Administrative Law Prof Blog

Mashaw on Admin Law in the 19th Century

New on SSRN: "Federal Administration and Administrative Law in the Gilded Age" by Jerry Louis Mashaw (Yale). Abstract:    

This article has a simple message. The standard history of the development of American Administrative Law is at best partial and in many respects incorrect. The national government of the United States was an administrative government from the very beginning of the Republic. Moreover, that administrative government then, as now, was both constituted and constrained by law. In short, America had a federal administrative law long before that field of law was either recognized or named.

In order to see administrative law in an era that mostly denies its existence, my inquiry is structured around three very general issues of governmental organization. Following the lead of Frank Goodnow, I see administrative officers as operating within three overlapping accountability regimes: political accountability to elected officials; hierarchical or managerial accountability to administrative superiors; and legal accountability to individuals and firms through judicial review. The distinctive characteristics of administration and administrative law in particular periods depend upon the relative importance of these regimes in structuring and checking administrative discretion and the particular mechanisms that political, administrative and legal actors deploy. Both the forms of and the balance among regimes shift over time. Indeed, it is the distinctive form and balance among these accountability regimes in the organization of 19th century national administration that has made administrative law invisible. But in every era there is a law of administration. To ignore that “administrative law” prior to the Interstate Commerce Act, in what I now tend to think of as “the lost 100 years of American administrative law,” is to ignore much of how American administrative institutions have been built, maintained and constrained. And, in my view, it is to ignore the incremental and pragmatic processes by which American public law usually develops.

This article treats the Gilded Age incarnation of each of these three accountability regimes in turn. It first describes developments in the political control of administration in Post-Bellum America and the emergence of the “apolitical” civil service ideal, partially embodied in the Pendleton Act of 1883. As in all periods of American history, political control of administration in this period features both organizational changes in the political branches and the continuing struggle between presidents and congresses for dominance. The defining feature of this era might be said to be the migration of the provision of secure tenure in office from a congressional strategy to weaken presidential control over high-level administrators to an institutionalized protection for lower level officials that, in practical effect, constrained congressional power.

The article next looks at developments in judicial review. Prior to 1860 judicial review of administrative action by federal courts had, to modern eyes, a peculiar structure. Review by mandamus or injunction was extremely limited and statutes providing for appeals to federal courts from administrative decisions were virtually non-existent. On the other hand, officers sued as individuals for damages were in effect subjected to de novo review for any error of law or fact. In the post-Bellum world this structure began to weaken, but it would take many years to morph into the almost directly contradictory structure that we know today

Finally, the article depicts the processes and structures of managerial or bureaucratic accountability. This is where 19th century administrative law mostly developed. In many ways the second half of the nineteenth century might be called an age of administrative adjudication. While we now think of mass administrative adjudication as an artifact of the mid-twentieth century welfare state, these practices in fact have a much longer history. Tens of thousands of claims were adjudicated, not just by the Court of Claims in suits against the United States, but also by the United States Patent Office, the Revenue and Accounting Officers in the Treasury’s Division of the Controller, the district and general land offices of the Department of the Interior and the Bureau of Pensions. Notwithstanding the relatively casual attention to administrative procedure in both Congress and the courts, those charged with adjudicating these claims developed highly structured and often quite formal processes of decisionmaking. As we shall see, these processes were not entirely free from congressional or judicial oversight, but important substantive, and virtually all procedural, norms for administrative adjudication were constructed by the agencies themselves.

Moreover, the normative structure of that law, unlike the late 19th century external law of judicial review, is deeply familiar to contemporary administrative lawyers. With scant direction from Congress, and none from the courts, agencies built systems of adjudication that featured transparent procedures and precedents, internal separation of functions, professionalization of adjudicatory personnel, safeguards against personal and political bias and robust opportunities for documentary or oral hearings. From this perspective we might understand the so-called “rights revolution” of the 1960s and 1970s, in part, as a consolidation in constitutional doctrine of administrative practices that represent a continuous, but seldom acknowledged, administrative law tradition.

