entitled to Chevron deference for interpretations issued through procedures less formal than …

How "Mead" Has Muddled Judicial Review Of Agency Action, Lisa S. Bressman

Vanderbilt Law Review

When the Supreme Court decided United States v. Mead Corp. four years ago, Justice Scalia predicted that judicial review of agency action would devolve into chaos. This Article puts that prediction to the test by examining the court of appeals decisions applying the decision. Justice Scalia actually understated the effect of Mead. This Article suggests a remedy for the mess.

In Mead, the Court held that an agency is entitled to deference under Chevron, U.S.A., Inc. v. NRDC only if Congress has delegated to that agency the authority to issue interpretations that carry the force of law, and the agency …

Judicial Review Of Agency Inaction: An Arbitrariness Approach, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

This Article contends that the current law governing judicial review of agency inaction, though consistent with the prevailing theory of agency legitimacy, is inconsistent with the founding principles of the administrative state. The Supreme Court's reluctance to allow judicial review of agency inaction reflects the popular view that agency decision-making should be subject foremost to the scrutiny of politically accountable officials. The difficulty is that even scholars who generally support this view of agency decision-making reject the Court's treatment of agency inaction. Yet these scholars have failed to appreciate the reason. The reason is that the founding principles of the …

Beyond Accountability: Arbitrariness And Legitimacy In The Administrative State, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

This Article argues that efforts to square the administrative state with the constitutional structure have become too fixated on the concern for political accountability. As a result, those efforts have overlooked an important obstacle to agency legitimacy: the concern for administrative arbitrariness. Such thinking is evident in the prevailing model of the administrative state, which seeks to legitimate agencies by placing their policy decisions firmly under the control of the one elected official responsive to the entire nation-the President. This Article contends that the "presidential control" model cannot legitimate agencies because the model rests on a mistaken assumption about the …

Rejecting The Myth Of Popular Sovereignty And Applying An Agency Model To Direct Democracy, Glen Staszewski

Vanderbilt Law Review

The use of direct democracy is at its highest level in more than one hundred years.' The direct initiative, which is the primary focus of this Article, allows private citizens to bypass the traditional legislative process and make binding laws, often in highly contentious areas of public policy. The 2000 elections, for example, placed directly before voters the issues of school vouchers, physician-assisted suicide, same- sex marriage and other gay and lesbian rights, gun control, campaign finance reform, bilingual education, gambling, medical use of marijuana, and sentencing for drug offenders, as well as some of the perennial favorites-tax reform and …

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 …

The Changing Role Of Agents In Professional Basketball, Bappa Mukherji

Vanderbilt Journal of Entertainment & Technology Law

This Article will discuss the status of agents for NBA players after the adoption of the new collective bargaining agreement (the "1999 Agreement"). First, this Article will summarize the relevant provisions of the prior collective bargaining agreement (the "1996 Agreement") and illustrate how application of these provisions led the owners to declare a lockout. Next, it will review key provisions of the 1999 Agreement. It will conclude by discussing how the new CBA and the recent consolidation in the sports representation business will affect agents.

Monitoring Governmental Disposition Of Assets: Fashioning Regulatory Substitutes For Market Controls, Harold J. Krent, Nicholas S. Zeppos

Vanderbilt Law Review

Each year, the government sells and leases public assets worth billions of dollars. FCC auctions to allocate rights to electromagnetic spectrum generated over twenty billion dollars within a three-year period, and proceeds from mineral leases, timber sales, and disposition of real estate from defaulting thrifts have surpassed several billion dollars annually.