Highly recommended by Larry Solum. EMM

Review of legislative vice administrative actions

Whether an action was "administrative" or "legislative" frequently determines the standard of review. Patty Salkin (Albany), on her Law of the Land blog, describes a case on the point in "Arkansas Supreme Court Holds City Council Zoning Decisions Not Subject to De Novo Review":

At issue was whether a city council’s decision to deny the plaintiff’s rezoning request was subject to review under section 14-56-425 of the Arkansas Code. Under this section, final municipal planning decisions, including decisions regarding land use and zoning, that are made by administrative and quasi-judicial agencies of local governments may be appealed to the circuit court and “tried de novo according to the same procedure which applies to the appeal in civil actions from decisions of inferior courts, including the right of trial by jury.” ... If, however, the city council’s decision was legislative, then the decision may only be reviewed by a court to determine if the decision was arbitrary, capricious, or unreasonable.

After reviewing its precedent, the Court concluded that a city council decision to approve or reject a zoning request was legislative because local governments were given the discretion to make zoning decisions by the General Assembly, and as such, the exercise of that discretion is legislative in nature.

Where elected officials have discretion to make decisions, courts will defer to them unless the decisions are really, really stupid. The "arbitrary and capricious" standard is difficult for a challenger to meet, like gross negligence. If a challenge cannot meet this standard, the only remedy is political. EMM

Please read

this post by Lawrence Friedman (Barnes/Richardson, Chicago) on his Customs Law blog. He is sooooo on point.

Those of us who have seen the bureaucracy close up and personal know that almost all the working level folks (a) are just trying to do their jobs as they see them, (b) think their jobs and the missions of their departments are really important, (c) are as divided in their opinions on high level policies as the rest of us, and (d) are human beings with all the gifts and limitations that entails. But almost all of them, almost all the time, try to keep their own feelings from interfering with what they are told the law requires them to do.

Sometimes they are wrong. Sometimes they let their dedication to their own missions get in the way of other important values. Sometimes left and right hands go in completely different directions in blissful ignorance of each other. Sometimes they focus on short-term goals at the expense of long-term goals, and vice versa. Sometimes they are too busy to think, under-staffed, or under-resourced. Never attribute to malice that which can be adequately explained by stupidity. At some level.

Almost always they mean well. However, whether advising civil servants from within or representing regulated parties from without, one of the key functions of the administrative lawyer is to recognize that the road to hell is paved with good intentions. But the fact that this can be an adversarial process does not mean it must be a hostile process. EMM

Burden of proof in administrative matters

Usually the burden of proof in administrative matters rests on the person challenging the government action. The whole concept of judicial review is on shaky enough ground without the courts getting in the face of the other branches. However, when the legislature creates administrative rights it can shift that burden to the government. Freedom of information statutes often direct the government to justify an exception to public access. Steven M. Silverberg (Silverberg Zalantis LLP, Tarrytown, NY) discusses a recent case on his firm's New York Zoning and Municipal Law Blog, "Court of Appeals Upholds Release of Documents Under FOIL Despite Claim of Exemption":

The New York Court of Appeals upheld the decision of the Appellate Division requiring release of documents by the Empire State Development Corporation (ESDC), despite a claim by ESDC that the documents are exempt from disclosure under the Freedom of Information Law (FOIL). In a rebuke to procedures followed by ESDC, in the Matter of West Harlem Business Group v. Empire State Development Corporation [2009 NY Slip Op 09268, Dec. 15, 2009], the court found that the ESDC had failed to follow the statutory requirements in responding to the FOIL requests of a group that was seeking information about the proposed condemnation of property in West Harlem.

Initially, ESDC refused to release the documents requested. On administrative appeal the ESDC merely repeated the general denial without particularizing the basis for the denial. Once the action was commenced ESDC claimed various exemptions for different categories of documents but, the court found, again failed to specify which documents fell into each category of exemption. Therefore, the Supreme Court ordered an in camera review of the documents, labeled the documents according to its analysis of the documents and ultimately ordered their release.

The Appellate Division affirmed the lower court ruling. On appeal to the Court of Appeals, the ESDC argued, among other things, that the Supreme Court had placed documents in the wrong categories. The court held:

"In response to Supreme Court's order to produce the documents for inspection, ESDC failed to submit the documentation in any semblance of order, but rather proffered the documents with the blanket caveat that they were either nonresponsive to the FOIL request, constituted intra- or inter-agency material, or had already been disclosed. None of the affidavits submitted by ESDC employees sufficiently identified the particular exemption to which the submitted records were subject, leaving that task to Supreme Court. ESDC cannot now be heard to complain that Supreme Court improperly labeled the documents in the manner it did, as it is not the function of Supreme Court to apply the exemptions for the agency. Since ESDC failed to meet its burden of proof relative to the exemptions, Supreme Court properly ordered disclosure of the documents."

EMM
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How much process is due?

The Supreme Court has “described ‘the root requirement’ of the Due Process Clause as being ‘that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971))[.]

Rosa v. CUNY, 306 Fed.Appx. 655, 2009 WL 76504, 243 Ed. Law Rep. 23 (2d Cir. Jan. 13, 2009). However, sometimes a pre-deprivation hearing is not required. When? When it's a waste of time and resources. For example, Harvey Randall on his New York Public Personnel Law blog (with help from the Adjunct Law Prof Blog) discusses one such circumstance in "Pre-deprivation hearing not required where plaintiff convicted of a felony":

If a jury finds a person guilty beyond a reasonable doubt of a crime, the disciplinary hearing officer, arbitrator or panel need hear no other evidence to render a verdict of guilty regarding a parallel charge in an administrative disciplinary proceeding.

As the Rosa court says,

[T]hat conviction (1) “‘demonstrate[s] that the [deprivation] is not arbitrary’” and (2) “serve[s] to assure that the . . . employer’s decision . . . is not ‘baseless or unwarranted.’” Gilbert v. Homar, 520 U.S. 924, 933 (1997).

Mr. Randall further explains that

[T]he “beyond a reasonable doubt” requirement of the criminal action satisfies a higher standard than is required to be met to establish guilt in an administrative disciplinary forum, i.e. the less rigorous standard of substantial evidence or even less demanding “preponderance of the evidence” standard.

On the other hand, a finding of “not guilty” in a criminal proceeding does not prevent the appointing authority’s proceeding with an administrative disciplinary hearing. A person can be found not guilty beyond a reasonable doubt in a criminal action and still found guilty under the standard of substantial evidence or preponderance of the evidence in an administrative disciplinary proceeding involving the same allegations advanced in the criminal action.

EMM

No harm, no foul?

To get a mulligan - a do-over - in an administrative matter, it is not enough to show that the government failed to follow its own rules. You have to show that you've been harmed and that the error caused your harm. On her Law of the Land blog, Patty Salkin (Albany) reviews a Connecticut case where the error didn't  cause enough harm. "Alternate Board Members Who Are Not Needed to Serve May Not Participate in Deliberations in a Manner that Profoundly Effects Vote":

Following the denial of a variance application by the zoning board, the plaintiff raised objections including the fact that an alternate member of the board, whose service as a board member was not needed, attended the hearing and participated in the board’s deliberations, violated the state statute that discusses membership on the board and the role of alternates.  In agreeing with the Plaintiff, the trial court examined Conn. Gen. Stat. 8-5, which, they said, allows for the seating of alternate board members only when a regular board member is absent. ... Connecticut case law also requires an inquiry, where an unseated alternate did participate in the deliberations, whether that alternate’s views had a profound effect on those deliberations. In this case, although the alternate member participated in the deliberations, the Court concluded that overall, her comments “do not appear to echo a sentiment that was inconsistent with the sentiments raised by other board members.”  Therefore, the Court said that the alternate’s participation did not have a “profound” effect upon the voting members, and that therefore the decision was made by the five voting board members, exclusive of her.

There are exceptions, usually where the rule violation infringes on due process just too much to allow (e.g., First Amendment cases). Furthermore, the standard of causation and level of harm required for relief varies from subject to subject and jurisdiction to jurisdiction. YMMV. EMM

New administrative law articles

From the University of Washington's Current Index to Legal Periodicals:

• Lens, Vicki. Confronting government after welfare reform: moralists, reformers, and narratives of (ir)responsibility at administrative fair hearings. 43 Law & Soc'y Rev. 563-592 (2009). [H]|[L]|[W]
• Omarova, Saule T. The quiet metamorphosis: how derivatives changed the "business of banking." 63 U. Miami L. Rev. 1041-1109 (2009). [H]|[L]|[W]
• Watts, Kathryn A. Proposing a place for politics in arbitrary and capricious review. 119 Yale L.J. 2-85 (2009). [H]|[L]|[W]

EMM

Rulemaking: Email campaigns

Stuart W. Shulman (Dept. of Pol. Sci., UMass Amherst) has published "The Case Against Mass E-mails: Perverse Incentives and Low Quality Public Participation in U.S. Federal Rulemaking" in Policy & Internet. Abstract:

Large-scale e-mail campaigns are a staple in the modern environmental movement. Interest groups increasingly use online mobilizations as a way to raise awareness, money, and membership. There are legitimate political, economic, and organizational reasons for doing so, but these gains may come at the expense of a more substantial and efficacious role for citizens who wish to use e-mail to engage in public participation. This paper situates a close examination of the 1000 longest modified MoveOn.org-generated e-mails sent to the Environmental Protection Agency (EPA) about its 2004 mercury rulemaking, in the broader context of online grassroots lobbying. The findings indicate that only a tiny portion of these public comments constitute potentially relevant new information for the EPA to consider. The vast majority of MoveOn comments are either exact duplicates of a two-sentence form letter, or they are variants of a small number of broad claims about the inadequacy of the proposed rule. This paper argues that norms, rules, and tools will emerge to deal with the burden imposed by these communications. More broadly, it raises doubts about the notion that online public participation is a harbinger of a more deliberative and democratic era.

EMM

Warning clients about changes in rules

Part of the job of a lawyer in administrative law is keeping clients out of trouble by keeping them informed of changes in laws and regulations that might have an impact on them. An example is identified by Matthew B. Eugster (Varnum LLP, Grand Rapids, Michigan) in "Greenhouse Gas Reporting Requirements Impact Commercial, Industrial Buildings".

Commercial and institutional buildings - including hospitals, universities, and large office buildings - could be affected by new greenhouse gas reporting requirements recently announced by the U.S. EPA. The new regulations call for subject facilities to begin monitoring their GHG emissions beginning on January 1, 2010, and file their first annual reports by March 31, 2011.

This means the affected facilities must start measuring greenhouse gas emissions beginning 15 working days from today, December 9, 2009. Yikes!

For those who are skeptical that the EPA can enforce these reporting requirements as a practical matter - that the EPA will not know who is required to report and therefore the requirement can be blown off - note that the regulations use heat generation as a surrogate for determining who must report. It is easy for an overhead (atmospheric or orbital) infrared detector to map hot spots, then the EPA can compare locations with ownership and come knocking on the client's door.

Thanks to Lexology for the pointer. EMM

Agencies are required to follow their own rules

On his New York Public Personnel Law blog, Harvey Randall reviews a recent New York Appellate Division opinion in "Administrative agency required to comply with its own administrative rules of procedure":

In this action, said the Appellate Division, the sole issue presented is whether the agency complied with its own internal procedures. In such cases the appropriate standard of review is whether the determination was "made in violation of lawful procedure."

Further, it is a "fundamental administrative law principle that an agency's rules and regulations promulgated pursuant to statutory authority are binding upon it as well as the individuals affected by the rule or regulation." Accordingly, an administrative agency’s determination must be vacated when it failed to comply with either a mandatory provision, or a provision that was "intended to be strictly enforced."

Finding that a number of procedural errors were made in Blaize’s rating and the subsequent rating appeals process, the Appellate Division concluded that the initial determination was rendered "in violation of lawful procedure”...

EMM

Who decides the facts?

The general rule is that the hearing officer in an administrative matter (aka a contested matter) evaluates the facts and makes a recommendation to the deciding official. Together, these two are entitled to the respect due the trial judge in conventional civil actions. When an administrative matter is appealed to the trial court level, that judge sits in appellate review and does not revisit the evidence except to make sure the decision is supported by some evidence. A recent Arizona Court of Appeals opinion, Richard E. Lambert, Ltd. v. City of Tucson, No. 2 CA-CV 2009-0022 (Dec. 4, 2009), addresses this issue (citations and internal quotation marks omitted).

¶2 We view the facts in the light most favorable to upholding the administrative decision of the City Procurement Director. REL [Appellee Richard E. Lambert, Ltd.] contracted with the City of Tucson to improve the city-owned Northwest Mansfield Park Neighborhood Center. Under the terms of the contract, REL was to improve a gymnasium building and add irrigation and landscaping to the sports fields surrounding the center. The contract required REL to begin work by January 5, 2004, and to work "promptly, regularly, diligently and uninterruptedly at such rate of progress as will insure full completion thereof within the time specified."  The contract further provided:  "If the Contractor is delayed on any portion of the Work for any reason whatsoever, he shall expeditiously proceed on other Portions of the Work which are not affected by such delay."  After numerous extensions, REL was required to substantially complete the project by February 3, 2005.