From the taxpayer's perspective, however, government sales and leases have been deplorable. The government has donated valuable resources to preferred claimants, allocated scarce broadcast and oil rights resources by lottery, and sold both public land and mineral rights to private parties at a fraction of the market price. Although …

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 …

The 1996 Revised Florida Administrative Procedure Act: A Survey Of Major Provisions Affecting Florida Agencies, Jim Rossi

Vanderbilt Law School Faculty Publications

In the spring of 1996, the Florida Legislature adopted a revised Administrative Procedure Act (APA),' the first massive overhaul of Florida's APA since its initial adoption over twenty years ago, in 1974. This Article examines the recent history of APA reform in Florida and surveys several provisions of the 1996 revised Florida APA that are likely to have a major effect on agency governance. Part II of this Article briefly reviews the recent history of regulatory reform in the state of Florida. Part III discusses an interesting innovation in Florida's 1996 APA revisions that governs agency waiver of rules and …

Participation Run Amok: The Costs Of Mass Participation For Deliberative Agency Decisionmaking, Jim A. Rossi

Vanderbilt Law School Faculty Publications

This Article addresses the implications of broad-based participatory reforms for administrative process, with a particular focus on how participation reveals itself in different political-theoretic models of agency governance. The first section of the Article explores participation's value to agency governance. The second section of the Article presents three models of agency governance - expertocratic, pluralist, and civic republican - and discusses participation's importance to each model. The Article then posits a distinction between ordinary and constitutive agency decision-making, and explores how participation affects each for the three distinct models of agency governance. The implications of mass participation are explored in …

The Proper Scope Of Nonlawyer Representation In State Administrative Proceedings: A State Specific Balancing Approach, Gregory T. Stevens

Vanderbilt Law Review

Administrative adjudication has become an essential aspect of the American system of government as the need for dispute resolution outside the courtroom increases. To foster alternative dispute resolution, the authorization of nonlawyers to appear as representatives in administrative proceedings presents a viable response to increasing litigation costs and a burdened court system. Accordingly, the federal administrative system, through broad enabling statutes, allows individual agencies to prescribe the proper scope of nonlawyer representation of clients during agency proceedings.1 The individual states, however,have not adopted such a uniform approach. The inability of the individual states to establish an adequate regulatory system largely …

Nonacquiescence: Outlaw Agencies, Imperial Courts, And The Perils Of Pluralism, Deborah Maranville

Vanderbilt Law Review

American history has witnessed recurrent conflict between the judiciary and the executive or legislative branches of our government.' The conflict generates heated passions perhaps because it involves both significant struggles for power and fundamental views about the rule of law. New opportunities for conflict have arisen as the number of administrative agencies has grown. In the last decade, administrative agencies and the courts have engaged in a continuing controversy over whether agencies must follow lower court precedents. Although the controversy has touched a number of agencies at least peripherally, the National Labor Relations Board (NLRB or Board) and the Social …

Special Project--Feast Or Famine: Issues, Problems, And Procedures Relating To Massive Relief Efforts With A Focus On The African Crisis, Peggy F. Brandenburg, Susan N. Burgess, Scott N. Greenspun, Sharon M. Janarek, Patrick M. Thomas, Linda L. Kotis

Vanderbilt Journal of Transnational Law

"The profound promise of our era is that for the first time we may have the technical capacity to free mankind from the scourge of hunger. Therefore, today we must proclaim a bold objective--that within a decade no child will go to bed hungry, that no family will fear for its next day's bread, and that no human being's future and capacities will be stunted by malnutrition."

One decade later, the ongoing drought and famine in Ethiopia, Chad, Mozambique and other African countries cruelly portray the failure of that promise. Each year, millions of dollars worth of aid, much of …

Judicial Review Of Agency Deregulation: Alternatives And Problems For The Courts, James T. O'Reilly

Vanderbilt Law Review

This Article takes a preliminary look at how deregulation has fared in the courts and at the significance of the evolving federal appellate and United States Supreme Court case law for future agency rule making decisions.

Part II of this Article examines the various categories of regulation and the aspects of each category that may be subject to deregulation.

Part III defines deregulation and explores some of the reasons why an agency may wish to deregulate. Part IV examines the utility of judicial oversight of deregulation, and part V then discusses the mechanics of deregulation, focusing on the various means …