¶3 REL completed the project on December 19, 2005, 319 days after the agreed upon completion date. Pursuant to the terms of the contract, the City then assessed REL $500 per day in liquidated damages and retained the final $108,305.95 due on the project. REL appealed that decision ...

¶5 REL filed a special action in superior court, challenging the Director of Procurement's decision, relying upon a term of the contract granting REL a time extension in the event of "unforeseeable causes beyond the control and without the fault or negligence of the Contractor" ... The superior court granted REL's motion in part, concluding that the Procurement Director's factual findings were arbitrary, capricious, and unsupported by the facts, reduced the liquidated damages to $13,500 and awarded REL its attorney fees. The City appeals from this decision. ...

¶9 When reviewing an administrative decision,  the superior court must determine whether the administrative officer's determination was arbitrary and capricious or an abuse of discretion. In determining whether an administrative decision is arbitrary or capricious, the superior court may not weigh the evidence on which the decision was based and must affirm if the decision is supported by substantial evidence. And the superior court errs when it substitutes its own judgment for that of the administrative officer.

¶10 Like the superior court, this court also determines whether the record contains any evidence to support the administrative decision. We do not re-weigh the evidence; we merely determine if substantial evidence exists to support the administrative officer’s conclusions. In determining whether substantial evidence exists, it is necessary to determine whether the [administrative] decision sought to be reviewed is without any evidence to support it, or is absolutely contrary to uncontradicted and unconflicting evidence upon which it purports to rest. ...

¶13 According to the general law of governmental contracts, REL also had the burden of proving that the excusable event caused a delay to the overall completion of the contract. An excusable delay affects the overall completion of a project when it affects the project’s critical path. Nevertheless, [a]n interruption in one phase of the work ... does not always result in an increase in the time necessary for total performance or overall completion.

¶14 The Procurement Director concluded that REL's performance had been delayed, in part, by (1) problems involving the relocation of a valley gutter used in the project, (2) a delay in establishing permanent power at the project work site, and (3) an arson fire that occurred approximately two months after the project was due to be completed. But the Director further concluded that the overall completion of the work had not been delayed by these events, but rather by inadequate staffing and supervision by REL's landscaping subcontractor and other causes that were within REL's control.

The Court of Appeals reviewed each of the asserted causes of delay and found substantial evidence supporting the Procurement Officer's decision, because none of these episodes was the cause of the delay in the completion of the project as a whole. If REL had kept up with all of its other tasks, there would have been no unexcused delay.

We do not have the Superior Court's rationale to compare. If the Superior Court judge prepared a written opinion, I can probably get a copy if anyone asks. Email me directly. EMM

New administrative law articles

From the University of Washington's Current Index to Legal Periodicals:

• Buzbee, William W. Preemption hard look review, regulatory interaction, and the quest for stewardship and intergenerational equity. 77 Geo. Wash. L. Rev. 1521-1581 (2009). [H]|[L]|[W]
• Forgang, Jonathan D. Note. "The right of the people": the NSA, the FISA Amendments Act of 2008, and foreign intelligence surveillance of Americans overseas. 78 Fordham L. Rev. 217-266 (2009). [H]|[L]|[W]
• Hering, Christopher L. Note. Flushing the Fourth Amendment down the toilet: how community urinalysis threatens individual privacy. 51 Ariz. L. Rev. 741-776 (2009). [H]|[L]|[W]
• Kirby, Nicholas J. Case note. Seisinger v. Siebel: separation of powers and expert witness qualifications. (Seisinger v. Siebel, 203 P.3d 483, 2009.) 51 Ariz. L. Rev. 805-816 (2009). [H]|[L]|[W]
  
• Moores, Eric. Note. Reforming the Civil Asset Forfeiture Reform Act. 51 Ariz. L. Rev. 777-803 (2009). [H]|[L]|[W]
• Packer, George. The J. Byron McCormick Lecture. The new liberalism. 51 Ariz. L. Rev. 543-557 (2009). [H]|[L]|[W]
• Perspectives on the New Regulatory Era. Articles by Barak Y. Orbach, Rebecca M. Bratspies, Herbert Hovenkamp, Christine A. Klein, Mario J. Rizzo and Douglas Glen Whitman. 51 Ariz. L. Rev. 559-739 (2009). [H]|[L]|[W]
  • Orbach, Barak Y. The new regulatory era--an introduction. 51 Ariz. L. Rev. 559-573 (2009). [H]|[L]|[W]
  • Bratspies, Rebecca M. Regulatory trust. 51 Ariz. L. Rev. 575-631 (2009). [H]|[L]|[W]
  • Hovenkamp, Herbert. The Coase Theorem and Arthur Cecil Pigou. 51 Ariz. L. Rev. 633-649 (2009). [H]|[L]|[W]
  • Klein, Christine A. The environmental deficit: applying lessons from the economic recession. 51 Ariz. L. Rev. 651-684 (2009). [H]|[L]|[W]
  • Rizzo, Mario J. and Douglas Glen Whitman. Little brother is watching you: new paternalism on the slippery slopes. 51 Ariz. L. Rev. 684-739 (2009). [H]|[L]|[W]
• Terry, Jennifer Wheeler. Survey of Indiana administrative law. 42 Ind. L. Rev. 789-812 (2009). [H]|[L]|[W]
• Trebbe, Shannon E. Case note. Cain v. Horne: school choice for whom? (Cain v. Horne, 202 P.3d 1178, 2009.) 51 Ariz. L. Rev. 817-828 (2009). [H]|[L]|[W]

EMM

Conflicts among regulations

Rebecca J. Huss (Valparaiso) has posted "Why Context Matters: Defining Service Animals Under Federal Law" on SSRN. Abstract:    

This Article analyzes the differing definitions of service animal under federal law as interpreted by three separate agencies. The regulations and case law interpreting the issue under the Americans with Disabilities Act, the Fair Housing Act and the Air Carrier Access Act illustrate the need for further clarification in order to ensure that individuals with disabilities are granted the full protection of the law.

And the introduction:

Twenty million families in the United  States include at least one individual who has a disability. The percentage of the population in the United States reporting some level of disability has increased to almost nineteen percent. The number of persons using service animals to assist with disabilities appears to be growing. Unfortunately, due to lack of clarity in this area of the law, persons with disabilities continue to have difficulties as they attempt to live their daily lives accompanied by their service animals.

The Americans with Disabilities Act (ADA) is a comprehensive civil rights law that prohibits discrimination on the basis of disability. Among other issues, the ADA provides that individuals with disabilities must be granted access to places of public accommodation. In June of 2008, the Department of Justice (DOJ) proposed new regulations implementing the ADA. Included in the proposed regulations was language impacting whether an animal being used to assist a person with a disability must be allowed in public accommodations. This rulemaking process illustrated the significant issues surrounding the use of service animals in our communities. Central in many disputes in this area is the problem of disparate definitions of service animals under various laws.

The Article begins with a brief history of service animals.  The various ways that humans’ benefit from service animals is discussed, along with a consideration of some of the ethical issues surrounding the use of service animals. It continues with an analysis of the proposed changes to the ADA rules and selected case law that illustrates the need for clarification in this area of the law. As there has been considerable activity relating to service animals under the Fair Housing Amendments Act (FHA), the next part will consider the issue under that law. The Article then evaluates the way service animals are handled under the Air Carrier Access Act (ACAA) because of recent regulatory activity interpreting that law. There is then a short section discussing how various state laws may expand the definition of service animal. The Article concludes by arguing that there are rational reasons to have an expansive definition of service animal under the ADA and, in the alternative, if there is a restrictive definition under the ADA, the broader protections under the FHA  and ACAA should remain in place.

EMM

Policy: Public participation and transparency

William Funk (Lewis & Clark) has posted "Public Participation and Transparency in Administrative Law - Three Examples as an Object Lesson" on SSRN. Abstract:    

This Article, written for a forum on comparative administrative law, reviews the development of public participation and transparency in American administrative law in general and then examines three specific laws that attempted to increase transparency and public participation - the Federal Advisory Committee Act (FACA), the Government in the Sunshine Act (Sunshine Act), and the Negotiated Rulemaking Act (NRA). These laws, however, are largely viewed as failures, or at least deeply ineffective, in achieving their goals. In examining these laws, this Article attempts to discern why they failed and suggests that the reasons for their failure are not of a nature that can be easily cured by amendment, but rather reflect significant structural impediments to increasing transparency and public participation through such mechanisms. In this way, this Article may provide guidance to EU lawmakers in attempting to craft mechanisms that can effectively facilitate public participation and transparency in EU agency decisionmaking.

EMM

Standing in a probabilistic world

Bradford C. Mank (Cincinnati) has posted "Summers v. Earth Island Institute Rejects Probabilistic Standing, But a 'Realistic Threat' of Harm is a Better Standing Test" on SSRN. Abstract:    

In Summers v. Earth Island Institute, the Supreme Court recently rejected Justice Breyer’s dissenting opinion’s proposed test for organizational standing based upon the statistical probability that some of an organization’s members will likely be harmed in the near future by a defendant’s allegedly illegal actions. Implicitly, however, the Court had recognized some form of probabilistic standing in Friends of the Earth v. Laidlaw, which found standing where plaintiffs avoid recreational activities because of “reasonable concerns” about future health injuries from pollution; Summers did not overrule Laidlaw. There is an inherent tension between the Summers and Laidlaw decisions. This Article applies the Summers and Laidlaw frameworks to the facts in Natural Resources Defense Council v. EPA (NRDC II), where the D.C. Circuit found standing because the government’s exemption from regulation of certain uses of methyl bromide, an ozone destroying chemical, would causes 2 to 4 lifetime skin cancer cases among the NRDC’s members. Both Summers and Laidlaw produce questionable results when applied to NRDC II’s facts.

The “realistic threat” test in Justice Breyer’s dissenting opinion in Summers offers a better approach to standing than either Summers’ unrealistic demand that plaintiffs precisely predict the future or Laidlaw’s focus on whether a plaintiff avoided recreational activities rather than whether the defendant’s activities caused actual harm. There was a more realistic threat of harm in Summers than Laidlaw, but the Court found standing in the latter case but not the former case. The Court’s current approach to standing for organizational plaintiffs and probabilistic risks is seriously flawed and the realistic threat test offers a more rational approach to assess which injuries are sufficiently serious for standing in Article III federal courts. Furthermore, a realistic threat test for standing is more consistent with congressional intent in enacting several citizen suit statutes that are involved in the vast majority of cases in which constitutional standing is at issue. In light of NRDC II, the Court should abandon both the Summers and Laidlaw approaches to standing and instead adopt Justice Breyer’s proposed “realistic threat” test to achieve reach more equitable and uniform standing determinations.

EMM

Deference - what motivates judges?

William N. Eskridge Jr. (Yale) and Connor Raso (Stanford) have posted "Chevron as a Canon, not a Precedent: An Empirical Test of what Motivates Judges in Agency Deference Cases" on SSRN. Abstract:    

Legal scholars almost universally believe that federal judges defer to agency interpretations of statutes. The debate has therefore focused on when judges should defer and how judges should operationalize a deference regime doctrinally. Such normative debates about deference rest upon factual assumptions that have not been rigorously tested; drawing from the entire population of Supreme Court cases (1984-2006) our empirical finds that Supreme Court Justices do not generally afford deference precedents stare decisis effect, but that the policies underlying the major deference regimes do have bite at the Supreme Court level. We also find that judicial ideology affects the Justices’ applications of deference regimes but does not explain why different Justices prefer different doctrinal formulations; we advance the hypothesis that the Justices’ expressed preferences are genuine, but do not dominate ideology and other context based factors in actual cases. Deference regimes are more like canons of statutory construction, applied episodically but reflecting deeper judicial commitments, than binding precedents, pretty faithfully applied or distinguished. Our study suggests that most academic proposals to “reform” deference doctrines would have little or no bite at the Supreme Court level; more modest proposals to clarify such doctrines would probably be (modestly) helpful, however.

EMM

Background: Agency Statutory Interpretation and the Rule of Common Law

Recently posted to SSRN: "Agency Statutory Interpretation and the Rule of Common Law" by Noga Morag-Levine (Michigan State). Abstract:    

American administrative theory and law have long treated as an axiom the notion that agencies are subordinate to the statutes that govern their mandates, and that statutory interpretation is central to the implementation of these mandates. And yet, as recent discussions among administrative law scholars have made evident, statutory interpretation is frequently a poor descriptor of administrative practices that more closely resemble direct policy making. This article argues that the explanation for this dissonance is to be found in the process through which British and later American administrative law came to construct the mandate of agencies through the language of statutory interpretation. Central to this process were long-standing divisions in England over the compatibility of continental-styled royal law-making prerogative with British constitutional principles. The victory of Parliament and the common lawyers at the end of the 17th century formally deprived the executive of prerogative authority in domestic matters, subordinating instead the scope of executive regulatory authority to the terms of statutory mandates. But this formula soon served to disguise unresolved disagreements on whether and when administrators were entitled to make, rather than strictly interpret law. Following England’s lead, the American administrative state evolved over the course of the 19th century through protracted conflict over the legitimacy of continental administrative paradigms and the supremacy of common law principles. I argue that as was the case in England, the view of agencies as interpreters of statutory mandates offered a workable compromise between those who viewed administrative power as incompatible with common law constitutionalism and those who argued for the necessity and legitimacy of agency autonomy in the modern administrative state. The compromise proved resilient largely due to the ambiguous scope of the pertinent interpretive mandate and the broad range of administrative activities that could arguably fit under its expansive umbrella. In the process, longstanding divisions over executive lawmaking were recast as administrative law debates over the degree of deference to be accorded to agency interpretation. The relevance of the historical conflict over prerogative lawmaking to contemporary controversies regarding the nature of administrative power has largely receded from view. On occasion, however, unresolved tensions at the core of the compromise resurface, as in the recent disagreement between Professor Mashaw and Pierce over the existence of a distinct agency policymaking authority. The core values at stake in current discussions of agency statutory interpretation become easier to recognize when viewed in the context of deep-seated historical disagreement over the legitimacy of executive law making within the common law world.

Emphasis mine. EMM

Five New Office of Legal Counsel Opinions

John Elwood has posted "Five New OLC Opinions" on The Volokh Conspiracy.

On the day before Thanksgiving, the Office of Legal Counsel posted five new opinions on its website that had been signed between one day (!) and eleven weeks earlier. This is further evidence that the Office is putting a premium on publishing its opinions roughly contemporaneous with their signing; that can be quite an administrative chore, and the Office has clearly expedited the process.

The opinions represent a good cross-section of bread-and-butter OLC issues: whether the Administration’s proposal to register credit-rating agencies is consistent with the First Amendment; whether the Federal Coordinator for the Alaska Natural Gas Transportation Projects is subject to at-will removal by the President; whether the Inspector General of the now-defunct Federal Housing Finance Board automatically became IG of the successor entity (the Federal Home Finance Agency) under the statute that created it; whether an enhanced criminal sentence for possession of a semiautomatic assault weapon in furtherance of a crime of violence or drug trafficking crime had “sunsetted”; and whether a statute that prohibits “provid[ing]” public funds to ACORN prohibits payments under pre-existing contracts or just future obligations.

Post includes links to the opinions and discussion of the ACORN issue. EMM

A compliance case

A bit on the specific side, but useful in discussing regulatory compliance. Lawrence Friedman (Barnes/Richardson, Chicago) has posted "Gibson Guitars Raided Under Lacey Act" on his Customs Law blog:

According to news reports, the Gibson Guitar company has been raided by federal agents of the Fish and Wildlife Service enforcing the Lacey Act amendments. The underlying investigation appears to be focused on imports of rosewood from Madagascar. Under the Lacey Act, importers of many products that are or include plant materials are required complete a declaration identifing the botanical genus and species being imported and to certify that the plant materials were harvested and exported legally.

Mr. Friedman's post has links to news reports, GIbson Guitar, and the USDA Lacey Act site. EMM

New administrative law articles

From the University of Washington's Current Index to Legal Periodicals:

• Carroll, Sean M. Recent development. Main dish with a side of voluntary commitments: Dish Network-DIRECTV revisited. 61 Admin. L. Rev. 661-673 (2009). [H]|[L]|[W]
• Cudahy, Hon. Richard D. The coming demise of deregulation II. 61 Admin. L. Rev. 543-556 (2009). [H]|[L]|[W]
• Davidoff, Steven M. and David Zaring. Regulation by deal: the government's response to the financial crisis. 61 Admin. L. Rev. 463-541 (2009). [H]|[L]|[W]
• Fitzpatrick, Thomas J., IV and Chris Sagers. Faith-based financial regulation: a primer on oversight of credit rating organizations. 61 Admin. L. Rev. 557-610 (2009). [H]|[L]|[W]
• Kelliher, Joseph T. and Maria Farinella. The changing landscape of federal energy law. 61 Admin. L. Rev. 611-651 (2009). [H]|[L]|[W]
• Lukken, Walt. Keynote address (Symposium: Energy Law). 61 Admin. L. Rev. 653-660 (2009). [H]|[L]|[W]
• Rabin, Robert L. Territorial claims in the domain of accidental harm: conflicting conceptions of tort preemption. 74 Brook. L. Rev. 987-1009 (2009). [H]|[L]|[W]

EMM